The Geek in Review Ep. 68 – The Innovative Concept of Legal Writing in Plain English

The legal industry relies upon the writings and communications of lawyers, judges, and lawmakers. For the citizens and clients who are subject to these legal writings, understanding the legalese is painfully frustrating. We were asked by a fan of the show (in full disclosure, it was Greg’s sister-in-law Wendy) why lawyers can’t write in plain English. We pulled together a panel of four experts on legal communications and asked them just that. It turns out that writing in plain English is not only possible, but it is the preferred method of legal writing.

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Transcript

[00:00:00] Marlene Gebauer: Believe me, we all know that we can all be better writers. So.

[00:00:04] Greg Lambert: I know, but I write real good though.

[00:00:06] Marlene Gebauer: Yes, you do. Welcome to The Geek in Review, the podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.

[00:00:23] Greg Lambert: And I’m Greg Lambert. In this episode, we pull together a group of four experts in the legal and writing field to discuss the issues around legalese and writing in plain English.

[00:00:35] Marlene Gebauer: Yeah, so the fantastic four that we have are Neil Guthrie, the author of Guthrie’s Guide to Better Legal Writing, Chris Trudeau, who wrote The Public Speaks, An Empirical Study of Legal Communication, Jesse Katz, a Pulitzer Prize-winning journalist and legal writing editor.

[00:00:52] Greg Lambert: and Sarah Harris, a lawyer and an editor on the American Lawyers Young Lawyers Editorial Board.

[00:00:57] Marlene Gebauer: So really, really great group.

[00:00:59] Greg Lambert: They have a lot of suggestions on how to improve legal writing. And, you know, really be honest, Marlene, I think their advice could work with any writing.

[00:01:08] Marlene Gebauer: Oh, I agree with you 100%.

[00:01:10] Greg Lambert: So we have a lot to unpack in that section. So let’s jump into this week’s information, inspirations. My inspiration this week, you know, it’s not an article like it usually is, but rather it’s this event I attended that was sponsored by the Houston Young Lawyers Association. And there was a subgroup within the Young Lawyers Association of first-generation lawyers. And while I am actually a first-generation lawyer, I’m, you know, I’m not exactly young.

[00:01:46] Marlene Gebauer: Me neither. So, you know, I pulled some favors and from my Jackson Walker colleagues, Sang Shin and Monica Lopez to sneak me in.

[00:01:55] Greg Lambert: The panel was fantastic and they discussed the issues around recruiting at large law firms and at boutique firms and at government agencies. So there’s a panel of four there. And while the information, you know, there was some great information and advice given by the diverse group of panelists. There was actually this question from the audience that was the thing that impacted me the most on this. So there was this law student who is a young black male, and he mentioned that in one of the applications he filled out online, he was asked why his experiences as a minority would benefit the law firm to which he was applying. And the panel, yeah, the panel just kind of looks stunned that this question would be, would even be asked. But the reasons behind this is, so he was asking, what are the reasons that a question like this is being asked to minority applicants? And why do minorities have to explain why their being a person of color matters to the firm? And quite frankly, is this a question that’s practical or even fair to be asking? I don’t think it is.

[00:03:07] Marlene Gebauer: I know that there is a discussion on Fishbowl about this as well, and you had a lot of interesting commentary ranging from the ethical to the practical. If you’re part of that, I would definitely check that out.

[00:03:23] Greg Lambert: I think it was just an example of some of the firms out there that are still being a bit tone deaf on diversity. And really, I would hope that if I saw this or anyone I know were to see this sort of question, that they would call out the recruiting committee and have them understand that this is not going to be interpreted well and that they should not really be asking these sorts of questions on the recruiting questionnaires.

[00:03:37] Marlene Gebauer: that they would call out the recruiting committee and have them understand that this is not gonna be interpreted well, and that they should not really be asking these sorts of questions on the recruiting questionnaires. Sounds like it caught more than a few people off guard too, so nobody was really expecting that, which, you know, makes your point all that more important. My inspiration this week is an excellent article by Evan Parker. Hi, Evan, who is a PhD and the founder of Parker Analytics Consultancy, which focuses on talent, diversity, and strategy. Parker Analytics is also the official analytics partner to the Leadership Council on Legal Diversity. So in the article, Evan walks us through a primer on how to present data to legal audiences. And this is perfect timing because this is really the holy grail in this space. And it really touches on a message we’re going to hear later in the interview.

[00:04:36] Greg Lambert: we’re gonna hear later in the interview.

[00:04:38] Marlene Gebauer: How do you make your message compelling to your audience? And Evan really nails it when he offers his three guiding principles. The first is to understand what data benefits legal professionals and lawyers. The second is default to conceptual illustrations and intuition. And the third, less is more.

[00:04:59] Greg Lambert: You’re right. That does sound a lot like what we’re about to talk about.

[00:05:03] Marlene Gebauer: Exactly. So the first principle, you have to know your audience. It’s what they care about and not what you think they should care about. The second principle, conceptual illustrations and intuition, I mean, I literally clapped my hands when I read. Evan’s description of the orange line to get his audiences to understand the concept of a regression model. the concept of a regression model. So here’s the orange line. This is the profit you would expect from an average law firm. Factors to the right increase profits. Factors to the left decrease profits. Just elegant. And the third principle, less is more. Again, the topic of our interview this episode, say it in fewer words. Keep the explanation of the data simple. Keep the visuals simple. Keep in mind the data to ink ratio. So this is an Edward Tufte rule.

[00:06:01] Greg Lambert: I was wondering how long it would take you to invoke Tufte.

[00:06:04] Marlene Gebauer: How do I get Edward Tufte into the conversation? It’s like, I really need to get his autograph someday.

[00:06:11] Greg Lambert: You should.

[00:06:12] Marlene Gebauer: It’s his rule to keep the viewer focused on the data. So not just the pretty colors or cool graphics. You know, I love Evan’s comment. that I’m not going to comment on like 3D bar charts. It’s like, amen to that. It’s like, oh, oh, oh, oh, and Greg, I think we need a t-shirt that says, don’t be a quant jock.

[00:06:32] Greg Lambert: A quant jock.

[00:06:33] Marlene Gebauer: That is a beautiful thing. I pass this on to my team immediately, and I know that we will be applying these principles in our presentations. And Evan will probably be reaching out.

[00:06:45] Greg Lambert: Yeah.

[00:06:46] Marlene Gebauer: Oh, and I would be remiss if I didn’t give a shout out to Jason Barnwell for his thoughtful article in Law 360 on law firm evolution. It’s an overall rich interview. And being in the innovation space, a couple of things Jason said really struck me. The scarcest thing we have is human attention. And we’re going to be using support technology. to focus this attention where it’s most needed, where we need judgment, creativity, and empathy. where we need judgment, creativity, and empathy. And I thought that framing was very powerful.

[00:07:21] Greg Lambert: Yeah, it was good stuff. Jason always has something wonderful to say.

[00:07:25] Marlene Gebauer: And that wraps up this week’s Information Inspirations.

[00:07:29] Greg Lambert: Well, one of our biggest fans of the show is, well, she’s my sister-in- law, Wendy.

[00:07:34] Marlene Gebauer: So. Yay, Wendy. Well, she loves the innovation topics.

[00:07:40] Greg Lambert: And somehow or another, she’s able to apply some of what we covered to her high school classes that she teaches. So Wendy reached out to me a couple of weeks ago and suggested that we talk about how bad legal writing can be. And she said that she’s seen some pretty unreadable legal documents in her interaction with attorneys. and wondered why they would make it so difficult to read and understand. So that motivated us into pulling together a group of authors on the subject.

[00:08:10] Marlene Gebauer: One from a law firm, one a law professor, one a Pulitzer Prize-winning reporter who is now a legal editor at a big law firm. And then Greg grabbed one of his attorneys in his firm’s Dallas office to sit in and give us her perspective as someone who is actually writing legal documents. So let’s get right into it and hear what they have to say about writing in plain English.

[00:08:40] Greg Lambert: I would like to welcome our four fantastic guests today on The Geek in Review. So we’re going to talk about communicating in plain English, and especially when it comes to legal issues and topics.

[00:08:52] Marlene Gebauer: Yes, our fantastic four today are Neil Guthrie, the Director of Professional Development Research and Knowledge Management at Aird & Burless LLP in Toronto. And he’s also the author of Guthrie’s Guide to Better Legal Writing. Chris Trudeau, law and medical professor at the University of Arkansas Little Rock. And the author of The Public Speaks, An Empirical Study of Legal Communication, as well as journal articles on plain English writing for lawyers and health care. Jesse Katz, litigation editor at O’Melveny & Myers, as well as Pulitzer Prize-winning journalist before taking on his editing role. And Sarah Harris, a Jackson Walker associate who is known for her legal writing skills and is editor for the American Lawyers Young Lawyer Editorial Board. Welcome everybody.

[00:09:41] Greg Lambert: All right, so the idea behind this topic actually came in from my sister- in-law, Wendy Anderson, who is not a lawyer, but she is full of good ideas, actually. She has thrown out a few ideas here. She’s actually a science teacher in Colorado. She brought this up when we were talking and she found that her communications with lawyers, especially written communications, were just simply too complex for her to understand. So she thought that- Actually, she thought that lawyers did this on purpose so that she would feel intimidated, or that lawyers think that if they make a legal issue easy for a layperson to understand, it might have a negative effect on the lawyer’s business. So before we begin, anyone want to agree or disagree with my sister- in-law’s interpretation?

[00:10:29] Chris Trudeau: I can jump in if you want. This is Chris.

[00:10:31] Greg Lambert: Hey, Chris.

[00:10:32] Chris Trudeau: Yeah, well, I tend to disagree- Well, I don’t disagree with your sister feeling that way. I absolutely understand that she feels that way. And one of the studies I did in 2012, which you mentioned in the opening, but I also redid that last year from an international perspective. But that was one of the things we asked people who had used a lawyer within the last one to five years, I believe, was the first study. Kind of how it makes them feel when lawyers use- And I’m kind of paraphrasing the actual question. How it makes them feel when lawyers use Latin terms or complicated terms to explain a problem. And these were people who had said that they had quit reading a document midway through at the time. And one of the 81, I think, kind of qualitative responses was almost exactly what you just said your sister felt. It makes me feel like they’re trying to do this to intimidate me. I think that the particular comment was, I used to work for some good lawyers, and I don’t like it when other lawyers think that they can intimidate me by using legalese. And so I think a lot of people feel that way. One of the things that with my first year law students that I always say is, how come you feel like you want to write this way? And one of the reasons I often say is, well, everything we read, we usually start first year of law school reading old opinions that have this type of language in it. And they want to feel like they’re part of the in crowd because they feel like they have imposter syndrome and those type of things. And so law school kind of perpetuates that. That’s what I try and stem right at the beginning. It’s like, remember how you felt in August right before you came here and you had to look up every word. Your clients feel that way all the time. You now know these words. And so remember how you felt because that will help you better connect with clients who are in the same boat you were before you started law school, for the most part.

[00:12:30] Neil Guthrie: If I could jump in, it’s Neil. I agree completely. It’s the sort of you’ve been initiated into the lingo and you feel you have to use it to make it sound like you know what you’re talking about. But then I think what that’s in is a sort of superstition that if I don’t use this, maybe I’m losing something. So I have to use this archaic language. If I don’t, maybe something will fall off. And a lot of it is just sort of ignorance in not knowing why you could say it in a clearer way and not really digging into what the words mean and figuring out, well, do I really have to say witnesses at the beginning of an agreement?

[00:13:05] Jesse Katz: You know, one other thought, this is Jesse, is I think some of it might be a conscious attempt to model a certain kind of sound. But I think some of it’s also unconscious and it’s not unique to law. I think the more people become expert at what they do, and you’ll see this among educators or scientists or academics, we all get sort of tainted by our knowledge or cursed by our knowledge. And we forget what it’s like not to know these things. We start talking in a kind of jargon or a shorthand that where we forget that our audience isn’t on the same page.

[00:13:50] Greg Lambert: I remember now I started law school in 1995. And the thing that shocked me the most was I had like 80 pages of reading I needed to do before I even showed up for my first class. And Chris, I think you mentioned it that what I read had probably been written in the 1800s. And there was not only has English progressed since then, but the amount of legalese that was in there. So you know what you know. And so you probably immediately think, well, oh my God, I got to write like this too in order to pass this class.

[00:14:31] Chris Trudeau: And then the curse of knowledge point is really right on. I mean, I’m sure many of you here and maybe some of your listeners have heard of this book by Steven Pinker, A Sense of Style. And that’s where he talks about the curse of knowledge as being part of the problem with academic writing. It doesn’t focus on legal writing specifically, but on academic writing. And I think that is one thing. I think we all fall into that trap sometimes. It’s hard to unring the bell when we know something. But we have to put ourselves into this mindset of, all right, well, what does an actual user, somebody who’s actually either a first level user or a secondary level user of whatever it is that I’m writing, what don’t they know that I know? And so that’s always what I try and do when I’m writing.

[00:15:11] Marlene Gebauer: OK, so I have a couple of questions for Neil and Chris. But anybody, please feel free to kind of jump in if you have something to say about this as well. So, Neil, when you think of the term legalese, what comes to mind? And do you have some examples of some overly complicated communications that you’ve seen in the past?

[00:15:32] Neil Guthrie: Sure. When people say that sounds like it was written by a lawyer, it’s not generally intended as a compliment. I dug out a sample that is from an actual letter received by a colleague. To be fair, I think the writer is about 85 and practices in a small town in rural Canada. But it will give you a flavor of the kind of stuff you still see. We acknowledge your recent correspondence and attachment of the 29th instant with thanks, same being forwarded herewith to our client for reference and review. With the writer confirming our telephone conversation of the 19th and your undertaking not to take steps to the detriment of our client without ample prior notice to the contrary being first given to the writer. Our client presently being in the process of retaining litigation counsel to deal herewith with service being endorsed herewith on the true copy as requested. That’s all one sentence.

[00:16:26] Marlene Gebauer: Wow. And you did it like out taking a breath. So, you know, I’m impressed.

[00:16:31] Neil Guthrie: It’s not actually clear what the herewith in fact refer to, but people still do this.

[00:16:38] Marlene Gebauer: It’s so funny, too, because I mean, I went to law school around the same time Greg did. And I remember there was a big focus on, you know, you have to take the legalese out of your writing. And yet here we are many years later and it’s still there. You know, why are why are people holding on to this?

[00:16:58] Neil Guthrie: Yeah, not helpful. I mean, it went from lawyer to lawyer. So it’s not as bad as if it goes lawyer to client. But I suspect this guy writes this way to his clients as well.

[00:17:08] Greg Lambert: Yeah. Well, Sarah, did you understand what that letter said?

[00:17:13] Sarah Harris: I have to say I got lost.

[00:17:16] Greg Lambert: I can imagine the lawyer on the other end got lost, too.

[00:17:19] Marlene Gebauer: Yeah. So Chris, in your research on legal communications, what is it that you found that people fear the most when it comes to legal communications? And I guess maybe that’s on both sides, you know, the people who are writing and the people who are reading it.

[00:17:37] Chris Trudeau: Right. That’s exactly what I, when you said that, that’s what I was thinking is the fear is, yeah, it takes both sides. And I would say first, we started already talking about the fear from the lawyer side is that we’re either leaving something out because we don’t really understand the nuance of the word. And so instead of trying to understand what all of that means, well, let’s just do what we’ve done in the past. And what we’ve done in the past was passed down from what we’ve done in the past and what we’ve done in the past. And so at some point, somebody probably wrote what Neil just read, just read 100 years ago, you know, or 80 years ago. You know, especially with these systems, you can just pull your bosses, you know, past contracts or past documents or whatever, or your firms, and then just pull things out. Is it kind of takes over for your thinking like, well, I need something like this. And this seems like it’s something like this. And so I don’t think people really feel. So I think that’s one of the fears is that they don’t know all of the nuance that somebody who came before them knows. So they just kind of defer to how it was done rather than taking the time of thinking about how it will actually actually work. And then again, the fear of not fitting in as a lawyer and those type of things. That’s the fear, I think, on the lawyer side. On the human side and the client side of things, I think fear might not really be the right word. We tend to think, I think as lawyers, that people fear our writing. But in fact, what I tend to find is people just don’t care, right. We get so much stuff in the mail. Let’s say I do a lot of training for the Arkansas Office of Child Support Enforcement, and everybody who gets a letter from the Office of Child Support Enforcement hates that letter. They don’t necessarily fear the letter. They just don’t want to read it. It’s the last thing they want to read. Even if you’re positive that you’re getting money, you’re not going to read the letter. You’re going to take the check and put it in your checking account. So I think fear is the wrong word, but I think they dread or just this is something else that’s on my plate that I have to deal with.

[00:19:41] Greg Lambert: It’s more of an annoyance.

[00:19:43] Chris Trudeau: It’s more of an annoyance.

[00:19:44] Marlene Gebauer: And it makes it more complicated than it has to be.

[00:19:47] Chris Trudeau: Yeah. It’s like now I need to go, you know, call my friend that’s a lawyer or get my own lawyer or look things up on the Internet to even figure out what any of that stuff means. And so, you know, it’s just going to take me more time. I feel it that way, too, when I get an insurance document or I get something else that I just have to go through. We all feel it.

[00:20:05] Greg Lambert: Yeah, I was just thinking of those prospectus or annual reports I get from investments that, you know, are an inch thick and no one reads.

[00:20:16] Chris Trudeau: I just tear them up for the most part.

[00:20:18] Greg Lambert: So, Jesse, you have a very interesting position there at O’Melveny in that, you know, one, you’re not a lawyer. You’ve never been to law school, as far as I know. But your firm hired you in order for you to help them improve their legal writing. So can you give us kind of just a little background on what it is you do and what you offer there at O’Melveny?

[00:20:43] Jesse Katz: My great skill set here is that I offer ignorance.

[00:20:47] Greg Lambert: All right.

[00:20:48] Jesse Katz: You know, hopefully I come with, you know, fresh eyes and, you know, a sharp ear. I ask a lot of dumb questions, quite frankly, like, do we have to say it like this? Do we have to cite this thing? Is this argument a plausible argument or are we just doing this out of there’s some obligatory need to include this? I have a big picture response and a kind of more nuts and bolts thing. The big picture is I think lawyers are excellent at finding out the answer to really complicated questions. I work with very bright, high achieving people who, you know, research things and come up with creative solutions to really complicated, high stakes legal challenges. But the muscles that go into finding that answer are really different from the muscles that go into explaining that answer. And so I find that a lot of people are really burdened by those complexities and all the things that can go wrong, all the conditions and caveats you need to add to every sentence and all the just, you know, the legal implications of everything. And I would never want to suggest that I am fast and loose with any of that, but I don’t carry the same burden. I can intervene either in a conversation or on the page asking or finding simpler ways of conveying these ideas. So I think the bigger sort of writing challenge is people try to say too much, convey too much material rather than focusing on what we really need to know. Why should I care? What’s at stake?

[00:22:35] Greg Lambert: It kind of reminds me of my father-in-law, the story about he’s really good at math. He’s really poor at teaching math. And so he jumps to the answer because he’s already made certain leaps of understanding and goes to the answer. So do you find that something similar to that? Do the lawyers jump or do they overly explain to get to the answer?

[00:23:01] Jesse Katz: Yeah, I think they do both, quite frankly. I think there’s an assumption that the court, whether it’s a clerk or a judge, is like right with us, is as immersed in these issues as we are, cares about them as deeply as we do, and that we can just like sort of pick up the conversation wherever we left off. And I think a lot of what I try to do is say, look, let’s remind people what this case is about. Let’s remind them why they should care. And let’s remind them why we need to win. On a sort of a more mechanical level, I think what I try to focus on are the images that allow the reader to see why our side should prevail. I’m very much against adjectives and adverbs that purport to be persuasive. If I see a brief that has a lot of clearly’s and manifestly’s and patently’s, you’re going to see my track changes all over that. And I really urge people, and this is just good writing advice no matter what field you’re in, is to show, don’t tell. And that means focusing on concrete actions. What have we done or what did we not do as opposed to trying to characterize that?

[00:24:25] Greg Lambert: And Jesse, is the service that you offer, is it required or voluntary? How do people within your firm get to use your service?

[00:24:36] Jesse Katz: Yeah, absolutely voluntary. I’m a resource, as we now have two other editors who work here with me. We’re big law, so if everyone were required to use us, we’d be paralyzed right away. So it’s really about kind of internal marketing in a way, building the relationships, showing an attorney colleague what we can do and how they can fit us into their workflow. But I would say that the people who then work with us and kind of try us out and see what the result is going to be, I think a light bulb goes off. And they’re like, my God, why wouldn’t I use this person who is going to enhance the quality of the work, take a load off of my plate and just make everything, hopefully make everything better without, you know, mucking things up? I don’t think anyone views it as a negative or there’s any stigma attached. It’s just you, if you reach out to an editor at O’Melveny, what you’re really conveying is you care deeply about your writing and you’re going to take advantage of all the resources the firm has to help you achieve that goal.

[00:25:47] Marlene Gebauer: So do you think this sort of role, this editor sort of role is trending in other firms? You know, for example, I’ve heard of firms having writing consultants available to them and then they work with the lawyers to improve their writing. So is this something that you see growing?

[00:26:05] Jesse Katz: I think there’s maybe a growing appreciation that the caliber of legal writing needs work. I think what I like about my position here at O’Melveny is the people here are very smart and they’re so smart that they realize they don’t know everything about writing. You know, they recognize some of their own limitations. And I think other firms, other lawyers are getting on board with that, creating a position and bringing somebody in full time as part of the fabric and culture of the firm. I think that’s a step that we haven’t seen anyone else do. I could be wrong. Look, O’Melveny’s been around for more than 130 years. This position was created 10 years ago. And, you know, for that first century plus, O’Melveny somehow made it through, you know, without any editing help. How did they do it? And now there’s three.

[00:27:01] Greg Lambert: What’s your secret? Did you say there’s three editors?

[00:27:05] Jesse Katz: Yeah, we hired two new people last year, another one with me in our Los Angeles office and a third editor in our New York office. But we’re all available to anyone, anywhere in the firm.

[00:27:18] Greg Lambert: Well, Sarah, I asked you to be on the show today. I kind of begged for you to be on the show today for a couple of reasons. One was, first of all, we had too many men on the show. So I wanted to break that up a little bit. And the other is, I actually was the one that hired Sarah to come work at the firm. And then she was stolen by someone that really loved her writing. And I remember him coming and saying that he loved the fact that you were able to take a very difficult and complex issue and explain it in plain English and kind of tease us. And so she writes so that even a lawyer can understand it. And he really agreed to that. And really, that may not sound like a big deal, but it is. It is hard to find lawyers that can actually write very well. We’ve heard Neil and Chris and Jesse talk, but I mean, you’re actually writing out these briefs and letters to clients. So what is it that you do that you think makes it easy for others to understand the issues that you talk about?

[00:28:28] Sarah Harris: Sure. Well, I think this is going to sound pretty familiar, similar to what Jesse was talking about, his goal being. But for me, when I’m working on a piece of persuasive writing, I tend to think of my goal as being twofold, sort of one to tell a story to a reader who probably doesn’t otherwise care about the issue and my client to keep them engaged and then to solve my client’s problem. And so in that framework, I think the biggest question to focus on is why? Why should the reader care about this? Why does this issue matter? Why should my client win? And then within that, for me, it becomes much easier to just say what I mean, you know, whether that’s synthesizing the issues in a way that aligns with the story and the theme or just, you know, in the more fundamentals. If you know where you’re going and you know what those goals are, with the focus always being why should I care? Why should I, the judge, care or the law clerk? Writing short, simple sentences, I think, is always better. And I’m able to do that easier when I have that framework of, you know, moving from point A to point B in trying to achieve those goals of keeping the reader engaged and explaining why my client’s perspective is the right one. I like the fact that it’s about telling the story.

[00:29:49] Greg Lambert: But the second part of your answer, I think I like even more in that it’s not about let me tell you what you should know, but rather. Let me tell you why this is important from an angle that you one can understand it and two can appreciate it again, sounds simple, but it’s not.

[00:30:11] Marlene Gebauer: It’s interesting because the rules that Sarah’s applying, I mean, it’s very similar to rules that you have in broadcast, you know, keeping short, simple sentences that are sort of easily understood, focusing on, you know, why should I care? Because, of course, you know, they can turn you off and switch to something else in a heartbeat. So, you know, you have to capture their attention. So it’s interesting that there’s those parallels there.

[00:30:40] Greg Lambert: Yeah, do you see that, Jesse, since you have a media background?

[00:30:45] Jesse Katz: I think that’s very accurate. I spent 15 years at the L.A. Times and then another nine years at Los Angeles magazine as a staff writer. And as you know, as a journalist, you are constantly in a battle for your reader’s attention. And I feel like every sentence has to have some little nugget that satisfies the reader, even if it’s just a single word or a bit of flourish in your punctuation or something that propels you forward. And then each paragraph has to deliver something. And I think sometimes our legal documents are written with the idea that, well, somebody is going to have to read this. You know, they’re getting paid to read this. And I’m always worried about when are they going to stop reading it?

[00:31:33] Marlene Gebauer: It’s like I feel like saying something about like written flair or written bling. But I don’t I don’t think that’s quite right, because it’s like, is it like is it necessary? It’s like, well, maybe not. But but, you know, you do have to sort of bring your own. I don’t know. You have to make it stand out somehow from the rest of what they’re reading.

[00:31:51] Sarah Harris: I think that’s exactly right. I think I have been in situations where, you know, it seems like lawyers are afraid to make a brief interesting, are afraid almost to give it that flair. But for me, again, you want to make sure that whoever is reading your brief is going to get to the end of it and is going to see the full picture. And, you know, if you have twenty five aforementioned and pursuant to and I mean, that just weighs it down so much, you’re making it very hard for them to want to get through it and to get through it in a way that really shows the issues. And so I never shy away from making it a little bit fun or spicy is maybe also not quite the right word. But but interesting. It’s OK to be interesting.

[00:32:33] Marlene Gebauer: So Neil and Chris, you’ve both written on the topic of writing in plain English, specifically when it comes to communicating to people who are not lawyers. And perhaps my favorite quote comes from Neil’s overview of his book, where he says that readers of a lawyer’s work might describe it as turgid, pedantic, Latin filled, jargon ridden, misspelt, ungrammatical, and uneducated.

[00:32:57] Neil Guthrie: Turgid, pedantic, Latin filled, jargon ridden, misspelt, ungrammatical, and inelegant. Ouch.

[00:33:07] Marlene Gebauer: So I think if we’re being honest, I think the judges and the other lawyers may think the same way with some of the writing out there. So, Neil, I’d like to start with you. When a lawyer is communicating with his or her client who’s not a lawyer, what are some of the basic writing principles that they should keep in mind?

[00:33:27] Neil Guthrie: Well, this goes back to what others have said already. Just try to avoid the temptation to do the dump of all the information that you’ve got in your head or that you’ve found through your research. By all means, put that into your memo to file. But think not about you. Hey, lawyer, it’s not about you. It’s about your client. Think what the client’s after. They want an answer. They want advice. They want a risk assessment. So think of what the purpose of the writing is, but also think of who the reader is. If it’s another lawyer, that’s a different sort of question. But if it’s someone who’s a business person, someone with only a high school education, someone whose first language isn’t English, think about what it is that you’re trying to convey. The challenge can be that you’ll have multiple audiences. So you have to kind of pitch it somewhere in the middle. And that can be difficult to achieve. But always think about not you, but about the recipient. And that’s really, I think, the best advice I can give.

[00:34:28] Marlene Gebauer: I wonder, do you think there’s times where a lawyer might not be equipped in terms of the right language in terms of communicating with their client? You know, you mentioned a business client. Well, if they don’t have a business background, are they equipped? If they don’t know sort of common terms for their client, may they not be equipped?

[00:34:53] Neil Guthrie: Sometimes not. That’s often the case. But if you’ve been advising business clients for long enough, you do come to learn their language and you can become more comfortable with it. But sometimes that’s right. You won’t have the technical knowledge or vocabulary to talk intelligently to your clients. So in some cases, it may be that a lawyer is at a disadvantage and you’ve got to educate yourself to the extent that you can.

[00:35:17] Marlene Gebauer: And Chris, in your empirical study on this topic, what are some of the common issues that you found from the public when it comes to understanding the writings of attorneys?

[00:35:27] Chris Trudeau: Well, yeah, I mean, that’s just kind of going off of what Neil said. I always say there’s really three things when we’re thinking about writing for the public or writing for clients. I mean, with individual clients, you kind of you get to know them and you can further segment that population a little bit based on what they’re likely to know and what they’re likely not to know. But when you’re writing for the public, which I do a lot of now, broad documents, let’s say for government agencies or research studies, you know, that we want to get a very group of folks and we need consent forms. You know, there’s really three things. There’s purpose, there’s audience, and then there’s problems. You know, lawyers were really good at problems. We poke holes in things. We try and figure things out. That’s what we’re taught when we think about, you know, contract drafting or legal writing. You know, it’s like figure out the problems and solve them. That’s that’s what we’re good at. But we’re not very good at purpose and audience. And by purpose, I mean more than just your individual purpose as as a lawyer. It’s what’s the client’s purpose? What’s the purpose of the you know, of your agency? Let’s say you’re a you’re an in-house lawyer for a government agency. Your particular company or agency will have different purposes that are different than yours. And so we can do more than just cover the problems. And then with audience, I often think about this and I tell my students, this is like with appellate briefs, you know, or with appellate arguments, we move the heck out of things. and practice the arguments and those type of things. But we don’t ever practice the briefs, try the briefs out with our intended audiences. Right. So how about we move briefs, you know, and have random people sit and, you know, and read them and think about what you would think if you were this particular judge and those type of things from a litigation perspective. But from a contract and kind of this public document perspective, what I’ve learned a lot in this had nothing to do with law school. This was after law school about user testing and usability testing. And most lawyers don’t know anything about that and how to do it well, but when we’re talking about high stakes documents, you know, like let’s say the GDPR consent forms and how people are going to use them, you know, on a website or advanced directives, that people are going to be actually, kind of signing their life away, literally. These are high-stakes documents that we need to involve the audience and actually get their input on things, because we can learn so much. We don’t know what we don’t know, and just like, you know, the curse of knowledge, this is the curse of not having the knowledge. We can learn things. I’ve never not learned something from user testing documents with people, and I’ve done probably 100 times now over the last few years since I’ve been at the medical school. and I always learn something. so that’s something I don’t think lawyers appreciate and we can really weave it in, probably more so in the public document realm than the litigation realm. But getting some of that audience perspective can make a huge difference.

[00:38:20] Greg Lambert: Very interesting. I never thought about that, about user testing a document. Very interesting.

[00:38:25] Chris Trudeau: We do it all the time. You know, we do it all the time with websites. We do it all the time with everything else, but we don’t do it somehow do it with legal documents. And I actually, I fight a lot with people about this. I’m really good at fighting with other lawyers about this. But picture a 10,000 person academic medical center that has a whole group of lawyers. And I am a lawyer, but I don’t work in that department. And so I’m often fighting for, OK, we have this advanced directive and we’re really trying to do it, to redo it, because we are Arkansas’s safety net hospital. And so we know people with very little to no literacy skills are going to be using this document. And Dr. So-and-so wants every single UAMS patient to have an advanced directive by 2025. We have to plan for the marginalized people as well. And so we’re going to need to bring them in so we understand what works for them and what doesn’t. And when I brought in like the first iteration, I remember this one patient or person saying, if you gave me this document and I came in for like a routine checkup, I would think I’m going to die. And I was like, OK, now I really need that. You know, that really meant something to me. I was like, how am I going to lead into this with the instruction page? Like this is preventative, you know, this type of thing. But but those are things that I wasn’t really thinking about. And so I learned a lot just by getting that input.

[00:39:46] Greg Lambert: But Jesse and Sarah, I know you both do a lot of editing. And so that gives you a chance to look at a lot of other writing samples from other lawyers. Sarah, I’ll ask you, are there some common errors or bad habits that you’ve seen that seem to be consistent across the lawyers’ work that you’ve edited?

[00:40:08] Sarah Harris: Yes. Many bad habits, I would say. I have some myself, a big one. And I think an easy one to fix or one of the easier ones to fix would be passive voice. I think people understand what that is pretty easily when you point it out to them without, you know, getting into the nuances of grammar and word choice. It’s one that I think if you’re writing quickly, you fall into passive voice pretty easily. So that’s a big one. And also, you know, saying five words when two or three or one will do as to whether or not, you know, just say whether or in order to just say two. I think those are really common ones and relatively easy to fix it. You’re working on improving your writing style.

[00:40:52] Greg Lambert: And Jesse, let me let me ask you the same question, but I want to twist it just a little bit in that. Do you think there’s some generational habits that you’ve seen? I’ve written down here that, you know, boomers write in a passive style or millennials forget to capitalize and use punctuation because they’re used to texting. And but, you know, of course, Marlene and I always agree that us Gen Xers write real good. So we’re good. So do you see any any generational differences, especially if any of those differences are due to the technology that they learn to actually write on?

[00:41:29] Jesse Katz: Yeah, I can’t say that I’ve seen, you know, text or chat culture seep into legal documents. But but the one generational I’d say line in the sand is how many spaces go after a period. Yes. This is a very, very hotly contested issue at O’Melveny. I created a newsletter when I first got here to just sort of introduce myself to the firm and share some writing tips. And I pointed out to everybody that I’m not here to change your habits. I’m not, I’m not going to, I’m not going to, I’m not on a crusade to get rid of two spaces after a period. But let me just point out that in the civilian world, in the publishing world, nobody does this. And I think our younger attorneys, they get that. They came of age in the word processing era, you know, where you just, there’s no mechanical reason to put two spaces after a period. And anyone who came of age who learned to type actually on a typewriter was probably taught two spaces after a period. And that was truly just the mechanical limitations of how the key hits the page. And Microsoft Word has solved that for all of us.

[00:42:50] Greg Lambert: I was actually a two-spacer person because I did learn on a typewriter. But it was a book that I read that was actually by the O’Connor’s Publishing here in Texas called Typography for Lawyers. And it actually showed an example of what the two spaces do on a page and that river flow. And so that was, you know, I had to visualize what it actually looked like, the difference between two spaces and one with today’s typography that we use, typeface that we use today. And there was a difference.

[00:43:32] Chris Trudeau: I mean, I show that to my students all the time and it really, you know, I don’t think they’re as in awe about it like I was with you as well. I learned on the typewriter and Sister Bertha would come around and almost hit our hands if we didn’t have our hands up. Right. And so my only problem to two spaces to one space now is I can’t stop my thumb from automatically doing it. So I have to find and replace all the time.

[00:43:54] Jesse Katz: You know, the other area where I think technology sometimes inhibits us a little bit is I encourage lawyers to get away from their keyboard and from their screen. And it’s really hard to be creative. And that’s part of what we’re asking for. You know, even if you’re writing a motion to dismiss in a securities fraud action, you still need to be creative about how you’re going to approach that. What is the story you’re going to tell? And maybe the best way to start that process of figuring out what your theme is, is to step away from the computer and maybe take a walk or go to a conference room. And just somewhere where the chimes and buzzers are not constantly breaking your concentration. And I often share with our younger attorneys some of the rituals that famous writers and creative people have had, whether it’s, you know, I think Gertrude Stein used to soak in a bathtub or something. And maybe I have that confused with somebody else. Everyone’s got their, you know, OCD rituals, but, you know, what they all do is sort of allow us to step off the merry-go-round of things competing for our attention and go off in a, I don’t know, sort of like a dream place, which may sound incredibly impractical if you’re in an environment where people are billing in six-minute increments. Is there time for that? Is that too much of a luxury? And obviously you wouldn’t want to spend hours and hours and hours lost in your own thoughts, but if you don’t devote any time to just thinking creatively and maybe doing a free write on a legal pad, your writing is going to have that very kind of rote paint-by-the-numbers quality.

[00:46:02] Sarah Harris: I think that’s a great point. I think that the same or similar concept can be applied in the editing side of it, too. You know, once you’re done, no matter how many times I read through something on the computer screen, if I don’t print it out and read it on paper or, you know, sometimes even read sections aloud, I find, you know, it just makes a huge difference. You catch errors or saying a sentence aloud, you think, I would never, you know, that doesn’t sound natural, that doesn’t sound right, or, you know, that’s just grammatically incorrect. I think that’s a great way, too, to polish things towards the end.

[00:46:36] Marlene Gebauer: Yeah, I do that same thing. You know, you read it out loud and you’re like, ooh, that’s no good. We’ve got to do that again. So, I’m going to put this out for everybody. What are some resources out there that you’d suggest lawyers use that would help them become better writers? Do you think some of the tech tools out there, like, you know, BriefCatch or WordRake, you know, grammarly perfect it, and maybe even some of those concept search tools in eDiscovery will make legalese a thing of the past, or is it something much more simple than that?

[00:47:09] Neil Guthrie: If I could jump in, it’s Neil. As a Canadian, I’m very hesitant to recommend those software tools because they promote US spelling and usage, which doesn’t always…

[00:47:19] Marlene Gebauer: You’ve got to know your audience, right?

[00:47:22] Neil Guthrie: I think Plain Language for Lawyers is one of the best books I’ve got by Richard. Plain English for Lawyers, Richard Wydick. Is it Wydick? Wydick, yep. And it’s got, there’s a new edition of it I published after his death.

[00:47:35] Greg Lambert: You said Richard Wydick?

[00:47:36] Chris Trudeau: Richard Wydick, W-Y-D-I-C-K. Okay. And it’s, I use it a lot with my students. I’m not using it this year, but for probably the first 10 years I used it. There’s some really good exercises in there, too. Somebody mentioned Butterick’s book, Typography for Lawyers. I think that’s really a good one from the look and feel of things. Like we said, it’s more than just the two-space to one-space, but just that really makes me think a lot about how it made me think, anyway, how a lot of documents should look. It’s more than just words. You could have, and I show my students a lot in my contract drafting class this a lot, I could have the clearest words in short sentences, but if I put them in one really long paragraph in 10-point font, and then I show them an example of a credit card agreement that does this, nobody’s going to want to read it because nobody even wants to devote the mental energy to even see if that’s even worth reading because it just looks so daunting. So I really like that Typography for Lawyers as well. I like anything about information design and user experience. Letting Go of the Words by Ginny Redish, G-I-N-N-Y, from Harvard. This is all about web writing, but so many things about web writing on that are so applicable to what we do in legal writing as well. I think a lot of folks, we focus a lot on the word and the structure and those type of things, but there’s just so much more to usability than just the words. That’s what I tend to focus on a lot.

[00:49:06] Greg Lambert: Sarah, let me kind of wrap this up. I did want to take this. If you are looking at a document either as a lawyer or a client or a judge and you’re not understanding it, what should you do? What kind of feedback should you give, especially if you’re the client and you’re not understanding it?

[00:49:30] Marlene Gebauer: And you’re paying by the minute.

[00:49:32] Greg Lambert: At least every six minutes.

[00:49:36] Sarah Harris: Yeah, I think if a client is sitting there with a document, a memo or email is more common, I think, from their lawyer and thinking, I don’t know what this means or what is my lawyer trying to tell me? At the end of the day, I think we failed in doing our job. I would certainly advocate for the clients not to sit there and think, I must not be very smart or my lawyer is trying to make me not feel very smart, but go back to them and say, this isn’t clear, this doesn’t make sense, or what are you trying to say? And that can be a real lightbulb moment, I think, a slightly different context. But several years ago, I was talking with a friend and I said something about quid pro quo. Today, we’ve all heard that word 100 times. I guess we all know what it means or think we know what it means. But she said, I don’t know what that means, what are you saying? And it was jarring, I guess, for me because I know what it meant. But it was one of those moments where I had the realization that I surround myself with lawyers all day, every day. My husband is a lawyer. My whole world is about lawyers and we can very much forget who our audience is. I think that’s absolutely their right to expect better writing from us.

[00:50:57] Greg Lambert: All right. Well, Neil and Chris and Jesse and Sarah, I want to thank you all for being here. I’ve really enjoyed this. So thanks for joining us today.

[00:51:06] Marlene Gebauer: Yeah, thank you very much. It’s been a really stimulating conversation. Now I have a bunch of books to read.

[00:51:12] Greg Lambert: Thanks for having me. All right.

[00:51:13] Marlene Gebauer: Thank you. Thanks so much.

[00:51:15] Greg Lambert: Thank you. I have to say that this was one of my favorite discussions that we’ve done.

[00:51:26] Marlene Gebauer: It was good.

[00:51:26] Greg Lambert: Yeah, there’s just great advice, not only for legal writing, but for writing and communication in general. I did write down one of Sarah Harris’s comments where she said to make sure that you are telling a story, and that story is from a perspective that will tell the reader why the story matters. So you have to answer the reader’s question of, so what? So what does it matter to me?

[00:51:54] Marlene Gebauer: What’s in it for me?

[00:51:55] Greg Lambert: What’s in it for me?

[00:51:55] Marlene Gebauer: What’s in it for me?

[00:51:56] Greg Lambert: What’s in it for me? Or why should this matter to me?

[00:51:58] Marlene Gebauer: Right, right. I agree. So many good takeaways in this one. And the idea of panel reviews for draft documents, that’s brilliant because this plays out time and time again. None of us is as smart as all of us. And that t-shirt already exists. Go to marketplace.com.

[00:52:19] Greg Lambert: All right, so thanks again to our guests today. We had Neil Guthrie from Aird & Barris, Chris Trudeau from the University of Arkansas Little Rock, Jesse Katz from O’Melveny, and Sarah Harris from Jackson Walker. I definitely think they gave us a lot to think about when it comes to our own writing.

[00:52:36] Marlene Gebauer: Indeed. Yeah. So before we go, we want to remind listeners to take the time to subscribe on Apple Podcasts, Spotify, or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at Gabe Bauer M or at Glambert, or you can call the Geek & Review hotline at 713-487-7270. Or you can email us at geekandreviewpodcast at gmail.com. And as always, the wonderful music you hear is from Jerry David Disica. Thank you, Jerry.

[00:53:14] Greg Lambert: Thanks, Jerry. All right, Marlene, I will talk to you later.

[00:53:17] Marlene Gebauer: All right, that’s a wrap. The devil’s back from the barn, and the devil’s back from the barn.