Use Five Cent Words Minn. Lawyer 4-1-13
2
minnlawyer.com Apri l 1, 201 3 | 7 Leg al education rethink starts in the law firm By Edward Poll We have regularly discussed in these columns how law school does little to pr epa re yo ung la wye rs fo r p ra ct ic e realities in any size law firm. It has become increasingly clear that reality is catching up to law schools According to The N ew Yor k Times, law school admissions for the upcoming 2013 academic year are headed for a 30-year low (down 20 percent from last year and 38 percent from 2010), a decline driven by student worries about rising tuition, equally soaring debt load and the pr os pe ct of un em pl oy me nt af te r graduation. A fo ll ow -u p st or y in th at sa me newspaper said that some are calling for radical changes to the legal education system, including cutting the curriculum, requiring far more on-the- But this same story points out the real reason for the problem: “the vested interests of tenured professors tied to an antiquated system.” The dynamic between law schools and bar associations to maintain the profession’s status quo suggests that tweaking tuition or curriculum is likely all the change that can be expected from the law school side. But this should not be a dead end for legal education. Every law school graduate who is fortunate enough to have a law firm job should realize that keeping that job in today’s business environment is a personal responsibility , not a f unction of having a certificate that proclaims one to be a J.D. Given that realization, there are certain steps for firms to help associates become self-reliant in furthering their own legal education. with teams (not just a single rainmaker), and adding associates to those teams according to a strategic plan. Training associates to develop business according to a personal marketing plan, and giving bonuses to those who get results, is essential. With this opportunity to grow business development opportunities, associates can develop a book of business that justifies mak ing them partners. The next step, too often neglected, is to help associates with administrative staff . Law firm administrators with marketing involvement can help young lawyers develop status reports and client surveys that effectively communicate to clients how the young lawyer is handling a matter and ask for input. Administrators can also help set up an informal client visitation schedule, or other business development efforts using client relationship management (CRM) software and database systems. Ad mi ni st ra to rs kn ow th at to da y’s eager to help. The final step is one of attitude . Ass oci ate s s hou ld wea n t hem sel ves away from relying on rainmakers and build the ability to develop business. The hurdle here is helping associates develop “resiliency,” the ability to bounce back from criticism or rejection. Even successful sales people will frequently meet rejection, but their focus is always on achieving the next “yes” rather than dwelling on the last “no. Given that associates typically have little or no exposure to this sort of thinking, the only way they will acquire it is building up confidence by doing, through opportunities that the firm provides. Associates who pursue such opportunities and the lessons they offer are the associates with the best chance to be tomorrow’s partners. Edward Poll, J.D., M.B.A., CMC, is a law prac- tice management thought leader and contrib- Coach’ s Corner Edward Poll Prefer the short word to the long By Matthew Salzwedel Special to Minnesota Lawyer Supreme Court Ju st ic e Cl are nce Thomas isn’t a fan of big words in judicial opinions. “The At la nt ic ” rec en tl y quoted him as saying that he tries to write opinions so that non- lawyers can understand them: “[W]e write [opinions] so that they are accessible to regular peopl e. T hat does n’t mean that there ’s no law in them. But there are simple ways to put important things in language that’s accessible. [T]he beauty, the genius is not to write a 5-cent idea in a 10-dollar sentence. It’s to put a ten dollar idea in a 5- cent sentence.” Justice Thomas gives sensible advice in the abstract. But how, in practice, can lawyers use simple words to convey com- plex ideas ? An d is sim- plified legal writing more effective in per- suading judges and sat- isfying clients? To answer these questions, let’s first put the justice’s advice in histor- ical context. Attic and Asiatic styles Generally speaking, writing tends to fall within two literary styles, both of which were born from ancient Greek and Roman rhetoric. As Br yan Ga rner expla ins in “The E le- ments of Legal Style,” the Attic style is “re- fined conversation: concise, restrained, shorn of intricacy.” In contrast, the Asiatic style is “a florid oratorical style [that] sports elaborate antitheses, complicated syntax, and correspondences in sense and sound.” Since Cicero debated the merits of each style in his “Orator” (46 B.C.), there’s been conflict between proponents of each style. In the 20th Century, for example, this conflict took the form of barbs ex- changed by Nobel Prize winners William Faulkner and Ernest Hemingway. During one exchange, for example, Faulkner ac- cused Hemingway of “never [using] a word that might send a reader to the dic- tionary.” Hemingway retorted, “Does [Faulkner] really think big emotions come from big words? He thinks I don’t know the 10-dollar words. I know them all right. But there are older and simpler and better words, and those are the ones I use.” Altho ugh ea ch sty le boa sts an impre s- sive pedigree, since at least the mid-19th Century most writing authorities have told writers to adopt the simpler Attic style. Sir Ernest Gowers, in the “Complete Plain Words” (1954), boiled down this ad- vice to six word s: “Be shor t, b e s imple , b e human.” But this general writing advice never fully penetrated legal writing, which clung to its Asiatic roots. For the most part, we can blame the law schools. Since the casebook method of legal instruction was invented in the early 19th Century, lawyers have learned a “bastardized Asi- atic style” (Garner’s term) by adopting the style of antiquated opinions found in law- school casebooks, which buried legal concepts in sprawling, dense prose, and legal jargon. In the last 50 years, the plain-English movement — which emphasizes simplic- ity, clarity, and concision — marginalized the remaining defenders of the Asiatic legal-writing style. Yet paying lip service to plain-English principles isn’t enough. So, again, how can lawyers ditch the Asi- atic style and learn how to write simply in prac tice? It’ s n ot a s h ard as it might seem. Use short, familiar, Anglo–Saxon words Lawyers who write simply use short, familiar Anglo–Saxon words. In “The King’s English” (1906), H.W. Fowler sum- marized this idea in five related principles: “Prefer the familiar word to the far- fetched. Prefer the concrete word to the abstract. Prefer the single word to the cir- cumlocution [roundabout expression]. Prefer the short word to the long. Prefer the Saxon word to t he Romance.” Practicing Fowler’s five principles means, at the very least, replacing La- tinisms — i.e., words, idioms, or phrases borrowed from Latin — with simpler Eng- lish substitutes. True, Latinisms have filled voids in the English language. Ex- amples of void-fillers are alibi, amicus curiae, de minimis, ex parte, habeas cor- pus , prima f acie , res ipsa loqu itur , stare decisis, and voir dire. But other Latinisms are quite avoidable: ab initio (from the start), arguendo (for the sake of argu- ment ), inter alia (among other things), grav amen (crux, gist), res g esta e (things done), sua sponte (on its own), sui gene ris (unique), and vel non (or not, or the lack of (it, them)). Besides replacing Latinisms, lawyers who write simply always choose the sim- pler word or ph rase . In “T he Re dbook : A Manual on Legal Style,” Garner lists more than 150 complex–simple choices. Here are a few: acquire/procure (get), adja- cent/conti guous to (next to), ameliorate (improve), ascertain (find out, make sure), authored (wrote), cognizant (aware), commence (begin,start), conjec- ture/surmise (guess), demonstrate (show), discontinue (stop), elucidate (ex- plain ), endeavor (try), erroneous (wrong, incorrect, mistaken), evidencing (show- ing), facil itate (help, ease), forwa rd vb. (send), freque ntly (often), implement (carry out, set up), incongruous (unfit- ting, incoherent), individual(s) (person, peop le), inform (tell), inimical (adverse, hostile), intimate vb. (hint), multi tudi- nous/n umero us (many), notwi thstan d- ing (despite), render (make, leave), reques t (ask), reside (live), subsequent (later), transmit (send), and utilize (use). Close editing catches these complex– simple choices. When editing, lawyers should ask themselves whether a non- lawyer would be bewildered by a word choice. For example, no lawyer would say to a non-lawyer friend that “I’m going to the grocery store adjacent to my office to ascertain whether it sells fresh salmon. If it does, I will procure some filets for din- ner, which I’ll commence preparing at 7:00 p.m.” No, most lawyers would say in simple, idiomatic English that “I’m going to grocery store next to my office to see whether it sells fresh salmon. If it does, I’ll buy some filets for dinner, which I’ll start prep arin g at 7:00 p.m. ” The benefits of simple writing are many Lawyers, of course, shouldn’t be afraid to use uncommon words if they fit the context of the sentence. Aristotle no doubt was right when he said that writers should strive for a mixed diction. But short, familiar, Anglo–Saxon words pro- duce a more persuasive legal-writing style. Why? They reduce word counts. They quicken prose, and directly connect ideas. They don’t make judges and clients feel stupid by forcing them to dictionaries. And, most imp orta ntly , they g ive re ader s a chance to comprehend unfamiliar, com- plex subje ct ma tter . So try to follow Justice Thomas’s advice about using 5-cent words to convey 10-dollar ideas, and leave the complicated Asiatic style to the next Faulkner. You won’t win a literary award by keeping it simple, but your legal writing will undoubtedly be more effective. Matthew R. Salzwedel is an attorney in Min- neapolis, and the publisher of LegalWritingEdi- tor.com. He is also a regular contributor to Lawyerist.com, where he writes about legal-writ- ing, language, and usage issues. Use 5-cent words f or 10-dollar ideas Legal W riting Notebook Matthew Salzwedel Justice Thomas
-
Upload
mark-pimentel -
Category
Documents
-
view
2 -
download
0
description
news
Transcript of Use Five Cent Words Minn. Lawyer 4-1-13
-
minnlawyer.com April 1, 2013 | 7
Legal education rethink starts in the law firmBy Edward Poll
We have regularly discussed in thesecolumns how law school does little toprepare young lawyers for practicerealities in any size law firm. Ithas become increasingly clearthat reality is catching up to lawschools
According to The New YorkTimes, law school admissionsfor the upcoming 2013academic year are headed for a30-year low (down 20 percentfrom last year and 38 percentfrom 2010), a decline driven bystudent worries about rising tuition,equally soaring debt load and theprospect of unemployment aftergraduation.
A follow-up story in that samenewspaper said that some are calling forradical changes to the legal educationsystem, including cutting thecurriculum, requiring far more on-the-ground training and licensingtechnicians who are not full lawyers.
But this same story points out the realreason for the problem: the vestedinterests of tenured professors tied to anantiquated system.
The dynamic between law schoolsand bar associations tomaintain the professionsstatus quo suggests thattweaking tuition or curriculumis likely all the change that canbe expected from the lawschool side. But this should notbe a dead end for legaleducation.
Every law school graduatewho is fortunate enough to
have a law firm job should realize thatkeeping that job in todays businessenvironment is a personalresponsibility, not a function of having acertificate that proclaims one to be a J.D.Given that realization, there are certainsteps for firms to help associatesbecome self-reliant in furthering theirown legal education.
The first step is institutional. Lawfirms increasingly are servicing clients
with teams (not just a single rainmaker),and adding associates to those teamsaccording to a strategic plan. Trainingassociates to develop businessaccording to a personal marketing plan,and giving bonuses to those who getresults, is essential. With thisopportunity to grow businessdevelopment opportunities, associatescan develop a book of business thatjustifies making them partners.
The next step, too often neglected, isto help associates with administrativestaff. Law firm administrators withmarketing involvement can help younglawyers develop status reports and clientsurveys that effectively communicate toclients how the young lawyer is handlinga matter and ask for input.
Administrators can also help set up aninformal client visitation schedule, orother business development effortsusing client relationship management(CRM) software and database systems.Administrators know that todayssuccessful associates will betomorrows partners, so they will be
eager to help.The final step is one of attitude.
Associates should wean themselvesaway from relying on rainmakers andbuild the ability to develop business. Thehurdle here is helping associates developresiliency, the ability to bounce backfrom criticism or rejection. Evensuccessful sales people will frequentlymeet rejection, but their focus is alwayson achieving the next yes rather thandwelling on the last no.
Given that associates typically havelittle or no exposure to this sort ofthinking, the only way they will acquireit is building up confidence by doing,through opportunities that the firmprovides. Associates who pursue suchopportunities and the lessons they offerare the associates with the best chanceto be tomorrows partners.
Edward Poll, J.D., M.B.A., CMC, is a law prac-tice management thought leader and contrib-utor to this publication. His website is atwww.lawbiz.com.
Coachs Corner
Edward Poll
Prefer the short word tothe long
By Matthew SalzwedelSpecial to Minnesota Lawyer
Supreme CourtJustice ClarenceThomas isnt a fan ofbig words in judicialopinions. TheAtlantic recentlyquoted him as sayingthat he tries to writeopinions so that non-lawyers canunderstand them: [W]e write [opinions]so that they are accessible to regularpeople. That doesnt mean that theres nolaw in them. But there are simple ways toput important things in language thatsaccessible. [T]he beauty, the genius is notto write a 5-cent idea in a 10-dollarsentence. Its to put a ten dollar idea in a 5-
cent sentence.Justice Thomas
gives sensible advice inthe abstract. But how,in practice, canlawyers use simplewords to convey com-plex ideas? And is sim-plified legal writingmore effective in per-suading judges and sat-
isfying clients? To answer these questions,lets first put the justices advice in histor-ical context.
Attic and Asiatic stylesGenerally speaking, writing tends to
fall within two literary styles, both ofwhich were born from ancient Greek andRoman rhetoric.
As Bryan Garner explains in The Ele-ments of Legal Style, the Attic style is re-fined conversation: concise, restrained,shorn of intricacy. In contrast, the Asiaticstyle is a florid oratorical style [that]sports elaborate antitheses, complicatedsyntax, and correspondences in sense andsound.
Since Cicero debated the merits ofeach style in his Orator (46 B.C.), theresbeen conflict between proponents of eachstyle. In the 20th Century, for example,this conflict took the form of barbs ex-
changed by Nobel Prize winners WilliamFaulkner and Ernest Hemingway. Duringone exchange, for example, Faulkner ac-cused Hemingway of never [using] aword that might send a reader to the dic-tionary. Hemingway retorted, Does[Faulkner] really think big emotions comefrom big words? He thinks I dont knowthe 10-dollar words. I know them all right.But there are older and simpler and betterwords, and those are the ones I use.
Although each style boasts an impres-sive pedigree, since at least the mid-19thCentury most writing authorities havetold writers to adopt the simpler Atticstyle. Sir Ernest Gowers, in the CompletePlain Words (1954), boiled down this ad-vice to six words: Be short, be simple, behuman.
But this general writing advice neverfully penetrated legal writing, which clungto its Asiatic roots. For the most part, wecan blame the law schools. Since thecasebook method of legal instruction wasinvented in the early 19th Century,lawyers have learned a bastardized Asi-atic style (Garners term) by adopting thestyle of antiquated opinions found in law-school casebooks, which buried legalconcepts in sprawling, dense prose, andlegal jargon.
In the last 50 years, the plain-Englishmovement which emphasizes simplic-ity, clarity, and concision marginalizedthe remaining defenders of the Asiaticlegal-writing style. Yet paying lip serviceto plain-English principles isnt enough.So, again, how can lawyers ditch the Asi-atic style and learn how to write simply inpractice? Its not as hard as it might seem.
Use short, familiar, AngloSaxonwords
Lawyers who write simply use short,familiar AngloSaxon words. In TheKings English (1906), H.W. Fowler sum-marized this idea in five related principles:Prefer the familiar word to the far-fetched. Prefer the concrete word to theabstract. Prefer the single word to the cir-cumlocution [roundabout expression].Prefer the short word to the long. Preferthe Saxon word to the Romance.
Practicing Fowlers five principlesmeans, at the very least, replacing La-tinisms i.e., words, idioms, or phrasesborrowed from Latin with simpler Eng-lish substitutes. True, Latinisms have
filled voids in the English language. Ex-amples of void-fillers are alibi, amicuscuriae, de minimis, ex parte, habeas cor-pus, prima facie, res ipsa loquitur, staredecisis, and voir dire. But other Latinismsare quite avoidable: ab initio (from thestart), arguendo (for the sake of argu-ment), inter alia (among other things),gravamen (crux, gist), res gestae (thingsdone), sua sponte (on its own), suigeneris (unique), and vel non (or not, orthe lack of (it, them)).
Besides replacing Latinisms, lawyerswho write simply always choose the sim-pler word or phrase. In The Redbook: AManual on Legal Style, Garner lists morethan 150 complexsimple choices. Hereare a few: acquire/procure (get), adja-cent/contiguous to (next to), ameliorate(improve), ascertain (find out, makesure), authored (wrote), cognizant(aware), commence (begin, start), conjec-ture/surmise (guess), demonstrate(show), discontinue (stop), elucidate (ex-plain), endeavor (try), erroneous (wrong,incorrect, mistaken), evidencing (show-ing), facilitate (help, ease), forward vb.(send), frequently (often), implement(carry out, set up), incongruous (unfit-ting, incoherent), individual(s) (person,people), inform (tell), inimical (adverse,hostile), intimate vb. (hint), multitudi-nous/numerous (many), notwithstand-ing (despite), render (make, leave),request (ask), reside (live), subsequent(later), transmit (send), and utilize (use).
Close editing catches these complexsimple choices. When editing, lawyersshould ask themselves whether a non-lawyer would be bewildered by a wordchoice. For example, no lawyer would sayto a non-lawyer friend that Im going to
the grocery store adjacent to my office toascertain whether it sells fresh salmon. Ifit does, I will procure some filets for din-ner, which Ill commence preparing at7:00 p.m. No, most lawyers would say insimple, idiomatic English that Im goingto grocery store next to my office to seewhether it sells fresh salmon. If it does, Illbuy some filets for dinner, which Ill startpreparing at 7:00 p.m.
The benets of simple writing aremany
Lawyers, of course, shouldnt be afraidto use uncommon words if they fit thecontext of the sentence. Aristotle nodoubt was right when he said that writersshould strive for a mixed diction. Butshort, familiar, AngloSaxon words pro-duce a more persuasive legal-writingstyle. Why? They reduce word counts.They quicken prose, and directly connectideas. They dont make judges and clientsfeel stupid by forcing them to dictionaries.And, most importantly, they give readersa chance to comprehend unfamiliar, com-plex subject matter.
So try to follow Justice Thomassadvice about using 5-cent words toconvey 10-dollar ideas, and leave thecomplicated Asiatic style to the nextFaulkner. You wont win a literaryaward by keeping it simple, but yourlegal writing will undoubtedly be moreeffective.
Matthew R. Salzwedel is an attorney in Min-neapolis, and the publisher of LegalWritingEdi-tor.com. He is also a regular contributor toLawyerist.com, where he writes about legal-writ-ing, language, and usage issues.
Use 5-cent words for 10-dollar ideas
Legal WritingNotebook
Matthew Salzwedel
Justice Thomas
