The devil in the details: Avoiding disasters in legal writing

“Flounder, you can’t spend your whole life worrying about your mistakes! You fucked up. You trusted us. Hey, make the best of it.”—“Animal House,” Universal Pictures, 1978

“Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.”—Sir John Dalberg-Acton, 1861

I have always been confident in my writing skills, so I expected to breeze through my legal research and writing classes in law school. I was stunned when my professor graded my first assignment and told me that it was inadequate and must be re-written.

This rebuke reminded me of my first day of high school English when Mr. Jones asked us to write a standard five-paragraph essay. It was a pass/fail assignment, although to call it “pass/fail” implies that some of us students passed when in fact each one of us failed miserably!

Our essays, riddled as they were with comma splices and run-on sentences, were gosh-awful. We prattled on aimlessly about our summers and our interests (if “The A-Team” could be said to be an “interest”) while we enumerated the ways in which Van Halen was superior to Michael Jackson.

In ninth grade, I knew little about how to write as an adult, and I was bound to learn the hard way. Likewise, in law school, I knew nothing about how to write as a lawyer, and it was time to put away my ego and learn—again, the hard way.

I write a large number of legal documents now (more than one per day). Fortunately, once I corrected my lousy first draft in law school, I went on to win the high paper on every other assignment in the course and became a teaching assistant my second and third years, critiquing first-year law students in the same way that I had been criticized. Add this to my writing and editing background, and I’m in a position to notice when bad legal writing crosses my desk.

It crossed my desk today, in the form of a news story. Eric Dubelier and Kate Seikaly, defense lawyers for a Russian firm charged by special prosecutor Robert Mueller, were reprimanded by U.S. District Court Judge Dabney Friedrich. In a blistering lecture, the Trump-appointed judge told the two to “knock it off” because several of their recent filings were “unprofessional, inappropriate, and ineffective.”

This is not only mortifying for these lawyers, but it is malpractice. Because they have so exasperated the judge, they may have to step down from representing their client because the judge is biased against them. This is a catastrophic mistake.

The last straw had come last week, when Dubelier filed a Reply in Support of a Motion to Compel Discovery. (https://www.documentcloud.org/documents/5675655-Reply-in-Support.html .)

In the poorly-written and poorly-reasoned document, Dubelier takes a haughty tone and displays hostility to the Court and to opposing counsel. This is a terrible strategy for obvious reasons, but perhaps the most glaring transgressions are found on the first page, in which Dubelier quotes a 19^th Century Catholic historian as well as Otter from “Animal House.”

Indeed, counsel uses the f-word in a filing before a federal court: “The Special Counsel’s argument is reminiscent of Otter’s famous line, ‘Flounder, you can’t spend your whole life worrying about your mistakes! You f**ked up….’”

This example of bad legal writing is egregious and we’re unlikely to make these particular mistakes. We know better. Still, it’s an effective teaching tool, because it displays the most common mistakes that we make when writing legal documents.

Now that we’re all talking about this incident, let’s use it to identify some common errors as we vow to avoid them.

1) It’s not about you

You may have noticed that lawyers do not call themselves “Dr. _____” even though we have earned a doctoral degree (a law degree is formally known as “doctor of jurisprudence” or “juris doctor”).

While this is mostly due historical oddities from the English common law that I won’t bore you with now, the tradition endures because we are servants. We are officers of the court, bound to uphold its standards and integrity, but we are also representatives of our clients and their best interests.

In short, it’s not about you. Your writing, speech, and demeanor should not be intended to bring attention to you. Instead, its purpose should be to serve your client while upholding the standards of the profession.

In Dubelier’s document, it’s clear that he wants us to know that HE knows who Lord Acton is. (I didn’t know. I had to Google it. He’s the “absolute power corrupts absolutely” guy. What’s worse: Dubelier doesn’t really know, either. He clearly cribbed the quote from WikiQuote, where I found it and identified that Dubelier had copied it from that site, keeping the same incorrect citation.)

Once he proved his superior intellect, he then needed to show that he’s also hip and cool, so he quotes “Animal House.”

Neither quote is necessary, and neither quote helps us understand his argument. Rather than serve his client by making a clear argument, he attempts to show off but manages only to embarrass himself and defeat his filing’s purpose.

If you find yourself using quotes (whether they include foul language or not), you’re almost certainly forgetting that it’s not about you. Good legal writing is clear and does not need to be supported by citing to anything other than legal sources.

Don’t try to look smart. Be smart.

2) Don’t get fancy

Speaking of trying to look smart, lawyers are known for using flowery language and “legalese” to make their writing sound more official and more impressive.

This is a mistake, and it’s closely related to my first point.

When I was a teaching assistant, I warned the first-year students “This is no time to get fancy!” so often that they began teasing me about it, calling it my catch phrase.

It’s good advice, though. Busy judges and weary clerks need clear, concise language. If you fail to give them that, you are not serving your client.

Good writers and smart people do not need to use big words and arcane terms to prove their worth to others. Instead, use clear language that could be understood by a sixth grader.

If you cannot effectively explain your own argument to other people, you do not understand your own argument.

The best/worst example I’ve seen: A lawyer was arguing that a man no longer had a valid claim to a piece of property because the man had died. When he died, all rights to this property were severed, and his estate could not claim it either for complicated reasons I won’t go into here. The lawyer kept reaching for novel ways to say this, in one case writing that “the claimant continues to maintain an elusive position.” In other words, he’s dead. Just say that.

Don’t get fancy. It doesn’t work. Instead, be elegant by being clear.

3) Craft, don’t draft

When we say we “draft” a legal document, it sounds like we’re experimenting and submitting something for review that we hope to perfect later.

In fact, the document we file should be flawless. We’re signaling to the court that we are diligent professionals who care about our case and who respect the court’s standards.

The most common mistakes occur in these key areas:

a. Cut and paste makes waste

Cut and paste is a powerful tool, and we use on nearly every document.

With great power comes great responsibility, however.

For example, it makes sense to use an existing document for a template. It doesn’t make sense to forget to change the names of the parties or the case number in the caption block, however.

Similarly, if you’re making an argument that is nearly identical to an argument you’ve made recently in another case, you’ll re-use your perfectly crafted statements of rules of cases with their painstakingly verified citations, complete with section symbols and double- and triple-checked romanetted subsections and sub-subsections and sub-sub-subsections. You WON’T re-use the part where you apply the facts to the law, however, leaving your reader to wonder who these new people are and why they’re suddenly doing things that weren’t mentioned in the Statement of Facts.

If you include old information in a new document, you’ll confuse the reader. The reader WILL be clear on one point, however: You used cut and paste, and you failed to read your own document through a single time. You’ve damaged your argument AND your credibility. Worse, you may have committed malpractice by violating the confidentiality of the parties.

Commit to reading and re-reading your documents. Sometimes, I read mine out loud to myself so that I can hear the words as if I were hearing them for the first time. This shakes me out of the complacency that comes with familiarity. Further, I’m often surprised to find that a lawyer with a full staff of paralegals doesn’t ask a paralegal to proof the work product and make suggestions.

b. Violations of the law

We’ve been warned since the first day of law school to Shephardize, so hopefully we’ve taken that advice to heart.

We err when we’re typing our citations, however, and this is nearly as bad as failing to Shephardize. It renders our citations worthless (and makes us look sloppy).

The various numbers, letters, symbols, sub-sections and other minutiae can be hard to get right consistently, but of course they must be perfect every time.

My trick for this is to make a hyperlink elsewhere out of the citation and click on it. Does my link take me to the correct place? If not, I know I’ve cited incorrectly.

c. Lean on me

As I mentioned, when we have worked on a document for days or weeks, we become blind to the most obvious errors. We’re too close, and we can no longer see the larger document (the forest) because we’ve been focusing on the various parts of it (so many trees!).

When this happens, it’s time to ask for help.

I’m still working on this. I hate to ask for help, in part because I don’t want to look stupid. This is a common problem with lawyers, and it leads to the worst mistakes.

Had Dubelier asked a colleague to review his Response, the colleague would have said, “You don’t want to use these quotes. It’s unprofessional. Plus, you sound hostile here, and you know you don’t want to do that. You’re tired and frustrated, and it shows. Here’s how I would write it….”

I am very fortunate to have several colleagues who have excellent skill and judgment. When I’m in doubt or when the stakes are high, I ask at least one of them to review my draft, and I do the same for them.

Ask for help and accept help. Be honest and direct when YOU help.

Ego slip

You may have noticed that all of these errors are the result of our egos.

We want to look good—or at least avoid looking bad.

If we remember that our sworn duty is to provide competent representation to our client and to uphold the standards of our profession, we’re left with very little room to think about ourselves.

That’s when we’re at our best.