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October 25, 2011

Sensitive Litigation Moment No. 17: Pretend You're Not a Lawyer. Lead. Decide. Recommend. Take a Stand.

jack-kerouac-y-neal-cassady.jpg

Stand-Up Guys: Ernie from Glen Burnie, dead-ringer for 1950s icon Neal Cassady, and WAC founder at Washington, D.C church function.

The great publicly-traded businesses many of us represent take calculated risks every day. Pretend you are not the side-stepping risk-averse lawyer they expect. Give alternatives, push a strategy. If the GC accepts it--and it fails--take responsibility for some of the failure. But do make a decision, recommend something concrete--and take the hit if you are wrong.

So what about sane writing by lawyers? How do you do it?

Below are some suggestions from our firm's Practice Guide on just writing for beginning associates, paralegals and assistants. We first created it twelve years ago. Only 40 pages long, the Guide was required reading but it was intended to be fun to read. It told all employees very specifically how to do the work, and how to think about clients while we were doing it. There is even a "secured" appendix with descriptions of our clients: 90% longstanding, most publicly-traded, and all with General Counsel and in-house lawyers. All employees need to know about them. The pithy and succinct 40-page Guide is very, very "confidential"--and yet we never seem to have enough copies of it.

People steal it. Many of the people who got frustrated and quit our firm, were fired or otherwise learned to truly hate us over the years still love "the Guide".

The Disgruntled, especially, love it and will just take it.

Anyway, none of the parts below on writing is Gospel--lots of lawyers and non-lawyers have good ideas on sane lawyer writing--but do pay particular attention to the Item 8, which merits a bit more ink. When you write, tell a client what it can and should do, as well as what it cannot do. No strong, secure and knowledgeable GC or in-house lawyer likes weenie lawyers (if you are a weenie, please get some professional help):

1. Use short "people" words whenever possible. Like words a trial lawyer might use in addressing a jury. Use short sentences. Be precise but informal. Don't try to sound too much "like a lawyer": "whereupon", "hereinafter," "aforementioned", etc. No one is impressed or enlightened by these terms. No one sane and secure likes it. Just say it.

2. Economize on words. Make every word count. Don't repeat yourself.

3. Be accurate and truthful--yet friendly, personable and optimistic in your writing style. Clients know they have issues and problems. There's no need to further agitate and depress them.

4. There are no perfect or sole answers to 95% of legal issues. So offer a few alternatives, take a position and even break new ground. You need a reasonable and logical position which makes good business sense and provides an affirmative recommendation, plan of action or conclusion. Whatever you do, do not only tell the client what it cannot do under the law. Tell our client what it can do, too.

5. Proofread, proofread, proofread. (NOTE: We have a written policy on proofreading you must actually sign.)

6. Citations of sound authority should be used--but used sparingly. No string cites. Use The [Harvard] Blue Book--A Uniform System of Citation or the much maligned University of Chicago Manual of Legal Citation, "The Maroon Book". The citator is your friend--not your enemy.

7. When you write, get to the point up front and summarize it right away. And then expand on it. Don't make the client, other lawyer or judge guess about what your conclusion will be 5 or 50 pages away.

8. Take a stand. Again, tell the client what you think the client should do. Our client reps are business people or lawyers. A good way to make them mad is to not tell them what you think they should do. If your advice is sound, and followed, but not successful, don't sweat it. Business clients take calculated risks every day--and you can, too. Pretend here you are not the side-stepping risk-averse lawyer they may have trained you to be, and take responsibility for some of the failure. But do make a decision, recommend something concrete--and take the hit if you are wrong.

Posted by Holden Oliver (Kitzb├╝hel Desk) at October 25, 2011 12:59 AM

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