Tuesday, July 30, 2013

Top corporate counsel and ATL columnist Mark Herrmann on the importance of good legal writing

Mr. Herrmann, who is Chief Counsel at a top, global risk management and insurance firm as well as author of the bestselling The Curmudgeon's Guide to Practicing Law, recently discussed the importance of good writing to the practice of law in his regular column over at Above the Law.  Mr. Herrmann was responding to a reader email related to another post in which he was accused of overemphasizing the importance of this key legal skill.  The correspondent in question argued that writing is merely one of several skills lawyers have to master and that many of those other skills, such as the ability to take a good deposition or strategize about defenses, often play a much larger role in the outcome of the case than the lawyer's ability to write a good brief.  In response, Mr. Herrmann reaffirmed his belief in the primacy of good writing as the single most important lawyering skill because it's where the rubber meets the road in terms of the attorney's ability to organize, analyze and persuade. 

Overemphasizing The Value of Good Legal Writing

Why do I value good writing?

First, because “good writing,” defined broadly, picks up much of what my correspondent frets about. A good brief reflects the author’s ability to read cases, choose issues, cull facts, apply law to fact, and persuade. Thus, insisting on “good writing,” broadly defined, is simply insisting on good lawyering.

But I emphasize — and perhaps overemphasize — good brief-writing for a second, practical reason: It’s what I can see and evaluate.

If I were part of outside counsel’s litigation team, studying the documents, working with witnesses, and reading the cases, then I could evaluate every aspect of outside counsel’s performance. I could tell whether she was pursuing the right leads, preparing witnesses intelligently, picking the right fights, taking good depositions, and making maximum use of the cases.

But that’s not where I sit. I’m responsible for all litigation involving my company everywhere in the world, and that puts me a fair distance from the day-to-day litigation team. I’m not personally reading the old emails and poring over the documents to cull the critical facts. Virtually everything I learn about our cases comes secondhand, screened by an intervening mind that has chosen to include some facts and omit others. Unless outside counsel makes some obvious mistake — telling me, for example, that, given a choice, I should prefer to sue in California to enforce the covenant-not-to-compete — I can’t judge the quality of his legal analysis or critical thinking.

In a typical case, I get one unfiltered view of counsel’s brain: The brief. If the introduction is incomprehensible, then I no longer trust your legal work. If the appellate brief doesn’t mention standard of review, then you’re either inept or don’t know when you’ve strayed beyond your competence; either way, you’ve turned me into a skeptic. If you use long block quotes or the passive voice repeatedly, then you don’t know how to persuade. When my one unfiltered view of your brain suggests that you’re not very good, why should I take it on faith that the rest of your game is actually great? Because you say so?

Check out the rest of Mr. Herrmann's argument that legal writing is the litmus test for good lawyering generally from a guy whose job it is to hire and then assess the performance of outside counsel.



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