How to Be the Perfect Summer Associate.

Congratulations!

So you are one of the lucky ones who landed a summer job. Nice office! Free coffee! The natives are friendly! But summers at law firms are no longer the professional equivalent of summer camp. In today’s economy, an offer is not guaranteed. You must show that you are worth hiring.

Write as if Your Offer Depends on It.

You cannot be an effective lawyer today if you cannot write. Because writing skills are so essential  in the legal world, careers often rise—or fall—based on the ability to write. So firms rightly expect their young lawyers to be superb writers. Therefore, each writing assignment is an opportunity for you to show that you are a sharp thinker and a promising lawyer. Write as if your offer depends on your writing. Because it does.

Ask Questions. Write Down the Answers.

Writing is not just about a knack for writing clean, crisp sentences. In the legal world, writing turns on substance. You cannot write about your topic if you do not understand the background. So make sure you understand the Story behind your assignment. Who is your client? Who are the other players? How do they know each other? What went wrong or what are they trying to accomplish?

Ask intelligent, focused questions and write down the answers. Writing down the answers shows that you are paying close attention to the information.

But Don’t Be Needy.

Your colleagues will not have time to hold your hand or walk you step-by-step through your project. Ask enough questions so that you understand your assignment, but find the answers to simpler questions on your own. You must show that you can work independently, with minimal supervision, and return a perfect project.

Review the Case File.

The case file may contain a wealth of information that your colleague may not have had the time to share, so always review the case file to be sure you understand your project.

File Your Research Carefully.

After you leave in August, the case will continue on without you. Imagine that your colleague must argue the case the week after you leave, but that he or she will not have time to prepare until the night before the argument. If you leave meticulous, carefully marked-up case files, your colleague will be forever grateful.

You should build that case file while you do your research. As you find your cases, mark them up and highlight them. Summarize the facts of the case in a two-word soundbite at the top of the case. Note the holding and the reasoning. Then file the cases carefully by topic and subtopic. File your cases based on fact-pattern. Keep files for your opponent’s authority and for cases that need to be distinguished. Within each file, put the most important cases at the top of the file.

If your cases are not filed in an obvious place, such as Westlaw or Nexis, make sure your colleague knows how to find your case file. If you file your cases electronically, email the file to the assigning lawyer.

Write Brilliantly.

The question of what makes for brilliant writing can’t be covered in a short blog post. (It took me a book to share all the tips I’ve learned as a writing coach.) But if you follow the Three Essential Rules for Strong Writing, your writing will sing.

1. Use plain English.

Speak human. Choose real, concrete words. Avoid legalese and jargon. Say your sentences aloud to cure clutter. (Click here for more Tips on Plain English and Other Kindnesses.)

2. Lead from the top.

You will win or lose your readers in the first page or so—or in the first paragraph. Therefore, the opening is the most important part of your paper and it should “lead” for the whole paper. An opening must explain three things: the background story, the issue, and your answer.

Let me say that last part again. Lead your paper with your answer. Put the answer in the first paragraph. Better yet, write it on neon lights or tattoo it on your forehead. And be brave and take a stand. Show that you have the confidence to reach a clean, authoritative answer.

Within the body of the paper, lead each section with a substantive heading and lead each paragraph with a short, introductory sentence.

3. Tell your reader what to do next.

Why did your colleague ask you to research this issue? What will she use the information for? What should the client do next? Always finish a paper by explaining what the reader should do next in the real world.

Dig Deeply Into the Cases.

When a lawyer asks you to research an issue, chances are that he or she already knows the general rules of law that govern your issue. What that lawyer does not know is how those rules play out in the real world. So be sure to share the facts of every case you cite. If you can’t do so in prose, share the facts in a short fact-based parenthetical. (Click here for More Tips on Handling Case Law.)

Make Your Work Perfect.

Yes, perfect is the enemy of done but you are not done until it is perfect. Proofread like your offer depends on it. (Again, it does.) (Click here for Eight Steps for Proofreading.)

Turn Your Work in On Time.

Your colleagues will love you—just love you!—if you turn your work in on time.

Ask for Feedback, But Take it Like a Grown Up.

After you turn in a project, ask your colleague for feedback. Did the paper answer your question? Can I do anything else to follow up? But again, don’t be needy. Your colleagues will not have time to give you detailed feedback. And no news usually means that your paper fit the bill. (Bad news tends to arrive by flaming lightning bolt within nanoseconds.)

And if the criticism is negative—errrr, constructive—don’t go off in a huff. Listen and learn. Say thank you. Then show that you can learn from that criticism by writing a brilliant paper next time.

Be a team player.

No one wants to work with a prima donna or some other flavor of jerk. So show that you play well with others. Be smart and decent. Show that you are willing to work hard. Play nice. And have fun. If people think you enjoy your work, they will want to work with you.

-Marie

P. S. My Book, The Lawyer’s Essential Guide to Writing (ABA 2011), would make a great gift for the summer associate in your life!

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How to “Scrub” Hidden Metadata from Word Documents

What is Metadata?

Most Word documents contain hidden metadata that shows the history of the document. That data shows when the document was first created, who authored the document, total editing time, and the last time the document was modified. Even more troubling, if the document was edited in Track Changes, those comments and revisions may still be accessible even though you have turned off Track Changes.

You never want your opposing counsel or a judge to see a comment in your brief explaining that a certain case goes against your position, but that you have decided not to cite that case. And you certainly don’t want them to see a comment that may contain confidential information about your client. Indeed, you don’t want to share information that might seem harmless, such as the date you created the document or the amount of time you spent editing the document.

The PDF Option

If you are sharing a document that does not need to be edited or revised, save it as a PDF before sharing. The PDF will not show hidden metadata.

How to “Scrub” a Word Document

But if you must share a document in Word format, you’ll need to take some extra steps to “scrub” hidden metadata from the document. Indeed, you might want to “scrub” your documents as a matter of routine before sharing them with anyone outside your office.

First, you should instruct Word  to warn you before you save or send a file that has been edited with Track Changes:

• Click on the File tab
• Select Options
• Go to the Trust Center box
• Click on Trust Center Settings
• Click on Privacy Options on the right
• Check Warn before printing, saving or sending a file that contains track changes or comments.

Second, you must scrub the paper of hidden metadata. Turning off Track Changes will not scrub your paper of comments. Instead, you must use the Document Inspector to remove the hidden metadata. Here’s how:

• Click on the File tab
• Click Check for Issues in the Prepare for Sharing box
  
• Click Inspect Document
• Check four of the six boxes: (1) Comments, Revisions, Versions, and Annotations; (2) Custom XML Data; (3)Document Properties and Personal Information; and (6)(at the bottom) Hidden Text.
• The Document Inspector will then identify the types of hidden data in the document and give you the option to Remove All of each type of data.

The Document Inspector will not remove highlighting, so you must remove it yourself:

• Click the File tab
• Click Options
• Click Display
• In the box for Page Display Options, turn off Show highlighter marks.

Work from Templates to Avoid the Problem of Metadata

In The Lawyer’s Guide to Microsoft Word 2007, Ben Schorr offers a great suggestion for limiting metadata. He suggests that you avoid the common practice of working from existing documents, because existing documents may still contain metadata. Instead, he recommends that you work in your office’s squeaky-clean templates and copy passages from the donor document into the template as needed. (Every lawyer should have Schorr’s book on their desk. Here’s the link to the updated version: The Lawyer’s Guide to Microsoft Word 2010. ) But remember, if you work in Track Changes in the new document, you will have to scrub it when you are done.

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So never share your secrets. How clean are your documents?

(By the  way, my book, contains many more tips like this.)

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Eight Steps for Proofreading

1. Go to the Zone

Again, proofreading is a different skill than writing or editing and it requires a different mindset. As you take this final pass at your paper, you must resist the urge to think the big thoughts. Ignore content. Get out your magnifying glass and drop down to the level of sentences and individual words.

2. Divide Tasks

Don’t read your paper through from beginning to end and try to catch every error. Instead, approach each proofreading task separately. First, check spelling. Next, read sentence by sentence or paragraph by paragraph for syntax errors. (I suggest you read backwards. Read on.)  Next, check formatting and design issues.

If you approach each proofreading task separately, you will be sure that you complete each proofreading task and that you give each task the attention it needs.

3. Spellchck

Oops! I mean spell check. Spellcheck is annoying—and annoyingly smart. (Why does it remind me of the Recalculating voice on my GPS?) Spellcheck should be your front-line defense against embarrassing spelling errors. It won’t catch misused words, such as principal instead of principle, but it will catch most of your spelling errors.

Many lawyers avoid spell checking because Spellcheck highlights many legal terms as spelling errors. However, if you add these words to your custom dictionary, Spellcheck will stop chastising you every time you use these words. (To add a word to your custom dictionary, right click on the squiggled word and click Add to Dictionary in the pop-up box. If Add to Dictionary does not show up as an option, it’s because you have not yet created a custom dictionary. I’ll post on that fascinating topic later.)  Add common legal terms, client’s names and technical terms that you use frequently to your custom dictionary.

4. Read Your Work   s       l       o       w       l       y

Spellcheck will not reliably differentiate between common homonyms, such as there and their, or catch properly-spelled-but-misused words such as complaint, instead of compliant. So you must actually read your work at least once to catch errors. The key is to read slowly. But how do you slow your self down?

5. Read Backwards by Paragraph

Most of us are so programmed to work at top speed that we need a technique to slow us down to proofreading speed. First, print out your paper. Then work backwards from the end of the paper to the beginning. Some people suggest reading each line backwards or each sentence backwards, but that level of backwardness is too glacial for me. Instead, try reading backwards by paragraph. Treat each paragraph as if it were an island. Start with the last paragraph and read it through. Then move up to the second-to-last paragraph and so on. If you are really error prone, treat each sentence as an island and work backward sentence-by-sentence.

6. Put a Check Beside Each Paragraph As You Read

Once you are satisfied with a paragraph or sentence, put a check beside it. The hand slows the mind down, so manually putting a check beside each paragraph or sentence will force you to  read carefully.

7. Review Headings Separately from Text

Substantive headings are an editing tool because they verify a strong foundation. Therefore, even if your paper does not require a separate table of contents, treat your headings as a unique unit and review them separately. Are headings correctly numbered? (Again, confusing standard numbering will make your headings work against you, rather than for you.) Does each heading lead into the next? Are all headings written in parallel grammatical structure? Are subheadings correctly labeled?

8. Use Your Word-Processing Program to Help You Proofread

As you write, use word-processing features to avoid errors. Use the Autocorrect function to correct proper nouns that you often misspell, to be sure you are using your chosen identifying terms throughout, or to assure consistent usage (such as % instead of percentage or its instead of it’s). (To add a word to Autocorrect, click on the File tab/click Options/click Proofing/click Autocorrect Options/check Replace text as you type/fill in the word you want replaced and the word you want to replace it with/click OK. ) Set up Grammarcheck to require periods inside quotations. (Click on the File tab/click Options/select Proofing/in the box for When correcting grammar and spelling in Microsoft Word, click Setting/click Punctuation required with quotes/select Inside.)

Once you are done writing, use the Find function to weed out pesky constructions and common punctuation errors. Search for by to weed out passive voice and for ment and ion to weed out nominalizations. Weed out pesky adverbs by searching for ly. And keep a mental list of terms that you commonly misspell and then search for those terms. I can’t spell lose for the life of me, so I always search for loose as part of my proofing ritual.

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By the way, it took me forever to proof this post!

P.S. from the Shameless-Self -Promotion Department: My Book has lots more tips like this!

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Subliminal Fear of Subparagraphs

Many of us harbor deep, subliminal fears about writing in subparagraphs. We wonder when we should use subparagraphs instead of prose or bullets. We forget how to punctuate the little buggers. And we sweat about grammar—particularly “parallel construction.” Let’s address each fear.

When to Use Subparagraphs

Subparagraphs are helpful if you have a list of similar items and some items are more important than others or the order of the items matters. If all the items are equally important, you can use Bullets instead.

How to Punctuate the Little Buggers

When using subparagraph format:

1. put a colon at the end of the phrase that introduces the subparagraphs;
2. put a number at the beginning of each subparagraph;
3. conclude each numbered subparagraph with a semicolon;
4. put and or or after the semicolon in the penultimate paragraph; and
5. end the last subparagraph with a period.

Since White Space is so delicious, your reader will love you for indenting your subparagraphs and putting a blank line between them.

If you are the squishy type, you can squeeze your subparagraphs into a traditional paragraph, with no indents and no line spaces. The squishy version is fine if you have only a few subparagraphs, but otherwise the white-space version goes down more easily. The same rules apply in the squishy format: (1) use a colon to introduce the subparagraphs; (2) put a number at the beginning of each subparagraph, but put the number in parentheses so it is easy to pick out of text; (3) put a semicolon at the end of each subparagraph; (4) put and or or at the end of the penultimate paragraph; and (5) finish with a period.

In other words, your subparagraphs should look like the subparagraphs I just wrote.

The All-Important And or Or

In legal writing, the words and or or are often the most important part of the subparagraph, so be sure that you use them correctly. And signifies that every element of the test matters. The five parts of misrepresentation, for example, always require the word and because a party must satisfy all five elements of the test. If the elements are optional or interchangeable use or.

Never ever use and/or. And/or is sloppy, ugly writing and it fails the test for plain English because it’s not a phrase we would use in conversation. (If you use and/or in conversation, your problems are far deeper than anything I can help you with here.)

Parallell Construction

Writers frequently make grammatical errors when writing subparagraphs because the front half of their sentence (the part before the colon) does not fit nicely with the back half (the part after the colon). To avoid these grammatical errors, “glue” the front and back of the sentence together. Mentally copy the words in each subparagraph to the end of the introductory phrase before the colon. Does the glued-together sentence make grammatical sense? If not, make whatever edits are necessary to make the two halves of the sentence fit together grammatically. Do this for each subparagraph.

Or simply begin each sentence the same way. Even the most subparagraph-challenged writers usually write the first subparagraph correctly. So use the same construction in later subparagraphs and your subparagraphs will glue together in the most grammatically wonderful way. For example, in my subparagraphs above, each subparagraph begins with a command: put, put, conclude, put, end.

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So fear not. Number away.

The Three Essential Rules for Writing

All my suggestions for powerful writing boil down to three guiding principles. And these principles apply not only to formal briefs and memoranda, but to the many mediums in which modern lawyers work—letters, email, blogs, newsletters and even PowerPoint.

The Three Rules

1. Use plain English.

2. Lead from the top.

3. Tell your reader what to do next.

Rule One: Use Plain English

We’ve all heard the common admonition to “use plain English.” Our clients speak a modern language and we should too. So if you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. Speak human.

Rule Two: Lead from the Top

The principle of “leading from the top” is the single, most effective tool for strong writing and the essential rule for structuring any piece of writing. If you open your paper by telling your reader what is important, they will look for that information as they read. When you present that information later, the reader will seize on it and it will click quickly, like a puzzle piece snapping into a space that you have already prepared for it. And the principle of leading from the top is like a fractal because it applies on large and small scales. Lead a paper with your conclusion. Lead a section with a substantive heading. Lead a paragraph with a summary sentence. Lead an email with a strong subject line. Lead the message itself with a summary sentence. Leading from the top is the key to tight, logical writing.

Rule Three: Tell Your Reader What to Do Next

Sane people don’t read briefs, contracts and business letters for pleasure. They read them because they are being paid to read them or because they have a problem and need to read them. What do they want? They want to know what to do next and your job is to tell them. What is the client’s problem and what should they do next? What relief are you asking the court to grant?  What do you want your colleague to do after reading your e-mail or your letter? Use your writing to make things happen in the real world.

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So one, two, three. Get set! Write!

(If you want a deeper explanation of these three principles, my book covers these principles and others in much more detail.)

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More Clichés: Let’s Get our Ducks in a Row!

We lawyers are not alone in our use of clichés. Clichés seem to have infiltrated most professions. Police fear the word now and jazz it up to at this point in time and their investigations are always ongoing. In the business world, all job applicants are innovative, results-oriented, dynamic team players with a proven track record. Once those team players are hired, they are at the mercy of human resources departments that are always magnanimously reaching out to someone or, less magnanimously, downsizing or reallocating resources. The business world is relentlessly proactive and cheerily focused on optimizing results and utilizing resources. In those hallowed halls of business, someone always wants to dialogue, to circle back, or to get face time. There are matrices to build and paradigm shifts to navigate. To be a valued employee, you must row in the same direction, hit the ground running, and get your ducks in a row. And once your ducks are in a row, you must be on your game so that you can run a smell test to discern when someone has put lipstick on a pig.

If your husbandry skills are lacking, you can always leave the business world for academia where students must demonstrate competency or proficiency and avoid risky behaviors. But educators are ready to help by providing support services, by nurturing life-long learners, and by encouraging emerging readers. (But I do admire the optimism!) And when those emerging readers finish emerging, they can learn about books from literary critics, who always seem to find the books that are translucent, gripping, haunting, riveting, compelling, lyrical and evocative.

Admittedly, some professional clichés serve a real purpose in spoken language. They are picturesque or funny and the shared language encourages bonding among enslaved tribes. But clichés don’t belong in our writing because our writing should be slightly more formal than our speech.

So let your writing identify you as a member of the human race, rather than as a member of a particular profession. Now, I’m off to put lipstick on my pig . . . .

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Avoid phrases beginning with “it is.”

It is important to a  Avoid throat-clearing phrases that begin with it is, such as it is clear that or it is possible that. Nine times out of ten, you can delete the phrase without sacrificing meaning.

If the phrase does add some nuance, rewrite the phrase with an adverb.  For example, It is apparent that the company lost the documents should be rewritten as The company apparently lost the documents.  (Yes, I know. I’m violating my own rule about avoiding adverbs. But apparently adds a nuance here that is worth keeping. Apparently means that you didn’t see the company lose the documents, but the company no longer has the documents, so you have brilliantly concluded that they just might be lost.)

Here are some common it is phrases that deserve the ax or corrective surgery:

• It is clear that (If it is so clear, then why must you point it out?)
• It is logical that  (You should not need to point out the logic in your argument. The logic should sing through on its own.)
• It is likely that (Just move likely into the sentence, as in The court will likely hold . . . .)
• It may be that (Oh dear. Just say possibly.)
• It is apparent that (Try apparently.)
• It is probable that (Just use may as the main verb in the sentence, as in The company may make an offer.)
• It is imperative to note that ( EEEEEK!)
• It goes without saying that (Then why are you saying it?)
• It is axiomatic that (Translation: It is axiomatic that this sentence was not written by a thinking, feeling human being.)
• It follows that (This phrase suggests that it probably doesn’t follow at all.)

In all my years driving a purple pen, I’ve seen only a few (as in two) it is phrases that are worth keeping. I like it is well established that and it is black letter law that. These phrases convey the weight of the authority and add substance to the sentence, so they earn their weight on the page.

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Avoid adverbs and use a strong verb instead.

My grandmother-in-law—an accomplished poet and a wise woman—once advised me that Adverbs are not your friend, Dearie. She’s right. Adverbs don’t belong in your writing because they add little and often backfire. For example, The defendant actively disputes that claim simply means that The defendant disputes that claim.  (Forgive my use of the adverb simply. I like the emphasis it adds here.) The company strongly cautioned is hesitant and bureaucratic. The company banned is stronger and more believable. Rather than use an adverb, describe the conduct specifically. For example, replace The company thoroughly met its obligations to warn with The company explained the risk of nerve impairment.

Adverbs can also be evasive. Avoid hedging words such as generally, usually, customarily, or basic. An assertion that Client X usually honored gift certificates will translate as But Client X didn’t honor this gift certificate. The contract is absolutely clear means that The contract is clear or—more likely—that The contract is not clear at all. The defendant arguably met its obligations means that The defendant did not meet its obligations this time.

Search for ly as part of your proofreading edit to weed out pesky adverbs, such as plainly, clearly, or patently.

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So how strong are your verbs?

P.S. Chapter 4 of My Book, which covers Plain English and Other Tricks to Help You Sound Human, contains more plain English tips like this.

Capture your reader in the opening of your paper

You will win or lose your reader in the “opening” of your paper, so even the most brilliant Argument or Analysis cannot undo the damage wrought by a sloppy opening. What are the ingredients for a strong opening? Whatever format you use, you must do three things in your opening:

1. Explain the background “story.”
2. Make the issue clear. (The issue will usually be clear from the story. If it is not, you should ask a question.)
3. State your answer in big, bold neon lights.

In a substantive memorandum, you have—at most—a page and a half to “open.” The strongest writers “open” in the first paragraph. Avoid a vague discussion of abstract legal principles and frame your opening around your client’s facts.

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Let’s get serious about the serial comma.

A tiny comma can be worth a lot, so let’s talk seriously about the serial comma.

What is the serial comma?

The serial comma is the comma before “and” in a series of words. Here is a serial comma in living color:

I like apples, bananas, and cherries.

What’s the rule on serial commas?

In the civilian world, the use of the serial comma is a style choice. Generally, the civilian American approach does not use the serial comma, while the British approach uses it.

Although the grammar police differ on this issue, most require the serial comma for technical writing. The New York Times Manual of Style and Usage, which rules in the civilian world, does not require the serial comma. But The Chicago Manual of Style, the U.S. Government Printing Office and Bryan Garner all endorse the serial comma.

What’s a poor, confused lawyer to do?

You, my friend, are not in the civilian world. The serial comma is always more precise. Because precision is  essential in legal writing, you should always use the serial comma.  You’ll never offend anyone by using it and, in the legal world, a single comma can be worth a million dollars.  Click here to see a case where a comma was worth a million dollars (although the comma at issue was not of the serial variety): http://n.pr/milliondollarcomma

In transactional drafting, the serial comma is a must. Although the serial comma may not be as essential in our prose writing, it’s easier to be consistent and use the serial comma in all legal writing.

But, but, but (for those of you who dream of other things) …

But if you are writing the great American novel, be aware that the serial comma compromises the pacing of a sentence. Consider the famous line by Robert Frost:

The woods are lovely, dark and deep.

The stately and majestic pacing of this line is lost once we add a serial comma:

The woods are lovely, dark, and deep.

A widely circulated story says that Frost’s publisher made the unforgivable mistake of inserting that serial comma when the poem was first published—and that Frost made the publisher reprint the book to remove the offending comma.  So if you expect to be the next poet laureate of your nation or if you are writing the next great American poem or novel, the choice is yours.

The Bottom Line?

In legal writing, use the serial comma. The money you save may be your client’s!

The Final, Final Word

And if you don’t believe me, trust Stephen Colbert. Here is his ringing endorsement of the serial comma: http://bit.ly/AAlUEx  (at 4:25) What more do you need?

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Plain = Honest = Trustworthy

Why is plain English such a powerful writing tool? Plain English establishes your credibility because it tells the reader that you speak a language that they already know and understand. It also shows your humanity so it creates a genuine connection between you and your reader. And plain English is clear and transparent. It reassures the reader that you are not trying to pull any fast moves with language, so it leads the reader to regard you as honest and trustworthy.

The most valuable asset that any lawyer has is trust—the trust of our clients, the trust of our colleagues, the trust of the public. A lawyer’s reputation is simply the public manifestation of that trust. Because plain English shows your honesty and humanity, it promotes trust. So plain English should be one of the foundations on which lawyers build careers and reputations.

How trustworthy is your writing?

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Transition by Leading Each Paragraph with a Strong Topic Sentence

If you “lead from the top” by beginning each paragraph with a strong topic sentence, that lead sentence serves as a transition to the new topic. Indeed, strong lead sentences are one of the best transition techniques in your arsenal.

Consider these lead sentences from Justice Roberts’ opinion overturning the school assignment system in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007):

“The principle that racial balancing is not permitted is one of substance, not semantics.”

“Jefferson County phrases its interest as ‘racial integration,’ but integration certainly does not require the sort of racial proportionality reflected in its plan.”

“Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students.”

“The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals.”

“The reasons for rejecting a motives test for racial classifications are clear enough.”

551 U.S. at 732-735, 742.

Justice Breyer also used strong declaratory statements to transition between thoughts in his dissent in that same case. Note his focus on facts:

“The historical and factual context in which these cases arise is critical.”

“Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled.”

“In fact, the defining feature of both plans is greater emphasis upon student choice.”

“Experience in Seattle and Louisville is consistent with experience elsewhere.”

“Indeed, the consequences of the approach the Court takes today are serious.”

551 U.S. at 804, 805, 846, 849, 861, 865.

I know. It makes you nervous. You want to write a transition sentence before you leap into the next topic. But in legal writing, the transition goes at the beginning of the topic. Lead from the top. (Have I said that before?)

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Use Three Letter Words (And, But, Yet, Nor) to Kick Your Sentences Off to a Strong Start

Certain four-letter words never belong in professional writing. But why are lawyers so afraid of starting sentences with three-letter words such as but, and, yet or nor? Three-letter words are strong sentence starters because they help you control the pace and rhythm of your writing. Using them will liberate your style. (But is particularly liberating. Try it. You’ll see.)

Don’t be afraid. You will be in good company if you begin sentences with three-letter words. Supreme Court justices routinely begin sentences with but, and, yet and nor. Indeed, they slip into three-letter sentence starters once they are deep into their argument and their writing is at its most earnest. Consider these examples from various justices writing in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 748 (2007):

• “But I am quite comfortable in the company I keep.”

– 551 U.S. at 772 (Justice Thomas concurring)

• “But the district vigorously defends the constitutionality of its race-based program.”

– 551 U.S. at 719 (Justice Roberts, writing for majority)

• “And my view was the rallying cry for the lawyers who litigated Brown.”

– 551 U.S. at 772 (Justice Kennedy concurring)

•  “And appropriately so.”

– 551 U. S. at 752 (Justice Thomas, concurring).

• “Yet our tradition is to go beyond present achievements, however insignificant . . .”

– 551 U. S. at 752 (Justice Kennedy, concurring).

• “Yet the plurality would deprive them of at least one tool that some districts now consider vital . . . .”

– 551 U.S. at 862 (Justice Breyer, dissenting).

• “Nor could it.”

– 551 U.S. at 721 (Justice Roberts, writing for majority).

• “Nor is it likely to find such a case.”

–551 U.S. at 863 (Justice Breyer, dissenting).

So be brave. And kick your sentences into action . . . .

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How to Structure a Legal Memo: Lead from the Top

The guiding principle for structuring any paper is to “lead from the top.” Why is leading from the top so important? Because leading from the top primes your readers by telling them what to look for in the rest of the paper. If you open your paper by telling your readers what is important, they will look for that information as they read. When you present that information later, your readers will seize on it and it will click quickly, like a puzzle piece snapping into the space that you have already prepared for it. Leading from the top is like the literary technique of foreshadowing. It prepares your readers for what happens later.

The best legal memos use FICA (or FICAR) as their basic structure. The acronym may be horrid, but FICA works because it leads from the top:

• Facts
• Issue
• Conclusion

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (the opening ends here) _ _ _ _ _ _ _ _ _ _ _ _ _ _

• Analysis
• (Recommendations)

The dotted line marks the end of the opening–the key real estate in which you have the sacred gift of your readers’ attention, whether you deserve it or not. Your opening should highlight what you want your readers to focus on as they read the paper. Every opening must do three things:

1. The opening must tell the “back story” so that your readers know the context in which the legal question arises. Who are the parties? How did they meet? What is the problem? Don’t go overboard. Three or four sentences is usually enough. Save the detailed facts for later.
2. The opening must make the issue clear. (If the issue is clear from the facts, you may not need to state the issue separately. Just go right into the Conclusion or Answer.) Don’t begin your issues with whether. Just ask a plain, simple question and put a pretty question mark at the end.
3. The opening must state your answer. This is all your readers care about. Label the answer clearly as Conclusion or Brief Answer and keep it short, plain and clean.

Informal papers–the kind that we all prefer to read–condense the entire opening into a single introductory section that explains the back story, the issue and the conclusion:

• Introduction and Conclusion

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

• Analysis

• (Recommendations)

If you use this format, be sure that your first heading screams the word Conclusion. Otherwise, you won’t get credit for reaching a conclusion.

How much time do you have to open? A page and a half. Your readers will tune out after that if you haven’t given them good reasons to keep reading. (Trust me on this. I read a lot of papers.)

If you have done your job in the opening, your readers will trust you and will cross that invisible dotted line and read your Analysis. And they will read intelligently because you have told them what they should be looking for.

Finally, if you can (and I think you can), finish by telling your readers what to do next. Make Recommendations. You don’t need to answer the ultimate issue in a case, but you should tell your readers what their next steps should be. Ask the court to dismiss Counts I and IV. Tell your colleague to depose Mr. Bigshot, to move to dismiss for lack of personal jurisdiction, or to interview Witness X, Y and Z. Tell your client what documents you need her to produce. Keep the ball rolling in the real world by being proactive and practical.

And that, my friends, will make you look smart and wise.

CIRAC? Better than IRAC, but still not perfect.

After my last post complaining about IRAC, one twitter follower asked, “What about CIRAC?” It’s a good question and it is definitely heading us in the right direction.

In our world of strange acronyms, CIRAC stands for Conclusion, Issue, Rule, Analysis, Conclusion. (IRAC stands for Issue, Rule, Analysis, Conclusion.)

CIRAC is better than IRAC, but it’s still not perfect. Under CIRAC, the all-important Conclusion is presented early on, which is certainly a good thing and far better than presenting the Conclusion last, as IRAC requires. But CIRAC requires two Conclusions: an opening Conclusion and a final Conclusion. Good writers know that it is probably not wise to write the exact same paragraph twice in a paper. So, under CIRAC, when we write that second and final Conclusion, our instinct tells us to vary the language slightly. The careful reader notices the slight difference and ends up comparing the two Conclusions and asking “How does this final Conclusion differ from the first?” So the final Conclusion ends up undercutting the authority of the opening Conclusion–exactly the result we want to avoid. Except in a very long paper (say 25 pages or more), you should conclude once and once only. And that Conclusion belongs in the opening page and a half of your paper.

CIRAC also catapults the reader right into the Conclusion, without giving the reader any context first. The human mind craves stories–stories about real people and real problems. So it is far better to begin with one or two sentences of background facts that “set the stage.” Who are the parties? How did they meet? What’s the problem?

Rather than end your paper by simply rehashing the Conclusion, be action oriented. Finish by telling the reader what to do next. Tell the court to grant summary judgment for your client on Counts I and II. Tell your client to change the language in its Employees’ Handbook. Suggest that your assigning attorney (the one who told you to write that memo), depose Mr. Smith, Ms. Jones and Cousin John, but only after obtaining documents X, Y and Z.

And since we are trading strange acronyms, I’ll suggest SICAR or FICAR as the model for writing a paper:

• Story (or Facts)
• Issue
• Conclusion
• Analysis (this is where the cases go)
• Recommendations (as in what to do next).
  

I’ll talk more about SICAR (or FICAR) in upcoming posts and I’ll show how to simplify SICAR (and FICAR) into a more modern format.

I hope this helps. Thanks for the question!

IRAC? Reader Abuse!

Many law schools teach  IRAC—Issue, Rule of Law, Analysis, and Conclusion–as the format for structuring a legal memo. But IRAC is an unforgiveable form of reader abuse.

Under IRAC, the Conclusion comes at the end of the paper. Your poor, abused readers must suffer through pages and pages of legal analysis, without knowing where you are taking them, before they finally find the answer to their question. By then, your readers will be long gone–surfing the internet, checking e-mail, finding another lawyer.

How does any smart reader read a legal paper? Your reader will always read your opening paragraph. If  the conclusion is not stated in the first paragraph, the reader then looks for a heading that screams Conclusion. If the reader doesn’t find it immediately, the reader will scroll through your paper until he or she does find the Conclusion. Skip. Skip. Skip. Under IRAC, your reader finds the Conclusion buried at the end of your document.  Is this the way you want to treat your reader? Particularly a reader who is paying you to write? And do you really want your reader to skip over pages and pages of analysis?

IRAC betrays a stunning lack of confidence. It says to the reader, “Hey, I’m not sure I’m right about this, so I’m going to walk you through my analysis before I put the answer on the table.” (And it’s also confusing. Some students leave their writing program thinking that the C in IRAC means Cases.)

Avoid IRAC and put your Conclusion in the opening of the paper. If you can, put your conclusion in the first paragraph and label it Introduction and Conclusion.  (If you label it as just Introduction, you won’t get credit for reaching a Conclusion.) Or put it in a separate paragraph labeled Conclusion or Brief Answer or Look Here Dummy. (Well … maybe not Look Here Dummy.) But the Conclusion must go in the first page and a half of your paper. Save the detail for later.

I’ll post soon on what format to use instead of IRAC.

The Courage to Conclude

Be brave and take a stand. As you make the transition from law school to the professional world, the impartiality you were taught in law school may hobble your ability to be a bold, creative lawyer. Newly minted lawyers are so trained to analyze both sides of a question that they are often reluctant to reach a firm conclusion. But meaningful advocacy requires that you go beyond a slavish repetition of precedent and that you take a position and think originally. Clients and colleagues won’t appreciate spending thousands of dollars to learn that the answer to their question is maybe and a conclusion that says maybe is not worth the cost of the research. So qualify your conclusion if you must, but you must reach a firm conclusion.Your colleagues and clients are paying you to tell them what you think and you should give them their money’s worth.

The best conclusions are often simply a straightforward, one-sentence answer to the question. If your research discloses a definitive answer to a question, begin with yes or no. Yes if and no if are also acceptable provided that the ifs are fact specific, as in The client may pursue his discrimination claim if he files his notice with the agency by February 1. If the answer really is maybe, at least be definitive about being hesitant. Explain any split in the authority, state which view is the weight of the authority, and analogize and distinguish the facts that characterize each line of reasoning.

Assume your Conclusion or Brief Answer is the only thing your reader will read. Because it probably is the only thing your reader will read.

Do it early. A Conclusion or Brief Answer in the beginning of your paper “primes” your readers because it tells them what to look for in the rest of the paper. When you answer the question in more detail later, that explanation will “click” like a puzzle piece snapping into the space that you have already prepared for it. So put your conclusion at the beginning of your paper—in the first paragraph, if you can, and certainly in the first page and a half. Your reader will be long gone by the time you get to the middle of the second page.

State your conclusion in plain English. Imagine running into the attorney who assigned you an issue as she is getting off the elevator and you are getting on. You have only a few seconds to answer her question, How is the Widget research coming? Your quick answer is your conclusion.

Say the conclusion aloud. Saying the conclusion aloud will force you to use plain English and simplify.

Explain why. Your answer should not simply state your ultimate conclusion. It should also explain why you reached that conclusion. Your readers cannot decide whether they agree with your conclusion unless you tell them how you reached it. Telling why in the Answer establishes your credibility .

Avoid hedging language. Hedging language betrays your fear of reaching a conclusion and shows a troubling lack of confidence in your own skills. Avoid language such as I could find no cases on point, it is difficult to determine whether, it is far from certain whether or it is possible that.

Be original.  Although we must base arguments on precedent, a memorandum or brief should never be a simple précis of the cases.  “Wrap” the case discussion in your own conclusion about the research.

A conclusion is like the ribbon on a gift. We put the gift in the box, we close the box, and then we make it attractive by wrapping it in a ribbon.  Your readers see the ribbon first and it’s the ribbon that makes them want to open the box.