Sunday, July 5, 2020
The best attorneys don't just listen to their clients, they get them. Pro lawyers lean into their clients' business, their interests, and their goals. They learn their clients' language. Good lawyers often understand their clients better than the clients understand themselves.
That's great, right? Attorneys at their best give voice to their clients. They channel their clients' perspectives and needs into a form that others can understand (and be persuaded by).
But this hallmark of good lawyering can also be your downfall. Because getting too caught up in your client's world can put up barriers when you try to share that world with a judge or other audience. You may get so invested in your client's perspective that you have trouble seeing the judge's.
So consider stepping back and checking whether you have guided your reader through every piece of client-speak or dense industry-specific detail that could trip up an outsider. If you needed to explain a complicated technical process in your brief--it's probably a lot clearer to you, someone who has been learning about the process for months or years, than it is for a new reader. So take extra steps to handhold here.
This can include offering more context, visual guides, or simply breaking points down into smaller pieces.
Another common mishap is using jargon without giving your reader a clear definition of what it means. If there's any chance your reader won't know a term, don't assume they are smart enough to get it. Tell them.
Look at how Justice Kagan (whose audience includes the public) defines even basic legal terms in a recent opinion:
This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime.
Will most legal readers know what mens rea is? Sure. But will some be confused, at least momentarily? Perhaps. So why not include a quick definition?
When you're asking your reader to pick up many terms together, also consider using a glossary.
Patent litigators use these all the time, giving readers a cheat-sheet to navigate complex phrases. But they aren't the only ones who can benefit from this practice.
Like this attorney who attached a glossary to a complicated motion to dismiss a securities case:
If the court finds it helpful, attached as Appendix 1 is a glossary of every specialty term at issue in this case, as well as a reference chart to help the court keep clear the dozen entities and other individuals involved...
The takeaway here? Define the jargon and make it crazy easy for new readers to navigate client-speak.