Good Legal Writing - A Short Primer for Lawyers

Last week I received an email from an associate with an attachment – a one page letter to adverse counsel. The email was one sentence: “Is this okay to send?” Here are the first two lines of the attached letter, word for word, the punctuation as it was in the letter:

This letter hereby rejects your notice of EBT dated March 23, 2007 of the father
of my client scheduled for August 23, 2007. I admit I had a good laugh when I
opened it considering we spoke just last week and you told me you were looking
to get me a date for your clients deposition that you had previously requested
to be adjourned.

Yes, that was actually written by a lawyer. I still can’t read it without cringing. Unfortunately, the same can be said about much of what we write. It doesn’t have to be that way. In fact, as lawyers, language is perhaps our most important tool. The clearer, more concisely we write the better off we’ll be. Here then, are a few tips gleaned from a few years attempting to do just that:

• Know your audience. For lawyers this means really thinking about who is going to be reading your writing. If you’re making or opposing a motion in a busy New York City trial court and draft a 30-page brief, don’t expect it will be read. Conversely, if you’re submitting papers to a Federal District Court it ought to be perfect because the Judge – and her law assistant – will read every word.

• As Thomas Jefferson said, “[t]he most valuable of talents is that of never using two words when one will do.” In other words, cut the fat.

• Don’t use “then” when you mean “than.” This is one of the most common – and awful – mistakes I’ve seen over the years. “Then” refers to a point in time. “Than” refers to a choice, or “as opposed to.” Thus, “I’d rather watch TV than do chores,” or “I then decided I’d better get to work.” The two words cannot be used interchangeably.

• Use apostrophes appropriately. Just because a word ends in “s” doesn’t mean an apostrophe precedes the “s.” Thus, serving more than one subpoena does not make the word “subpoena’s.”

• A corollary to the previous rule is learning the appropriate uses of “it’s” and “its.” “It’s” is the contraction for “it is.” “Its” shows possession and has no apostrophe. So we would write “it’s a good case” or “the defendant is responsible for the acts of its contractors,” but never, for example, “the defendant is responsible for the acts of it’s contractors.”

• Finally, consider your font/formatting. Steve Jobs and Bill Gates have spent dozens of years and billions of dollars designing fonts that don’t look like they’ve come out of a ‘60s-era typewriter. So why would anyone use Courier? Or not fully justify margins? Arial may seem a bit informal for some legal documents, but certainly Times New Roman or Garamond is preferable to a document that looks like it just came out of an IBM Selectric.

This certainly isn’t meant to be an exhaustive review of legal writing or the epitome of clarity – just some food for thought.

Bad News for NJ families

Picture the following horrifying scenario: you're a parent and your young teenage son or daughter is out with some friends one night. At 3 a.m. you get a call from the local police: there was a horrible accident and your child died. No one was drunk or on drugs -- it was just a horrible accident. To say you're distraught is an understatement. If you can catch your breath long enough to cry you do, but more likely you feel like your world is collapsing. Months later when you finally gather the strength to call a lawyer your anger is just beginning; but most of all you want compensation for the devastating loss you've suffered. And shouldn't you be entitled to compensation for the emotional ordeal you've been through -- and will go through for months, years, even decades? Not in New York or New Jersey you're not.



You probably didn't even realize it happened, or that it was even an issue. But back in January Governor Jon Corzine of New Jersey told New Jersey families what he thinks about their right to be compensated for their mental anguish for loss of a loved one resulting from another's negligence. His opinion? Their lives are worthless. At least that's what can be inferred from his pocket veto of a bill passed by both houses of the New Jersey legislature that would have expanded New Jersey's wrongful death law to permit families to recover for mental anguish and emotional pain and suffering resulting from such a loss.



New York's and New Jersey's laws regarding compensation for loss of a loved one are very similar. The simple version is this: damages for loss of economic support are recoverable, but damages for emotional anguish -- the palpable, devastating heartbreak of losing a loved one -- are not. Governor Corzine could have changed that for New Jersey families but failed. The Governor's reason? "I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person's life while also addressing the adverse effect of allowing unlimited and unpredictable damages." In other words, the Governor is more concerned with protecting New Jersey businesses and municipalities than he is with protecting families.



Governor Corzine did add that he would consider a revised version of the bill that contains certain restrictions, such as allowing courts to reduce excessive awards. This is simply more political doublespeak. Trial Judges and appellate courts routinely reduce excessive awards; there is no need for special legislation to give Judges such power.



The bottome line: next time Governor Corzine says he's concerned with New Jersey families remember this veto.



Outraged? Go to http://www.nj.gov/governor/ and write to Governor Corzine. Click on "Contact the Governor" and follow the instructions to send an email on current issues.