Partners in the Classroom
If you want your associates to please more clients and win more cases, teach them to write well; if you want them to write well, get the partners involved. |
I once asked one of the most esteemed judges on the West Coast, the late William Dwyer on the federal bench in Seattle, "Does the writing make a difference?" My question had an "or" side, which I left implicit: Or was justice going to happen despite either lawyer's writing skills? I had asked other judges this question, but Dwyer's answer, characteristically, was concise and definitive. "If you really do write well," he said, "you win more cases. It's that simple."
The greatest skill any lawyer can possess is the ability to write clearly, concisely, and convincingly. That is why firms hire writing consultants like me to teach their associates how to make their words come alive. If an associate lacks good writing skills, then the firm risks losing motions, upsetting clients, and, perhaps most important, exasperating the partners who have to edit their work.
Ironically, the partners themselves often get in the way of the associates becoming better writers. When I show associates how to spot useless words quickly, or I explain why writing "Plaintiff's argument verges on the ludicrous," is not advocacy, invariably one of the associates raises a hand and says, "I see what you're saying, and I agree, but a lot of the partners don't know how to write like this. They need the training just as much as we do." And the associate is right: Partners are bright, capable professionals, but being a partner does not make that partner a good writer; if we teach the associates how to do things with words that many partners do not know how to do, then the partners will undo everything we have taught.
I can show the associates how and why to get the junk out of their writing, delete Latin and lawyerisms, write in the active voice, avoid repetition, tighten contract language, open a client letter properly, capture a judge's imagination, build a bulletproof argument, beat Rambo, and win more cases; but much of it will be wasted if the partners who will review and edit the associates' work have not been exposed to these ideas and do not understand why they work.
The Solution
The solution is to involve the partners in the training, to explain and illustrate the problems for them, expose them to the same ideas and techniques, and have them work the same exercises.
How do you get a partner to give up billable hours to attend a training session on writing, a skill they assume they already possess? For ten years I have presented the writing program to each of the domestic offices of one of our country's largest law firms. We designed the program to train the firm's incoming associates. About five years ago, however, the firm's training coordinator asked me to design a writing program for their partners. We did two things that assured the program's success: One, we kept it to two hours; partners can rationalize a two-hour break to try something new, especially if we let them eat, or better yet provide, lunch during the program. Two, we repackaged the presentation under the title "Mentoring." Most of the mentoring between a partner and an associate takes place over the associate's writing, so we told the partners that we were going to teach them an editing system that would help them edit their associates quicker and more accurately. The truth was I would teach to them exactly what I taught to their associates, and both groups would be equally challenged.
We didn't know how many partners would participate, but the training people at the firm know how to sell their in-house programs, and in some offices we had more partners attend the afternoon session than we had associates attend the morning session. After separating the two groups for the last few years, the training committee has now decided to offer one program and invite all lawyers to attend. Because many partners now know the curriculum, they are recommending it to other partners and devoting the extra time to attend the longer program themselves. This year associates, senior associates, and partners will be in the same room for half a day.
Last summer I taught a litigation seminar for Lozano Smith, a mid-size firm in California that specializes in representing school districts and public entities. Every lawyer in the firm attended for the whole day, from Lou Lozano down to an associate who had started the week before. Everybody learned the same editing system; everybody learned the secret to a successful argument; everybody heard and saw why I advise against opening a brief formally and using definitions and acronyms in briefs. The whole afternoon was titled "Winning with the Ethical Brief," and I explained why it is so important to appear before a judge as the "fair advocate". Judges are far more likely to lean toward the "fair advocate" than they are the unreasonable, hyperbolic advocate. Taken out of context, though, that point could easily be misinterpreted by a partner; but the partners were in the room, and the next thing they heard me address was exactly how to destroy the other side's case while remaining the "fair advocate." With everyone in the same room, the partners and the associates learned a common language in which to discuss their briefs, so the partner-associate relationship is smoother and far more efficient.
"I suspect that many of the partners thought they didn't need a session on writing," said Melanie Petersen, chair of the training committee. "But after the presentation, the partners were even more enthusiastic than the associates."
What We Achieve When We Include Partners
Whether we teach to partners and associates at the same time, or to each at separate times, we achieve six goals by including the partners: first, it signals to the associates that writing well is important; second, the partners and the associates now share a common editing language, both knowing, for example, the significance of the word "of" or "in"; third, the partners have a precise method for editing the associates' work, so instead of circling a paragraph in red and writing "shorten," the partner can circle all of the signs within the paragraph that will aid the associate in shortening the paragraph; fourth, the partner sees the editing rules and suggestions in context and hears my reasoning, illustrated with examples on color slides; fifth, having a system for effective writing and editing encourages uniformity in the partners' critiques; sixth, and perhaps most important, it makes the partners better writers.
A Hidden Benefit
Since I taught the first mentoring program at the mega-firm five years ago, I have taught the program to partners at many firms. One benefit I had not foreseen was that teaching to the partners and the associates would provide a sounding board for each group to air complaints about the other in a constructive environment. Then I relayed the partners' comments to the associates, and the associates' comments to the partners, which helped both communicate valuable information that otherwise got lost in outbreaks of apoplexy but rarely made it back to the source.
Transactional partners at every firm I worked with complained that their associates had two primary problems: When they received a drafting assignment, they immediately headed to the forms file; the partners wanted them to focus first on what was unique about the deal, rough out some language to accommodate that uniqueness, then go to the forms file. The other complaint was that transactional associates often included clauses not knowing their significance; the partners wanted the associates to know why each clause was in there. Neither of these was a writing problem, but each affected the writing, and each was good information to pass along to the associates.
Litigation partners lamented the frequency with which they received a law review article instead of a brief; too often the "brief" read like a collection of authority with no real analysis and advocacy. Also, they complained, the associates used too many words to say what they needed to say, so the partner had to waste time sorting through all of the words to make the sentences leaner. One partner at a firm in New York attended the associates' writing program and told the associates that when she received a brief she expected to spend one to two hours reviewing it before it went to the courthouse. "Far too often," she said, "I have to spend five or six hours." Then she added, "I cannot bill for that time." The associates got the point.
Associates had their own complaints, three of which I heard universally and passed along to the partners: One, the partner doesn't tell me enough for me to understand what's going on; two, I have to write for four different partners, and each has a different writing style; three, the partner makes "stylistic" changes, rather than substantive changes.
When giving or receiving a writing assignment, partners and associates alike should be aware of these ubiquitous complaints and how to avoid them, or a lot of time and energy gets wasted.
A Well-Kept Secret
If partners want a firm culture that produces clear, concise, informative memoranda for clients, and briefs that judges and clerks look forward to reading because that firm's name is at the bottom of the front page, they have to start with this premise: "Writing like a lawyer" is the problem. The ultimate writers in the legal profession do not "write like a lawyer"; they "think like a lawyer"; but they write like a warm, logical, compassionate, intelligent, fair-minded human.
Being a Good Mentor
To be a good mentor, a partner should explain that to an associate: the importance of thinking like a lawyer but conveying those thoughts like a professional intent on communicating and solving problems. Then the partner can establish a productive mentor-protégé relationship by following seven guidelines:
Set a good example
The partner herself must write clearly and concisely, eschew stale legal jargon, open letters and briefs properly, argue without becoming argumentative, and know her grammar.
Be specific
The partner should let the associate know whether he expects a paragraph or a definitive treatise. Is the associate to report or advocate? Is there a secondary audience? Where in the order of correspondence will this appear, which might affect the degree of detail? If it is a letter, does the partner want the tone to be reasonable, conciliatory, apologetic, formal, or blunt? The more specificity at the front end, the less confusion and wasted time at the other end.
Remember that she has to deal with the writing style of several partners
The partner has to be sensitive to this, to give her his philosophy about drafting contracts or crafting briefs, but let her, encourage her, to write in her own style. He should never change her writing to make it different, but change it only to make it better. And he must explain why it's better.
Give her as many facts as possible within a reasonable amount of time
The partner may have a picture of the case or transaction in her head, but the associate can't see that picture unless the partner adequately describes it to her.
Encourage her to come back
One partner at the mega-firm told me about his "three-hour rule," which I have passed along to many partners and associates. When a partner assigns a memo or brief to an associate, he should tell the associate to report back after three billable hours, so they can discuss what the associate has found and clear up any confusion. To clarify the associate's purpose early will save many headaches and hours of lost billable time. This should be firm policy.
Value his opinion
Associates are bright people, just inexperienced. They make good sounding boards. A partner can get so close to a case or a deal she can't see it. By talking it out with the associate and asking for his opinion, the partner accomplishes two things: she gets a fresh perspective, and she gives the associate more confidence, which will make him a better lawyer.
Provide feedback
All firms should mandate that a partner who gives a writing assignment to an associate must also give feedback to the associate and show that associate the final product. If the associates' efforts disappear into the black hole of a law practice, the associates will never learn.
Because mentors are really coaches, I offer one more suggestion. For years, I coached my younger daughter's basketball team. In that time, I learned a lot of tips that apply to the partner-associate relationship, foremost of which is something coaches of young kids call "the compliment sandwich," which you deliver like this: "Jessica, I love the way you hustle! Now remember darlin' we can only dribble with one hand at a time. But that Jessica spirit just lights up the court!"
I wouldn't call an associate "darlin,'" but even as adults, we still need constructive criticism wrapped in a compliment sandwich. That associate may have a cocky exterior, she may have been Editor of the Law Review at Virginia, but she is falling apart inside that office, because this is a new world, and the rules are not nearly so well defined. Tell her where she excels, suggest where she can improve, then remind her again what she does well. That alone will go a long way toward building associate loyalty.
A Checklist for Partners
Over the years, I have compiled a checklist for a partner to go over with an associate before and after giving a writing assignment. Having the checklist organizes the interaction between the two, giving the partner a focus to his editing and quantifying for the associate exactly what she needs to work on. Here are some of the questions I have on my checklist for litigation partners:
- Has the associate dropped the formal opening judges either ignore or despise?
- Has he opened with his own case?
- Has he included the three components of a proper introduction?
- Is his fact statement devoid of conclusions and argument?
- Has he deleted all extraneous facts?
- Has he avoided words like "clearly," "obviously," and "well-settled?"
- Are his paragraphs of argument unassailable?
- Is the brief at least 15% shorter than the page limit?
- Has he removed unnecessary words, nominalizations, and passive voice?
- Has he proofread for typos, redundancies, cliches, and lawyerisms?
Transactional lawyers should check for the following when their associates draft contracts or write substantive letters to clients:
- Has she opened the letter properly?
- Does she give her conclusion in the second sentence?
- Does she explain on the first page what the client should do?
- Is the letter clear and succinct?
- Has she considered the uniqueness of the transaction?
- Does she understand the significance of each clause?
- Has she thought about the partner's suggestions or automatically inserted them?
- Has she removed unnecessary words, nominalizations, and passive voice?
- Has she proofread for typos, redundancies, cliches, and lawyerisms?
A Firm Culture of Outstanding Writing
Writing is the most important thing your lawyers do. They are brilliant, but no one will know unless they can get it down on paper clearly, concisely, and compellingly. If you sequester the new associates upon arrival and teach them how to be clear, concise, and compelling on paper, you help to guarantee your investment in them if you involve the partners in the training: to improve their own writing, to understand what the associates are learning, and to become better teachers themselves. Only then will the firm culture achieve a level of writing excellence from all of your lawyers that will help them win more cases and please more clients.