June 01, 2015

Sidebar: The Art of Effective Communication

Becoming an effective trial lawyer requires a worldliness that evolves slowly.

Kenneth P. Nolan

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In grammar school, I always received A’s for penmanship. With a fat leaded pencil, I doggedly practiced the Palmer method on reams of white lined paper. Years were spent memorizing spelling words, diagramming sentences, mastering when to use a semicolon, learning the difference between a gerund and a present participle. At least once a week, I squirmed at our tiny kitchen table desperate to find 150 words to complete an English composition or a book report.

In high school and college, speech classes—where our exasperated teachers begged us to lose our Brooklyn accents and enunciate as though we were raised on a corn farm in Iowa—were mandatory. Alas, according to my daughters, those fearless speech teachers failed miserably. “Did you hear what he just said?” Lizzy noted as if I wasn’t sitting next to her. “He wants to know if I want soder or seltza.” Everyone laughs. “Dad, you have the worst Brooklyn accent.”

It didn’t matter if you attended a Catholic elementary and high school or a public college, where I was often the sole gentile in the class. The liberal arts curriculum was the same: science, math, language, history, literature, writing, speech, art, and music. Heck, Brooklyn College required three semesters of gym class. The times were truly a-changin’ when in the late sixties, the college eliminated the requirement that you had to swim across the pool in order to graduate.

The core curriculum stretched for more than two years. Those in charge knew our vistas—usually a neighbor’s underwear drying on a clothes line—were limited in scope and diversity. An educated person read Dickens, appreciated a Beethoven symphony, could converse in French. We were exposed to a broad expanse of disciplines so our knowledge would be comprehensive. Whether we became a doctor, a teacher, or a cop, certain fundamental skills were required—the ability to think, read, write, and speak. Coincidentally, these are most important for those of us (or “we”) who practice law.

Thankfully, computers dominate—I cringe whenever I see anyone under 40 write. Not only is their penmanship illegible, but they can’t even hold a pen properly. I know, I know—ideas are important, creativity is paramount, not whether little Johnny knows the difference between “there,” “their,” and “they’re.” All writing is praised, no matter how many grammatical errors. Hey, old-timer, haven’t you heard of spell-check?

This is the same misguided philosophy where every player receives a trophy, where everyone plays in every game, where no one keeps score. No kid is ever told, as I was, you stink; I’m not picking you. No one fails; all are gifted.

Writing Briefs

But now your briefs are read by experienced, cynical judges who can spot a specious argument by the second page, who need to be convinced by cogent, forceful prose. Skeptical jurors won’t render a verdict in your favor simply because you “tried hard.” Clients won’t retain you if every other word is “like” or if your tie is stained and your shoes scuffed. If you’re not precise and persuasive, your oral arguments will be interrupted by “Get to the point, counselor.” Now everyone keeps score.

You would presume that those who breezed through college and slogged through law school would know how to think, write, speak, act. And some do. Me, I could write a sentence, speak somewhat coherently, but if I pull out those old photo albums, my dress and look will never remind anyone of George Clooney tooling around Venice on his wedding weekend. To become an effective trial lawyer is a process that takes maturation, a worldliness that evolves slowly through experiment and error. My job is to hasten the day where you look and sound like a successful person, an able advocate.

Be clear. I don’t remember many cases we studied in law school, only that most were decided decades before I was born. I always believed I was a bit dense since I had to read each a few times before I understood the judge’s reasoning. These were penned in formal times where the writing was often convoluted and archaic. Law students (and many lawyers) emulate this style by using “heretofore” or “at this point in time,” and other legalese that is, well, ridiculous.

Length is not brilliance. In high school, one English teacher sarcastically said to a classmate: “McAuliffe, I didn’t read your report; I weighed it.” Judges are inundated with paper. A 25-page brief on a minor discovery dispute is unproductive. Why do you think judges and courts have page limits? Keep it simple; keep it concise.

Write short sentences. Think Hemingway. Use the active voice (“Tom ate the sandwich” rather than “The sandwich was eaten by Tom”). Eliminate double negatives (“He’s not unattractive” should be “He’s attractive”), and avoid run-on sentences. If one sentence stretches four or five lines, cut it in half. Tell the judge what you want and why you should win (“This is a motion for. . . . It should be granted because. . . .”).

Practice. How many passes do you think Tom Brady makes during the week, on the sidelines during a game? Jump shots LeBron James takes before a game? If writing and speaking were sports, then young lawyers would spend hours practicing each day. But these are your sports. Proofread, rewrite. And then do it again. Have others, even non-lawyers, read it and pretend they’re the judge. Ask: what is it that I want and why should you give it to me? If they can’t answer properly, then you need to make it more explicit.

Don’t assume that a judge has working knowledge of the subject matter, the facts, and the law. Christopher Nolan (no relation)—a director whose eight movies, including the Batman series, have grossed $3.5 billion—tells of a meeting with movie executives who wanted to know The Joker’s goal, his plan. Nolan replied that there was no plan; chaos and anarchy were The Joker’s objectives. He then realized that the audience may also be confused, so the film had to make this evident. Same with judges. What is obvious to you may be confusing to the judge. Explain complex matters in detailed, clear language. Use drawings or photos to assist in understanding. You won’t be penalized if the judge is familiar with these concepts. She’ll just turn the page.

Stand in front of the mirror and rehearse your argument aloud. Make adjustments. Do it until you’re confident. Drag a buddy into your room, close the door, and make him listen. Request a critique. You listen when your golfing partners mention that you’re not looking at the ball. Do the same with your opening, your closing, your argument on the summary judgment motion. Recite it before an audience and make necessary changes. Only those truly gifted can wing it and be eloquent—and that’s not you.

Think. Juggling cases leaves little time for reflection. After all, you have to run to a discovery conference, finish a motion, edit a brief, and give status reports to clients. This hectic schedule leads to litigating by rote, repeating strategies that were successful in other cases rather than sitting quietly, planning each move. So stop posting an Insty and think about what you want to achieve and how to get there. Before you draft the motion, notice the deposition, email the nasty letter . . . weigh the advantages and disadvantages. Sometimes you’ll be surprised. This won’t take hours, just discipline and effort.

Read. I hate that newspapers and magazines are vanishing. An effective lawyer knows more than the Federal Rules. She can discuss Homeland, the latest Impressionist exhibit, and the economy. Not only should you read for pleasure, but periodicals and books expose you to good writing. Read literature, the New Yorker. Find time. The scarcity of jobs has driven many students to study only business, eschewing liberal arts so they’re more attractive to employers. Understandable, of course, but such concentration limits exposure to other disciplines.

Act. I am impressed with the poise and demeanor of most young people. My children and their friends are uniformly polite and comfortable in social situations. Much more than I was. If you’re ever on a college campus, however, you’ll notice most students walk to class staring at their iPhones. An uninterrupted conversation lasting more than five minutes would be a start. Learning to discuss everything from politics to the latest craft beer will help you when you have to convince a jury of your client’s innocence.

If you work at Google or Apple, no one cares if you dress like a slob. But you’re a lawyer, so dress accordingly. Sure, a brief written in your formalwear is no better than one written in your skivvies. We’re a pretty superficial society—Kardashians, anyone?—and some will judge you on your outfit, whether your hair is combed. You can’t take a chance. You need the business, and if wearing a suit is the cost, then put one on.

Kenneth P. Nolan

The author is counsel to the Rye Brook, New York, firm of Speiser, Krause, Nolan & Granito, a senior editor of Litigation, and author of A Streetwise Guide to Litigation (ABA Publishing 2013).