The Toolbox: Words: The Lawyer’s Basic Tools

Lawyers deal with words. They are the basic tool a practitioner uses. Understanding—interpreting—the words of the legislature, courts, and other lawyers and putting words together to make contracts, pleadings, briefs and other communications are the tasks an attorney must perform competently to do his or her job well.

A lawyer should look at everything he or she writes critically. Someday, the lawyer must assume, someone will try very hard to misunderstand what a writing says. The lawyer’s job is to make this as hard as possible.

In writing a lawyer must first keep in mind what he or she is trying to do. Is the writing intended to persuade or explain? Is it meant to bind parties to perform obligations? Is it a disclosure document or one that is to govern future conduct?

It is also critical to keep in mind who the audience is and who will be reading what is written. Is a court the audience that must read the document as the lawyer intended? Perhaps the lawyer is writing for his or her client or for opposing counsel or that lawyer’s client. Is the public going to be reading and interpreting what the document says? The audience is likely to determine whether the document is readily understandable and so will determine how technical the lawyer can be, just as the purpose of the document will dictate its contents and tone.

Before turning to the specific types of writing a lawyer may expect to encounter, a word is in order about the basics. After leaving high school many people stop worrying about grammar, punctuation, spelling, and the meaning of words. I know one lawyer—a pretty skilled one—who has a strong aversion to proof reading. His disdain for this mundane chore is one of his principal flaws.

It is true that most attorneys force themselves to be more careful about the basics of the English language when writing contracts or other instruments meant to bind clients. After all, errors in grammar or usage invite misunderstanding and judicial interpretations that can lead to red faces at best and malpractice litigation at worst. But even in briefs and correspondence errors such as using “plead” as the past tense of the verb “to plead” or confusing “principal” with “principle” or composing run-on sentences or mixing the number of pronouns and antecedents can harm a practitioner’s effectiveness. If a practitioner submits to a court documents rife with mistakes, the judge’s natural assumption is that the lawyer’s research and logical reasoning will be characterized by the same sort of sloppiness. This doesn’t mean the lawyer will lose his or her case; but it does mean that the court will lose confidence in the lawyer.

The same sort of result obtains when opposing counsel encounters these kinds of mistakes. The lawyer who messes up will lose the respect of those opposing him or her—and, if the lawyer’s client is reasonably literate, will undermine the client’s confidence in its representation as well.

Different kinds of written product call for different approaches. I don’t intend here to deal with all types of legal writing. I will address—briefly—writings that persuade, explain or disclose. Other types of writing—other than to bind—include pleadings, opinions of counsel, strategy memos, general correspondence and the many other formulations of language an attorney is likely to be called upon to devise in his or her legal career.

Turning, then, to writing to persuade, the first question is who is the audience? At least with a brief, the principal audience is the court that will be ruling on the issue dealt with. But the brief will also be read by opposing counsel and his or her client as well as the author’s client and parties aligned with that client. If the brief is sufficiently persuasive it will not only give confidence to the practitioner’s client but may influence the opposition to settle. It may also affect the role of counsel in a multi-party dispute.

For a brief to be persuasive, it must, first, be honest about the facts and the law. Misstated or slanted facts are likely to detract from the persuasiveness of the ensuing argument and distortion of the law will do even more harm. Moreover, the odds are very high that opposing counsel and/or the court will recognize any misstatements—so hurting the briefing party’s credibility and tainting even the best argument.

Next, a brief or similar document needs to be readable. Concise is nice! At a minimum the practitioner should avoid redundancy and seek to organize arguments in a flowing way: each point should logically follow from its predecessor and, if alternative arguments are offered, they should be put in logical order. Start with the broadest, strongest argument and work your way down. If another party has already made a given argument, rather than repeating it, adopt it. Make sure cites to cases or the record are easy to track down. Finally, don’t clutter the brief with material that doesn’t support your principal points: footnotes are fun to write but a pain to read (and this hint comes from a lover of footnotes). This is especially important when the court addressed is an appellate court not having the expertise in a given area, say bankruptcy, which the trial court had. Be especially cautious of wasting paper on what a bad guy opposing counsel is: it is a waste of space and usually distasteful for the court.

When writing to explain, readability and clarity are also important. What is different is the audience. Examples of explanatory writing include guidance for clients—for example, how to act as a Chapter 11 debtor in possession, continuing legal education, law review articles and press releases. The first and last of these examples may well include in their intended audiences people who are unsophisticated in the subjects covered. Accordingly, the practitioner in his or her writing must ensure that the audience has little room for misunderstanding. Imagine for a moment a Chapter 11 client whose employees think post-petition debts are only those for which bills are received after case commencement. Or think of the effect on a restaurant in Chapter 11 of a press release that seems to say the restaurant has closed its doors.

Thus when writing to explain, the lawyer has a double task. First, he or she must be sure to accurately cover the matters to be included in the writing. Second, the writing must reduce complex subjects to the level of an audience that lacks the grounding a judge or another attorney—or even a sophisticated non-lawyer—would have.

Writing to disclose—as in a disclosure statement or an SEC filing—should be similar to writing to explain. After all, the idea behind a disclosure document is that its recipients will learn enough about the subjects covered to make informed decisions whether to vote on a plan or buy or sell a security. Unfortunately, disclosure documents are viewed generally by lawyers and their clients as a necessary evil that should be formulated more with an eye to protection from future litigation than to their value in informing their audience. As a result, disclosure documents tend to be dense and virtually unreadable other than by experts used to dealing with the sort of information presented. In the bankruptcy—specifically Chapter 9 and Chapter 11—area summaries of plan terms are often used in disclosure statements to ameliorate the problem of unintelligibility.

I intend to deal with the writing to bind in a future column. This type of writing is critical. It includes plans, contracts, wills, orders, instruments like notes and deeds of trust and governance documents like bylaws and partnership agreements. Because these sorts of documents require greater precision in their drafting, writing to bind merits separate, more extensive treatment.

In this column I have not attempted to go into much detail about writing. Many considerations will play a role in how you write. For example, tactical or other considerations may limit what you can cover in a brief: however persuasive a given argument, it may cause so much harm in another context that it cannot be made. Negotiations—whether over the subject matter of a writing or otherwise—may affect what is written. A judge’s or counter-party’s peculiar concerns—hot buttons—may need to be taken into account. The need for confidentiality may hamper counsel’s ability to make points or explain documents.

Much has been written on all types of legal writing. Books are available on legal drafting and brief writing, and courses are offered on these subjects by some providers of continuing legal education. Certainly, I do not intend this short treatment as a substitute for the more extensive training practitioners have available, but I did want to make some points about how lawyers should use their most important tools: words. I have seen more than one deal come apart because of carelessly offensive correspondence and more than one lawsuit that is an outgrowth of sloppy draftsmanship or the failure of a client to understand its obligations under a contract. These are pitfalls lawyers can help avoid by careful use of words. Put another way, like many tools used in other disciplines—saws, drills, etc.—words are tools the lawyer must use with due care.