What is POFP?

Why do lawyers refer to long documents as briefs and
18-year olds as infants? Why do they use so much Latin when so few of their
clients are Ancient Romans? Is it a conspiracy?

Party of the First Part has the answers! Check out the Website for the
Legalese Hall of Shame; a glossary of legal words linked to Adam Freedman's
columns; tips on writing legal documents in plain English; and more!

Sunday, December 1, 2002

Column: The Language of Big Law Firms

Imagine an anthropologist plucked from his ivory tower and deposited into midtown Manhattan. What is he to make of this strange place? Let’s say he eavesdrops on a couple of lawyers and the first thing he hears is this:

“We needed a rainmaker, so we hired a headhunter.”

Based on that sentence, he would probably think that he had landed in a primitive society, driven by superstition and violence. But that would just be a lucky guess. He could just as easily overhear something like this:

“I used to work at a white shoe firm, but it was a real factory; so I moved on to a boutique.”

In that case, our anthropologist might decide that he was in Milan, where young professionals get their start in shoe factories and then move up to snazzy boutiques.

In both examples, the hapless academic is listening to the language of big law firms, a strange dialect that can only be heard in the glass-and-steel towers of your larger cities. Here, to save you (and our anthropologist) some time, is an introductory phrasebook for talking to the natives in Big Law Firm Land.

When is a white shoe not white?

To begin with, there are all the terms that lawyers use to describe the leading firms. These range from the highly metaphorical factories, or sweatshops (i.e., places that “produce” billable hours in an assembly line fashion) to the somewhat hyperbolic mega-firm, to the very prosaic Biglaw (generally a term to be avoided unless you want to reveal yourself as a surfer of Greedy Associates).

Some of the most common phrases used to describe law firms mean the opposite of what they appear to. For example, a firm with a long pedigree is a white shoe firm, so-called for the white-bucks that the lawyers would wear with their bow ties in an earlier era. When you walk into an office and see a gilt-framed oil painting of a man in a suit, you’ve entered a white shoe firm. Or you’ve walked into an art gallery by mistake. In any event, fashions have changed, so that the formality of a “white shoe” firm can best be achieved (for men at least) by wearing black, not white, shoes.

Similarly confusing is the label Wall Street firm, which does not mean that the firm is physically located on or around Wall Street, or even that its clients are on Wall Street, but that it represents players in the financial industry. Over the past couple of decades, virtually all of the Wall Street firms have moved to midtown. Only the legal profession, I think, could end up with a situation where a “white shoe Wall Street firm” means a midtown firm where people wear black shoes.

Sometimes, law firm terminology is borrowed from other industries. When marketing to the outside world, for example, big firms usually describe themselves as full-service law firms, which makes them sound like a gas stations. However, the opposite of a full service law firm is not a “self-service law firm” (although it’s an intriguing thought), but rather a boutique law firm.

Big firms like to talk about their culture. What they mean is the firm’s collective attitude toward work, life, family and other factors that make up a firm’s atmosphere. Unfortunately, “culture” does not mean that you will find associates forming string quartets and doing watercolors – unless you’ve stumbled into a self-proclaimed quality-of-life firm.

Finders, Minders, and Grinders

Speaking of associates, the big firms have a unique taxonomy to classify them, too. Interestingly, the word “associate” is usually excluded from the description. Thus, the term “summer associates” is typically shortened to summers, leading to delightfully whimsical phrases such as “when I was a summer,” or “I had a long lunch with some really cool summers.”

Junior associates are referred to by their years of practice, that is, first year, second year and so on, again with the word “associate” left out (“who does he think he is – he’s just a second year!”). But somewhere around third year, the counting stops and then one becomes a midlevel associate (to be distinguished from the rarer medieval associate, occasionally seen, limping and hunchbacked, in a document dungeon far below ground).

Eventually one becomes a senior associate, which is simple enough. But after that, the consensus over terminology breaks down. At some firms, it’s up-or-out, i.e., partner or nothing. But more and more big firms have something in-between, which may be called senior attorney, senior counsel, special counsel, or someday, perhaps, even a category of Very Special Counsel. Some firms use the same term for this category of up-and-coming lawyer that was traditionally used for semi-retired partners (of counsel). Thus, depending on the firm, “Of Counsel” can refer to a senior associate or a senior citizen.

Even when the lawyer gets to be a partner, there are gradations. There are junior, midlevel, and senior partners. Some firms have a two-tiered partnership with equity partners, who own a piece of the firm, and contract partners, who don’t.

On top of this daunting edifice are the big-time, equity-holding, business-getting, high-rolling senior partners: the rainmakers. In some cities, a rainmaker might also be called a macher, from the Yiddish for “big shot.” Thus, in New York, you might hear a partner described as “a rainmaker and a real macher,” a combination that brings to mind Mel Brooks’ Yiddish-speaking Indian chief from Blazing Saddles.

If big partners make a lot of rain, what happens to all that water? In some circles, junior partners and associates are known as sponges because they soak up the rain. In other places, they shun the rainmaker/sponge dichotomy in favor of Finders, Minders, and Grinders (those who “find” the business, those who “mind,” or maintain, the client relation, and those who “grind” out the work).

What’s Black and White and Red-lined all over?

There is a special vocabulary to describe what we do in big firms. From one point of view, what lawyers do is bill – they work billable hours. Most big firms have a set number of hours that associates are expected to bill (e.g., 2,000 hours a year), often known as the target, although at some firms, it is referred to as par.

One exception to the billable hour routine is the summer outing, which is generally an all-day golfing and eating affair at a country club. A large firm lawyer will only miss the Summer Outing if he is facing an urgent deadline, or well below target. This leads to the odd result that associates sometimes have to skip golfing because they are under par.

Corporate lawyers work on deals while litigators work on cases. Either way, you end up with a mountain of documents. On a corporate deal, lawyers spend days poring over documents as part of “due diligence,” a phrase that is sometimes shortened to the jaunty due dilly. Suddenly, your corporate drudgery begins to sound like a square dance (“Circle to the right, due dilly to the left!”).

Of course, big firms don’t just let their associates do due dilly willy nilly – they also train them to draft documents. Lots of them. In fact, corporate lawyers at Wall Street firms draft so many securities disclosure statements that they simply refer to them by the form number, as in: “How’s that 10Q coming along?” The list is seemingly endless, including the 10K, 14A, 13D, 8A, 8-K, etc., -- all of which may cause visions of an AK-47 to dance in the mind of some disgruntled associates.

In a litigation case, lawyers draft briefs and affidavits. Granted, they do that at small firms too, but it is probably fair to say that big firm lawyers (in the quest for perfection) go through more drafts. That’s why big firms always have software to do black-lining (comparing two different documents) and red-lining (comparing successive drafts of the same document).

Big firms also place a particular emphasis on conforming their briefs to the citation forms in Harvard Law School’s Blue Book. Hence, the big firms have turned the Blue Book into a verb (“ask a paralegal to blue book the brief”), just as they made Shepard’s citation service into a verb some years ago (“did you shepardize this headnote?”).

So, if you want to master big firm lingo, just remember that in a white shoe firm, you should wear black shoes and red-line your documents with a blue book close to hand. That should make our anthropologist green with envy.

Sunday, September 1, 2002

Column: How to Talk Like a Lawyer

Memo to All New Lawyers

Chances are, one of the reasons you went to law school was to learn how to talk like a lawyer. Unfortunately, your idea of talking like a lawyer was based on TV shows in which outrageously attractive lawyers have long flirtations with each other, generally involving the phrase “why counselor, you’re out of order!”

By now, you’ve probably figured out that real lawyers don’t look as good as the TV version, flirting is prohibited, and we don’t go around calling each other “counselor.” But you’ve decided to stick with the profession anyway and now you need to speak – and write – like a lawyer.

Don’t expect this to be easy. Linguistic experts say that legal language is more than a mere collection of jargon or a dialect of English. It is a separate “sublanguage” – distinguished not only by vocabulary but by its own specialized grammar. Take that, counselor!

Herewith (!) a few pointers on talking like a lawyer.

1. Use lots of words

Let’s say your client wants to give an orange to his friend and, owing to his punctilious nature, he asks you to record the gift in writing.

You might be tempted to go for something short and sweet, like: “I give you that orange.”

Ah, the innocence of youth! If you bring a document like that to the partner for review, you’re asking for trouble. Save yourself the scolding and try to make it sound a little more legal. For example, you might say:

“I hereby give you all right, title, and claim to that orange.”

Not bad. But you can do better. In the hands of real expert, the phrase “I give you that orange” can be rendered:

I give you all and singular, my estate and interest, right, title, claim and advantage of and in that orange, with all its rind, skin, juice, pulp and pips, and all right and advantage therein, with full power to bite, cut, suck, and otherwise eat the same, or give the same away as fully and effectually as I the said A.B. am now entitled to bite, cut, suck, or otherwise eat the same orange, or give the same away, with or without its rind, skin, juice, pulp, and pips, anything hereinbefore, or hereinafter, or in any other deed, or deeds, instrument or instruments of what nature or kind soever, to the contrary in any wise, notwithstanding.

Believe it or not, that paragraph was written (as satire) in 1835 by the Englishman Arthur Symonds. But it remains a brilliant parody of the way lawyers write. Then, as now, lawyers tend to be verbose, loquacious, prolix, sesquipedalian – er, wordy. One reason for this is that we like to pepper our documents with long lists of synonyms.

The lawyer’s habit of using two or three words where one might do dates back to the Renaissance, when English law was a bilingual affair. Officially, judges and lawyers were supposed to conduct business in French, but their clients and everyone else spoke English. Lawyers got into the cautious habit of using English and French synonyms for important phrases so as to ensure that at least one of the terms would be understood. So, while lawyers understood the French devise to mean a testamentary gift, they tacked on the Anglo-Saxon “and bequeath” so that ordinary chaps would get the idea. To this day, “devise and bequeath” remain united in the law. Examples of these joined phrases abound. Consider the following list (French-derived words in italics):

breaking and entering
fit and proper
free and clear
goods and chattels
had and received
peace and quiet
right, title, and interest
will and testament

You see, “Last Will and Testament” could really just be “Last Will” – the “testament” bit being just a French synonym for “will.” Come to think of it, you probably don’t need “last,” since every will is meant to be the last one. Just plain old “Will” would be fine.

Now, don’t get ideas in your head about weeding out these redundancies. In some professions, economy of words is of great value, but not in the law. In law, precision is king. As for brevity – well, the whole idea is null and void.

2. Use big words

Question: if you’re representing the plaintiff in a slip-and-fall case, do you say that your client fell after he left the office and before he got on the bus?

Answer: not if you want to be taken seriously. Only a green and inexperienced lawyer uses words like “after” and “before.” You, on the other hand, might want to say that your client fell subsequent to leaving the office and prior to boarding the bus. There: now you’re cooking.

Legal language is formal-sounding. Linguist Peter Tiersma says that the continued use of formal language by lawyers may serve a “ritual function.” That is, the use of long, Latinate words helps to signal to all parties that the testimony being given, or the document being signed, is meant to have legal effect. That function was important back in the Middle Ages when legal phrases were accorded quasi-magical powers. Today, big words are no longer considered magic, but you still need to have a few rattling around in your sorceror’s toolbox.

So, you should employ (not “use”) fancy words as soon as you commence (not “begin”) to practice law. Notice how the pros do it: the judge tells you that he will take your motion “under submission,” not, “I’ll think about it.” And for your part, make sure that you ask to “approach the bench,” don’t say “can I come over?” In fact, don’t ever “say” anything, always “indicate,” as in “I indicated to my client . . .” or “I indicated to opposing counsel . . .”

If you find yourself referring to a person, place, or thing that has been mentioned before, make sure to throw in a “said” or better yet, “aforesaid.” Why should Mr. Smith purchase Blackacre when he can purchase the “aforesaid Blackacre?” These superfluous words came into usage as the English equivalents of the Latin phrases dictus (said) and predictus (aforesaid) that were used to identify parties in medieval pleadings: dictus Johannes being today’s “the said John.”

Sadly, these phrases were no more helpful in the thirteenth century than they are today – either there is only one Johannes, in which case the “said” is unnecessary, or there is more than one Johannes, in which case the “said” doesn’t really clear things up. That’s why you need to learn to use defined terms, as we’ll see below.

3. Define your terms

People who practice law (collectively, “lawyers”) have a tendency to insert parenthetical phrases into documents defining certain key terms (the “defined terms”).

Let’s say you’re working on a lawsuit involving Chuckles the Clown. Would you want to risk the obvious ambiguity of writing “Chuckles” in your brief – when that name could refer to Chuckles the Doctor, Chuckles the Accountant, or even Chuckles the Podiatrist? Or would you be so brazenly reckless as to refer simply to “the clown,” without specifying whether you mean Chuckles, Bozo, Flopsy, or another one of their colleagues?

No, when you find yourself in that position, you’ll do the right thing. You will define your client: “Chuckles, a circus performer noted for his orange hair and bulbous nose (hereinafter ‘Chuckles the Clown’),” and you will stick to your defined term.

Legal writing expert Bryan Garner points out that lawyers might just be a little too enamored of defined terms: “[t]here’s no reason to write former Secretary of State Madeleine Albright (“Ms. Albright”) if there’s only one Albright involved in the discussion.” Fair enough, but when you find yourself in a state of uncertainty (“doubt”) use defined terms.

4. Get some rhythm

Learn to love alliteration. The law if full of phrases that repeat the same initial letter: aid and abet; any and all; assuming arguendo; clear and convincing; have and hold; part and parcel; safe and sound; rest, residue and remainder.

Alliterative phrases hearken back to the law’s origins as an oral tradition. In Anglo-Saxon times, legal acts such as land grants and pleas were spoken formulas that were taught from one generation to the next. As a result, medieval legal phrases were essentially poems, closer to Beowulf than Blumberg.

Today, nobody is required to memorize legal phrases, but it doesn’t hurt to use memorable phrases anyhow. Is it just me, or does everybody get a little kick from the bouncy cadence of a contract that “provides in pertinent part”?

So break out your thesaurus, find some big words, add two or three synonyms for each, throw in a dash of alliteration and – presto – you’ll be talking like a lawyer, counselor.
(This column was originally published in New York Law Journal Magazine in September 2002)

Saturday, June 1, 2002

Column: A brief history of Plain English

By the time you read this, the recipients of the third annual Burton Awards for “plain, clear, and concise legal writing” will have been honored in an elegant ceremony at the New York Palace. The awards are named for New York lawyer William Burton, whose goal is to make lawyers “think of legal writing as an art form instead of an inconvenience.”

Mr. Burton, it would seem, has his work cut out for him.

After all, it was a lawyer who drafted the statute providing that: “the hours of non-hours work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the duties required of him under his contract to do non-hours work.” Got that?

And then there was the lawyer who wrote a contract clause ensuring that his client would “have the right to cancel said Contract and return any monies paid hereunder, whereupon the parties thereafter shall be released of all further liability hereunder” (emphasis added; legalese in original).

It might be a tad ambitious to ask those lawyers to think of legal writing as an art form.

Nonetheless, the Burton Awards appear to be part of a larger trend to encourage “plain English” in legal writing. More and more law firms have their own in-house writing gurus. The SEC now requires prospectuses to be written in plain English. The Clinton administration required all federal agencies to draft notices and regulations in plain English as part of its “reinventing government” initiative. In the wake of the Enron collapse, one of President Bush’s proposals is to require plain English in financial disclosures.

The good news is that plain English proposals – like those just mentioned – are so obviously sensible that they have great potential. The bad news is that they have had great potential for 700 years.

A Long Struggle

Yes, the noble quest for plain English in legal writing has been around since at least the fourteenth century. Actually, the first battle was just to get lawyers to write in English, period. After the Normans conquered England in 1066, French became the language of the elite, including the bench and bar. By 1360, pretty much everyone in Britain had switched back to English – except judges and lawyers, who kept babbling away in French. Parliament tried to set things right by enacting the Statute of Pleading, which required all lawsuits to be pleaded and tried in English. The statute, of course, was in French.

In fact, it was not until 1731 that Parliament finally succeeded in prohibiting the use of French in court proceedings. Two years later, that law was partially repealed, due to all the French phrases that just would not go away (and still won’t): voir dire, estoppel, demurrer, and so on.

That’s the thing about legalese: it’s remarkably resistant to change. Consider the many attempts to reform the language of statutes and regulations. As long ago as the sixteenth century, King Edward VI asked that “the superfluous and tedious statutes [be] made more plain and short so that men might better understand them.” Now, you might think that a direct request like that, from a person with “king” in his name, would bring results. Instead, statutes got longer and more complicated, while generations of legal reformers throughout the English-speaking world slowly chipped away at the wordy edifice of the law.

At times, the reformers have been a little overzealous in their pursuit of plain language. In 1906, Teddy Roosevelt was so taken by the movement for “simplified spelling” (things like giv instead of give) that he impetuously ordered simplified spelling in all federal documents. Apparently, the Rough Rider had visions of a Federal Register liberally sprinkled with tho, nite, and lite. Perhaps it’s just as well that Roosevelt’s order never really went thru.

In 1936, Yale law professor Fred Rodell launched a one-man crusade against legalese with the observation that there “are two things wrong with almost all legal writing. One is style. The other is content. That, I think, about covers the ground.” Rodell’s work culminated in a 1939 book advocating that every law (including all of the common law) be “written so that its meaning is plain for all to read.” Rodell’s proposal did not persuade many lawyers, although that may have something to do with the fact that he also suggested abolishing the legal profession.

Reform began in earnest in the United States in 1978, when President Carter signed Executive Order 12044, which required plain language in federal regulations. Popular resentment against legalese was at high tide, partly due to Ralph Nader’s 1977 article, “Gobbledygook.” Under the new Executive Order, bureaucrats were admonished to make all new regulations “as simple and clear as possible.”

Somehow, Carter’s Order seems to have gotten lost in the interagency mail – nothing much happened for the next twenty years. In 1998, then-Vice President Gore announced a new requirement (part of the “reinventing government” campaign) that federal agencies write in plain English. The government even established a “No Gobbledygook Award” to honor agencies that actually complied with the initiative. Recent entries for the award include a Commerce Department guide for fishers to explain the requirements of the rule requiring “pingers” on fishing nets. Not that pingers aren’t a priority, but I was kind of hoping for something like a simplified tax return.

But if you think plain English is an uphill struggle, compare the campaign for “plain Japanese.” In Japan, there are two native writing systems called katakana and hiragana, but historically most statutes are not written in either. Instead, most Japanese laws are written in Chinese (just like ours!). It was only in recent decades that the Tokyo authorities even began translating some of the more important codes into, well, Japanese.

Why Is It So Hard To Change?
Why is it that after all these centuries of plain English reforms, all we have to show for it is a better way to regulate pingers?

One theory is that legalese is a conspiracy among lawyers to keep the public in the dark. In the sixteenth century, Sir Edward Coke actually defended the continued use of French on the ground that the laws must be kept out of the reach of the general public “lest the unlearned by bare reading . . . might suck out errors, and trusting in their conceit, might endamage themselves . . .” Five hundred years later, one could argue that the public might be willing to risk a little endamage for the sake of comprehensible legal texts.

Others say that the forms are to blame. When lawyers set out to draft a document, they typically start out with some tried-and-tested precedent; often a pre-printed form. These forms speak to us through the mists of time, harking back to a time of powdered wigs and buckled shoes: This policy witnesseth that; Now comes plaintiff; Further affiant sayeth not. After a day of reading stuff like that, one may need to stop at Ye Olde Apothecary for some aspirin. Or perhaps even the nearest Publick Houfe for a glaff of beer. And while lawyers sometimes add material to existing boilerplate in order to guard against new forms of liability, lawyers almost never delete phrases from their forms. The courageous Mr. Burton describes these archaic forms as his “arch enemy.”

Still, others say that legalese is necessary to achieve precision. But that seems a little hard to believe when so many legal documents provide that “the masculine shall include the feminine, the singular shall include the plural, and the present tense shall include the past and future tenses.” How precise can language be when “he is a man” also means “girls will be girls”?

A Plainer Tomorrow?
Viewed in its historical context, campaigns for plain English begin to look like the triumph of hope over experience. And yet, perhaps the movement for plain English is reaching a kind of critical mass.

One hopeful sign is the focus on simplifying legal documents that are intended for the public, as distinct from documents that are just for other lawyers. The SEC reports considerable success in getting securities lawyers to discard the old style of prospectus, which often included sentences of 60 to 100 words (by contrast, scientific prose has an average sentence length of 27.6 words). Hard to believe, but suddenly companies are issuing prospectuses that might actually be read by investors.

In addition, a growing number of states now require consumer contracts to be written in plain language – often by imposing very specific guidelines in terms of sentence and paragraph length. Many of these guidelines are based on readability tests, such as the Flesch Reading Ease test. Florida requires that insurance policies receive a minimum score of 45 on the Flesch test (100 being very clear and 0 being very unclear). To put that in perspective, the Social Security Act received a negative 130 on the Flesh test, while the Ethics in Government Act weighed in at –219. So, a score of 45 is a pretty ambitious goal for insurance companies, which often have a willing spirit, but weak Flesch.

And then there are the intrepid individuals like Mr. Burton, working to improve legal writing from the bottom up. But Burton is no head-in-the-clouds dreamer. “I want plain language,” he explains, “but I’ll settle for sane language.”

(This column originally appeared in the June 2002 issue of New York Law Journal Magazine.)