Why Lawyers Need to Write Less Like Marshall and More Like MapQuest

Though we tend to think that good writing never changes, writing in many parts of the legal and business worlds have probably changed more in the last decade than in any comparable period over the last five centuries. Those who fail to adapt will pay the consequences.

Technology Won't Go Away

Major technological changes transform not only our methods of communication, but their style as well. “We shape our tools and then our tools shape us,” wrote the media theorist Marshall McLuhan a generation ago. The invention of the printing press altered not only the dissemination of information, it changed the way people spoke and the way they wrote' and there were constant complaints about it then, just like now.

In our time, the recent development of computers, the Internet, and then smart phones (and all their manifestations such as the iPad and other tablets) has begun to do much the same thing. It's undeniable that writing within the office and for clients is dramatically different than it was a decade ago. Yet lawyers have done little to adapt to this brave new world.

Writing effective e-mails and shorter memos are skills very much at odds with the tools we acquire in school ' where the goal is usually to be expansive and detailed as we display our knowledge in all its minutiae. Especially in law school! Yet in an age in which people no longer read linearly from beginning to end and also read with far less absorption, continuing to use this method is a ticket to unreadability.

Changes in Law; Changes in Writing

It's not just these new tools lawyers now need to master. The business environment of the law has gotten a lot tougher over the last decade too, forcing many lawyers to learn the essentials of marketing writing and drafting e-copy for the Internet. Yet a quick glance at almost any site featuring lawyers displays an organization, style, and lack of graphic sophistication that reveals that it was, alas, written by lawyers.

In my communication workshops, we spend a lot of time focusing on the writing of ad copy, courtesy of some of the old-time greats of the print age such as David Ogilvie and Bill Bernbach. The goal isn't to turn students into Don Drapers ' as interesting as that might be ' but to learn what makes persuasive writing tick. Lawyers who learn what makes a great advertising slogan are not only mastering the intricacies of marketing. They're also acquiring better advocacy skills in litigation since many of the same principles apply there too. It's probably a mistake to cite the O.J. Simpson criminal trial as a good example of anything, but Johnnie Cochran and Barry Scheck used “slogans” to great advantage. Long after the trial ended, the jurors were telling the press, “If it doesn't fit, you must acquit.”

In my workshops, we also focus on the intricacies of Google Maps and even Wikipedia. Substantive merits aside, these sites have mastered many of the tools lawyers need in order to communicate better in the e-age. Think about some of the ways in which Google Maps (or MapQuest) organize information:

• They use the second person, which in turn, moves the writer in the direction of writing simpler prose because we sound more conversational when we use the second person;
• They provide visual illustrations;
• They are written as a numbered list, not an essay.

That last point is key. Throughout our legal careers, we're socialized into always writing essays. Briefs, memos, and even opinions today are simply different takes on the essay format. But an essay is often one of the least effective ways to convey information. Were MapQuest to provide an essay on how to get where we're going, we'd likely get lost and wreck the car on the way as we tried to figure out what to do.

Worse, essay writers tend to be terribly over-inclusive, violating Anton Chekhov's dictum about making sure a shotgun on stage at the beginning of a play goes off by the end, lest it distract the audience from more important matters. Yes, lawyers might think that giving their advice in a list format is too laconic. But it gives many readers all they really care about. Even using complete sentences all the time takes unnecessary space and clutters the page.

Similarly, look at how Wikipedia presents material:

• It uses different fonts, sizing, and color, and puts things in boxes;
• It leads with the conclusion and then provides a written table of contents or a list that does the same;
• It uses links and a bibliography at the end with similar links.

The 'e-Age'

What the designers of Wikipedia understand is that the old hierarchy of writers dictating to readers what they should read, in the order they should read it, has been decimated. For better or worse, one of the key things the “e-age” has done is to give readers the freedom to leave one text to go to another that interests them more. Even legal writers have to play to this impulse, or at least understand its appeal in order to get their material read.

The few principles discussed here are only the tip of the proverbial iceberg. Lawyers have also been terribly slow to adapt to the notion that an e-mail isn't a letter sent electronically, but a new form of communication with its own set of rules. Anything longer than, say, 150 words is unlikely to be read. E-mail is also, in essence, a public communication, no matter how many warnings and privilege claims you place at the end (where no one reads them). If you want to ensure privacy and confidentiality in a communication, forget about e-mailing it. Just ask David Petraeus.

Conclusion

Over time, the writings of Charles Darwin have been applied to a variety of situations, some inapposite. But he was surely correct when he wrote, “In the struggle for survival, the fittest win out at the expense of their rivals because they succeed in adapting themselves best to their environment.” Adapt to the e-age or die. So far, lawyers aren't doing nearly enough to adjust.

Steven D. Stark is a lawyer, writer and teacher, who gives numerous workshops on legal and marketing writing for lawyers and other professionals. He is the author of four books, including the recently revised “Writing to Win: The Legal Writer.” He can be reached at [email protected].

Though we tend to think that good writing never changes, writing in many parts of the legal and business worlds have probably changed more in the last decade than in any comparable period over the last five centuries. Those who fail to adapt will pay the consequences.

Technology Won't Go Away

Major technological changes transform not only our methods of communication, but their style as well. “We shape our tools and then our tools shape us,” wrote the media theorist Marshall McLuhan a generation ago. The invention of the printing press altered not only the dissemination of information, it changed the way people spoke and the way they wrote' and there were constant complaints about it then, just like now.

In our time, the recent development of computers, the Internet, and then smart phones (and all their manifestations such as the iPad and other tablets) has begun to do much the same thing. It's undeniable that writing within the office and for clients is dramatically different than it was a decade ago. Yet lawyers have done little to adapt to this brave new world.

Writing effective e-mails and shorter memos are skills very much at odds with the tools we acquire in school ' where the goal is usually to be expansive and detailed as we display our knowledge in all its minutiae. Especially in law school! Yet in an age in which people no longer read linearly from beginning to end and also read with far less absorption, continuing to use this method is a ticket to unreadability.

Changes in Law; Changes in Writing

It's not just these new tools lawyers now need to master. The business environment of the law has gotten a lot tougher over the last decade too, forcing many lawyers to learn the essentials of marketing writing and drafting e-copy for the Internet. Yet a quick glance at almost any site featuring lawyers displays an organization, style, and lack of graphic sophistication that reveals that it was, alas, written by lawyers.

In my communication workshops, we spend a lot of time focusing on the writing of ad copy, courtesy of some of the old-time greats of the print age such as David Ogilvie and Bill Bernbach. The goal isn't to turn students into Don Drapers ' as interesting as that might be ' but to learn what makes persuasive writing tick. Lawyers who learn what makes a great advertising slogan are not only mastering the intricacies of marketing. They're also acquiring better advocacy skills in litigation since many of the same principles apply there too. It's probably a mistake to cite the O.J. Simpson criminal trial as a good example of anything, but Johnnie Cochran and Barry Scheck used “slogans” to great advantage. Long after the trial ended, the jurors were telling the press, “If it doesn't fit, you must acquit.”

In my workshops, we also focus on the intricacies of Google Maps and even Wikipedia. Substantive merits aside, these sites have mastered many of the tools lawyers need in order to communicate better in the e-age. Think about some of the ways in which Google Maps (or MapQuest) organize information:

• They use the second person, which in turn, moves the writer in the direction of writing simpler prose because we sound more conversational when we use the second person;
• They provide visual illustrations;
• They are written as a numbered list, not an essay.

That last point is key. Throughout our legal careers, we're socialized into always writing essays. Briefs, memos, and even opinions today are simply different takes on the essay format. But an essay is often one of the least effective ways to convey information. Were MapQuest to provide an essay on how to get where we're going, we'd likely get lost and wreck the car on the way as we tried to figure out what to do.

Worse, essay writers tend to be terribly over-inclusive, violating Anton Chekhov's dictum about making sure a shotgun on stage at the beginning of a play goes off by the end, lest it distract the audience from more important matters. Yes, lawyers might think that giving their advice in a list format is too laconic. But it gives many readers all they really care about. Even using complete sentences all the time takes unnecessary space and clutters the page.

Similarly, look at how Wikipedia presents material:

• It uses different fonts, sizing, and color, and puts things in boxes;
• It leads with the conclusion and then provides a written table of contents or a list that does the same;
• It uses links and a bibliography at the end with similar links.

The 'e-Age'

What the designers of Wikipedia understand is that the old hierarchy of writers dictating to readers what they should read, in the order they should read it, has been decimated. For better or worse, one of the key things the “e-age” has done is to give readers the freedom to leave one text to go to another that interests them more. Even legal writers have to play to this impulse, or at least understand its appeal in order to get their material read.

The few principles discussed here are only the tip of the proverbial iceberg. Lawyers have also been terribly slow to adapt to the notion that an e-mail isn't a letter sent electronically, but a new form of communication with its own set of rules. Anything longer than, say, 150 words is unlikely to be read. E-mail is also, in essence, a public communication, no matter how many warnings and privilege claims you place at the end (where no one reads them). If you want to ensure privacy and confidentiality in a communication, forget about e-mailing it. Just ask David Petraeus.

Conclusion

Over time, the writings of Charles Darwin have been applied to a variety of situations, some inapposite. But he was surely correct when he wrote, “In the struggle for survival, the fittest win out at the expense of their rivals because they succeed in adapting themselves best to their environment.” Adapt to the e-age or die. So far, lawyers aren't doing nearly enough to adjust.

Steven D. Stark is a lawyer, writer and teacher, who gives numerous workshops on legal and marketing writing for lawyers and other professionals. He is the author of four books, including the recently revised “Writing to Win: The Legal Writer.” He can be reached at [email protected].