Amazon Struggles With Fine Print On Prime Day: Why Your Law Firm Should Educate Its Clients On Contracting

If businesses don’t struggle with the ethics of “consent” to fine print, they should.

The debate has long ended; it is now universally understood that people do not read deeply buried disclosures of “terms and conditions,” and while boilerplates remain industry standard, so is the subsequent outrage by consumers about the morality of this choice.

From subprime mortgage lending to hurricane insurance, fine print once made a fine debate. Today, however, researchers and laymen alike acknowledge that these clandestine clauses remain unread, unrealistic, and therefore unwelcome.

Only a well-trained attorney could possibly decipher these legalese-laden contracts, which begs the question (well-put in the Iowa Law Review), “how seriously should contract law take consent in a world in which consumers must consent lightly to most of their contractual obligations?”

Yesterday, Amazon struck an unlucky deal with Visa on Prime Day. In addition to extra Prime discounts, holders of the Amazon Visa card also received 30% off all-day orders. Except, those coupon-cutting customers who didn’t read the fine print stating “while supplies last” were out of luck at check-out. Apparently, supplies didn’t last past 1pm and Amazon’s customer service lines fielded complaints.

What could Amazon have learned from the exchange?

1. Don’t deliberately confuse clients with legalese

Sometimes it’s impossible to edit out all the legalese. After all, contracts must be succinct, legally binding documents requiring many years of experience and thousands of dollars to draft them.

Nevertheless, boilerplate verbiage and ultra fine print are things of the past. “Most disclosures arise in an already crowded field of boilerplate. As such, most people have no choice but to perform a kind of triage on their reading priorities due to the overwhelming volume of information that disclosees face in a given day,” explains Tess Wilkinson-Ryan, in “A Psychological Account of Consent to Fine Print,” in Faculty Scholarship.

“Distorted risk perceptions, salience biases, and framing effects make it very unlikely that consumers will read the terms of form contracts—and even if they do read the terms, it is unlikely that they will integrate the information into their decision-making process in a sensible way.”

Instead of frustrating your clients with ex-post explanations like, “it was in the fine print,” or “you read the contact before you signed it,” avoid complaints and liability later by writing clear-cut contracting language today. Include “while supplies last” in large print with the title, or–for law firm contracting–keep contracts at 12pt font and limit the number of pages.

2. Clients are overconfident about their own understanding of contracting

So now you have a contract and you’re ready for clients to sign it. They consent—or do they?

People overestimate their abilities in general and, specifically, overestimate their natural talent for reading and understanding contracts.

For example, 88% of the American population rates their own driving as safer than the median driver. And, 85% of a random sample of residents of New Jersey thought that they had “below-average” risk of getting food poisoning [via Faculty Scholarship].

Most likely your clients will never admit they’re confused about terms and conditions your lawyers have laid out. So, take a minute to explain it again verbally. It may not be legally-binding like a signature, but it protects your practice ethically.

3. Think more about what you should do as opposed to what you’re legally bound to do

Yes, fine print exists. Yes, consumers and clients are aware of it. Yes, unread terms of agreement are legally binding. No, it doesn’t absolve your firm from blame.

As lawyers or law firm managers, don’t get bogged down by requisite behaviors, such as including a boilerplate. Take a moment to think about what you should do as opposed to what you’re minimally required to do.

In the least, if you’re Amazon, you’ll save time, cost, and effort justifying your actions and, instead, lock-in loyal customers or clients—while supplies last.

 

-WB

For audio and training courses (including CLEs) on law firm management, including drafting contracts, maximizing legal networks, and building a productive, profitable law firm, go to C4CM’s website here.

References:

1. Wilkinson-Ryan, Tess, “A Psychological Account of Consent to Fine Print” (2014). Faculty Scholarship. Paper 1301. http://bit.ly/29PRsaV

Writing at Work: Why You Should Be Communicating More Effectively in Business & Law

“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”

This quote, by Will Rogers, captures perhap the one thing most people imagine about lawyers–they’re incomprehensible! Legal jargon. It’s a pain, but it comes up in e-mails, reports, and everyday writing.

At times, legal jargon must be sensitive and all-inclusive to protect your corporate clients, which means it’s incomprehensible by laymen. To avoid lawsuits, disclaimers have become rife with legalese and incomprehensible verbiage.

As a result, lesson one in law school is that not all words are created equal. In fact, the Glossary of Terms within a legal document is frequently the longest portion of the entire brief.

This is why law firm professionals must possess a knack for precision in wording before they can be trusted with writing any legally-binding work. Attorneys are quick to practice proper citation and quotation methods when publishing law review articles.

Lynne Truss, author of Eats, Shoots & Leaves, has a zero tolerance policy when it comes to grammar. She’s a stickler for punctuation—although not for exaggeration—believing that people who mix up their itses “deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”

Kyle Wiens will not hire people who use poor grammar for a position within his companies, iFixit or Dozuki. Moreover, Wiens ensures his computer programmers know the difference between “to” and “too” during a mandatory grammar test that is given to each employee prior to starting work.

“If it takes someone more than 20 years to notice how to properly use “it’s,” then that’s not a learning curve I’m comfortable with,” explains Wiens in the Harvard Business Review Blog.

“So, even in this hyper-competitive market, I will pass on a great programmer who cannot write.”

Some might consider this zero tolerance policy to be harsh. But, Wiens thinks good grammar makes for good business. He claims writing code is not unlike writing prose. And, the best employees at his computer companies have a proven track record for attention to detail.

“I’ve found that people who make fewer mistakes on a grammar test also make fewer mistakes when they are doing something completely unrelated to writing—like stocking shelves or labeling parts.”

Law firms, too, benefit from a zero tolerance policy when it comes to grammar. It turns out, bad legal writing can have a detrimental impact on a case.

For example, a bankruptcy lawyer in Minnesota was publicly reprimanded for unprofessional conduct and ordered to pay court costs after he repeatedly filed documents that the court deemed “unintelligible,” due to a copious amount of spelling and typographical errors, reports Paralegal Today.

“In Duncan v. AT & T Communications, Inc., 668 F. Supp. 232 (1987), the defendant’s motion to dismiss was granted for several reasons, including poor organization. The court’s opinion stated: ‘A complaint may be so poorly composed as to be functionally illegible. This is not to say that a complaint needs to resemble a winning entry in an essay contest,’ Paralegal Today also cites.

There are a myriad of similar examples in law, where judges are swayed by the sloppy phraseology of a motion. Certainly, condemning legalese is not a new argument.

However, law firms who actively try to change this practice are new.

Why don’t legal recruiters throw out all CVs where itses are confused? Why doesn’t legal training include grammar tests?

Young attorneys rarely face formal repercussions at their firms for misspellings in their draft motions. But, consider this: As Wiens points out, we live in a competitive market. Where your firm fails, another one is poised to take over.

The courts have long proved grammar is important. So, the question is (like proper verb tense) does your firm agree?

-WB

If you’re not leaving the best possible impression in your business writing, take C4CM’s audio course, “Writing at Work: Essential Skills to Communicate Effectively in Business,” on Friday, May 6, 2016  at 11:00 AM to 12:15 PM Eastern.

Whether you’re crafting a short and sweet email, writing reports, memos, or performance appraisals, this power-packed webinar will guide you through the key steps and basic principles that will make your communications stand out from the pile and get the job done.

 

Designed specifically for managers, this critical program will review essential writing techniques to make the most of all your business communications, and help you become a more confident, capable communicator, including how to:

• Know the what and how of it – quickly work out exactly what you need to say and how to say it most effectively
• Polish it till it shines – use simple techniques for editing and fine-tuning your copy for clarity and maximum impact
• Connect with copy – leverage emails, letters and social media to forge valuable business relationships and to build your personal brand
• Craft impressive business documents – write the kinds of bids, proposals, reports and promo materials on which successful careers are built

You will also learn:

• The five most common writing mistakes made by managers, and how to avoid them
• When and what to capitalize
• Words and phrases you should never use in business writing
• How to write business documents that elicit a specific response from the reader
• How to state your objective clearly and concisely, and lose the jargon
• Simple steps to go from procrastination to completion of any size writing project
• Top three characteristics of effective business communication
• Best practices for understanding your writing strengths and weaknesses
• Methods to maintain consistency in writing style across your organization 

Why Law Firms That Take Grammar Seriously Succeed

Although attributed to Will Rogers, the following quote—at one point or another—has been uttered by most Americans:

“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”

At times, legal jargon must be sensitive and all-inclusive to protect your corporate clients, which means it’s incomprehensible by laymen. To avoid lawsuits, disclaimers have become rife with legalese and incomprehensible verbiage.

As a result, lesson one in law school is that not all words are created equal. In fact, the Glossary of Terms within a legal document is frequently the longest portion of the entire brief.

This is why law firm professionals must possess a knack for precision in wording before they can be trusted with writing any legally-binding work. Attorneys are quick to practice proper citation and quotation methods when publishing law review articles.

Lynne Truss, author of Eats, Shoots & Leaves, has a zero tolerance policy when it comes to grammar. She’s a stickler for punctuation—although not for exaggeration—believing that people who mix up their itses “deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”

Kyle Wiens will not hire people who use poor grammar for a position within his companies, iFixit or Dozuki. Moreover, Wiens ensures his computer programmers know the difference between “to” and “too” during a mandatory grammar test that is given to each employee prior to starting work.

“If it takes someone more than 20 years to notice how to properly use “it’s,” then that’s not a learning curve I’m comfortable with,” explains Wiens in the Harvard Business Review Blog.

“So, even in this hyper-competitive market, I will pass on a great programmer who cannot write.”

Some might consider this zero tolerance policy to be harsh. But, Wiens thinks good grammar makes for good business. He claims writing code is not unlike writing prose. And, the best employees at his computer companies have a proven track record for attention to detail.

“I’ve found that people who make fewer mistakes on a grammar test also make fewer mistakes when they are doing something completely unrelated to writing—like stocking shelves or labeling parts.”

Law firms, too, benefit from a zero tolerance policy when it comes to grammar. It turns out, bad legal writing can have a detrimental impact on a case.

For example, a bankruptcy lawyer in Minnesota was publicly reprimanded for unprofessional conduct and ordered to pay court costs after he repeatedly filed documents that the court deemed “unintelligible,” due to a copious amount of spelling and typographical errors, reports Paralegal Today.

“In Duncan v. AT & T Communications, Inc., 668 F. Supp. 232 (1987), the defendant’s motion to dismiss was granted for several reasons, including poor organization. The court’s opinion stated: ‘A complaint may be so poorly composed as to be functionally illegible. This is not to say that a complaint needs to resemble a winning entry in an essay contest,’ Paralegal Today also cites.

There are a myriad of similar examples in law, where judges are swayed by the sloppy phraseology of a motion. Certainly, condemning legalese is not a new argument.

However, law firms who actively try to change this practice are new.

Why don’t legal recruiters throw out all CVs where itses are confused? Why doesn’t legal training include grammar tests?

Young attorneys rarely face formal repercussions at their firms for misspellings in their draft motions. But, consider this: As Wiens points out, we live in a competitive market. Where your firm fails, another one is poised to take over.

The courts have long proved grammar is important. So, the question is (like proper verb tense) does your firm agree?

-WB

Enough Is Enough: Shorten Your Legal Writing Or Face Killer Robots!

Few lawyers—as a guess—were English Language majors during their undergraduate degree program. If they were, what could explain the superfluous legalese in every contract, disclaimer, and complaint these days?

Blame it on our litigious society, insufficient education system, or lacking law school training; but it remains true that legal professionals have become obsessed with length.

E-mails are now long letters (with attachments). Legal briefs—ironically—rival graduate school dissertations. Even your phone bill and mobile contract come with a mile-long explanation of terms and agreements that no individual has the time to read or ability to understand.

Today, lawyers learn to ignore internally circulated memorandums. After all, who foots the bill for the hour it takes to read one?

Social media dared to challenge this trend. Twitter gained notoriety due to the fact that men and women were forced to write no more than 140 characters worth of information. But, instead of creating more concise phrases, people turned to abbreviations and short-form.

In general, when people actually adhere to page requirements, it’s not because they are masters of language. No, instead, these people are masters of Microsoft—manipulating margins and font size and formatting.

What has happened to brevity in law and life?

“Some view it as a scandal that the CEO of J.P. Morgan ‘knew’ about the risky trades long ago. Or that the Bush administration knew ‘Bin Laden Determined to Strike in U.S.‘. Or that the average cell phone customer can know when they’re roaming, and yet still be surprised by the data charges from vacation, whether it’s $100 to upload a photo to Facebook, or $62,000 for downloading Wall-E,” writes David Silverman for the HBR Blog.

“What is rarely mentioned is the amount of information that lands on the desk of a CEO or a President, or every single one of us, every day.”

Is oversaturation of information to blame for the recession or the impending demise of America?

Maybe college essays are ruining our economy. At least, that’s what Mr. Silverman, a business writing professor and author of Typo: The Last American Typesetter or How I Made and Lost 4 Million Dollars, leads us to believe.

Professor Silverman tasked one of his classes to write a daily 500-word blog post. Maximum, 500 words, no more. If students could muster less, without sacrificing the profundity of the subject matter, the better.

Yet, Professor Silverman claims almost no student could adhere to the 500-word maximum requirement.

It comes down to laziness. Shortening a writing piece is more difficult and often more time consuming than leaving a first draft.

In the field of law, many professionals worry that they’ll leave out crucial information. They believe repetition often drives home a point.

Not only is this assumption untrue, it’s also dangerous to your clients.

Consider a recent court case in Washington State. The title of the lawsuit was eight pages long. The entire lawsuit spanned 465 pages. According to the Seattle Times, the presiding judge noted that the lawsuit “consists of largely useless repetition.” In contrast to the complaint, the judge’s conclusion was an extremely pleasant read:

“Plaintiff has a great deal to say,

But it seems he skipped Rule 8(a).

His Complaint is too long,

Which renders it wrong,

Please re-write and re-file today.”

There have been numerous, similar instances where judges (although less lyrical) are equally un-amused by rambling legalese.

So what is the solution?

Professor Silverman suggests within education: “Require a class in headline writing for all students in high school and college. Give them A+ marks for turning this:

In today’s turbulent times, it is more important than ever to remember that we are living in a world that, currently, is now more difficult to live in, and that we should be exercising extreme caution because of the evolution and advancement of artificial intelligence combined with mechanical apparatus that provides a method and capability for these new beings created in laboratories around the world to develop their own impulses, agendas and goal states, which, we have been lead to believe by reliable experts and a variety of eyewitness accounts, have already evolved via a combined intelligence network and communications subsystem into semi-sentient destroyers of life, liberty and happiness.

Into this:

Killer Robots!”

In turn, law school managers—like any adept English professor—should do the same for first-year associate training. Teach young attorneys the value of a single word.

When assigning real-world cases, establish a maximum word or page count. It will help law firm professionals write more efficiently. Deliberation on word length will also lead to more in-depth consideration of the legal arguments.

Administrators should lead the firm by example. Forget sprawling e-mails and mass memorandums. Write your training manuals as you would a legal brief—and make them brief.

It may take a bit more time, but all correspondence should be followed with due reflection. The most persuasive writing is frequently the most succinct.

-WB

Five Reasons Lawyers Should Write For A Personal Blog

As a lawyer, it may be less obvious what you have in common with Perez Hilton (other than both being fans of Glee).

However, like Perez Hilton, attorneys should learn to appreciate the value of a personal blog site.

Although lawyers should probably avoid celebrity gossip, attorneys would benefit from contributing personal content to an individual blog site. And, here’s why.

1. Productive Diversion. Angry birds and Pinterest can certainly fill up your free time. However, a personal blog allows attorneys to make more productive use of their lunch hour.

Stuart Brown wrote in his book Play: How It Shapes the Brain, Opens the Imagination, and Invigorates the Soul writes, “I have gathered and analyzed thousands of case studies that I call play histories. I have found that remembering what play is all about and making it part of our daily lives are probably the most important factors in being a fulfilled human being.”

When moving physical locations is impossible (law firms frown upon playground breaks for attorneys), briefly browsing the Internet for fun, diverting subjects, videos, or photos can substitute as “play.”

“The ability to play is critical not only to being happy, but also to sustaining social relationships and being a creative innovative person.”

Writing about your favorite sports team, commenting on news items, or reposting interesting videos are each great ways to maintain a positive personal attitude in an often stressful environment.

2. Hone Your Writing Skills. Lawyers write briefs and motions all day, but practice (so they say) makes perfect.

In addition to honing your writing skills for legal briefs, a personal blog can also help lawyers to hone their skills in writing communications for clients. Blogs, by nature, are more informal and cater to a different audience.

Practice colloquializing legalese. Clients will be grateful to (finally!) fully understand the status of their case with your newfound informal communication.

3. Brush Up On News. Although many lawyers already watch the evening news or read the morning paper, a lawyer’s professional work benefits from being up-to-date on current events.

Brushing up on recent news is fodder for elevator conversation with colleagues, and, now, it can be fodder for editorial content on your personal blog.

4. Discover A Different Area Of Law. Depending on your practice, the day-to-day legal work you are conducting may or may not be your primary interest. So, when you’re tired filing patent applications, use a personal blog as an outlet to read and research an area of law that attracts you most.

As a younger attorney, sometimes biglaw dominates your time with pages and pages of doc review. A personal blog allows you to return to those challenging student days of mock trial and competition.

Not every day at work will be intellectually stimulation. But, everyday of blogging can be.

5. Networking. Having an online presence—in any form—always makes for good networking.

So, in addition to joining LinkedIn, online professional groups, and social media networks, give personal blogging a try in order to increase your online visibility.

-WB

Will A Question Mark in Your Law Review Article Title Get It Published?

A lot of cyberbuzz is stirring today about an article written in The Guardian regarding the format of academic journal article titles and whether or not certain punctuation leads to more downloads and citations of the writing (read here and here).

A recent study shows that the titles of academic papers do, in fact, impact their rate of citation and download.

There are three major findings to the study, published in Scientometrics:

• Articles with question marks in the titles tended to be downloaded more but cited less.
• Articles with longer titles were downloaded slightly less than the articles with shorter titles.
• Article with long titles containing a colon had fewer downloads and fewer citations.   

A lawyer can certainly extrapolate reasons for why these conclusions may hold true. For example, articles with question marks in the titles may be more provocative, leading to more downloads. But, perhaps articles with question marks in the title are also more editorial in nature, leading to less citation.

“Lincoln Was Self-Taught . . . So Why Go To Law School?” is an interesting title leading to a controversial article of limited scientific fact, for example.

In addition, article titles that are more succinct reveal their subject matter more readily, thus appeal to inquiring minds. So, it is understandable that articles with shorter titles would be downloaded at higher rates.

While the study certainly sheds light on strategies to increase the readership of an attorney’s academic writing, lawyers looking to publish work in Law Reviews or similar legal journals should read another message between the printed lines.

Successful legal writers have done significant legal reading.

That is to say, if you want to be an expert at a task—whether that be research, analysis, or writing—it’s vital to put in the time and practice.

So, renew that subscription to the Administrative Law Review or even the ABA Journal. These publications are essential for a continued, comprehensive knowledge of your practice area. But, also, these academic sources (and their over-punctuated titles) mark the first step toward publishing pertinent research of your own.

The best way to have an article published, read, and cited, is to have 10,000-hours of expertise and to be familiar with the competition.

-WB

Peace, War, and Lawyers

Lawyers have long composed this country’s first patriots. Almost two-thirds of the fifty-five delegates who attended the American Constitutional Convention were lawyers.

And, it was a lawyer—Francis Scott Key—who wrote the lyrics to this country’s most symbolic and proudest tune, U.S. national anthem The Star Spangled Banner.

When it comes this country, peace, war, and lawyers, Stewart Baker, author of a Foreign Policy (FP) article titled “Denial Of Service,” asks a pointed question:

“Lawyers don’t win wars. But can they lose one?”

The shape of war has certainly changed. Today, the subject of most controversial war strategies surrounds everything “cyber.” From cyberattacks, to cyberweapons, to cyberwar.

It turns out that the latter—cyberwar—is difficult to define, both legally and militarily. And, American lawyers are pressing the U.S. government to hold off on retribution tactics until it can be.

According to the FP, top Defense Department officials recently attempted to create a unified cyberwar strategy, one that prioritized defense over conducting any offensive operations.

Even then, however, Marine Gen. James Cartwright, then vice chairman of the Joint Chiefs of Staff, complained publicly that a purely defensive strategy would fail, reports the FP.

“If it’s OK to attack me and I’m not going to do anything other than improve my defenses every time you attack me, it’s very difficult to come up with a deterrent strategy,” quotes the FP.

Apparently, the current stalemate in cyberwar policy is the fault of lawyers. Not, for example, the military, government, or international community’s inability to evolve with today’s world of “cyber”-everything and provide definitions for terms already decades past their initial innovation.

“Today, just a few months later, Cartwright is gone, but the lawyers endure. And apparently the other half of the U.S. cyberwar strategy will just have to wait until the lawyers can agree on what kind of offensive operations the military is allowed to mount,” laments Stewart in his FP article.

Stewart feels furthered burdened by the length of time it has taken Justice Department lawyers to question whether or not the military violates the law of war if it mimics the tactics of (wait for a new term…) cybercriminals, i.e., if the military, like cybercriminals, erases its data-cracking, computer-violating tracks when operating in other countries.

According to Stewart, no branch of the military is immune to lawyer intervention.

“The Air Force recently surrendered to its own lawyers, allowing them to order that all cyberweapons be reviewed for ‘legality under [the law of armed conflict], domestic law and international law’ before cyberwar capabilities are even acquired,” Stewart writes in his FP article, just before calling the result “predictable, and depressing.”

To some, the idea of spending time on definitions and domestic and international law seems like a waste of time. But those people should review their American history to find that definitions and words among legal doctrines are the basis for our system of justice.

It took years for three legally-implicit, yet terrifying words to get overturned. “Separate but equal” was an accepted constitutional doctrine that prolonged discrimination in America until lawyers, in Brown v. Board of Education, redefined them as the embodiment of racial segregation and in violation of the Fourteenth Amendment.

Although slow to create, legal definitions pull at the heart of the U.S. Constitution.

The lesson from history to be learned is absolutely about putting limits on war, including cyberwars, and developing these rules and regulations through the legal system. As America has always done.

Most iconic American lawyer of all, Abraham Lincoln summarizes the role of a lawyer in his Gettysburg Address:

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” Lincoln declared.

And yes, sometimes it is difficult to decipher legalese. But, despite this intermittent confusion regarding legal language, one thing is clear:

Attorney representation and intervention has ensured this “…government of the people, by the people, for the people, shall not perish from the earth,” even when faced with past war and future cyberwar.

Occasionally, days like today, require a sincere reminder of why lawyers are essential, equalizing pillars of the American government system.

-WB

To read the original Foreign Policy Argument article by Stewart Baker, published September 30, 2011, go here.

Write Like A Professional And Leave The Joking For The Judges

“In a recent ruling in a highway construction dispute, San Antonio federal judge Fred Biery cited a range of authorities: Barbra Streisand; Stephen Sondheim; James Taylor; the Pearl beer slogan; and television programs spanning the past 50 years.  

There were nods to the Lone Ranger and Superman, and at one point, the judge wrote: ‘Instead of the ‘X Files,’ this drama could be called the ‘Yuck Files’.’ Idling car engines cause ‘automobile droppings,’ the judge wrote, ‘which the court calls Petro Poop.’”

The Wall Street Journal is not the only news source to take note of a recent trend by judges to write… shall we say… colorful opinions.

These days, it’s not uncommon for judges to use pop culture references, puns, and even rap songs to express themselves. Whether their use of humor is an attempt to make verdicts more readable and understandable, or whether it’s an attempt to quell an overwhelming sense of boredom from the bench, the jury is still out.

What is certain, however, is that humor serves as a double standard in law. For the Chief Justice presiding, all’s fair. But as a lawyer, defense or plaintiff, attempting a stand-up routine for a court case is not a battle you’re likely to win.

It’s not fair, but attorneys are expected by judges and their peers to present arguments that are:   

1. Clear;
2. Concise; and 
3. Serious.

First and foremost, language in a legal brief or in oral arguments, for example, should be plain and clear to understand. Replace technical jargon with more understandable terms. Always offer a defined terms list. And avoid—at all costs—legalese.

Secondly, arguments should be concise. Attorneys are reputed for writing overly lengthy briefs. However, it’s unnecessary to argue a case in fifteen pages when the facts can be presented succinctly in five.

To further bolster this point, since 2009, the number of words per Board of Patent Appeals and Interferences opinion has severely declined. Not only has the average words per opinion changed drastically, but the median words per opinion has also decreased. In sum, the board has become less and less verbose, so it’s likely they prefer you to be as well.

Finally, eradicate frivolity from your arguments. Only serious writing is taken seriously. As soon as a judge perceives a point to be petty, flippant, or needing the adage “all joking aside…” your case is already lost.

So, in your next brief, as tempting as it may be to reference Guys and Dolls, Miss Saigon, or the Wizard of Oz—though we acknowledge that Supreme Court Justice Philip Straniere is a fan—don’t waste the time of judge, jury, and client. The court jestering sentencing trend is not one to stick.

“You wanna waste my time? Okay. I call my lawyer. He’s the best lawyer in Miami. He’s such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.”

(On the other hand, in a blog, you’re allowed to quote Scarface.)

-WB

For more information about professional writing, read “Consequences To Unprofessional Conduct In The Courtroom“

For more information on proper documentation methods, attend C4CM’s course, “Bulletproof Documentation: Creating Clear, Concise, Legally Air-Tight Write-Ups“

Three Reasons To Reconsider Your Patent Appeal (And The Hidden Value Of Lists)

You may consider waiting to write that long list of grounds for appeal. The number of points you enumerate may bear more weight in your case’s final decision than you first thought.

1. Assume Backlog Means Quicker Consideration Of Your Arguments

To begin, the Board of Patent Appeals and Interferences (BPAI) is severely overloaded. In fact, the BPAI is behind on opinions for more than 20,000 pending appeals—a number that is only increasing.[1]

To catch up, each case will need to be read more quickly and efficiently than before. With so many appeals to review, there will be little tolerance for errors or frivolry. Thus, if you aim to join the appellate fight and win, your legal arguments better be, well, appealing.

2. Mimic The Concise Style of BPAI Opinions In Your Appeal

In addition, since 2009, the number of words per BPAI opinion has declined at an alarming rate. In just two years, the average number of words per opinion has dropped from over 3,000 words to almost 2,000 words, according to Dennis Crouch of the Patently-O Blog.

Not only has the average words per opinion changed drastically, but the median words per opinion has also changed notably. The median opinion from February 2009 contained 60 percent more words than the median opinion from January 2011, says Crouch. This means the board has become less and less verbose, and likely prefers you to be as well.

3. Determine If A New Chief Judge Means Changes In Your Patent Appeal

Finally, there’s a new lawmaker in town. To fill a vacancy that has been open since October of last year, the United States Patent and Trademark Office finally announced a new Chief Administrative Patent Judge.

As of May 8, 2011, James Donald Smith has been serving as Chief Judge in the backlog swamp, and who knows what changes this Chicagoan will bring.[2] Research Judge Smith’s background and his past (precedent) to determine whether or not he will be sympathetic to your cause. Hint: Start with Duke University Law School and end with Dewey & LeBoeuf LLP.[3]

And, if you couldn’t tell from this blog post already, arguments are best understood in to-the-point, succinct lists. Unconvinced? Read this month’s Wired magazine, which heralds the success of a list-making site, cracked.com, and its various mobile app counterparts.[4] The humorous web portal has 7.3 million unique users each month. The site’s success is based on its ability to “crowdsource and filter and other buzz-worthy things.”

It’s important to find a hook for your audience (say, a judge or patent board) and filter subject matter down to the most critical (content managers for cracked.com commission six article items in order to edit them down to the five best).

The result is a list of popular and prolific points that sell. So, with this in mind, you should be able to create a case that is equally captivating as “The 7 Most Ridiculous Cases of Misplaced Priorities” and “9 Words You’ve Used Today With Bizarre Criminal Origins.”

Now, attorneys, get back to what you’re really reading, “7 Items You Won’t Believe Are Actually Legal.”

-WB

For more information, read “Top 10 Mistakes in Arguing on Appeal to the BPAI,” or “Looking to Avoid Patent or IP Lawsuits? Try Google First.”

 

Citations:

[1] http://www.patentlyo.com/patent/2011/03/jason-rantanen-has-written-several-recent-posts-on-rule-36-affirmancesin-those-cases-the-federal-circuitsimplyaffirms-the-l.html

[2] http://www.uspto.gov/news/pr/2011/11-31.jsp

[3] http://www.ag-ip-news.com/GetArticle.asp?Art_ID=8972

[4] Leckart, Steven. “Why Numbered Lists Are Comedy Gold,” Wired. June 2011.

Supreme Court Justices Give Lessons On Legalese

“I have yet to put down a brief and say, ‘I wish that had been longer’” -Chief Justice John G. Roberts Jr.

When it comes to legal writing do’s and don’ts, Bryan A. Garner of LawProse is on the cutting edge. His CLE seminars provide a variety of valuable tips for revising appellate briefs, translating contracts and other consumer documents into simple English, drafting or rewriting rules of procedure, and simplifying jury instructions, to name a few.

But don’t just take his word for it. Now you can also consult the opinions of nine Chief Justices—the same judges who may be ruling on your brief tomorrow—who discussed best writing practices and legalese in interviews with Garner between October 2006 and March 2007.

Lawprose recently released the transcripts for these Supreme Court interviews on its website. You can read candid comments (about exactly what the bench thought of your work) from the following justices:

1. Bryan A. Garner
2. John G. Roberts Jr.
3. John Paul Stevens
4. Antonin Scalia
5. Anthony M. Kennedy
6. Clarence Thomas
7. Ruth Bader Ginsburg
8. Stephen G. Breyer
9. Samuel A. Alito Jr.

“You’ll learn that Chief Justice John Roberts Jr. really doesn’t like reading ‘which’ in a brief, when ‘that’ will do. “I don’t know why,” Roberts confessed to Garner. “But when I see sentences with ‘which’ in them, it slows you down… It starts to sound like one of those old 19th-century contracts—which and wherefore. ‘That’ just seems to have a better pace to it. I actually find you can usually get rid of both of them and go with the gerund,” quoted The BLT blog, which first reported the release of these transcripts.

The transcripts are rife with the writing idiosyncrasies and particular preferences of an elite few lawmakers. In an argument in front of Justice Anthony Kennedy, for example, attorneys should be weary of using nouns as verbs. So instead of saying the plaintiff was “tasked” with an assignment, try rephrasing to, “he was asked to perform a task.” The word “task,” according to Kennedy, should be solely used as a noun.

Justice Stephen G. Breyer—like Justice Roberts—appreciates brevity. “Don’t try to put in everything. Use a little editing, I would say. If I see something 50 pages, it can be 50 pages, but I’m already going to groan. And I’m going to wonder, Did he really have to write that 50 pages? I would have preferred 30. And if I see 30, I think, Well, he thinks he’s really got the law on his side because he only took up 30.”

Although predominantly useful as humorous soundbites from America’s Supreme Court bench, the underlying theme of succinctness makes for both cliché and constructive advice. Justice Clarence Thomas pithily summarizes, “[T]he genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence.”

-WB

Read the full transcripts here.

Read the WSJ’s blog opinion of the transcripts here.