Monday, April 18, 2016

Eliminate the Brown M&Ms from Your Legal Writing

*This is a guest post by Joe Fore, Assistant Professor of Law, General Faculty, and Co-Director of the Legal Research and Writing Program at the University of Virginia School of Law

Over the past three decades, the story of how Van Halen banned brown M&Ms has gone from backstage to boardroom. And for legal writing professors wrapping up their spring semester or for employers who will be hosting summer associates and interns, this same tale provides a convenient metaphor about the importance of watching the smallest details in legal writing.

While the story has been shared widely in recent years, perhaps a quick refresher is in order. As Van Halen toured the world in the early 1980s, the band brought along its contract rider, a thick document that detailed what the promoter was required to provide at the concert venue. Buried among the rider’s fairly straightforward—albeit extensive—food and drink requests was one very specific candy command: “M & Ms (WARNING: ABSOLUTELY NO BROWN ONES).”

For years, the brown M&Ms ban was panned as an outrageous act of rock-star decadence; pampered musicians making a ludicrous demand just because they could. But, as David Lee Roth later explained, the chocolate clause served a crucial purpose.

You see, at the time, Van Halen had perhaps the most ambitious stage show in rock history—complete with unprecedented amounts of complex rigging, lights, speakers. And they took their show into smaller venues that weren’t used to hosting such a massive event. Such a complicated show had numerous technical requirements—from having enough electrical outlets to ensuring that the building’s structures were sufficiently strong to support the stage and lights.

Those technical requirements were spelled out in the contract rider, but promoters often didn’t read it carefully, creating disruptions, delays, and even potentially dangerous conditions.

The brown M&Ms, therefore, were a test—a canary in the backstage coal mine. If the promoter had paid enough attention to remove the brown M&Ms, chances are they did the big stuff right, too. And if not . . . well, David Lee Roth describes his reaction:  

When I would walk backstage, if I saw a brown M&M in that bowl, well, line check the entire production. Guaranteed you're going to arrive at a technical error. They didn't read the contract. Guaranteed you'd run into a problem. Sometimes it would threaten to destroy the whole show. Sometimes, literally, life threatening.

OK, it’s a good story, but what does it have to do with legal writing? Well, in the same way that the brown M&Ms hinted at larger problems, small defects in a memo, motion, or brief can undermine the reader’s confidence in the bigger stuff—the substance of your writing. These defects tell your reader: “I didn’t care enough to get the small things right, so you should also be skeptical about whether my research and analysis are sound.” While there are many possible “brown M&Ms” that can taint your legal writing, here are three for new legal writers, in particular, to watch out for:

Court rule violations

From state civil procedure codes to court local rules to individual judges’ orders, lawyers are beset by technical requirements of all sorts: page limits, typography rules, and filing specifications. Overlooking or flouting these instructions can send the message that the lawyer isn’t committed to finding or following the rules—hardly a desirable reputation for an attorney.

And worse, a judge or clerk reading a submission that ignores basic requirements may think the writer purposely evaded the rules to gain an advantage. In a speech on the subject of “How to Lose an Appeal,” Judge Alex Kozinski of the Ninth Circuit cautioned that defying something as minor as a font-size requirement can “tell[ ] the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority.”

Be sure to check any applicable procedural codes and court websites for any court- or judge-specific technical requirements.

Sloppy or visually unappealing formatting

First impressions matter. And “first impression” doesn’t just mean the opening line or the question presented; it includes how your writing appears visually on the page. A final, written product that looks sloppy, rushed, or poorly thought-out sends the same message about the substance of the attorneys’ work.

Again, it’s imperative to follow any of the venue’s/employer’s/ client’s specific formatting rules. But after you’ve done that, flip through and see how your writing appears on the page. There are many terrific resources for thoughtful and persuasive legal writing formatting. Before sending that memo to the client or e-filing that pleading, look at the document as a whole and ask:
  • Does it look neat and polished?
  • Have I balanced text and white space on the page?
  • Have I used headings to conveniently label sections? 
  • Have I limited the use of dense, uninviting chunks of text in footnotes and block quotes
  • Have I used bullet points and numbered lists to group related ideas in an easy-to-read way?
  • Is my formatting convenient for readers using computers or handheld devices?

Typos and grammatical errors

The odd typo here or there in a long piece of legal writing is almost inevitable. But an error-ridden brief or motion sends one of several messages to a reader:

(1) the writer was unaware of the proper grammatical rule or spelling;
(2) the writer was too inattentive to notice the error when editing; or
(3) the writer saw the error but was too lazy to fix it.

Applying the brown M&Ms principle, a reader might infer that the same writer might be less-than-fully competent, inattentive, or lazy in other areas beyond editing. And such an inference that might be justified. In their 2015 book The Science Behind the Art of Legal Writing, Professors Catherine Cameron and Lance Long share preliminary research showing that attorneys who had been disciplined by their state bar had higher rates of “careless” writing errors in their memos and legal briefs than non-sanctioned attorneys.

A quick grammar refresher, an editing checklist, and careful proofreading—preferably on paper—can help to minimize the chances of having such errors in your writing.

* * * * *

Legal writers spend a considerable amount of time trying to understand the law and then communicating that information in a clear, organized way. You’ve worked hard to produce an accurate and well-reasoned final product. Don’t let brown M&Ms in your legal writing send the reader a different message.

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