Tuesday, July 15, 2014

He's a Bad Writer (To the Tune of Paperback Writer)


I'm a young associate and a pretty good writer. My partner, however, is a terrible writer. His briefs are stream of consciousness. His arguments often make little sense, he uses a ton of legalese, and he copies and pastes from old briefs (frequently forgetting the change the names of the parties or making completely inapplicable arguments). He's an excellent and well-respected trial lawyer but I'm embarrassed for my name to be on some of the filings. What should I do?

Junior Associate


Bad writers usually fall into 1 of 2 categories: (1) they have no idea they are bad writers, are scatterbrained, or lack good re-writing skills and could use the help of a good associate; or (2) they think they are awesome writers and refuse to accept any criticism of their work.

I Can Make it Longer if You Like the Style

If your partner falls into the first category, I've got good news for you—you’re probably a godsend to the partner and should be able to fix most of the writing problems either with the partner's consent or without him noticing or caring.

If you write the briefs (and he later reviews them), you shouldn't have much trouble—just write the briefs the way you think they should be written. When you give each brief to him, hopefully he won't try to add loser arguments or lots of legalese.

If he does make significant changes you think are unnecessary or decrease the readability of the brief, go back to him and ask for clarification: "I'm trying to finish up this brief and have some questions. I saw you added an argument about promissory estoppel. I reviewed the complaint and noticed the plaintiff didn't file a claim for promissory estoppel, and the plaintiff's brief doesn't mention that theory. I'm just wondering if we should include any discussion of it since it doesn't appear to be an issue in this case."

The response likely will be something like this: "Are you sure? I could have sworn they included a PE claim. Will you double-check? But if they didn't include a PE claim, then, you're right, remove the PE argument."

If your partner writes the briefs (and you're responsible for finalizing them), you're in a good spot too. You have the opportunity to correct cut-and-paste problems, remove all the legalese, and clean up the organization and flow. Before removing complete arguments, though, I'd follow the suggestion above and explain to the partner why you don't think a certain argument is necessary or should be included. If the partner still wants that section in the brief, then leave the section in. At least it will be well-written, even if it's not quite on point.

You might also suggest that you and the partner jointly attend a legal writing CLE. Bryan Garner offers good legal writing CLEs in major cities and many bar associations offer at least one writing CLE each year. Most legal writing CLEs come with substantial written materials that you can refer to in future discussions with the partner, and hopefully the CLE will help you both improve your writing skills.

If You Must Return It You Can Send It Here

Navigating the waters with the second type of writer—the
bad writer who thinks he's awesome—is more difficult. Unless you brought in the case or the client, you're working for the partner's client, and the partner ultimately has the final say. You can try to make your arguments about why legalese is unnecessary and why you don't need to include a promissory estoppel argument—and you might win sometimes. But if the partner wants to file a brief with a ton of legalese and irrelevant arguments, and you try to remove them, but the partner adds them back, you're pretty much stuck.

One thing you can do, though, is ask the partner to see the final brief before it is filed—perhaps under the guise that you believe seeing a finished product will help you continue to learn what a final brief should look like. I'm not suggesting you sneak behind the partner's back and correct things he doesn't want changed, but by getting the brief last, you'll at least have the opportunity to perform a final spell-check and grammar review and correct glaring mistakes (e.g. ensuring that remnants of the brief from which yours was cut and pasted have been removed).

Other than these suggestions, I'm not sure what else you can do. You don't have much choice but to let the partner sign the pleading he wants to file and then get it filed. All you can hope is that he makes up for the poor writing at oral argument (if there is one).

All this assumes, of course, that the partner's errors are unintentional and the result of poor legal writing skills. If you truly believe the partner is intentionally misrepresenting facts or law to the courts or engaging in unethical conduct that violates his professional duties, you should think about discussing the situation with your firm's managing partner. If you're uncomfortable continuing to work for your partner, you might also see if you can be moved to a different team or work primarily for a different partner.

I hope this helps!


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