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.
