use five cent words minn. lawyer 4-1-13

minnlawyer.com April 1, 2013 | 7

Legal education rethink starts in the law firmBy Edward Poll

We have regularly discussed in thesecolumns how law school does little toprepare young lawyers for practicerealities in any size law firm. Ithas become increasingly clearthat reality is catching up to lawschools

According to The New YorkTimes, law school admissionsfor the upcoming 2013academic year are headed for a30-year low (down 20 percentfrom last year and 38 percentfrom 2010), a decline driven bystudent worries about rising tuition,equally soaring debt load and theprospect of unemployment aftergraduation.

A follow-up story in that samenewspaper said that some are calling forradical changes to the legal educationsystem, including cutting thecurriculum, requiring far more on-the-ground training and licensingtechnicians who are not full lawyers.

But this same story points out the realreason for the problem: the vestedinterests of tenured professors tied to anantiquated system.

The dynamic between law schoolsand bar associations tomaintain the professionsstatus quo suggests thattweaking tuition or curriculumis likely all the change that canbe expected from the lawschool side. But this should notbe a dead end for legaleducation.

Every law school graduatewho is fortunate enough to

have a law firm job should realize thatkeeping that job in todays businessenvironment is a personalresponsibility, not a function of having acertificate that proclaims one to be a J.D.Given that realization, there are certainsteps for firms to help associatesbecome self-reliant in furthering theirown legal education.

The first step is institutional. Lawfirms increasingly are servicing clients

with teams (not just a single rainmaker),and adding associates to those teamsaccording to a strategic plan. Trainingassociates to develop businessaccording to a personal marketing plan,and giving bonuses to those who getresults, is essential. With thisopportunity to grow businessdevelopment opportunities, associatescan develop a book of business thatjustifies making them partners.

The next step, too often neglected, isto help associates with administrativestaff. Law firm administrators withmarketing involvement can help younglawyers develop status reports and clientsurveys that effectively communicate toclients how the young lawyer is handlinga matter and ask for input.

Administrators can also help set up aninformal client visitation schedule, orother business development effortsusing client relationship management(CRM) software and database systems.Administrators know that todayssuccessful associates will betomorrows partners, so they will be

eager to help.The final step is one of attitude.

Associates should wean themselvesaway from relying on rainmakers andbuild the ability to develop business. Thehurdle here is helping associates developresiliency, the ability to bounce backfrom criticism or rejection. Evensuccessful sales people will frequentlymeet rejection, but their focus is alwayson achieving the next yes rather thandwelling on the last no.

Given that associates typically havelittle or no exposure to this sort ofthinking, the only way they will acquireit is building up confidence by doing,through opportunities that the firmprovides. Associates who pursue suchopportunities and the lessons they offerare the associates with the best chanceto be tomorrows partners.

Edward Poll, J.D., M.B.A., CMC, is a law prac-tice management thought leader and contrib-utor to this publication. His website is atwww.lawbiz.com.

Coachs Corner

Edward Poll

Prefer the short word tothe long

By Matthew SalzwedelSpecial to Minnesota Lawyer

Supreme CourtJustice ClarenceThomas isnt a fan ofbig words in judicialopinions. TheAtlantic recentlyquoted him as sayingthat he tries to writeopinions so that non-lawyers canunderstand them: [W]e write [opinions]so that they are accessible to regularpeople. That doesnt mean that theres nolaw in them. But there are simple ways toput important things in language thatsaccessible. [T]he beauty, the genius is notto write a 5-cent idea in a 10-dollarsentence. Its to put a ten dollar idea in a 5-

cent sentence.Justice Thomas

gives sensible advice inthe abstract. But how,in practice, canlawyers use simplewords to convey com-plex ideas? And is sim-plified legal writingmore effective in per-suading judges and sat-

isfying clients? To answer these questions,lets first put the justices advice in histor-ical context.

Attic and Asiatic stylesGenerally speaking, writing tends to

fall within two literary styles, both ofwhich were born from ancient Greek andRoman rhetoric.

As Bryan Garner explains in The Ele-ments of Legal Style, the Attic style is re-fined conversation: concise, restrained,shorn of intricacy. In contrast, the Asiaticstyle is a florid oratorical style [that]sports elaborate antitheses, complicatedsyntax, and correspondences in sense andsound.

Since Cicero debated the merits ofeach style in his Orator (46 B.C.), theresbeen conflict between proponents of eachstyle. In the 20th Century, for example,this conflict took the form of barbs ex-

changed by Nobel Prize winners WilliamFaulkner and Ernest Hemingway. Duringone exchange, for example, Faulkner ac-cused Hemingway of never [using] aword that might send a reader to the dic-tionary. Hemingway retorted, Does[Faulkner] really think big emotions comefrom big words? He thinks I dont knowthe 10-dollar words. I know them all right.But there are older and simpler and betterwords, and those are the ones I use.

Although each style boasts an impres-sive pedigree, since at least the mid-19thCentury most writing authorities havetold writers to adopt the simpler Atticstyle. Sir Ernest Gowers, in the CompletePlain Words (1954), boiled down this ad-vice to six words: Be short, be simple, behuman.

But this general writing advice neverfully penetrated legal writing, which clungto its Asiatic roots. For the most part, wecan blame the law schools. Since thecasebook method of legal instruction wasinvented in the early 19th Century,lawyers have learned a bastardized Asi-atic style (Garners term) by adopting thestyle of antiquated opinions found in law-school casebooks, which buried legalconcepts in sprawling, dense prose, andlegal jargon.

In the last 50 years, the plain-Englishmovement which emphasizes simplic-ity, clarity, and concision marginalizedthe remaining defenders of the Asiaticlegal-writing style. Yet paying lip serviceto plain-English principles isnt enough.So, again, how can lawyers ditch the Asi-atic style and learn how to write simply inpractice? Its not as hard as it might seem.

Use short, familiar, AngloSaxonwords

Lawyers who write simply use short,familiar AngloSaxon words. In TheKings English (1906), H.W. Fowler sum-marized this idea in five related principles:Prefer the familiar word to the far-fetched. Prefer the concrete word to theabstract. Prefer the single word to the cir-cumlocution [roundabout expression].Prefer the short word to the long. Preferthe Saxon word to the Romance.

Practicing Fowlers five principlesmeans, at the very least, replacing La-tinisms i.e., words, idioms, or phrasesborrowed from Latin with simpler Eng-lish substitutes. True, Latinisms have

filled voids in the English language. Ex-amples of void-fillers are alibi, amicuscuriae, de minimis, ex parte, habeas cor-pus, prima facie, res ipsa loquitur, staredecisis, and voir dire. But other Latinismsare quite avoidable: ab initio (from thestart), arguendo (for the sake of argu-ment), inter alia (among other things),gravamen (crux, gist), res gestae (thingsdone), sua sponte (on its own), suigeneris (unique), and vel non (or not, orthe lack of (it, them)).

Besides replacing Latinisms, lawyerswho write simply always choose the sim-pler word or phrase. In The Redbook: AManual on Legal Style, Garner lists morethan 150 complexsimple choices. Hereare a few: acquire/procure (get), adja-cent/contiguous to (next to), ameliorate(improve), ascertain (find out, makesure), authored (wrote), cognizant(aware), commence (begin, start), conjec-ture/surmise (guess), demonstrate(show), discontinue (stop), elucidate (ex-plain), endeavor (try), erroneous (wrong,incorrect, mistaken), evidencing (show-ing), facilitate (help, ease), forward vb.(send), frequently (often), implement(carry out, set up), incongruous (unfit-ting, incoherent), individual(s) (person,people), inform (tell), inimical (adverse,hostile), intimate vb. (hint), multitudi-nous/numerous (many), notwithstand-ing (despite), render (make, leave),request (ask), reside (live), subsequent(later), transmit (send), and utilize (use).

Close editing catches these complexsimple choices. When editing, lawyersshould ask themselves whether a non-lawyer would be bewildered by a wordchoice. For example, no lawyer would sayto a non-lawyer friend that Im going to

the grocery store adjacent to my office toascertain whether it sells fresh salmon. Ifit does, I will procure some filets for din-ner, which Ill commence preparing at7:00 p.m. No, most lawyers would say insimple, idiomatic English that Im goingto grocery store next to my office to seewhether it sells fresh salmon. If it does, Illbuy some filets for dinner, which Ill startpreparing at 7:00 p.m.

The benets of simple writing aremany

Lawyers, of course, shouldnt be afraidto use uncommon words if they fit thecontext of the sentence. Aristotle nodoubt was right when he said that writersshould strive for a mixed diction. Butshort, familiar, AngloSaxon words pro-duce a more persuasive legal-writingstyle. Why? They reduce word counts.They quicken prose, and directly connectideas. They dont make judges and clientsfeel stupid by forcing them to dictionaries.And, most importantly, they give readersa chance to comprehend unfamiliar, com-plex subject matter.

So try to follow Justice Thomassadvice about using 5-cent words toconvey 10-dollar ideas, and leave thecomplicated Asiatic style to the nextFaulkner. You wont win a literaryaward by keeping it simple, but yourlegal writing will undoubtedly be moreeffective.

Matthew R. Salzwedel is an attorney in Min-neapolis, and the publisher of LegalWritingEdi-tor.com. He is also a regular contributor toLawyerist.com, where he writes about legal-writ-ing, language, and usage issues.

Use 5-cent words for 10-dollar ideas

Legal WritingNotebook

Matthew Salzwedel

Justice Thomas