“In the third year of law school, they ought to teach English as a Second Language.”
– Stephen Wermiel, quoted in The Lawyer’s Guide to Writing Well, by Tom Goldstein and Jethro K. Lieberman
Most lawyers could do with an intensive remedial course in “Once upon a time.” The longer they have practiced law, the more they probably need it. Lawyers strangle their storytelling ability in many ways, but two deserve special mention.
A lawyer’s job is to persuade, which is not possible without some type of human connection. Story is the way humans connect, meet and get to know each other. People on a first date listen to each other’s stories. Stories are the way humans organize and experience information. Mark Turner, professor of cognitive science at Case Western Reserve University, writes in his book The Literary Mind: The Origins of Thought and Language that story “is the fundamental instrument of thought.” It is our “chief means of looking into the future, of predicting, of planning, and of explaining.”
Connecting in the law is no different. Stories are how people understand the law, especially in the common law tradition. Every well-written judicial opinion begins with the story (the facts) right after the title (the issue presented). Every poorly drafted opinion begins with a bad story, facts whose relevance readers cannot understand, stated in a manner they don’t want to read.
For example, with something as technical as claim construction in a patent case, a bad brief jumps right in with the ’043 patent and the grammatical construction of its claims as applied to whatever arcane area of technology happens to be involved. Most opinions from the U.S. Court of Appeals for the Federal Circuit suffer from this same defect; as a consequence they are all but unreadable.
In contrast, the U.S. Supreme Court’s March 20 opinion in Mayo Collaborative Services v. Prometheus Laboratories tells a story about how autoimmune patients are tested and treated using the procedures Prometheus Laboratories tried to patent. The story may not be legally necessary, but if the goal is persuading a human being — as opposed to an engineer — story is mission critical.
Assuming lawyers even recognize the importance of story in creating an empathic listener, they appear to be working hard to avoid that connection. All sorts of habits and tics from law school or the professional culture impose the death sentence on a good story. Here are a couple.
1. Date of death: Pop quiz time. Think of the best book you ever read, the book that sucked you in so much you lost touch with reality and could not put it down. Now think of the climactic event in that page-turning yarn. On what date did it occur?
The date is lost to memory. In fact, the author may not have written the date down at all. Why? Because the date does not matter.
The date is not the story. The event is the story. The only important thing is proximity. The event happened before some things in the plot, at the same time as other events and after others. For example, no one but the most hard-core Harry Potter fan will know the exact date he met Hagrid to receive his Hogwarts letter. The date does not matter. All that matters is that it was his birthday.
But lawyers write as if the dates are the story. Pick a summary judgment motion or pleading at random. Paragraph after paragraph begins, “On Jan. 24, 2009, an event happened that you no longer care about or remember because I put a date at the beginning of the sentence, and you don’t know whether the date is important or how the event fits in.”
Creating a fact section by copying and pasting the chronology from a trial notebook does not tell the reader which events are important or why those events are important. All it does is set out when every event happened. Using proximity to tell the story communicates pace and importance. Using dates communicates an ability to cut and paste.
I can already hear the protests. Sometimes when something happened is important, like in a dispute over limitations. But even here, limitations does not depend upon dates. It depends on the passage of time: “Carl Client filed this suit last year, but he ceased to be a client of Fancy Firm LLP during the Reagan Administration.” There’s not a date to be found, but the reader knows who is entitled to judgment and why.
Tell the story with a beginning, a middle and an end. Don’t take up the reader’s short-term memory with dates. Instead, tell the reader what happened “next,” “four days later,” “two years earlier” or “that same day.”
2. Killing all the characters (hereinafter “KATC”): Good stories are character driven. If a suit is a story, then the parties and the witnesses are the characters. But leave it to lawyers to adopt writing techniques that kill all the characters.
Lawyers kill off their characters in two ways: the unnecessary definition and the Mystifyingly Obtuse Acronymic Definition (hereinafter “MOAD”). If a lawyer represents The Boeing Co., and if there is only one Boeing in the case, there is no need for the brief to start “COMES NOW The Boeing Co. (hereinafter ‘Boeing’) …” Can’t we all just have a grand bargain that unnecessary definitions be dropped? If someone actually marks that edit to your draft brief, just say no.
Then there is the MOAD. Any lawyer representing Porsche Cars of North America Inc. should be horsewhipped for using the acronym “PCNA” instead of calling the client “Porsche.” Only a lawyer would do that. “Porsche” has panache. PCNA is not even a word. (For a worthy rant on the topic, take a look at Mark Herrmann’s Inside Straight column for Above the Law, “On Alphabet Soup (Hereinafter ‘OAS’)” from Feb. 24, 2011.)
Ironically, one sometimes must convince clients to chuck the acronyms they use for themselves in favor of becoming characters. But a dedicated lawyer can do it, and it is critically important to telling the client’s story.
If the client’s name is not particularly evocative, or if similar names exist in the story of the suit, a lawyer can name the client-character he represents for its structural position in the dispute. For example, in a recent dispute between a purchaser, a seller and a bank involving a sale of goods and a letter of credit, the trial lawyers named all three parties by inscrutable sets of initials. The result was that every filing had at least three sets of MOADs for the trial court to re-learn and keep straight. Why not “the buyer,” “the seller” and “the bank”?
Structural labels not only keep the parties distinct but also make their position in the dispute crystal clear for the reader. The object is to get the court to understand the dispute and care about the client. This will not occur if the court must consult a glossary or a scorecard just to know who the players are.
Nobody knows the names of the three bears, and it does not matter. The story turns on the structural pieces: a mama bear (hereinafter “MB”), a papa bear (hereinafter “PB”) and a baby bear (“BB”), hereinafter collectively referred to as “the Three Bears.”
Sounds stupid, doesn’t it? Don’t sound stupid. The prose you save could be your own.
Kendall Gray is a partner in the appellate practice group at Andrews Kurth in Houston and the publisher of the blog appellaterecord.com. He is board certified in civil appeals by the Texas Board of Legal Specialization.