Crafting language for maximum effect
The lawyer did a final review of the Mandatory Settlement Conference Statement. The statement’s introduction captured the facts perfectly, the lawyer thought, reading it to himself. “On 4/10/2014 at approximately 10:00 a.m., John Doe was legally in a marked crosswalk, crossing with a green light, from the northeast corner to the southeast corner of Main Street and Central Avenue. Suddenly, and without warning, a maroon sedan driven by Defendant Drumpf made an illegal left turn and struck the aforementioned pedestrian Doe. Doe suffered serious injury to his body and psyche, causing the damages demanded in said litigation.” He emailed it to his co-counsel to get the co-counsel’s thoughts.
Just because everyone’s doing it
Pull ten MSC statements at random from court filings and the majority would read similarly to this example. Dry language laced with legalese. That the majority of briefs read this way does not make it right. What marvelous opportunities wasted. Let’s talk about the easy parts first. Dump the legalese. The words in the example above? Strike aforementioned, and said litigation. Next, avoid the “and” curse. “Suddenly, and without warning,” and “body and psyche,” from the example. We lawyers seem to love knitting together two similar words with “and,” believing the combination is somehow better. The result is unnecessary verbiage. For those who cite the ampersand restaurant phenomenon to argue against this, know that trend peaked in 2012 (but a Craftsman & Wolves rebel within remains delicious.)
The Golden Rule does not apply
The Golden Rule – that one cannot ask a juror what compensation the juror would be willing to accept to suffer the same injury – is hardwired into our being. So hardwired it is anathema, as in “Don’t cross the streams, Venkman.” The Golden Rule exists for a reason. The courts determined it was an unfair advantage for us plaintiffs’ lawyers. It is too powerful, likely to lead to runaway verdicts, and not the appropriate damages measure.
Nothing prevents using Golden Rule variants in persuasive damages writing, however. How would that look? Consider changing the introduction’s perspective. “You take a few steps into the crosswalk. From the corner of your eye, you see a purple blur. You start to turn your head when – wham! Your knee snaps sideways. You hear a loud crack, like a thick tree limb snapping. Looking down, you see your leg bent at an odd angle, broken in two. In one second, your life, your mobility, is permanently changed.” By using the second person perspective, the reader is now the client.
But to paraphrase Robert Downey, Jr., never go full McInerney. This is not in reference to Bolivian Marching Powder, but excessive second person perspective use – a little goes a long way. Write the whole brief that way and it will be perceived as experimental (not to mention difficult to get through). Save it for the introduction or the noneconomic damages section.
One can do more than perspective shifts. Want the reader to be in the moment? Consider present tense. An example? “He used to enjoy riding his bicycle.” Versus: “He rides through the crisp evening fog, the fast clip allowing him to slough off the day’s stress.” The former describes an event. The latter transports one into it.
The best writing? Writing with extraneous words stripped away. Lawyers, judges, adjusters – we all have too much to read. Add in everyday data bombardment (excuse me, sir, you just walked into me while walking and tweeting on your smartphone) and no one wants to read an additional word. So how does one separate wheat from chaff? First, brainstorm with abandon. Write and flow without regard to the internal editor, who wants to go back and recraft every sentence. Get the thoughts down first. Then set it aside for some time – overnight is best. Later, go back through and edit. That means reduce words, not add. Talk about “a pie slice,” not “a slice of pie” (three words instead of four.) Every word must serve a purpose. After this first pass, set it aside again. Then repeat the exercise. This column’s first draft is usually over 1,100 words. It has to be 800 words to fit the magazine. The forced succinctness helps carve off less interesting material. Although I do allow room for obscure Eighties references – there’s a minimum requirement for verbal pieces of flair (okay – Nineties references too).
Obligatory Garner plug
One cannot discuss legal writing without referencing the great Bryan Garner and his programs. I’ve plugged him before, and I’ll do it again. Taking one of his programs will help win arguments and influence people.
Back to our MSC-drafting lawyer and his co-counsel. The co-counsel reviewed it. She offered some feedback – similar to that discussed in this column. The result? A shorter brief, a tighter discussion, and a damages discussion that hit hard.
Miles B. Cooper is a partner at Coopers LLP, where they help the seriously injured, people grieving the loss of loved ones, preventable disaster victims, and all bicyclists. Miles also consults on trial matters and associates in as trial counsel. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is an American Board of Trial Advocates member.
2023 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com