Monday, October 26, 2020

What Should a Lawyer Sound Like? (Hint: Never use four words when three will do.)

No, this is not the set up to another lawyer joke.  And I'm not asking for a friend.  

On my LinkedIn account I recently shared Inc. Magazine's October 1, 2020 article entitled, "Ruth Bader Ginsburg Taught a Law Clerk the Secret to Strong Writing".  Here's the article:

I said in my LinkedIn post that I strongly endorse the less is more method. The if-it-takes-more-than-one-breath test. 

My transformative moments along the path of becoming a better writer who happened to be working in the legal industry came in 1981 from attorney L. David Zube, then director of Broome County Neighborhood Legal Services, and then again in 1986 from Justice James Boomer of the Appellate Division, Fourth Department. 

David Zube taught me to eschew legalese and write plainly, using an crude but memorable excretory metaphor that included a generic jurist to make his point. Still in college but with designs on law school, I thought I ought to sound like a lawyer, if I were writing for a lawyer.  Where I was wrong, it turned out, was in my thinking of what a lawyer ought to sound like.  I've never forgotten that lesson (or its associated visual imagery).  

Justice Boomer taught me and the other newbie confidential law assistants during his this-is-how-you-should-write-your-reports welcome-to-the-court session to write with a purpose and the reader in mind.  Admittedly, in writing those reports to affirm, reverse or modify, I never adhered to Justice Ginsberg's first tip of good writing: Set up constraints.  Thankfully, we had an incredibly proficient typist, Patty.  I was composing memos of law when cutting and pasting literally meant cutting and pasting (or at least scotch taping).

I just finished revising a reply memorandum of law for a federal court action my office is defending.  The court's local rules limit reply memoranda to 10 pages.  Limits force the writer to be selective and succinct: selective of which points or arguments bear mentioning in limited space, and succinct in clearly communicating those points in as few words as necessary.  

Before I became a lawyer--the exact moment of which is still hotly debated--I thought being a lawyer required sounding like a lawyer. The reason for that likely sourced to the thick and heavy "hornbooks" we "1Ls" were forced to lug around. Thankfully, legal writing, like the law, has evolved. One of my law school classmates, now a judge, recently wrote this
There is indeed a consistent thread throughout the law that distinguishes bare allegations from allegations proven by credible evidence, better known as "facts." Allegations, in general, are much easier to make than to prove. Misconduct allegations, in particular, are sometimes the product of an accuser feeling embarrassed or feeling insulted or feeling intimidated by the accused, as opposed to any actual wrongdoing by the accused. Allegations are also at times the product of less than laudable motives, such as secondary gain. Perhaps the most frightful aspect of allegations is their power to destroy. This seems particularly acute today, when so many receive their information from social media, where a keyboard is often wielded as a cudgel. It is a sad reality that in the modern world, all that is required to malign is an agenda, an audience and an accusation. 
Nice, huh?  Well said, Frank.

Subject, predicate, object.  Active voice. The KISS principle for sentence composition.  Simple words (for the most part).  Write for the reader, not yourself.  

James H. Boomer, was born on August 13, 1922. He served during World War II as a Naval Aviator from 1942 to 1946. Justice Boomer graduated from the Syracuse University College of Law, summa cum laude, in 1948 and was admitted to practice that year. He served as this Court's first research assistant from January 1948-July 1949. He became the Corporation Counsel for the City of Rochester in 1949 and served in that capacity until 1961. Thereafter, he practiced law in Rochester until 1970 when he was elected to the Supreme Court in November 1970. He was designated to the Appellate Division, Fourth Department by Governor Hugh Carey in 1982. During his term he served as a Trustee to the Appellate Division Law Library and served as the Chair of the Indigent Criminal Appeals Management Counsel for the Seventh Judicial District. He also served briefly as a temporary judge of the Court of Appeals. Justice Boomer was an avid hiker and mountain climber, scaling Mount Kilamanjaro at the age of 70. He died during a hiking expedition on November 14, 1993.

No wonder the court had him do the this-is-how-you-should-write-your-reports training to each new class of law assistants.  He was awesome AND awe-inspiring.

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