McElhaney on Litigation

Stop Sounding Like a Lawyer


Illustration by John Schmelzer

I stopped in at the Donut Hole on Monday morning for a cup of dark mountain roast, and Nick Wheeler was there talking to Angus.

“How could anyone write something like this?” said Nick.

“ ‘Manifestly, the failure of the respondent timely to reply to petitioner’s written demand for compliance with the terms of the aforesaid agreement requiring delivery of the interface prototype before August 1st was ample justification for the application of the doctrine of anticipatory breach, which operated to free the petitioner to seek and obtain a source for substitute performance.’ ”

“Who is the petitioner?” said Angus.

“Arrowhead Electronics,” said Nick.

“And the respondent?” said Angus.

“Metropolitan Circuitry,” said Nick.

“But what does it mean?” I said.

“I don’t know,” said Nick.

Angus said, “I think it means that when Metropolitan Circuitry ignored Arrowhead’s letter, Arrowhead felt it was OK to hire someone else to make its interface prototype—whatever that is.”

“Who wrote this mys­tery sentence, anyway?” I said.

“That’s what hurts,” said Nick. “It’s an inside job. One of our associates at Randolph and Wheeler did a draft of a brief for a partner, who went berserk when she read it. And she’s right. It’s bad enough that it’s incomprehensible, but it was actually supposed to be persuasive.

“So the question is: Angus, would you be willing to give our new associates a course in effective legal writing? Teach them how to avoid this kind of polysyllabic obfuscation?”

Angus thought for a second, then said, “OK, on condition that …”

“Anything!” said Nick. “Whatever you want.”

“That it won’t be just a writing course,” said Angus, “but a writing and speaking course. After all, lawyers are supposed to be wordsmiths. Whether or not we ever go to court or even write a brief, all of us are pro­fessional writers and speakers. It’s what we do for a living.”

“But aren’t you biting off too much?” said Nick. “Seems to me that the skills involved in good writing and good speaking are so different that you’ll wind up taking far more time than it would take to teach two separate courses. Like they say, ‘Write to the eye and speak to the ear.’ ”

“Not me,” said Angus. “I write to the ear and speak to the eye. When people read what I write, I want them to hear me talking; and when I talk, I want them to see what I’m saying. I think good writing and good speaking are deeply intertwined.”

PROFESSIONALLY OBSCURE

Angus started his first session with a talk before breaking up the class into small workshops. Here are my notes on what he said.

Today, most U.S. lawyers share the disability of having gone to law school. Law school is as much obscure vocabulary training as it is legal reasoning. At its best, law school can teach close thought and precise expression. But too much of the time, it is a reverse Hogwarts (where Harry Potter learned to be a wizard) that secretly implants into its students the power to confuse other people instead of sowing the magic seeds of clarity and simplicity.

The unspoken but central message of law school is if you want to be a lawyer, learn to write like the judges who wrote the opinions in your casebooks. And even worse, learn to talk like a law professor.

Anxious to try on our robes, pointed hats and wands, within days we start mimicking the mediocrity of our mentors. “Hey, I got a date Saturday night,” says one new student. “Oh, yeah,” says the other. “Are you the datee or the dator?”

And our minds become overgrown with words and phrases like egregious, contumacious, manifestly, clear beyond peradventure, vel non, failure of consideration, subsequent remedial measures, voir dire, cause of action and meretricious.

But the sin of law school is not so much that it teaches the traditional language of the law—it has to do that. The real sin is in not teaching us to be bilingual.

So we lard our speech and writing with words and phrases of awkward obscurity that rarely have anything to do with legal precision but that unmistakably say, “This was written—or said—by a lawyer.”

That’s where most of us get stuck for the rest of our professional lives.

The difficulty with legalisms is not just that they are strange and hard to follow. It is not just that they are often put together backward: “What next, if anything, did you do with respect to the operation and control of the motor vehicle in question?”

The problem is that they are hollow, empty words that —even when put together properly—don’t tell a story.

Because we are professional communicators, it is our obligation to be plain and simple. It’s not our readers’ and listeners’ jobs to try to understand us. It’s our job to make certain that everything we write and say commands instant comprehension.

And because we weren’t turned out that way by our law school training, we have to reprogram ourselves if we want to become effective communicators.

So where do you start? You might think that the right way to clear the clutter out of your personal verbal warehouse would be to make a list of the words that you swear you will never use again.

But the difficulty is that every word in your vocabulary has its own set of habits that brings it out when your subconscious thinks it might fit the situation. You can’t just roam through your mind pushing the delete button every time you find oddities such as “indicate for the benefit of the jury” and “failed to elicit a satisfactory response.” It won’t work.

When you test your case against the rules that might apply to it, you pour the facts into the legal box to see how they fit. Of course, the tops and bottoms and slats and sides and the corner reinforcements of every box are made out of legal jargon. Squeeze your case into the legal box, and it will hand you the list of words it expects you to use.

But you don’t need to do that, even when writing a brief. If you concentrate on the human story instead of the legal box, the story will pick the right words for you.

Why? It’s easier to play a different game that’s governed by different rules than it is to change all the rules in the game you’re playing.

LET THE STORY BE YOUR GUIDE

The first step in becoming a good writer and speaker is to concentrate on the story. Let the story—not the legal theory—pick the words.

That’s when one of the students asked whether Angus’ story theory—as she put it—could possibly work in a legal argument like the Arrowhead case.

“I’m glad you asked,” he said, “because it’s a chance to compare the power of facts with the power of legal buzzwords. I’ll just add a few details of the sort you would know if you were actually in on the case.

“Arrowhead Electronics had come up with a brilliant new idea for linking computers together without anything except a simple cable. No modems, no fancy switches, no tangle of wires. Arrowhead had invented what eventually became the network interface card that lets computers talk directly to one another.

“But the problem was, Arrowhead couldn’t make the first model of its own invention. The company had it all on paper, but its people couldn’t prove the method would work until they could actually test it.

“So, for $369,000, they hired Metropolitan Circuitry to build the prototype—the first model of Arrowhead’s new interface. And Metropolitan Circuitry promised to get the job done in less than six months—by Aug. 1. But despite an initial payment of $120,000 for three months, Metropolitan did nothing, made no progress.

“Arrowhead was worried. Other companies were rumored to be working on similar projects. Would someone else beat them in the race for a new kind of computer card?

“So Arrowhead’s people called Metropolitan on the phone, but they could never talk to the folks in charge. They left telephone messages with Metropolitan, but Metropolitan didn’t return their calls. They sent e-mail messages to Metropolitan that were ignored. Finally, Arrowhead sent a certified letter to Metropolitan saying it had to have the prototype by Aug. 1 or it would be too late.

“And Metropolitan didn’t answer that letter either.

“That’s when Arrowhead knew it couldn’t count on Metropolitan to do the work its people had already taken $120,000 for and hadn’t even started.” Angus stopped and looked at the class for a minute, and then he said, “I think that’s what’s called an an­ticipatory breach.”


Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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