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In 1596, Chancellor Egerton of Westminster Hall cut a hole through the center of a lawyer’s rambling 120-page tome, stuffed the lawyer’s head through it, and paraded him before the entire court at Westminster Hall. Though humiliating, this early lesson in the offensiveness of legalese was apparently lost on the greater legal community. Only in recent years have even a modest number of law firms developed strategies to cultivate articulate writers. One way for a law firm to build its writing expertise is to recruit lawyers who write well — as does Connelly, Sheehan and Moran, a Chicago labor boutique that is now known for its skilled writing. But Connelly wasn’t always so successful at attracting the write stuff. Shortly after opening in 1990, the firm inadvertently saddled itself with a series of lawyers who were unable to whip off insightful and clear legal papers. Where had Connelly’s recruitment criteria gone wrong? In their emphasis on applicants’ interviews, r�sum�s, and writing samples. Such credentials, laments partner Jody Moran, can belie poor writing skills because lawyers can achieve success in school and in some areas of practice without learning how to write well. Moreover, writing samples edited by others may not necessarily reflect the abilities of the named author. Nor do they indicate the author’s writing speed. So in 1993, Connelly, whose avant-garde slant is reflected in promotional materials advertising its willingness to “quote both Dylan and Darrow,” created a new crucible for job applicants — a timed test requiring the preparation of an organized, concise analysis of a realistic legal issue. This test so closely mimics the types of writing done by the firm that Moran says it “predicts on-the-job success better than r�sum�s and writing samples.” Since 1993, all serious applicants to Connelly, even seasoned ones, have taken the test. Dozens have failed. Many other job-seekers who apparently had the wrong stuff have been completely warned off the firm by legal recruiters who know that when it comes to Connelly, inarticulate lawyers need not apply. By restricting job offers to high-scorers on its test, Connelly now practically guarantees that all its new lawyers can, from Day One, write effective analyses independently and quickly. Instead of restricting recruitment to skilled communicators, more and more large law firms are attempting to reform their legal writers. How? By retaining writers-in-residence to run in-house training programs on writing, and to provide publishing advice and editing help. Although some writers-in-residence are lawyers, many aren’t. Instead, they are former journalists or communication experts who offer “an unencumbered view of the writing itself,” according to Karen Larsen, in-house editor at Portland, Ore.’s Miller, Nash, Wiener, Hager & Carlsen, the largest law firm in the state. Even 15 years ago, the idea that a law firm should hire a full-time writer or writing instructor — let alone one who wasn’t even a lawyer — was so radically unorthodox that for a lawyer to suggest it was practically to risk disbarment. But now, some law firms that have writers-in-residence brandish them almost like badges of honor. Miller’s Web site even broadcasts Larsen’s “Miss Grammar” column (www. missgrammar.com), which offers light-hearted advice on timely topics such as “deleting the expletives” and notes publications of interest, such as a new dictionary of legal terms. Although in-house writing programs vary among firms, most writers-in-residence agree that the best programs feature the following components: � Writing classes that teach lawyers how to infuse an argument with life and logic by, for example, defining primary issues succinctly and clearly, emphasizing the big picture over details, and sequencing information around an appropriate structure. As one legal writing coach explains, “Instructors should teach lawyers how to convey a finding of fact as a persuasive story instead of just as a series of chronological events.” � One-on-one expert coaching that augments classroom training with personalized feedback. For example, all new recruits at Crosby, Heafey, Roach & May of Oakland, Calif., which employs more than 200 lawyers, are required to take in-house writing classes taught by Clyde Leland, a former magazine editor who is the firm’s writer and editor. These group meetings segue into regularly scheduled individual coaching sessions. Why this dual approach? Because, while canned presentations can introduce the general principles of good writing, only individualized instruction can train lawyers how to address their particular trouble spots. “The best textbook is the attorney’s own writing,” confirms Larsen. Moreover, the nudging provided by on-going coaching helps reinforce classroom lessons for students and quells their impulse to return to bad habits. � A guarantee that an instructor’s criticism of writing will remain confidential, to assure lawyers that critiques during training will not hinder their professional advancement. � Participation by senior members of the firm. Support from the top helps embed writing training into the firm’s culture and emphasizes the universal need for regular feedback, according to Joseph Kimble, a legal writing professor at Thomas Cooley Law School and editor of the Michigan Bar Journal’s plain language column. Partners can participate by taking the training themselves, encouraging others to do so by making sure they have the time, and providing positive feedback and rewards to good writers. � A requirement that the release of documents by the firm be preceded by a “cold read” by another lawyer. To smooth collaborations, Leland teaches lawyers how to edit their colleagues’ writing “in a way that suggestions will be heard.” Larsen agrees that too often, criticism degenerates into nonproductive barbs such as “What the @#%@& do you mean?” Why are some law firms devoting such efforts to improving their writing? Because the law is a profession of language. Indeed, hundreds of recently surveyed lawyers ranked “oral and written communications” as the most important skills for practicing law — even more important than substantive legal knowledge. But even though many law schools have, in recent years, improved or introduced new writing courses, the resources and respect they are given don’t match those accorded traditional courses. And such deficiencies are apparent. Most lawyers consistently and blithely churn out legalese laden with butchered grammar, archaic redundancies such as “null and void,” and sentences “long enough to choke a horse,” according to the late David Mellinkoff, an emeritus law professor at the University of California at Los Angeles. No wonder that 650 lawyers, judges, law professors, instructors of legal writing, and legal journalists unanimously agreed that most lawyers write badly, according to an informal survey by Tom Goldstein and Jethro Leiberman for their book “The Lawyer’s Guide to Writing Well” (University of California Press, 1989). Unless compelled by their supervisors and trained to do otherwise, lawyers usually perpetuate impenetrable legalese through their reliance on forms and precedent. Indeed, Mellinkoff was inspired to write “The Language of the Law,” which ultimately became the plain English movement’s bible, by a senior lawyer who, many years ago, instructed Mellinkoff to draft contracts by “following the pattern of other contracts in the files.” ‘PLAIN ENGLISH WINS CASES’ Though lawyers commonly defend legalese for its so-called precision and thoroughness, empirical evidence of its vulnerabilities is mounting. According to an article in The Scribes Journal of Legal Writing, one study identified 1,100 lawsuits that were triggered solely by disputes over whether “shall” means “may” or “must” or some hybrid of the two. At the same time, plain English advocates such as Thomas Cooley Law School’s Joseph Kimble dismiss the myth that plain English is merely legalese-light — dumbed-down communication that sacrifices the bulletproof invincibility of traditional legal language to unforeseen contingencies and courtroom challenges. Kimble calls plain English “the ally,” not the enemy, of precision because it “lays bare the ambiguities and uncertainties and conflicts that traditional style tends to hide. … You are bound to improve the substance — even difficult substance — if you give it to someone who is devoted to being intelligible.” Various legal experts also credit plain English with wielding more clout than legalese. For example, in an interview in the Dec. 9, 1999, issue of Legal Times, Harry Edwards, chief judge of the U.S. Court of Appeals for the D.C. Circuit, declared: Probably the worst problem that the court faces, from good and not-so-good advocates, is overly long briefs! Almost every attorney writes to the page limits and most cases do not require briefs as long as page limits allow. It is truly amazing that attorneys fail to understand that a tight argument is both easier to read and much more impressive than a verbose offering. “There’s no doubt about it,” affirms C. Edward Good, a writer-in-residence at Finnegan, Henderson, Farabow, Garrett & Dunner in Washington and author of “Mightier Than the Sword: Powerful Writing in the Legal Profession”: “Plain English wins cases.” Jody Moran, a strong advocate of her firm’s pre-employment test, echoes these sentiments: “Even if you understand the law, you are not going to convince a court unless you can organize an argument persuasively, concisely, and without clutter.” For example, the Environmental Protection Agency has lost at least three federal cases in the past decade because of ambiguities in its regulations. And in a 1998 ruling against the Immigration and Naturalization Service, the 9th U.S. Circuit Court of Appeals found that deportation notices were so difficult to read that they violated due process rights of aliens. The court ordered the INS to redo the forms to “simply and plainly communicate” the information. The power of plain English has also been documented in numerous studies summarized in Kimble’s recent article, “Writing for Dollars, Writing to Please,” in The Scribes Journal of Legal Writing. In one such study, a group of judges and lawyers rated plain English versions of a series of passages as significantly stronger and more persuasive than typically rambling, jargon-filled legalese passages conveying the same information. GOVERNMENT GOES READER-FRIENDLY A new crop of government regulations mandate the use of plain English. Among these are a variety of state laws requiring insurance contracts and auto rental agreements to be written in plain English. Securities Exchange Commission regulations require the same of all investment prospectuses. Even the federal government — that bastion of bureaucratese — is becoming reader-friendly; in a directive endorsed by the American Bar Association, President Bill Clinton ordered federal agencies to write all new public documents, including regulations, in plain English. (More information about the federal government’s plain language initiative is posted at http://plainlanguage.gov.) These regulations have already helped spawn plain English committees within various state bar associations, and the deployment of a small army of consultants who write books and give seminars on plain English for lawyers. According to Tina Stark, an adjunct professor at Fordham University Law School and a principal of In-House Legal Education Inc., more and more lawyers are writing contracts — generally regarded as the most turbid and turgid collections of legalese — in plain English. So far, many more consumer contracts, which tend to have long lead times, have been translated into plain English than have sophisticated business contracts, says Stark. Do these contracts work? “Many of my former students,” beams Stark, “come back and tell me about writing plain English contracts that are so good, no one ever changes a word.” Stark suggests that those who remain resistant to switching to plain English might be more open to “contemporary drafting.” Many lawyers predicted that Citicorp Bankcards would become the target of an avalanche of lawsuits when the company first started producing plain English versions of promissory notes during the early 1970s, recalls Duncan MacDonald, former general counsel of Citicorp Bankcards. “But not a single lawsuit has resulted,” he asserts. Moreover, says MacDonald, now that Citicorp writes all of its consumer agreements in plain English, the company is “thrilled” about the efficiency gains, as well as by the praise they have garnered from politicians, the business community, lawyers, and consumers. Chancellor Egerton would, no doubt, be pleased. Lily Whiteman is a writer for the Plain Language Initiative in Vice President Al Gore’s National Partnership for Reinventing Government. NPR’s mission is to reinvent government to work better, cost less, and get results that Americans care about. The Plain Language Initiative is working to improve communications from the federal government to the public.

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