The Lawyer's Guide to Writing Well. Tom Goldstein

9th, Cordially, respectfully, regards.

      GROUCHO MARX

      In the 1980s, the same charges were levied on a new culprit: the personal computer. Mary Frances Edwards, a Washington writer, blamed word processing for the higher volume and lower quality of legal writing: “The ease of word processing has generated a barrage of paper. American lawyers bombard each other with lengthy memoranda, attachments and appendices. The miracle of word processing has also turned many lawyers into mere mechanics…. Due to word processing, some documents which were formerly individualized are recycled from case to case and client to client, like soft drink bottles.”⁴ This recycling also troubled Vivian Dempsey, who has taught legal writing at law schools in the San Francisco area: “Like the harried white rabbit in Alice in Wonderland, the attorney who borrows from existing documents may look at his watch and scurry off to more pressing matters instead of taking the time to tailor computer-made documents to a particular use. ⁵

      David S. Levine, a lawyer and critic, acknowledged that “the new technology gives us opportunities for thoughtful language and style”— but “the result tends to be prose that is both over-manicured and, as always, turgid.”⁶ Federal District Judge William G. Young of Boston offered a related objection: “Word processing available to lawyers assists them in raising a plethora of points. Judges feel they must deal with each of the points raised even if they are minor.”

      Should we blame the faulty craftsman or the tool? When computers are misused, they contribute to sprawl. Correctly used, though, they can provide extraordinary benefits. They save time, freeing more time for revisions. “A first draft produced on a word processor,” says Fran Shellenberger, a law office management consultant from Maryland, “will have the quality of a second or third draft produced with machine dictation or longhand.”⁷

      Word processing may not work for everyone. Louis Simpson, the poet and teacher, doubted whether “Flaubert would have written prose more easily if he had owned a word processor—he complained that sometimes it took him a whole day to write a sentence.”⁸ But for those of us who must write more than a sentence a day, word processing has obvious advantages: we can easily reorder, rewrite, and replace text with a few keystrokes. William K. Zinsser, an elegant stylist and the author of a best-selling guide on writing, is among the many writers who have been converted from skeptic to enthusiast: “Not since the typewriter replaced the pen has a more exciting tool come along,” he wrote, after his wariness of computers had dissipated. If typewriters contributed to verbosity, he thought that word processing held the promise of a cure: “The word processor can concentrate your mind on the craft of writing, revising and editing—much more powerfully than this has ever been possible, because your words are right in front of you in all their infinite possibility, waiting to be infinitely shaped. Technology, the great villain, turns out to be your friend.”⁹

      But law firms were slow to make friends with the first generation of electronic technology. Through the 1980s, most lawyers still composed by dictating or by writing longhand, usually on a yellow (never, never white!) pad. They discouraged their associates from using typewriters, much less word processors, often on the pretext that it was “unprofessional” for lawyers to type. (Perhaps this is the reason so many lawyers of that generation never bothered learning to type. Some female associates even confessed to hiding their typing skills because they did not wish to be mistaken for secretaries.) So offices with highly efficient terminals and computer networks often waited on associates who were penning their briefs longhand onto yellow notepads or dictating onto tapes that would be transcribed when a secretary became available.

      During the 1990s, the price of high-speed desktop computers dropped dramatically, word processing software became more sophisticated, and the Internet and the lure of e-mail drew almost everyone to the keyboard. The line between computer users and non-users became and remains largely generational. Some older lawyers prefer to continue to compose as they always have; others do not know how to type or use a computer and have no desire to learn. Some non-users, though, would jump in if only their firms provided computer tutorials.

      The popularity of e-mail has occasioned a new chorus of an old complaint. The old version: The typewriter saved businessmen much time but caused them to fall into “all sorts of evil practices, particularly the sin of starting a sentence without a plan for finishing it.”¹⁰ The new version: E-mail saves much time but causes people to write informally and sloppily, with no eye to proper spelling or grammar; the e-mail culture is transforming us into a nation of hurried, careless note makers.

      A final twist: Now that almost everyone is at the keyboard, improvements in voice-recognition software may take some lawyers away from the keyboard and back to the lost art of dictation. For Arthur H. Christy, in practice in New York since the late 1940s, fluency in dictation has long been a badge of accomplishment, and he thought it unfortunate that younger lawyers lacked the skill: “Very few of them have the ability to dictate face to face, preferring to resort to the little black box with controls for starts and stops. Part of this may be that in the changing legal world there are fewer and fewer secretaries who take shorthand. It seems to me that if a young lawyer, particularly a litigator, can organize his thoughts, he should be able to dictate steadily without having to start and stop.”

      What Christy sees as a virtue, others view as a vice. More than half a century ago, Professor Edward H. (“Bull”) Warren of Harvard Law School advised lawyers never to dictate anything that “calls for careful thinking.” If you dictate, he said, “you are likely to get into a habit of using words of many syllables like ‘formulate' or ‘constituted.’ If you write in long-hand you are likely to get into a habit of using words of one syllable like ‘made' or ‘was.’”¹¹

      Whether voice-recognition software will tug at lawyers now being trained on the keyboard remains to be seen. We think the trend toward composing at the keyboard is worth preserving. For those of you who are attracted by voice-recognition software, we offer this advice: Drafts composed orally will require even more rigorous editing and revisions than drafts composed at the keyboard. Although the best writing has a natural sound—as though the writer were talking to the reader—even the best oral draft will contain false starts, lapses in organization, distracting emphases, sentence fragments, missing punctuation, and other idiosyncrasies of the spoken word.

       6 LESSONS FROM A WRITING AUDIT

      In 1988 we conducted an experiment at a fast-growing, medium-sized corporate litigation firm on the West Coast. One of the senior partners invited us to audit the firm's writing process, to interview a cross-section of the work force (partners, associates, paralegals, secretaries, and support staff) and assess how well the firm was meeting its goal of producing high-quality documents in an efficient manner. In the course of updating this chapter, we visited another office of the same firm in 2000. The office had newer equipment, but little else had changed. We believe that our original analysis and proposals were sound—though we obviously underestimated the degree of institutional resolve that would be needed to implement our recommendations.

       Field Notes

      The firm annually hires a large number of associates who understand that they will be spending long hours in the office, often under intense pressure, churning out documents. Senior members of the firm say that good writing is appreciated and rewarded. Because the firm is growing so rapidly, they worry about the quality of briefs, memoranda, and other documents drafted by new associates. But the partners are too busy practicing law to devote much time to training their younger lawyers. They are too busy even to review writing samples when recruiting new lawyers. (In this, the firm resembles many other growing firms with active business practices.)

      The firm falls short of its professed goals (high quality, high efficiency). It tends to have higher-priced people doing lower-priced work. For example, several associates acknowledge that they overwrite documents, expecting partners to edit and revise. Much of that editing and revising should be completed early on, by the associates themselves. A second example: one associate said he proofreads his drafts and documents because it takes too long to walk the papers to the central proofreading desk. He, and perhaps