I was on a roll yesterday, and suddenly realized that the memo I was working on was over 100 pages. Lest anyone be overly impressed by length, that’s much too long and only meant that I had a massive amount of editing to do. No judge has the time to read, no less digest, a memo of that length. But I was on a roll.
There can be no question but that the ability to communicate in writing is a critical and fundamental tool of the law. But then, not enough lawyers give much thought to the mechanics of communication in general and writing in particular. Despite assumptions to the contrary, my writing here isn’t the same as my writing in my practice. This is for fun. In my practice, I write for other people’s lives. I write to persuade a judge to see and agree with my point. There is no room for the indulgence shown here.
Seth Godin posted about “broken English” and its effect on communication.
All the nuance disappears. When talking to someone in a language that’s not easy for them, you discover that idioms and other forms of communication disappear. You need to be extremely direct and specific in order to make yourself understood.
The thing is, just about everyone speaks some form of broken English. It’s “broken” because it doesn’t match our version. Their language and our language isn’t the same one—the other person may think your English is broken too.
The problem is exacerbated in writing. When talking with someone, you can see their non-verbal reactions and recognize that they aren’t getting what you’re say, or aren’t reacting well to it, and you can adjust your communication in the hope of fixing the problem. Remember, communication is a two-part process: The sender and the receiver. If the receiver isn’t understanding the sender’s message, then the sender has failed to communication.
While that happens here all the time, it’s beyond my ability to address. I don’t know who is reading my posts, what their background or education and experience is, and can’t tailor my words to meet their particular level of understanding. Readers can span the spectrum of understanding, so some will get it and others won’t. That’s the nature of the medium.
When it comes to communicating as a lawyer, we know who we have to persuade and must tailor our words to fit the receiver.
Our ability to communicate with one another isn’t nearly as sophisticated or error free as we think it is.
You will be misunderstood. If it’s critical that we understand you, say it more clearly. Say it twice. Better yet, act it out, live it, make it an action, not merely a concept.
Yet, it remains within our power to be the least misunderstood as possible. I know that my memo is going to a judge. I know who the judge is, and although I’ve never had a case with him before, I have researched his background and writing. I have a sense of his leanings, his facility with writing and his legal interests and concerns. But I don’t know him.
It’s far easier to write for the smart judge, as you have the comfort of knowing that she will understand concepts embodied in your writing, though that doesn’t mean you shouldn’t take very seriously Godin’s admonition to “act it out, live it, make it an action.” The communication of concepts without concrete examples is one of the most difficult to convey, and there is rarely an excuse for not making certain that your point is clearly shown, even if you’re absolutely certain that your writing is so brilliant that no one could possibly misunderstand.
The hardest judge to persuade is the one who overestimates his intelligence. We all know this judge, the one who is compelled to show that he’s the smartest guy in the room to soothe his insecurity that he doesn’t really deserve the robe. He’s the guy who knows what you’re going to say before you say it, and knows you’re wrong before he reads it. He’s the guy who sees cases as “garden variety” and defendants as objects to be moved along the assembly line to where they ultimately belong. He’s the guy who thinks that clearing a 100-person calendar is a job well done.
And yet, those judges are not only out there, but it often seems make up an overly large percentage of the judiciary. There’s a reason for this, as they are the ones who have the greatest desire to be judges, to rule other people’s lives and force lawyers to laugh at their jokes and call them yer honor. It makes their nipples hard.
These judges are petty and pompous. They tend not to respond well to emotional appeals, as their universe of emotion is limited to their own. They tend not to respond well to novel arguments and are slaves to precedent and their own gut reaction. They speak broken English.
Hard as it may be to structure your communications to these judges, it’s what we must do. If it means taking a brilliant, sophisticated argument and boiling it down to appeal to their prejudices, then that’s what must be done. If it requires inane flattery, perhaps a citation or two to their prior insipid opinions when there are far better, far more persuasive and thoughtful opinions upon which to rely, do it anyway.
To them, our clients are objects. To us, the object is to serve our clients. That’s the only point of legal writing. And they don’t call it a “brief” for nothing.