Posted Apr 08, 2013 08:51 pm CDT
The former big-firm lawyer Mark Herrmann turned his critical eye—along with a scalpel in one hand and an axe in the other—on lawyering and legal writing some years ago, laying out much of it in his 2007 book, The Curmudgeon’s Guide to Practicing Law, which was addressed to law firm associates but offered lessons for the ages.
Since the problems continue, so does Herrmann’s willingness to critique, after having left Jones Day and perched as chief counsel for reinsurance giant Aon. He now hires outside counsel, and he’s put together a stable of firms that do it the way he likes: “No brief arrives at our doorstep until it’s been reviewed by someone who can write,” Herrmann writes at Above the Law.
“I’ve finally plucked ‘big firm mediocre’ out of my life,” he crows.
Occasionally there are a “few strays,” he admits, with cases in “oddball jurisdictions or involving unusual specialties,” and some leftovers from before the more recent fixed-fee deals.
So …”once in a while, I still run into briefs written in the ‘big firm mediocre’ style,” he writes.
It’s the curmudgeon in Herrmann that makes reading him fun as well as instructive, and he adds: “What’s funny is how consistent it is.”
Once again, Herrmann offers a primer to those who might choose to do things well rather than well enough. At the very least, this post is part instruction manual for law firms seeking Aon’s business.
Herrmann offers up concrete examples of the right and wrong ways of doing things. For example, if a brief must showcase a question presented, “big firm mediocre requires that the question be generic and unpersuasive.” In what he calls the “distinct literary genre” of BFM, that might be: “Did the trial court properly grant defendant’s motion for summary judgment?”
That prompts the reader to think, “Maybe yes, maybe no. It all depends on the situation.” And it prompts Herrmann to say it should be presented in more detailed and provocative fashion, so the reader thinks: “Hell, yes! There’s been a real injustice here! I must grant this motion for summary judgment!”
Herrmann fans know that he has a particular distaste for waste and surplusage in legal writing. He howls when seeing that a brief seeking summary judgment not only says it should be reviewed de novo, (“OK so far,” he writes) but then, despite the fact that this part of it isn’t likely to be challenged, provides a bunch of circuit court opinions and trial court opinions supporting it.
“Why, for heaven’s sake?” he writes.