Today, most lawyers who collaborate on writing a document probably swap numerous drafts by e-mail. But an interesting post on Legal Writing Prof Blog suggests a possibly better way to collaborate: wikis. The post includes a short video explaining what wikis are and demonstrating how they can be used to facilitate collaboration.
Sooner or later, every briefwriter is faced with the task of editing a 15,000-word draft to make it fit under the court’s 14,000-word limit for briefs. How do you do that without sacrificing substance? Write to Done provides some editing tips to do just that, courtesy of Jeffrey Hines, proprietor of Robust Writing.
If you’ve ever bristled at editors who mangled your draft, then you have some famous company: Thomas Jefferson. In America’s Founding Editors, University of Missouri law professor Douglas E. Abrams tells the story of how a group of 65 editors—the entire Continental Congress—worked over Jefferson’s draft of the Declaration of Independence, line by line. The process and its result left Jefferson resentful for years.
But here’s the punch line: This editing by a 65-member editorial committee actually improved the document! The editors tightened many passages and deleted others; the result of their efforts was a tighter, stronger document. Professor Abrams cites Pauline Maier’s description of their work:
Pauline Maier calls Congress’ close scrutiny of Jefferson’s draft “an act of group editing that has to be one of the great marvels of history.” “This was no hack editing job,” she continues, because “the delegates who labored over the draft Declaration had a splendid ear for language. . . . By exercising their intelligence, political good sense, and a discerning sense of language, the delegates managed to make the Declaration at once more accurate and more consonant with the convictions of their constituents, and to enhance both its power and its eloquence.”
Somehow I cannot imagine a contemporary 65-member congressional committee accomplishing such a feat. Nevertheless, there’s a lesson here for us writers who, proud as we may be of our own prose, are no Jeffersons. Those editors who we think are mangling our work might be improving it.
(A tip of the tricorne to Legal History Blog.)
If you’re a lawyer who reviews and critiques other lawyers’ writing, then you will want to read A Methodology for Mentoring Writing in Law Practice, by Jane Kent Gionfriddo, Daniel L. Barnett, and Joan Blum. In their article, the authors suggest a methodology for helping the senior lawyer focus on substance and offer comments that will help the junior lawyer improve as a legal thinker and writer. (Hat tip to Legal Writing Prof Blog.)
If your work involves drafting business contracts, then you need the second edition of Ken Adams’s book, A Manual of Style for Contract Drafting. It is to drafting what Bryan Garner’s Redbook is to legal writing in general.
Ken is the authority in this area. Besides writing the first edition of MSCD, he writes a blog devoted to drafting. After more than two years of blogging on this focused topic, he hasn’t run out of ideas. In fact, many ideas he’s hashed out on his blog have found their way into MSCD2.
One thing I like about Ken is that he does his own thinking. For instance:
Defense of shall. Unlike Bryan Garner,1 Ken does not advocate eliminating shall from all legal writing. He agrees that shall is overused to mean too many different things, which in turn leads to ambiguity. And he agrees that shall probably shouldn’t be used in consumer contracts. But he finds no reason to banish shall from business contracts, and he offers several paragraphs of thoughtful reasons why banishing shall would create other problems. He insists, though, that shall be used to mean one and only one thing: “has a duty to.” MSCD2 ¶¶ 2.25–2.65.
Contractions. Ken agrees that contractions are fine for most prose; hence his book is full of them. But a business contract is not most prose. “The prose of business contracts is like computer code—it’s devoid of tone or rhythm, unless it’s poorly done, in which case it can be redolent of pomposity. So the idea of using contractions in business contracts is at odds with the very nature of contract prose.” MSCD2 ¶ 16.51.
Typography. Briefwriters are told never to use sans-serif fonts for text.2 But a contract is not a brief, and there’s no court rule against sans-serif fonts for contracts. Ken challenges the notion that serif fonts are always easier to read than sans-serif fonts (MSCD2 ¶ 15.18), and so he recommends 11 point Calibri, a sans-serif font, for all contracts. MSCD2 ¶ 15.13. Not content to simply state his opinion on this point, he offers 18 paragraphs of reasons why Calibri is a good choice for contracts. (But if you must have serifs, then Ken recommends Cambria.)
This book is designed primarily as a reference. But if, like me, you’re relatively unschooled in the best practices for drafting contracts, then you would do well to read it cover to cover—which is what I intend to do over the next few weeks.
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1 See Bryan A. Garner, A Dictionary of Modern Legal Usage 940 (2d ed.1995).
2 E.g. Fed. R. App. P. 32(a)(5)(A).
John Grisham never wrote a book called The Demand Letter. But if he had, then perhaps the main character would be Bret Rappaport. Bret has written a fine article on how to write an effective demand letter, A Shot Across the Bow, which you can read in HTML or PDF. Bret’s article explores everything from the psychological aspects of an effective demand to the timing and mode of physically delivering the letter. (Hint: FedEx delivery is an attention-getter.)
Who better to advise lawyers about document design than a lawyer trained in typography and graphic design, one whose pre-law career included typeface design? Meet Matthew Butterick, proprietor of Typography for Lawyers. And if you agree that presentation matters, bookmark his site for future reference. (Hat tip to Slaw.)
Seventh Circuit Judge Richard Posner has been known to use contractions (gasp!) in his opinions. Well, just as marijuana leads to meth (right?), contractions lead to smiley faces. (Hat tip to Howard Bashman.)
(p.s. 9/16/08: It looks like I scooped Snopes on this one. But I must tip my own hat to Urban Legends.)
Maybe you’ve seen the viral e-mail titled “Twenty-Eight Reasons Why English Teachers Die Young.” It purports to list 28 similes found in high-school essays. The e-mail has taken in many bloggers, including this one. Actually the content of the e-mail comes from the Washington Post Style Invitational’s outrageous-analogy contests in 1995 and 1999. Here are some of my favorite entries (this time with proper attribution):
Continue reading "Bulwer-Lytton, move over." »
In an opinion piece for the National Law Journal, Ken Adams examines what’s wrong with the usual process of drafting contracts, and he suggests some paths to improvement.