How To Botch Your Brief, Guaranteed.

According to Jim McElhaney, a well-known commentator on litigation in general and legal writing in particular, there are 12 ways to screw up your brief. He presents them here in detail: Dirty Dozen: 12 Ways to Write a Really Bad Brief. As you read through McElhaney’s litany, you’ll hear yourself saying, “OMG. How can anybody be this stupid?”

Sadly, it isn’t that difficult to fall into some of these traps. Emotional involvement in a case is enticing; and before you know it, the blinders are on. And just because these mistakes are easy to make doesn’t mean they aren’t costly. Just about any one of them will weaken a brief, some will make it smell so bad that the judges will have to open the conference room windows, and one (willfully misquoting legal authorities) will get you sanctioned. None are advised.

So how do you avoid these pitfalls if you’re not a professional legal writer (and you’re probably not if you’re a trial lawyer or a GP)? Easy. Do two things: First, make a copy of this article by McElhaney and keep it handy. Read it before you start your brief, read it two or three times while you’re writing and rewriting, and read it again when you’re done. Second, once you finish your brief and you’ve done the best you can to steer clear of the 12 pitfalls, get a good, professional legal writer–someone you trust to tell you the truth–to read your final product before you file it. This person will see things you don’t see, and almost certainly improve the persuasive impact of your brief.

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Client Confidentiality In The LISTSERV Age.

Atty. Jim Burke

Most lawyers are careful to protect client confidences, but that is becoming more and more difficult to do. These days lawyers, especially those practicing alone or in small firms, often discuss their cases with their peers in other firms. It’s not uncommon for a lawyer to call a friend and run down a set of facts to get some extra input, and some lawyers post fact patterns on LISTSERVs and seek the advice of other practitioners about what to do.

This business of reaching outside one’s own office for practice advice is a growing trend, and I think there are a couple of causes. One is the proliferation of social media. With instant messaging, facebook, and LISTSERVs available, it’s easier to communicate than it used to be. Another is the shrinking availability of associate positions in the legal labor market. Established firms are hiring fewer and fewer associates, and more and more young lawyers are hanging out their shingles. They need advice from somewhere, and fellow lawyers (mentors and practice group members) are usually the best option.

This trend of sharing information about cases outside the firm carries with it a risk of disclosure of client confidences. Until recently lawyers have had to find their own way on the question of how much information can be shared with another lawyer without the client’s informed consent. There hasn’t been much guidance from the ABA or state bar associations other than Model Rule 1.6 and ABA Ethics Opinion 98-411, and this guidance is dated. In my own work as a freelance lawyer I have taken a very conservative line. I discuss with hiring lawyers only hypothetical facts until they decide to hire me, bind me contractually to keep their client’s confidences, and make the necessary disclosure to the client. This is a nice, safe approach, and I have found that it creates no problems for me or the hiring attorney.

Recently, the Ethics Committee of the Oregon Bar Association issued an opinion (No. 2011-184), and this appears to be the first opinion of it’s kind to deal with both confidentiality and conflicts of interest in this modern era of mentoring programs and LISTSERVs. As to confidentiality, this opinion comes down squarely where I would have expected. The committee makes it clear that the best approach is to keep all extra-office discussions on a purely hypothetical basis, taking great care to disclose nothing from which the identity of the client can be inferred. This is a good rule, especially these days. Once something is texted, emailed or LISTSERVed, it is out there forever. I think other bar associations around the country will soon get around to dealing with client confidentiality in the era of social media; and when they do, I think they’ll follow Oregon’s lead.

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Project-Based Attorneys: Are They Just A Phase?

Atty. Jim Burke

In a recent article in The Legal Intelligencer, Melanie Klinghoffer and Greg Richter made the case that “project-based” lawyers make a lot of sense for “[m]anaging partners, practice group leaders and others with case management responsibility and hiring leverage who were used to having a deep pool of fungible workers to spin work to.” The article worries along at some length, explaining how LPOs are coming to the rescue of big firms and large corporate legal departments. All true, I’m sure, but I have trouble relating to the practice management problems of firms and departments with hundreds of lawyers.

I do care, however, about solos and small firms. Their problems are real to me because I lived them for 30 years. Irrespective of the disconnect I feel with Big Law, the problem that Klinghoffer and Richter highlight in their article resonates with those of us who practice alone or in small groups. We need to manage costs and improve client services in the face of a declining economy, just like Big Law does.

Solos and small firms are turning to “project-based” lawyers (temps, freelancers, call us whatever name you like) to make this happen. Is it just a passing phase? No chance. Now that retail lawyers (large firms and solo practitioners) are getting a taste for the freedom and cost effectiveness that hiring freelancers can provide, they won’t go back.

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What Does It Take To Become A Freelance Attorney?

Atty. Jim Burke

The answer to this question depends on whom you ask. One popular perspective is that if you have lots of experience as a legal researcher, you’ll succeed as a freelancer. Another is that if you’re an experienced lawyer and you don’t have a job, then freelance lawyering might be right for you. Finally, there’s my favorite: If you’re tired of the law firm rat race and want to work at home, freelance lawyering is the answer.

My take on this is that experience and skill as a legal researcher is a given. If you can’t do high quality work, your clients (if you ever attract any) will soon sniff out the truth and you’ll be toast. As to the question of present employment, it goes without saying that you need to have time in your life to work on new projects. Whether you just lost your job, just quit your job, or plan to quit (or lose) your job doesn’t matter. What counts is whether you will have time available for your clients’ projects. The third point is barely relevant. Raise your hand if you don’t know 10 lawyers who are tired of life in the law firm office and would rather stay home.

So if experience, available time, and professional discontent don’t predict success as a freelancer, what does? I think the most important question to ask yourself is this: Are you ready to invest in and build your own business, work at it all day every day for several months (just like a real job), and keep at it whether in the early going it is successful or not?

The answer has to be yes. Why, because becoming a freelance lawyer will require you to:
Design and build a website,
Design and build pages on Facebook and LinkedIn,
Outfit a home office, complete with equipment and software,
Learn to keep business records,
Learn to file federal, state and local business taxes,
Purchase subscriptions to online research plans,
Buy malpractice coverage, and
Market your new business (which involves website SEO and maybe paid advertising too).

All these items require time, money, or both; and the last item is huge. Marketing takes lots of work. If no one finds you, you won’t succeed; and if they find you but don’t contact you, the result will be the same. None of these activities, especially the marketing, will bear fruit right away, so you’ll probably have to persevere without much encouragement at first. This will require emotional commitment, as well as the means to survive while you get up and running.

So, are you cut out to run your own freelance attorney business? If you’re still thinking about it after reading this post, then you probably are, and I encourage you to try it. I’ve enjoyed every aspect building my practice as a freelance. It’s very rewarding work, for lots of reasons; and I’ll get into some of them in another post.

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“Ruralsourcing!” At Last, The Perfect Term For What I Do.

Atty. Jim Burke

In a few minutes I’ll be climbing into my 4WD pickup to drive into town. I won’t be taking the car, because the half-mile logging road that leads from my house to the nearest paved thoroughfare is a little sloppy at the moment–mud season in mid-coast Maine. Some things never change. From my office window, I look out on deer, wild turkeys, and in the warmer months, lobster boats. Once or twice a year I might see a person, and if I do, that person has an orange hat and a gun, and is here because the deer are here. I guess this means I’m “rural.”

From my outpost here in the country, I provide legal research and writing services to lawyers around the US, many of them in large cities, and all of them in places that are positively overflowing with people in comparison with Cushing, Maine. This means that I’m an “outsourcing” vendor. Until yesterday, I had not thought of squeezing “rural” and “outsourcing” together to coin a term for what I do; and truth be told, I didn’t think of it yesterday either–I only saw that someone else had thought of it.

That someone was Jennifer Gumbel, a contributing blogger at Lawyerist.com, who posted this on March 7: “Outsourcing to Rural Areas Can Lower Costs.” Jennifer is a Minnesota lawyer who lives and works where the bald eagle population is on the rise (read, not in Minneapolis). She says she got the term here, but whatever. Jennifer is a fellow freelance lawyer, so I’m giving her the credit regardless. She makes the excellent point that one of the main driving factors in the growth of freelance lawyering is cost. It is simply a fact that a lawyer who happens to live and work in a place like Cushing, Maine can work for much less than a lawyer of similar experience (or even vastly inferior experience) who lives in a major city. If you’re a lawyer with a project that is appropriate for a freelance attorney, it makes sense to contact one of us out here in the hinterland. Ruralsourcing. It’s the future.

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So You Have Oral Argument Coming Up. Do You Want Questions?

Atty. Jim Burke

I heard today that Supreme Court Justice Clarence Thomas has not asked a question in oral argument in five years. I don’t know if this is true or not (Who keeps track of this stuff?), but if I were preparing for argument before the US Supreme Court and trying to quiet down those butterflies, I can tell you what my first reaction to this news would be. I’d be thinking, “Fantastic; now if the other eight would only follow his lead, maybe I’ll be able to get through my argument in one piece.” That would be my natural reaction, but it would shortsighted. Questions are good. They’re good for the court, and they’re good for the attorneys. How do I know this? From experience.

Once upon a time, before Justice David Souter served on the US Supreme COurt, he was a judge in New Hampshire where I am admitted. I tried a case or two before him when he was on the trial bench, and I argued a couple of appeals before him when he was on the New Hampshire Supreme Court. He was an enthusiastic, brutal questioner. I don’t mean that he was unpleasant. He wasn’t. He was perfectly polite, but his questions were lethal. If there was a weak spot in your case (Isn’t there always at least one?), you could take it to the bank that he would ask you about it before you were 30 seconds into your presentation.

This made for some anxious moments (it’s not fun to know that you’re going to be taking incoming rounds before you can get your presentation rolling), but it had the effect of making my case better, and I think it increased my chances of winning. Here’s why.

First, it improved my brief. It is relatively easy to write a brief that folds in the pertinent facts, applies the applicable law and makes internal sense. It is much harder to write a brief that will survive questioning that goes to the heart of the case. If you know you’re going to get tough questions at argument, you’re going to write a better brief. Second, it improved my oral presentation. I found I had to prepare two oral arguments: one that assumed no questions and flowed from start to finish in a smooth, uninterrupted line; another that anticipated questions at every turn. This second argument noted the questions expected in various places, contained answers to those questions, and plotted routes from those answers back to appropriate places in the line of argument. This process makes any case better. If you don’t know your case after submitting your argument to this kind of analysis, you’re never going to know it.

So, Justice Thomas’s approach to oral argument notwithstanding, I think questions from the justices are good. Remember that when you get a question from an appellate judge, he is really telling you, “Here’s my problem with your case. If you can’t satisfy my concern on this point, I’m going to vote against you.” This is an opportunity, a chance to strike a winning blow. It’s easy to forget when you are dealing with really excellent jurists like Justice Souter, but the fact is you know your case better than the judge does, regardless of how smart he is. If you are fortunate enough to get a question that you’re expecting, and you provide a strong, persuasive answer, you just might persuade that justice to come over to your side.

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Is A Freelance Lawyer Really A “Lawyer”?

Atty. Jim Burke

Not too long ago I had a conversation with a small firm attorney out west (I’m in Maine, so pretty much everybody is out west). She was interested in hiring me to do some research and writing for a trial memorandum. The main legal issue turned on a razor sharp understanding of a complex timetable. At one point in what had become a lengthy conversation, the attorney suggested that I get in touch with her client directly to sort out the facts for myself. I appreciated her confidence in me (it’s always nice to be trusted); but I declined to speak with the client. I think that is a recipe for trouble.

Here’s the problem. In most of the work I do, I’m not admitted to practice in the state where the hiring lawyer is located, and that was the case with my friend out west. In such situations I don’t function as a lawyer, at least as far as the hiring lawyer’s client is concerned. It’s true that I am a lawyer, and this is the reason why attorneys around the US hire me to work for them; but that doesn’t turn me into a “lawyer” in the eyes of the bar association (or the supreme court) where the matter happens to be pending. To them I am simply a provider of legal services–more of a glorified paralegal.

This is as it should be. I work for the hiring lawyer, not that lawyer’s client. The hiring lawyer is of course free to ask me for legal advice. That happens all the time; but that opportunity is not open to that lawyer’s client. The minute I give any advice to that client, or the client interprets anything I say (or don’t say) as advice, I am open to a charge that I am practicing law in that state without a license. I have no interest in taking this risk. Direct contact between me and the lawyer’s client is dangerous for me, and even more dangerous for the hiring lawyer, who has an obligation to prevent me from engaging locally in the unauthorized practice of law.

So, as much as I wanted to be helpful and work through the case in the most efficient way, I had to decline to speak with my friend’s client. Instead I asked her to talk with the client, clear up the factual ambiguity, and get back to me. It might not have been the most efficient way to proceed, but I it was the safest.

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Are Personal Attacks OK In Legal Writing? Never.

Atty. Jim Burke

Since the Tuscon shooting, many political commentators and politicians have been calling for a more civil tone in political debate.  A useful idea, to be sure; and it got me thinking about the tone we use in legal debate–that is, the documents we file in court in aid of our cases.  For the most part, I think, the written back-and-forth in civil litigation is pretty tame.  Lawyers usually argue the facts and the law, and leave the personal attacks alone.  Occasionally, though, some of us wander into that nether world where questioning the motives or character of opposing parties or counsel seems well advised. It never is. It never will help your case, and more often than not it will hurt it.

Why is the personal attack, the casting of an aspersion, the sly jab, a bad idea?  For the best reason in the world: Judges don’t like it.  What they’re looking for is order, decorum, respectful conduct.  They recoil from personal rancor because it disrupts the smooth flow of proceedings, makes settlement more difficult than it needs to be, and  adds unnecessary stress for all concerned, including the judge.

I know this from observing the reactions of judges in court over the years; and I also have heard friends on the bench talk about this from time to time.  But on the chance that my say-so doesn’t persuade you, here is what a couple of genuine legal writing heavyweights have to say on the subject:

Cultivate a tone of civility, showing that you are not blinded by passion.  Don’t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it.  Your poker-faced public presumption must always be that an adversary has misspoken or has inadvertently erred–not that the adversary has deliberately tried to mislead the court.  It’s imperative. As an astute observer on the trial bench puts it: “An attack on opposing counsel undercuts the persuasive force of any legal argument. The practice is uncalled for, unpleasant, and ineffective.”

Antonin Scalia & Bryan A. Garner, Making Your Case–The Art of Persuading Judges 34 (2008) (quoting Morey L. Sear, Briefing in the United States District Court for the Eastern District of Louisiana, 70 Tul. L. Rev. 207, 224 (1995)).

So, the next time the devil tempts you to accuse opposing counsel of willfully misrepresenting a fact (or committing some other nefarious deed), resist.  Don’t do it.  Just nail down your (true) version of the facts, and leave open the possibility that your worthy opponent is guilty of nothing more than a good faith mistake.   When next your adversary outrageously distorts a controlling authority, don’t say that he “misrepresents” the case; say instead that he “misreads” it.  Follow the advice of Justice Scalia and Bryan Garner.  To the question, “When is it OK to use a personal attack in legal writing?”  the answer is, “Never.”

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“Res Ipsa Loquitur” Forever? I Hope Not.

Atty. Jim Burke

Personally, I’ve never cared for the use of Latin in legal writing.  To my ear, terms like “res ipsa loquitur” and “inter alia” just look and sound pretentious, and I think they interrupt the flow of a legal argument (Who really wants to shift languages mid-thought?).  I also don’t favor using “the said” in front of every noun that crops up, and I try not to write “subsequent to” when “after” will do nicely.  These practices just complicate things more than necessary.  For years now some legal writing scholars, including Bryan A. Garner, have been beating the drum for using plain  English in our legal discourse.  Apparently this campaign has had a good effect upon judges.

Dr. Kathy Kellerman, a communications consultant, recently published online a slide show revealing the results of a survey of 800 judges (Flammer, Sean. (2010). “Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English.”  The Journal of the Legal Writing Institute, 16, pp. 183-221).  The study inquired whether the judges found plain English or traditional legal writing more persuasive in the memoranda and briefs submitted to them.   The results were telling.  More than two-thirds of the appellate judges surveyed found plain English more persuasive, and 63% of the trial judges surveyed agreed.  Among women judges, the numbers were even more dramatic–83% liked plain English.

This is all good news, it seems to me, and apparently we are moving in the right direction; but it doesn’t mean that as advocates we can now just jettison all our latinisms and other traditional verbal baggage.  Our job still is to persuade the judge assigned to our case, today, and that person might not agree with the surveyed majority.

So what to do?  Easy answer:  If you can, read some of your judge’s recent writings.  If he or she shows an affinity for the hoary old style, then by all means load up your submission with “the said, “heretofore,” “inter alia,” and any other burdensome lingo that comes to mind.  If you don’t have any clear evidence that your judge favors pretension, leave it alone. Go with plain English. According to Sean Flammer’s study, the odds are now with you.

And of course, before I leave this topic I should consider that you might not be among the choir to whom I preach.  Maybe you like the occasional latinism yourself.  In that case I leave you with these thoughts:  A communi observantia non est recedendum.  Translation: There should be no departure from common observance (or usage).  By common usage, I mean ordinary English.  Or maybe this: Acta exteriora indicant interiora secreta.  Translation: Outward acts indicate the thoughts hidden within.  That is, if you persist in the traditional style, you might be telling the reader more about yourself than you want to.

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Your Freelance Lawyer Is Waiting For You On The “Cloud.”

Atty. Jim Burke

It used to be that if someone’s head was “in the clouds,” that was a bad thing.  No more.  These days everybody has either moved to the “cloud,” or they’re packing their bags.  People are shifting office operations from the office to the internet, and for very good reasons.  A small business owner named Gene Marks recently posted an excellent blog piece in Forbes describing why he is about to make the leap.  You can read it here.  His story is far from unique.  My law firm had a similar near-death experience with our in-house server about 3 years ago, and we’ve been internet based with all our operations ever since.

Mr. Marks’ piece is a good lesson because, like many lawyers, he is unabashedly resistant to change.  Still, he is committed to making the move.  Why? Because change-averse as he is, he sees that the services on the cloud are better, less expensive, and far more dependably available than those he can provide for himself in house.  They are supplied by specialists who have carved out a niche in the marketplace and don’t do anything else.  As he says, the cloud-based services are

maintained 24/7 by propeller heads who know what they’re doing because they do it for a living and have no other life.  They . . . make sure that the servers are running the most current versions of Microsoft Windows, or Linux, or whatever I need to make my applications run.  They . . . make sure my databases are backed up to other media or delivered to me when requested.

I can’t tell from his piece whether Mr. Marks is a lawyer, but his message applies to solo and small firm lawyers in spades.  If you haven’t ditched your in-house server and migrated everything to the internet cloud, you will.  It’s inevitable.  Might as well do it sooner, voluntarily and under control, rather than later when disaster strikes.

By the way, office operations apps and data aren’t the only things flourishing on the internet.  The freelance lawyer you should be hiring to do some of your legal research and writing is waiting for you out here on the cloud too.  We’ve been out here for awhile.  If you’ve always done your own research and writing, or had it done in house, that’s no reason to keep doing it that way.  As you contemplate moving office operations to the cloud, think about shifting some of your research and writing out here too.

My propeller hat is safely tucked away in my desk drawer, and I do have a life outside legal research and writing (fiddle music, mostly); but I am a specialist at what I do, I’m far less expensive than you are, and unlike most practicing attorneys, I’m in total control of my schedule.   You should think about making a cloud-based freelance attorney part of your practice for all the same reasons you should be migrating office ops to the cloud.

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