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November 15, 2010

Writing Well: Legal-speak needs to go.

Behold the image of the self-important "I'm-special" lawyer, rocking back and forth in his chair, and talking to himself like a mental patient.

Please help. It's silly and no one's impressed anymore. People are laughing again. Oh, Lawyer-Speak and Legalese. Of the lamer lawyer-centric institutions, only "Professionalism" and "Work-Life Balance" are more embarrassing, abused and irrelevant, and more likely to undermine clients, than the way in which many lawyers continue to speak and write. At least those two prissy battle cries originally had a point. But Legalese never had a point.

A few years ago, another law firm sent us a draft of a simple housekeeping agreement. It was a 3-page confidentiality agreement used during talks for an acquisition.

We responded by submitting our own draft because, among other things, the draft we had received (presumably a "model" they had around their office) contained this language:

"Effective on even date herewith, the parties hereto hereby agree to...".

Whoa. How about just one date at the top or bottom of the Agreement and then say "The parties agree..."? And if the whole thing is an "Agreement", with language showing that the parties intend to be bound, maybe you don't even need that?

Either would save trees, ink and space, and would get the idea of contract across, and out of the way. And either would help diminish the image of the self-important "I'm-special" lawyer rocking back and forth in his chair, and talking to himself like a mental patient.

(from past JDH WAC? posts)

Posted by Holden Oliver (Kitzbühel Desk) at 11:54 PM | Comments (0)

Weak Local Counsel--Another Lawyer-Centric Epidemic?

Weak local counsel (sometimes "terd") esp. Amer. n. 1. a wimpy law firm hired in an unknown or insular jurisdiction or locale for litigation (or other contentious matters) who, after the engagement has begun, instinctively and consistently puts local relationships ahead of the interests of your shared client. 2. Waste of time and money. 3. Encourage to apply for non-profit work.

They are legion, and some of your best friends. They are not bad people. They are often very smart and nice. Others may even call them good lawyers, and invite them to bar functions, family cookouts, church groups and wine-and-cheese parties. Or to more unruly places like Daytona, the Hamptons, or saloons with boozy names like Bullfeathers or the Tune Inn. They are Everywhere, and mostly men. They are in the wrong profession (or practice area). They don't know that yet, may never know, or want to know.

Do replace weak/wimpy local counsel quickly at the first sign of hesitancy to put your client first--even if it's supremely awkward, or involves "old ties". Clients do come first. In an ongoing contentious matter especially, you live and breathe it. Neither you--or your local attorneys--should even have to think very hard about that one.

You can serve a client without hurting relationships between lawyers in or out of their own provinces. One of the advantages of local counsel in litigation is a knowledge of, and rapport with, the locals, and their folkways. But those relationships come second to a mutual client. Anything less is at best "unprofessional" and, at worst, a conflict of interest. The following, from our "Sensitive Litigation Moment"/Federal Courts series, are among the most visited WAC? articles: Is "Professionalism" Just A Lawyer-Centric Ruse?, The Client's Professionalism Rules For Litigation, and "Professionalism Revisited: What About the Client?" (also in San Diego Daily Transcript, April 29, 2005).

Example: Last year our firm quickly engaged for litigation a local counsel in the small branch of a large Midwestern firm for an important out-of-state federal court discovery skirmish. They were two experienced lawyers with fine credentials who focused more on preserving personal relationships with local lawyers in their town than on going to bat for our mutual business client, a very good one at that. It was frustrating--and a bit pathetic--like having a courtly and polite but somewhat inebriated and prissy tennis doubles partner with weights strapped to each of leg, who was either unwilling or unable to go to the net. After informal discussions with adverse (plaintiff's) counsel failed three times, we and the client asked local counsel to file with us an aggressive but clearly needed motion in order to protect the record. Our co-counsel at first balked, and even defended themselves ("well, you know, we have to practice around here..."). It made us feel helpless and, well, angry.

But it was my firm's fault. We "let go" their well-known firm and them as soon as we caught on. We resolved next time to do better research on the ability of local counsel to be aggressive (if we needed it). Not only did our client and we waste time and money on that firm. The firm we canned lost out on the very real prospect of repeat work from that publicly-traded client. The client could have selected the larger firm for future work on its own, or our own boutique firm could have selected it for work with that client or other clients, as we often need strong help throughout the U.S. and in Europe. We love larger firms--when they deliver.

Posted by Holden Oliver (Kitzbühel Desk) at 12:00 AM | Comments (0)