Ten Things: Writing Skills for In-House Counsel (It’s Different In-House)

As general counsel I saw a lot of writing.  Emails, memos, policies, correspondence, etc.  Most of what I saw produced by my team was well written.  Some of it was not.  Wait, hold on. I take that back.  It was well written for a lawyer but it was not well written for what the business needed.  Here’s an example: one day I received a very long email from a new lawyer on my team discussing some litigation risks in a dispute brewing on the horizon.  It was an email we planned to share with our executive team once it was finished.  It began with a very detailed discussion of the facts and the law, including case citations and citations to secondary legal treatises.  There were plenty of Latin phrases (I had to look some of them up in a Black’s Law Dictionary), lots of “Wheretofore’s” and other legal jargon.  There were even a few typos. And, at the very end, was a long summary of everything I had just read along with a squishy conclusion saying essentially, on one hand this but on the other hand that, with no clear recommendation on what to do next, no conclusion about the most likely outcome given the different risks at play, and no mention of next steps.  There was so much information to wade through, it was like trying to find the score of the game in a Grantland Rice column.  I knew that if we sent this out to the senior management, heads would explode long before they got to the end of the email.

I thought I knew what the problem was immediately.  The lawyer who had written it had recently moved in-house from a big law firm.  Sure enough, when I walked down to have a chat with them, I saw a treatise on legal writing on their desk, right next to a copy of “The Bluebook.”  Ah yes, problem confirmed.  I asked him/her to pop down to my conference room to talk about the email.  We sat down and I said, “The first thing you need to do is forget everything they taught you about writing in law school and at the firm.”  Secondly, “And here are some things you need to know to write successfully as an in-house lawyer.”  This edition of “Ten Things” shares those points with you:

1. Listen.  The most important thing to know about writing as an in-house lawyer is to listen to what the client is saying.  What is the problem and what do they need from you?  Sometimes we are so intent on getting started and jumping into the fray that we do not take the time to ensure that we really understand the question/assignment. Resist the urge to get cracking immediately.  Instead, take a deep breath and start your “writing” by asking lots of questions right up front and as needed going forward.  Be sure you know the “who, what, where, when and how” of the problem.  Do you have all the facts? Are there key documents you need to better understand the issues? Is there someone else you should speak with to get more background?  In short, be a lawyer.  Some of your business colleagues will find all the questions annoying, but it is far better to be a bit annoying than to spend time preparing a document that misses the issue or doesn’t help solve the problem.  If the issues are complicated send a short summary back to the client setting out your understanding of what the “go do” is and ask them to confirm that you got it right or to let you know if you are off-base.

2. Always summarize the answer up front. When it comes to the actual writing, this is the key point for in-house lawyers to understand. Your business partners do not want to read through pages and pages of text to get to the answer.  They need it “now.”  Figure out the main point of your email or memo and put it right up front at the very beginning, in summary form.  Get to the point as soon as possible.  If the answer is simple and clear, that’s great (and rare).  If the answer is not clear, note that and set out the “most likely” answer/outcome.  After setting out the “short answer,” then you can set out a detailed discussion of the facts and the analysis if needed.

3. Keep it clear and simple. Clarity is the goal of all written communication.  Unfortunately, as lawyers, we frequently get bogged down in details, alternative theories, and “on the other hand” arguments.  Yet, the most successful in-house lawyers are those who can take complex issues or voluminous information and turn it into something simple and straightforward using clear and concise language, all with the goal of enabling the business to make better informed decisions.  Remember the basics.  Who is your audience and what are you trying to tell them? What are my main points?  Keep your sentences short and direct.  Lose the $20 words and the footnotes.  For example, don’t say “The company, pursuant unto the common law of the State of Texas, unilaterally terminated Mr. Smith’s situation” when you can say “The company fired Mr. Smith.” Are there words you can cut?  As someone said, all innovations are new, all friends are personal, and, as Colonel Jessup noted in “A Few Good Men,” all danger is grave.  Brevity is your friend. Edit your writing, then edit it again if you have time. A mentor once told me to write as if every word cost me $5.00.  If you think like that, your writing will get tighter and clearer. Use examples, charts, graphs, descriptions, or analogies if those can help the reader understand your point, such as illustrating how a clause in the contract is supposed to work.  A footnote or two may be fine (rarely), but if you have extra information you think might be important, don’t try to weave all of it into your document.  Attach it to the email or memo or just note to the reader that additional information about “X” is available if they need it or want to see it.  Finally, be sure to make your writing understandable to outsiders, i.e., could someone outside the company understand what you are trying to convey? This is really important if your company gets into litigation where ambiguous or poorly written documents can sink you.

4. Make it easy on the eyes. No one likes staring at 3,000 words of text in block form.  It just hurts your eyes and it’s hard to read without getting lost.  Break up blocks of text to make it easier to read and more interesting to look at.  Use headings to transition to different sections or points, use bullets to quickly set out information, use boldface, italics, or underline to distinguish or emphasize things, try different margins for different sections, use a block quote now and then if appropriate, and so on.  Your reader should be able to skim through the document and quickly get the gist of what you’re trying to tell them.  If you make the presentation of the writing easy on the eyes, you are more likely to engage the reader and have them grasp the key points.

5. Grammar matters. Grammar matters a lot for in-house lawyers.  You are being judged and measured every time you interact with the business, especially when interacting with the executive team.  One thing they look for is how well do their lawyers communicate.  Your email may only be going to your friend in Finance, but keep in mind that she may need to send it along to the CFO, who may in turn send it to the CEO or the board.  While these folks may or may not know if you have a good legal mind, they will know immediately if you can write well.  Bad writers generally do not advance in the company.  Rule number one is to make sure you always check your spelling (and don’t rely exclusively on “spell check” or Grammarly).  Additionally, here are some common grammar errors to lookout for when you write:

• It’s vs. its
• There vs. Their vs. They’re
• Are vs. Our
• To vs. Too vs. Two
• Effect vs. Affect
• Which vs. That

Be careful with overuse of exclamation points (!) and don’t dive into the world of semi-colons (;) unless you really know what you’re doing.  Note that in American English the commas and periods always inside of the quotation marks, the opposite of our friends across the Atlantic (though I prefer the British-style on this point). Finally, be sure to use active voice (“subject-verb-object”).  I often lapse into “passive voice” when I write.  It’s not intentional, just comes from being lazy.  Using the active voice makes your writing more direct and powerful.  Many executives and board members look for this when they read memos or reports.  I have seen it first-hand.  My easy way of remember how to use active voice is to simply put the person or institution “doing” the action at the beginning of the sentence.  It doesn’t work all of the time but it works enough of the time. For example:

• Passive Voice: “It has been noted that summary judgment is rare in Alabama state court.
• Active Voice: “Judge Smith notes that summary judgment is rare in Alabama state court.”
• Passive voice: “The plaintiff was awarded $200,000 in damages.”
• Active voice: “The jury awarded the plaintiff $200,000 in damages.”

The rules of grammar can be tricky.  One year I gave the members on my team a copy of Strunk and White’s Elements of Style, still the best book on basic American English grammar I have found.  Pick yourself up a copy, keep it nearby, and refer to it often.

6. Eliminate jargon. Another common mistake in-house lawyers make with their writing is using a lot of legal jargon – just like they are taught in law school and at the firm.  As much as in-house lawyers laugh at business jargon like “drill down,”, “core competency,” or “paradigm shift,” just know that the business groans at many things their in-house lawyers write. This includes common legal Latin phrases that always pop up when lawyers write, such as prima facie, ultra vires, dictum, a fortiori, res ipsa loquitur, and so on.  Unless you are in-house counsel for Medieval Times, dump the “Ye Olde Middle English” phrasing when you write to the business, including words and phrases such as:

• Herein above
• Salient
• Prerogative
• Henceforth
• Theretofore
• Party of the second part…
• Whereas
• These presents known
• Privity

Put simply, when you use Latin or “Middle English,” no one really knows what the hell you are talking about.  Go with “plain English” instead.

7. Lose the “Blue Book”. Yes, you did pay a fortune for your legal education and for someone to teach you about “Bluebook” form, “Shepardizing” cases, string citations, how to properly capitalize a treatise, etc.  Alas, none of this is useful when writing to the business.  They do not want nor need to see this after a key point:

See Miller vs. Sterling, 678 A.2d 690, 701 (Del. Ct. App. 1998); accord Coyote vs. ACME Company, 32 N.W. 456, 500 (Minn. 2001).  But see Nowitzki vs. James, 284 So.3d 879 (Fla. S. Ct. 2011).

Likewise, they do not care about the title of the treatise or law review article you used to get the answer.  You are not writing for a partner at a law firm or for the court, you are writing for business professionals.  There is little if any need to include case or other citations in your communications to the business.  The exception to this rule is when you are writing to another in-house lawyer or to the general counsel and you know they are looking for legal research on the issue.

8. Give an answer/options/recommendation.  No one likes to be wrong, especially lawyers.  But, as we all know, the law is rarely black or white so a lot of lawyers like to “fudge” on giving an answer.  You see this when they write “On one hand, the court might do X.  On the other hand, the court might do Y.”  This drives business people crazy.  They don’t want to hear about how goofy the court is or how many different factors can affect the answer.  They just want your best answer.  Give them one.  I would write it like this:

“There are a number of factors that can impact how the court will decide the issue. Based on what we know today, and in particular [Y], we think the mostly likely thing the court will do is [X].”

Similarly, the business wants to know what its options are in any particular circumstance and, ultimately, what it should do.  This often requires you, as the attorney, to set out and weigh risk.  You need to describe the type of risk(s) at issue, the range of potential consequences (e.g., worst case, middle case, best case), the probability of each, and then give a recommendation or conclusion based on your analysis.  Could you be wrong?  Absolutely, but business people deal with risk, unknowns and probability all the time.

9. Call to action/Next steps. Always be clear with your reader about the next steps, i.e., what happens or is needed next.  For starters, if your email is urgent with action required, put that in the subject line or in the first sentence or two.  If you need immediate action you need to tell that to the reader.  At the end (or in your summary at the beginning) tell the reader what steps are needed next, even if you are telling them nothing more is needed at this point.  For example, if action is needed you might write:

“The next draft of the contract is due on Thursday.  We need to give direction to the negotiating team by Wednesday noon.  Our legal recommendation is we go with Option A. Please let us know if you agree, have a different preference, or if you need additional information.”

10. Watch for privilege issues/stay professional. As a lawyer you get spoiled by the fact that much of what you write is “privileged” and will probably never see the light of day outside of you and the client. Don’t get too comfortable with this position, especially once you are an in-house lawyer (as those practicing outside the USA already know).  Courts are becoming more hostile to applying the privilege to in-house counsel communications, usually tied to the issue of whether the in-house lawyer is giving legal advice or business advice.  Two things you need to do: i) take all the necessary steps to establish and protect the attorney client privilege, including stating right up front that you are “providing legal advice”; and ii) be sure you are giving legal advice.  If not, write with that understanding in mind.  If the document is “mixed,” try to separate the legal discussion from the business discussion so the legal part can be redacted if necessary.  Finally, always be professional with your in-house writing, even casual emails.  Everything you write on the job as in-house counsel is a business document, treat it like one.  Since you never know who might be reading something you write, be sure you “write smart” and keep it classy at all times.

*****

Regardless of whether you work in the USA or elsewhere, the ability to write clearly is your most important tool as an in-house lawyer.  Writing for business people is challenging as legal writing and business writing are very different creatures. You often need to put aside years of training of how to “write like a lawyer” and, instead, learn to “write like a business person” – who just happens to know a lot about the law.   If you are an in-house veteran, you know you will get better over time if you keep the differences top of mind. Don’t get too hung up on trying to be perfect.  You won’t be.  I know, as I have made, and continue to make, a lot of the mistakes noted above.  But I do try to apply the lessons I have learned every time I write something.  Like a blog post for instance.

Sterling Miller

February 16, 2016

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