The guys at LAWsome interviewed me for their June 5 podcast. Skip to 12:55 for my thoughts on why lawyers should think of themselves as professional writers, the single biggest barrier to effective writing, and why the term "work-life balance" should be abolished.
Mar. 29, 2018 Toronto ON
OBA CIVIL LITIGATION LAW PROGRAM | 9:00 AM to 12:00 PM
Writing strategically is as important as oral advocacy. It is part of the foundation of solving and winning legal disputes. All lawyers, new and seasoned, should sharpen this skill since it is used daily, whether it be with letters to opposing counsel, research memorandums or factums. Time is always of the essence in the legal world and the better skilled you are at writing legal documents, the quicker this task will be, making you a more effective and efficient lawyer. Our stellar faculty will teach you how to write in a tactical and winning way while moving beyond the reliance on boilerplate precedents. Learn what the court expects, what works and what doesn't, and get expert guidance on how to write and win in a practical, strategic, and focused way. Join us for this highly practical program and learn from the experts.
Chris Paliare, Paliare Roland Rosenberg Rothstein LLP
Shaun Laubman, Lax O’Sullivan Lisus Gottlieb LLP
The Honourable John I. Laskin, Court of Appeal for Ontario
The Honourable Jennifer Woollcombe, Superior Court of Justice
The Honourable Sébastien Grammond, Federal Court of Canada
Caroline Mandell, Legal Writing Coach
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This short article illustrates how, by really thinking about audience and tone, a manager's initial memo to staff about the office photocopier is transformed from a splat of bureaucrat-ese into a simple, sharp message. The same principles apply to legal writing in all its forms.
The article is from 1973(!) but is as relevant today as ever. The only difference is that the manager's "memo" from 45 years ago would now undoubtedly be an email. Does the format change the substance? You be the judge.
Fifty-five years ago, composers Jerry Block and Sheldon Harnick set about to find backers for their new musical about a poor milkman, his five daughters, and the cultural and political forces that would upend their quiet shtetl lives. Their director of choice, Jerome Robbins, wouldn't sign on to the job unless he could be persuaded that the show would appeal to a wide (read: non-Jewish) audience. In meeting after meeting, Robbins would grill Block and Harnick: "What is this show about?" Again and again, Block and Harnick recounted the plot, and Robbins remained unmoved. "What is this show about?" He demanded. Finally, Block had the right answer: "Tradition!" "Bingo," Robbins said, slapping his hands together. "Let's make a show."
What Robbins understood, and Block and Harnick came to realize, was that they needed a simple, central theme that would immediately connect with their audience. The plot of Fiddler is specific to its time and place. The theme of tradition is universal. The songwriters wrote a new opening number to introduce the theme (watch it below...go ahead, I'll wait...), and when all was said and done, Fiddler became the longest-running Broadway show of its time.
Lawyers, and litigators in particular, can draw an important lesson from this story. You may have the facts and the law on your side, but you need to frame your case with a clear, compelling and simple theme to draw the judge onto your side -- and keep her there. The theme may be doctrinal: "Parties should be held to their bargains (and these parties should be, too)." It may be structural: "Trial judges must follow precedents set by higher courts (and the trial judge here broke that rule)." Explicitly or implicitly, the theme should always signal why the justice of the case rests with your client.
Judges fundamentally want to reach just results. You can help them get there by asking yourself the (reframed) Jerome Robbins question: "What is this case about?" If your answer is a variation on the theme "Justice," you're on your way to writing a hit.
By now, those of you who care enough about legal writing to visit this blog will likely have read the ACLU's hilarious, iconoclastic brief in the John Oliver defamation suit. Besides being laugh-out-loud funny, the brief is also a model of point-first, plain-language, reader-friendly legal prose. The table of contents is enough to make me weep with joy -- it definitely meets the test of allowing the reader to follow the argument by skimming the headings alone. And I doubt there's been a more effective use of a visual aid in a legal brief than the one found at page 7.
My abundant admiration for the brief and for the ninja warrior who wrote it, Jamie Lynn Crofts, is in no way diminished by the opinion I am about to offer: DO NOT TRY THIS AT HOME.
There are three reasons why.
First, the brief was a response to a ridiculous case brought by a ridiculous person in ridiculous circumstances. In fact, the legal point the ACLU sought to advance was that the case was so ridiculous it should be turfed immediately. Here, context is everything.
Second, the ACLU was acting as a proposed amicus curiae in the case. It was acting as its own client. If its rhetorical gamble failed, it -- and only it -- bore the cost.
Finally, the ACLU brief is clearly the work of a very experienced lawyer. It's apparent that Ms. Crofts toiled away writing hundreds of stolid, staid briefs before the Oliver case came along. You have to master the classics before you can play jazz. Unless you're already an old pro, stick with the classics for now.
I teach legal research and writing to first-year students at the University of Toronto. The course requirements call for 90% of the students' grades to come from written assignments, and 10% from participation. Next term, I'm not assigning marks for participation. Instead, I am going to evaluate my students on their professionalism.
Many aspects of professionalism look an awful lot like participation: Show up to class. Be on time. Do the readings. Hand in assignments by the due date. Answer questions in class. And ask them, too.
But professionalism demands more than showing up and occasionally appearing engaged. It means not just joining the conversation, but doing so respectfully -- contributing to but not dominating the discussion, listening actively to peers, not trying to show up or show off. Professionalism also means keeping your phone turned off and not surfing behind the personal shield of a laptop screen. And it means addressing your professor formally in writing and in person.
Most of all, professionalism is about recognizing that the single most important asset a lawyer has is her reputation. From the moment they take their seats on the first day of class, law students are starting to build the reputations that will carry them throughout their careers. Classmates and professors now will be colleagues and collaborators down the road. Doors will open -- and close -- based on the impressions students make before they've even written their first exams.
Shifting the focus from participation to professionalism helps students to see themselves as the lawyers they strive to become.