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LawCrossing Guide to Legal Writing for New Associates
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Summary: Everything you need to know to become a great legal writer as a new associate is found in this comprehensive guide.
In a nutshell, let’s see what you have to do to excel in research and writing assignments. You need to:
1. Get the assignment perfectly clear;
2. Accept the assignment with enthusiasm;
3. Do thorough, accurate, and efficient research;
4. Hand in the work on time, and keep the lines of communication open with your assigning attorney for any deadline problems;
5. Solve the client’s problem, offering alternative solutions where appropriate;
6. Give the answer in the format the assigning attorney asked for;
7. Hand in work that is neat, grammatically flawless, well-organized, and typographically perfect.
We’ll go over all of these things, in detail. If you follow the advice here, there’s no significant way in which you could possibly drop the ball on an assignment.
In this guide, we’re going to make sure that you start your career convincing your employer that you’ve got excellent research and writing skills. At most legal employers, your research and writing will set the stage for everything else you do. You’ll develop a great reputation, you’ll get increasing levels of responsibility, and you’ll be on your way to the top. Having talked with many, many people about handling research and writing assignments, I am absolutely convinced that virtually every mistake that summer clerks and new associates make is easily avoidable. Once you’ve read this section, you won’t make any of those mistakes!
At many different kinds of legal employers, you’ll start out doing a lot of legal research and writing. It’s crucial that you get it right from the start. As the associate at one California firm commented, “As a new associate, you have nothing but your smarts and your reputation. It’s critical that your first assignments are outstanding since those assignments will establish your reputation.” Another attorney adds, “If you have a couple of bad projects from vocal partners, it’s hard to rehabilitate your reputation. You can’t say, ‘Well, I wrote the best memo I could, but you didn’t give me all the facts’ or ‘I didn’t go to school in this state so I didn’t know about X treatise on state law’ or ‘You wouldn’t let me see the case file.’” because people are depending on it. It’s got to be performed efficiently because somebody’s paying for it. And most importantly, it has to provide an answer. The difference between school and work is that you need to have an answer. In law school, you only need to identify the issues. In the real world, lawyers and clients need to know, ‘What do I do?’
B. Receiving the Assignment: Getting It All, and Getting It Right
Here’s what you want to do.
1. When an attorney calls you to his/her office, they’re probably not checking to see if you saw the game last night.
Come prepared. Always carry a pad and pen with you when you’re summoned to an attorney’s office. If they nab you in the hallway, “Grab a pad and a pen from the nearest secretary,” advises one law school career services counselor.
2. Exhibit enthusiasm for the project—take notes, look attentive, ask questions, and say “Thank you.”
I’ve mentioned to you elsewhere that nobody owns your thoughts but you. It’s OK if you think the assignment you’re getting is a barking dog with fleas. But you won’t do yourself a favor if you let the assigning attorney see that. As lawyers at Waller Lansden recommend, “Associates who stand out are ones who, when they’re asked if they’d like to work on a particular project, show enthusiasm and not just a deadpan ‘I can do it.’”
If you disdain a project from the start, you’re not likely to perform well on it. And if you don't do the tedious things well, you can’t expect to be rewarded with more exciting projects. As one law school career services counselor says, “They expect the same performance on all assignments, whether cutting edge or routine.”
Incidentally, more than one lawyer told me about the popular habit some associates have of cherry-picking pro bono projects and hanging on to them so that anytime someone tries to assign them a project they don’t want to do, they can pull out the pro bono project and say, “I’m sorry, I can’t do it.” The firms know it goes on—nobody’s getting away with it! It’s easier just to bite the bullet and get the distasteful project over with!
So the spirit you want to exhibit is that you’re grateful for the project and eager to get started on it. A partner at Davis Wright Tremaine described giving an assignment to an associate and then having to “step aside because she’d charge through and take the initiative to see it through.” Assigning attorneys just eat that stuff up with a spoon. Let them see it from you.
3. Always write down assignments. Always.
I remember reading a really interesting book, a biography called The Mind of Somebody or Other— I forget. Which is ironic because it was about a man with a perfect, endless memory. He could literally remember anything. He was working at a newspaper in Leipzig, or someplace like that. He was a reporter. And every morning when the editor would get all of the reporters together to give them their assignments, everybody would scribble furiously to get down the details of who they were supposed to see and the stories they were to research. All except for this guy. At first the editor thought he was being disrespectful and blowing off his work, but it turns out he was memorizing every word, not just of his own assignments but those of all of the other reporters as well. He starts getting famous for his memory, and winds up having a big stage show where he could recount anything people asked him—like a list of 500 numbers. (I didn’t say it was an interesting show.) All kinds of psychologists check him out, and find out that the reason he can remember an endless number of things is that words aren’t just words to him; they’ve got color and texture and flavor, so they’re unforgettable. But as he gets older his mind gets so crowded with colors and textures and flavors, even for stupid things like phone numbers, that he goes mentally insane and dies. It was really kind of a sad story.
Types of documents have to be approached very differently. As Cardozo’s Judy Mender says, “You can’t just state the pros and cons of each side’s arguments in an opinion letter. It’s not like a law school writing assignment. As the name suggests, it has to include an opinion.”
If the nature of the audience you’re writing for doesn’t give it away, ask whether your work should be persuasive or explanatory. For instance, the slant you take in your finished product is going to be different if the assigning attorney asks you, “Tell me where things stand on this issue” as opposed to “Find out if we can file suit.”
4. How long should the finished product be?
View the page guideline you receive as a guillotine. Your assigning attorney no doubt believes that you could thoroughly explore any issue in a Law Review article. Pay attention to the page length the assigning attorney suggests to you as a way of gauging the depth of your research. For one thing, somebody's paying for the time you spend researching, and the project might not merit a monumental effort. And second, your assigning attorney’s time is valuable, and (s)he won’t want to spend more time digesting your work product than is absolutely necessary.
5. How do they want the material presented—in writing, in person, or by phone or e-mail?
Listen carefully to how your assigning attorney wants to get your results. One attorney points out that if your assigning attorney says, “Just tell me what you find,” all they expect is a quick oral report. Don’t do any more than that! As one law school career services counselor says, “If they want a two-minute oral report at the end of the day, don’t wait three days and give them a brief!”
6. Get all of the “administrative details.”
You need to ascertain the client or matter name and number, and any other tracking information that’s relevant. Without it, you’ll make it more difficult to bill your work to the appropriate client and/or account. Impress your assigning attorney by showing your appreciation of the business aspect of your work.
7. Get all of the facts (we’ll talk later about what to do when you find you don’t have them all!)
One of the things that will strike you first about being a “real lawyer” instead of a student is that the facts are never as clear as they were on law school exams. Getting the facts is a real bane to any new associate.
What you want to do is to ask all the questions you need to ask, when you get the assignment, to make sure you understand who the players are, exactly what happened, and what you’re being asked. Marilyn Tucker advises that it’s a mistake to go on the assumption that the assigning attorney is giving you all the facts and everything you need to know to proceed. “The reality is, you probably only have partial information.” As an attorney from Baker Botts says, “Your first question has to be, ‘What’s the issue here?’ You need to know! A partner might ask you, ‘I’ve got a statement made at the accident by the other victim in the accident. Is it admissible?’ You do your research and come back, and the partner mentions, ‘Oh, she was being handcuffed and led away at the time.’ It totally throws you off if you don’t have the facts straight!”
An attorney with Simpson Thacher in New York points out that “It’s easy to just scribble down the facts without understanding the situation. Nobody wants to look stupid by asking questions. But you can’t give people what they want without being crystal clear on the facts.” Elaine Bourne adds that “All you have to say is, ‘Am I understanding this correctly? Do I have the facts right?’ Even if the assigning attorney seems impatient, that two minutes saves a ton of time down the road!”
One attorney from Greenberg Traurig recommends that you treat your assigning attorney like you’d treat a client. “If a client stated a problem, you’d have no problem asking for more facts,” she says. “You have to treat the person giving you an assignment just the same way.”
8. Clarify the issue.
If the assigning attorney doesn’t give you the client background, ask if you can see the case file. If you don’t feel comfortable asking for anything at all, ask your mentor (if you have one) or find other, more junior attorneys who can fill you in on the client and the nature of the problem without taking up a senior attorney’s valuable time.
9. Ask for time estimates, and with those, you’ve got maybe a starting point for figuring out how long the project will really take you.
Ask the assigning attorney how long the project ought to take you. But don’t be too alarmed by what you hear. As one attorney points out, experienced associates often say that it actually takes three to five times longer for a new associate to do a project than senior attorneys realize. There are several reasons for this. One is that people who’ve been practicing a while have a lot of relevant material stuffed into their heads. You don’t have that cranial treasure trove yet. You’ve got to look for stuff, and that takes a lot longer. Also, it might have been years since your assigning attorney had to do research, and they’ll underestimate because of that.
There’s one thing a time estimate does tell you, and it’s the “billability” of the matter—that is, how much the assigning attorney thinks your research is worth to the client. It may be that the client won’t or can’t pay for extensive research. You’ve of course still got to do competent work, but you can’t be as creative with a choke-hold on your time budget. That’s probably only likely to happen at a small firm or any situation where you have cash-strapped clients.
As we’ll discuss in just a minute, regardless of the time estimate you get, check back with the assigning attorney once you’ve done a bit of research to ensure that you’re on the right track. That way the assigning attorney can monitor your progress and make sure you’re meeting his/her expectations, regardless of any preliminary time estimates (s)he gave you.
10. Ask for a deadline, if the assigning attorney doesn’t give you one.
Getting work done on time is one of the most valuable skills you can exhibit. Don’t leave the assigning attorney’s office without knowing when the project is due. (We’ll talk a lot about handling deadlines in a few minutes.)
11. Unless the assigning attorney is very senior, busy or seems unwilling, ask for leads on starting the assignment.
This can be a little tricky. If the assigning attorney is very brusque and matter of fact, it may not be a good idea to say, “Gee, can you give me some pointers on where I ought to start?” Ditto if (s)he is a very senior muckety-muck. You’ll have to judge the situation and interpret the attorney’s attitude. A law school career services counselor suggests that if the assigning attorney is a partner or senior associate, you should ask for a junior attorney to whom you might refer your questions. “It’s often not cost-effective or even possible for a busy partner or senior associate to guide you through the assignment,” she says.
If the attorney seems more relaxed, friendly, or less hurried, go ahead and ask for ideas about where to start your research, “like another case file or a book or a person,” says one law school career services counselor. “Don’t ask in a way that suggests you expect them to do the work—explain that you’re only looking for a starting point.” If there’s any possibility that the assigning attorney will be forthcoming, it doesn’t hurt to ask. You’ll show your eagerness to do a good job—and you’ll save yourself time and frustration, too!
12. Repeat the assignment—in its bare essentials—back to the assigning attorney before you leave his/her office.
Everybody agrees that you should echo the assignment back to the assigning attorney before you leave. That way if there’s any confusion, you can clear it up before you waste even one moment of research time. Referring to your notes, a Holland & Hart attorney in Denver advises that “You should say the assignment back to the attorney before you walk out the door. Make it brief. Say, ‘I hear that you want a memo/letter/whatever on X issue by Z date.’” Here's an example of why you should do this. A summer clerk doesn't jot down any notes, figuring that the assignment is pretty simple. When the summer clerk turns in his work, the partner tells him that he's missed an issue. The clerk points to the senior associate—who is sitting in the room—and says, "You made me miss that issue. You didn't tell me about it!" The senior associate denies it, and both the partner and senior associate are embarrassed. The summer clerk has no way to back up his claim since he didn't write anything down.
To be extra sure, show the attorney your notes so they can see for themselves the basis on which you’ll proceed. Keep your notes in a readily- retrievable file and date them. This is the ultimate C.Y.A. move. An attorney who looks at your notes can’t fail to see whether you’ve got all the facts that (s)he transmitted to you. If the attorneys you work for know that you make a practice of showing them your notes before you start to work, they’ll never be able to argue that a missed issue was your fault. Furthermore, seeing your notes may jog their memory for facts they might have missed.
You can also send the attorney a confirming e-mail or memo. As one law school career services counselor says, “Make it simple, something like, ‘Just confirming that by Friday you want a memo relating to these facts and covering these issues.’” That way, if the attorney doesn’t respond, you can assume that you’ve got everything straight.
13. Do all of your research with your goal in mind: finding an answer for the client
It’s easy to become distracted when you’re researching. If you’re going from Boston to New York, don’t dawdle in Montreal. An attorney from Brownstein Hyatt in Denver says, “Partners don’t want you to present all sides of an argument without drawing your own conclusion.” An attorney from Akin Gump in New York agrees. “Remember, the attorney who assigned you the project wants you to tell them: What should I tell the client? And what will I have to know that the other side will have?”
CAREER LIMITING MOVE
A new associate is assigned a project for a client that organizes summer concerts for municipalities. The concerts often involve unfamiliar topics. If the topic you’ve been assigned is totally unfamiliar to you, “start your research with hornbooks and treatises to get a general grasp of the area,” says one law school career services counselor.
Follow These 8 Tips During the Research Process
1. If your firm has a law librarian (or more than one), go to that person for advice on how to start. Law librarians are a frequently overlooked source of tremendous information.
2. Don’t set yourself up for a Homer Simpson moment—“Doh!”— doing a whole bunch of work before realizing that somebody else in the office has done the whole thing before, and would have shared his/her knowledge with you if only you’d asked. As I mentioned earlier, find out if your firm has a brief bank, and if so check it to see if anyone has written about this topic before. (If it doesn’t have a brief bank, start one. You’ll be a hero.) Ask around to see if anyone in the firm has worked on this kind of project before, either on this topic or in this format [e.g., a motion]. If your firm’s e-mail system is used for queries like this, go ahead and use it—it’s more efficient than asking people individually. However; be very wary of doing this if you are a summer clerk. Remember, “They want to see your thought process, your research,” says one law school career services counselor. “It’s possible to ask for too much information!” But as a new associate, you’ll be rewarded for being efficient. One lawyer recounted that when she was a new associate, she worked hard on a memo for a partner. When she gave it to her secretary to type it up, the secretary responded, “Gee, we had a case similar to this last year.” The new associate realized that she could have saved herself tons of time if she’d asked around before performing her research from scratch. An associate at another firm talked about turning in a project to his supervising partner, who said, “This is fine, it just needs a Certificate of Service.” The associate had no idea what that was, and he researched it for two hours. “I was tearing my hair out. It didn’t seem to be written down anywhere. Finally, I asked another associate. It turns out a ‘Certificate of Service’ is just a statement that says ‘I certify this was served on Joe Schmo,’ and a freakin’ stamp.”
3. An attorney from Covington & Burling in New York recommends that you ask the assigning attorney’s secretary if there is any correspondence with the client dealing with your issue. “It’s hard to admit you don’t know something, but it can really help you out to ask the secretary something like, ‘Is there correspondence on land use with this client before?”’
4. Consider sources outside of your office. As an attorney from Jones Day in Cleveland points out, “Most bar associations have a mentoring directory for guidance. The directory will include the names of lawyers who have volunteered to help with general advice on handling all different kinds of matters. They’re listed by subject matter, so they’re easy to track down.”
5. Keep accurate notes as you proceed.
As you move through your research, paper the world. Keep track of every source you look at and take notes on the cases you read. Here’s why: you never know when you’re going to be pulled away from your research to work on an emergency project. If you have to put down what you’re doing and come back to it later, thorough notes will save you a ton of time.
6. Don’t expect an easy answer.
Sometimes you’ll get a research assignment, look at it and think, “Geez, this is easy”. That’s a dangerous rush to judgment. As a rule of thumb, as one law school career services counselor says, assume that nobody will give you an assignment that would have taken them just a few minutes to do themselves. As a lawyer at Wyatt Tarrant points out, “I’ve often seen new associates who think the answer to an issue is obvious. My experience is that when an attorney with years of experience requests research, the answer isn’t so obvious!” Lawyers at Lord Bissell add: “Questions from clients don’t always offer clear, easy-to-find answers. Don’t just react! Think.”
7. How to handle very complex facts and difficult issues
First of all, tell yourself—over and over again—that you will come up with a solution, no matter how difficult the project seems at the outset.
Don’t “horribilize” the situation and tell yourself, “I’ll never get this.” As one law school career services counselor advises, “With tough assignments if you start positively, you’re likely to turn up alternatives.”
If the situation is complex—you know, like a law school exam—one attorney recommends that you “diagram the parties so that you can be clear about the facts.” If the project seems overwhelming, you should start by making a list of all that you’re going to do. Break the project into small pieces and write them down, listing every task. You’ll find that even the most difficult tasks can be broken down into do-able chunks, and when you focus on those instead of the big picture, you’ll find that it’s manageable after all.
8. “Lassie was a dog, right?” There is such a thing as a stupid question. But asking smart questions is something you've got to learn to do.
Nobody expects you to know anything practical when you graduate from law school. They know there's a huge difference between what you learn in school and what you have to do in the real world, and they expect you to have to ask questions. You’ve undoubtedly heard the old saw, “There’s no such thing as a stupid question.” Well ... based on what I heard from people, there are stupid questions, and it’s important to avoid asking them. The flipside of that is that you shouldn’t be too scared that you ask no questions at all. As one law school career services counselor says, “You can’t barge ahead without being willing to ask for advice. But you can’t get the reputation, ‘He’s always asking questions.’” Another law school career services counselor adds that “One of your tasks as a new attorney is to learn how to gauge questions that you’ve got to ask vs. the ones that you have to research first yourself.”
Here’s how you ought to handle asking questions:
1. Set your “ask-o-meter” on medium-low.
Most people are afraid to ask any questions at all for fear of looking stupid. While some questions (and questioning techniques) should be avoided, lots of questions just have to be asked, and you shouldn’t avoid asking them. If you hate the idea of asking questions, err on the side of asking rather than staying quiet. It’s easy to think, “Gee, they’re paying me all this money, I should know this.” Not necessarily! As lawyers at the United Mine Workers of America point out, “When in doubt, ask. At best, your questions can flatter the ‘askee’; at worst, they can save you from making a fool of yourself by making it appear that you know what you’re doing when you really don’t.”
Two kinds of questions that you can’t avoid asking are those that deal with facts and the nature of the issue. You can’t research your way around those. If you waste hours or days making a wrong assumption about the facts or misframing an issue, you will only make your assigning attorney angry.
2. Make sure you do whatever research you can before you ask a question.
As one law school career services counselor comments, “Lawyers always say, ‘Don’t think on my time.’ What they mean is—think before you ask them questions!” Here’s what they mean when they say that:
a) Don’t constantly come back to your assigning attorney with question after question. A partner at one firm said that “I’ll sometimes have an associate working on an assignment who will bounce into my office half an hour after they get the project and say, ‘I found this case, what do you think?’ then twenty minutes later they’re back, ‘I found this statute.’ It would be so much more efficient if they asked, ‘Can I schedule a half hour with you tomorrow morning to discuss the seven cases and statutes with you that may help or hurt our case?”’ One attorney from Munger Tolles in Los Angeles suggests that you do whatever research you can and then contact the attorney, saying, “I have a couple of questions. When would be a good time to talk about them?” That way you’re walking the “fine line between checking with people and bugging them,” she adds.
As an example of what not to do, a new associate is unsure of her research skills. She checks in with her mentor constantly for advice about how to proceed. He turns to her one day, exasperated, and says, "Let me introduce you to the library."
b) “Think through the issue step by step and be sure your questions are coherent and make sense,” advises Gail Cutter. “And make sure you write down your questions and take them in with you when you talk to the assigning attorney, so you stay on track.” And when you actually ask your questions, Alex Epsilanty advises that you “get over your oratory skills and get to the point”. Lawyers are busy. Ask them what you want to know as quickly as you can, and get back to work.
c) If you're in doubt about asking the assigning attorney a question, use e-mail—or ask somebody else first.
Different attorneys need to be approached differently. If you’re new, it may be difficult to differentiate between attorneys who will readily accept questions and those who have to be approached more carefully. As one Dentons attorney suggests, “If you’re working for somebody who’s hard to question—maybe it seems as though his phone is always glued to his ear, for instance—you’ve got to come up with other strategies. It might be e-mail. It might be a phone call or voicemail. It might be hanging around outside his door like a lost dog until he is off the phone and then charging in. Generally, an attorney’s secretary is the best resource for figuring out how to approach him. You can also talk to others who’ve worked for the attorney before. Somebody knows how to approach him, and you need to be one of those in the know.”
SMART HUMAN TRICK
The most influential partner in the office approaches a new associate on the associate's fourth day with the firm. The partner has a reputation for spending twenty seconds or less in detailing the facts of projects he needs completed, and demanding thorough and quick turnaround. He dumps a project on the new associate in his customary way. When he leaves the associate's office, the associate is dumbfounded. He has a few scribbled notes and beyond that, no idea what to do. He asks a more senior associate about the best way to approach the partner with questions, and the senior associate responds, "You can't. Questions are one of his pet peeves. Talk to his secretary." The new associate goes to the partner's secretary with his problem and asks for her help. It turns out that she knows more facts about the case and the client than the partner ever did. With her help "filling in the blanks," the associate gets the project done perfectly and on time. After that, the partner tells others in the firm that the new associate is "a quick study, brilliant."
9. Everything you need to know before you use online research tools—you know, Lexis and Westlaw.
When my niece Emily was very little, we took her trick-or-treating in her neighborhood. (I know what you’re thinking. OK, I’ll tell you. She was dressed like a pumpkin.) She had never really been to other people’s houses before. At the first few houses we visited, she would hold out her little Halloween basket only with a great deal of urging. But then when she got into the swing of things, at each house she’d thrust out the bag and say, “Fill it up.” After that, she kept wanting to visit the neighbors, believing that every time you knocked on somebody’s door, they’d give you candy.
When you’re in law school, it’s very easy to mistake Lexis and Westlaw for Halloween candy. But the catch is this: unlike Halloween candy, online research isn’t free. In fact, it’s very expensive. Law school just seduces you into thinking otherwise. When you get out into the real world, you’ll find that there are some times when Lexis and Westlaw are just unbeatable, and you have to use them. There are other times when it’s not the most cost-effective thing to do (and even if you figure that’s not your concern, your firm’s clients will care—and that means your assigning attorney will care, too).
Here’s what you need to do when it comes to using online research tools:
a. Don't overlook Internet-based research tools that you can use for free.
Take advantage of the freely available internet-based research tools and turn to them before using Westlaw or Lexis.
b. Do your strategizing and basic book research first.
The temptation to jump straight into Lexis or Westlaw is dangerous. For one thing, a lot of lawyers say that you should come up with your research strategy and do your initial research offline. Lexis and Westlaw don’t teach you how to analyze. It’s easy to throw out a word and get off track. You can wind up wasting a lot of time. Not only that, but a lot of older lawyers are very suspicious of computer research. If you’re working at a firm of older attorneys who aren’t technically savvy, they’ll be very suspicious of you if you come across as unable to crack a book to find what you want. Think of Lexis and Westlaw as a means of complementing your research. Fit them in where they are most time and cost efficient. Think about the issue. Is it a property problem? Start with the digests or hornbooks. Is it a tax problem? Looseleafs. Is it administrative? Go to the Federal Register or Code of Federal Regulations.
c. Check with your employer before you use Lexis or Westlaw.
It’s very expensive. Students are so used to it being free through law school that they tend to use it even for the simplest research. It’s incredibly easy to rack up huge bills. Don’t assume clients will pay a $500 Lexis bill. Before you do substantial online research, ask the assigning attorney if the client will pay for it!
Once you start work, recognize that just because you find cases online, you don’t have to read them online. Perhaps the most efficient use of online research is to generate a list of citations, shepardize them, and then get offline and read the cases in books. Reading online isn’t only wasteful—it’s hard on the eyes, as well!
Take advantage of the Lexis and Westlaw customer support to figure out the search strategy best suited for your particular project. Lexis and Westlaw have toll-free numbers that you can call to lay out your issue and find out if you’ve missed anything. This helps you avoid the kind of online trial and error process that most of us got used to using in law school!
If you’re at a large firm, you should go to your research librarians. They’ll train you on searches. They’ll show you shortcuts that will help minimize the cost of the research.
e. Recognize the situations where online research absolutely, positively can't be beaten.
There are some things that just can’t be accomplished as well offline as they can be on Lexis and Westlaw. One of these is large multi-state searches. You just can’t do that huge fifty-state search efficiently any other way.
You can also do a quick search once you’ve done your book research to make sure that you haven’t missed a major case. Nothing can make you look as goofy as overlooking a case central to your project.
Finally, and most importantly, shepardize online. If your employer will let you use online resources at all, this is the thing they’ll let you do. Lexis and Westlaw are absolutely up-to-the-minute when it comes to the state of the law. They’ll know if something changed since you started reading this sentence. Your clients will demand good law, and shepardizing online is the one sure way to provide it to them.
f. Don’t forget the value of the world’s most powerful computer.
Namely: the human brain. It never hurts to ask a colleague who does the kind of work you’re researching, “Got any good advice where I ought to start?” A person who handles an area all the time is a better and faster resource than any book or computer.
10. Don’t vanish for the duration. Check in with progress reports.
When you get a research assignment, you might be tempted to go away and hide until you get it done. You might be concerned about seeming inefficient. You might worry that you’re taking too long. You might perceive that your assigning attorney is busy and doesn’t want to be bugged by you.
The fact is, it’s a good idea to check in periodically with your assigning attorney as your work progresses. Here’s why: It will stop you from going on a wild goose chase. If you check back after a few hours and say, “Here’s what I’ve found. This is how long it’s taking me. Is that OK?” you won’t miss any issues and you’ll be letting the assigning attorney know how you’re doing time-wise. Nothing makes lawyers angrier than the common non-responsiveness of new lawyers. If you keep them in the loop, you’ll make them happy. As Oregon’s Merv Loya points out, “If you give them a mini-report on your research early on, they can correct anything that needs to be corrected. If you spend fifty hours researching on a twenty-hour question before you get back to your assigning attorney, that attorney will hit the roof.”
If you get the impression that the assigning attorney is busy, or (s)he’s often away from the office so you can’t check with him/her personally, or for any other reason a person-to-person drop-in doesn’t make sense, consider using voice-mail or e-mail for your updates. One new associate told of how she would avoid bugging lawyers about their projects during the day; instead, she’d regularly leave voice mail messages late in the afternoon or at night letting them know about her progress on their project, One of the biggest complaints I heard from lawyers all over the country was the lamentation that summer clerks and new associates ignore deadlines. It doesn’t matter how good your work could theoretically be if you had extra time to polish it up. Lawyers only care about what you can get done on time. If you’re working for a litigator, the court won’t want to hear that you needed extra time to finish your research. And clients will only pay so much for research, no matter how perfect it could be if you had an endless time budget for it. No matter what setting you work in, you’ve got to pay attention to the calendar! As another law school career counselor says, “In school, you’re rewarded for what punishes you at work. In law school, you’re rewarded for spending gobs of time. At work, you’re considered inefficient. You’ve got to make your deadlines.”
Here’s what you need to know about handling deadlines.
a. Always assume that your deadline is “real.”
You hear all kinds of nasty stories about lawyers who give clerks or associates deadlines, and then don’t even look at the work that the clerk/associate busted his hump to complete until three weeks later. That bites, and maybe the lawyer who did that is just a jerk. But nonetheless, as lawyers at Sidley & Austin point out, as a new associate you are not in a position to judge the “reality” of the deadlines you’re given. It might be that the lawyer intended to use your work, but something else intervened. Or maybe the case was postponed. Or whatever. Bite the bullet on it and treat every deadline as though it’s real.
b. Budget in time for editing and word processing.
As another law school career counselor says, “You don’t know how to spin doctor as a new associate. It will take you a lot of time to edit your own work. The best advice I ever got was to spend as much time editing as writing. The fact is, it’s time well spent. If you are perceived as a good writer, it helps you as a lawyer.”
When it comes to getting the project into presentable form, Marilyn Tucker advises that you “learn to set interim deadlines, to work backward and plan for the unexpected. If you are relying on the word processing department, you’ll need to have your draft in early in order to get it back with enough time to rework it. Waiting until the last minute not only puts pressure on the staff but, if a rush comes in from someone else, you are the one to get bumped.”
c. What to do if you're going to miss a deadline...
1) Don’t ever, ever, ever, ever avoid the assigning attorney until after the deadline has passed.
Stories are legion about associates who don’t say anything until their deadline is long gone. The partner at one firm recounted how “The number one complaint of partners here is that the associates are not responsive. We give them assignments, they ask for deadlines, we’ll say a week from tomorrow. They don’t come to see us. They avoid us. Then when we track them down, it’s ‘Oh, I haven’t gotten around to it yet.’” As another law school career counselor says, “You get an assignment and you don’t make the deadline and all of a sudden you’re avoiding the attorney who assigned it to you as though you owe him money.” No matter how angry the attorney will be if you tell them up front, that’s nothing compared to the chunk they’ll tear out of your hide if you wait until later on.
2) Recognize that having to work late doesn’t mean that you’re going to miss the deadline.
It means you’re going to work late. That’s why you didn’t want to tell them in the first place, right? That’s certainly why / wouldn’t want to say anything. “You want me to come in on what day and finish it? You want me to stay how late?” It kind of chomps, but let’s face it. The work comes first. Finishing work on time is a great reputation to cultivate, and if worse comes to worst, you can always work at home and email yourself a draft at work to complete there. As Carlton Fields’ Elizabeth Zabak says, “If meeting a deadline means working late, do it. Skip the social event. After all, the attorney and the client are relying on you.” Another law school career counselor adds, “You’re not going to score any points if you show up on Friday for a Monday deadline and say, ‘I won’t be done. And I’m going away for the weekend.’”
3) Say something as soon as you realize you’re not going to make the deadline.
The sooner the better. As another law school career counselor says, “When associates are going to miss a deadline, there are almost always other options as long as they let me know early enough. You can’t say it at the last moment!” Maybe the research is taking longer than you thought. It may be that you came up with so many alternatives that the project is much bigger than the attorney thought it was (or you’re just a freaking great researcher). Or maybe other lawyers have dumped stuff in your lap which they claim is urgent, and you’ve had to put this particular project aside. Or perhaps you’re waiting to hear from the other side (the court, or opposing counsel, or whoever), and you haven’t received an answer that the assigning attorney is waiting for.
It doesn’t matter what the reason is. As soon as you know you’re not going to make a deadline, you’ve got to say something. As another law school career counselor suggests, say something like, “I don’t think I’m going to make the deadline because of these other things. How should I handle it?” If you don’t feel comfortable going directly to the assigning attorney, try going to your mentor or recruiting coordinator (if you’re a summer clerk) or a trusted associate first for advice about what to say. But you’ve got to say something. For one thing, if you give an attorney enough lead time, (s)he will be able to make other arrangements. It may be that the deadline was not as firm as you thought it was.
11. How to dazzle attorneys by going above and beyond what they ask you for—but be judicious about it, because sometimes a cigar is just a cigar! How does this translate into your work?
a. “Don’t take a narrow view of your ‘assignment,’” per lawyers at Arnold and Porter. One attorney there recommends that you “Start training yourself to expect contingencies and problems and to think beyond the research question.” “For example, if the result of a research memo is a suggestion that a motion is filed, you should at least sketch out what would be involved in the motion and volunteer to prepare a draft,” as lawyers at Perkins Coie advise. Another law school career counselor adds that “Being willing to follow through makes a huge impact, saying something like, ‘Here’s my research, in doing it it occurred to me it has this effect on these papers we’ll have to file.’” Another law school career counselor offers the following example: “You’re asked to draft a complaint with tortious claims. You come back and say, ‘There might be another theory we could pursue, another claim to make.’ That’s creativity. That’s what they want. They don’t want you to parrot back the casebook.”
Many times this requires you to do a kind of trans-subject thinking that law school expressly didn't prepare you to do. Remember the Palsgraf case? The lady who was hit on the head with the scales that fell on her when the package exploded at the train station? Yeah, you remember it. You’ve tried to forget it, but you remember it. Well, the tort claim, in that case, was the central issue and the foreseeability of the result. If you had a fact pattern like that on your law school Torts exam and you mentioned the possibility of a contract claim by Mrs. Palsgraf against the railroad—based on a contract for them to deliver her safely to her destination without getting hit in the head by scales—you wouldn’t have gotten any points for it from your Torts professor. But if your firm represented Mrs. Palsgraf in her claim against the railroad, bringing up the possibility of a contract claim when you were told to research the negligence claim would make you a superstar.
b. Don’t be too quick to assume that your research is at a dead end. As another law school career counselor puts it, “You need the right attitude about your research. You can’t just tell yourself, ‘Boy, is this a loser.’ You need to take the view that ‘we can do something for this client.’ It doesn’t mean you will distort your research. But if a corporate client wants to do something, it’s your job to find out how not whether; they can. It opens up your horizons to think that way.” Drusilla Bakert says that “If you’re asked the question, ‘See if I can file this motion,’ don’t go back and say ‘no.’ Great people go beyond that and say, ‘No, but you can accomplish the same goal this other way.” As lawyers at Sidley & Austin put it, “Recognize that there might be more than one way to approach an issue.”
c. A way to incorporate “thinking outside the box” into research memos is to do as Marilyn Tucker suggests, and “include a section that notes new issues raised by your research which were not assigned in the original problem. Doing so alerts the assigning attorney to problems (s)he may not have known existed.”
d. Now that I’ve got you all excited about this whole “value-added” concept, here’s a great word of warning: Being creative isn't always a good thing. As Sigmund Freud said, “Sometimes a cigar is just a cigar.” Only use the “value-added” strategy when three criteria are met: one, other projects you’re working on won’t suffer; two, you can meet your deadline; and three, what you’re proposing is clearly relevant. As an attorney at Dechert warns, “It’s counterproductive to spend a lot of time searching for ways to be creative when the project may require a simple, straight-forward answer. You need to use good judgment and take the opportunities when they’re available.”
There is a new associate at a New York firm. He immediately impresses everybody he works for. He's cocky, but he does assignments quickly and well, so "if anybody could get away with being cocky, he could," commented a lawyer at the firm. A partner who is particularly impressed with this new associate goes to the managing partner and says, "You've got to use this guy and see how good he is." The managing partner grudgingly gives him an assignment. He makes it a very narrow one because he doesn't trust new lawyers very much. On Tuesday morning, he calls in the new associate, and says, "I want you to find the Statute of Limitations for this issue. I'm meeting the client Friday morning so I need an answer by then. We need to find out if we need to file a complaint right away or if we have breathing room. It shouldn't take you any time. Just look at the New York Statute of Limitations and write down what the statute of limitations is for this issue, and give it to me. Then you can sit in on the meeting with the client."
The new associate asks the managing partners secretary for the file on the case so that he can read the facts. That's usually an excellent idea, but it isn't necessary in this case; the assignment is very narrow. But in reading the file he sees that the corporate client is a Delaware corporation, and figures that what he really needs is the relevant Delaware statute, not the New York one. So he researches the Delaware statute of limitations.
Five minutes before the managing partner is due to meet with the client on Friday, he calls in the new associate, and asks, "What did you find out?"
The new associate responds, "We're OK. We've got lots of time. Incidentally, I researched Delaware because the client is a Delaware corporation."
The managing partner sputters, "What? I told you New York. It's the parent company that's a Delaware corporation. Our client is the subsidiary, and it's a New York corporation."
While this conversation is going on, the client is waiting in the conference room. The partner who'd recommended the new associate to the managing partner happens to walk by the managing partner's office as the managing partner is confronting the new associate. The managing partner calls in the other partner, and says, "Go research this issue right now. Put the answer on a slip of paper and slide it under the door to the conference room." The managing partner turns to the new associate and says, "You don't need to be at this meeting." The new associate's stellar reputation is gone.
12. What to do if you just get stuck
You might get to the point in a research project where you’re just beating your head against the wall. You’ve looked and looked and looked and there’s just nothing there. What should you do?
First of all, don’t be too quick to ring down the curtain. Tell yourself that there is a solution, somewhere. It may be that the most promising sources didn’t pan out, but something will. One partner told me about an associate of his who tended to be negative and didn’t seek out alternatives. “She’d come into my office, saying ‘There isn’t anything.’ I’d ask, ‘Well, what about... ‘ and then send her out to research some more. She was a smart girl, but she didn’t seem to realize that sometimes reasonable research isn’t enough!” Harvard's Mark Weber recalls that when he was a new associate, “I had to research an issue that apparently had no case law on it whatsoever. I went back to the partner who gave me the assignment and said, ‘There’s nothing out there.’ He responded, ‘We know that. That’s why we gave you the assignment.’ I learned then and there,” he adds, “that sometimes you’ve got to think outside the box.”
13. If you’re hitting a brick wall, here are three things to try:
a. Squeeze the cases you’ve found a little harder. It may be that their central points don’t help you, but somewhere else there is a lead. As another law school career counselor advises, “Leave pathways open to catch even the most subtle dictum. Ask where the dictum can lead you.”
b. If the cases you’ve found aren’t on point, be sure to go back to secondary sources (you know—hornbooks) to see if the law really is unclear, then “use analogies to similar factual or legal situations,” says Gail Cutter.
c. If neither (a) or (b) work, go to the assigning attorney and explain the dilemma, advises Brooklyn’s Joan King. “Say to them, ‘I know I need an answer to this. I’ve done X and Y and Z amount of research, and this is what I’ve found. What the heck do I do?’ Sometimes you need to rely on people.”
14. Remember, if it’s not shepardized, it’s not good law.
Boy, do people tell tons of stories about this. Giving a client out-of-date law is just about the worst thing you can do. As Loyola’s Pam Occhipinti says, “If your work is out of date, it’s no good—and it’ll never be forgotten.”
So make sure your research is thorough. As Syracuse’s Alex Epsilanty says, “If there are holes in your research, no one will want to work It turns out that the clerk had used a shortcut that only told whether a case was totally overturned, not partially overturned. The particular points on which the partner had relied had been overturned even though the cases themselves hadn't been. Needless to say, the clerk didn't get an offer.
with you. They won’t be able to trust you.” Also, be sure that you don’t overlook cases directly contrary to the cases that support your client. As a Harter Sechrest attorney points out, “You can’t go back to the partner and say, ‘But you didn’t say that you wanted to know about all the major cases that make our position look ridiculous.’” They might not tell you directly, but they assume you’ll point out those cases. I’m not going to beat this point to death because you’ve just spent three years in school, and you’ve done a bunch of research. You know how to do it right. Make sure you bring your best research skills to bear at work!
As I mentioned earlier, one of the very best uses of Lexis and Westlaw is to make sure the cases you’re relying on are up-to-date. If you don’t have access to Lexis or Westlaw, then check the pocket parts on the books you’re using. If you do have Lexis or Westlaw, make sure that you use the full cite-checking function.
Now you’ve got to take all of that brilliant research and turn it into a flawless written product. As lawyers at Wyatt Tarrant recommend, “The most obvious way to stand out is to produce outstanding legal work that reflects careful thought, thorough research, creative analysis, clear writing that reflects superior style and readability, and real potential for handling yourself well in court and with clients.” You’ve got a stack of research materials in front of you. How do you get from here to there?
1. If you’ve never worked for this assigning attorney before, do an “audience analysis.”
You’ll quickly find that there is no such thing as one perfect writing style. You need to be what Marilyn Tucker describes as a “legal chameleon”—adapt your style to suit each attorney you work for.
How do you do this? Ask the attorney, or the attorney’s secretary, or another more senior attorney who’s worked for this attorney before, for examples of writings in the format you’ve been assigned (letter, memo, pleadings, briefs, whatever) that the attorney has written and/or has particularly admired. You’re looking for “style, approach, and formality,” says another law school career counselor. As a Greenberg Traurig points out, “Some attorneys write like Hemingway, in short sentences. Others write like James Joyce, with interlaced footnotes and complex sentences. Tailor your style.” Still others “obsess about punctuation, while somebody else might just want the work done, even in an outline form, with no excess time beyond getting to the answer,” says an attorney from Hogan Lovells. “No matter who you work for, you’ve got to figure out what (s)he likes. What’s (s)he written? Who’s had success working for this attorney? Don’t be afraid to ask questions!”
New litigation associate. He's assigned to a partner. He checks around and learns that this particular partner is a real pit bull, very aggressive, that he likes to "take no prisoners" when it comes to dealing with the opposition.
The partner has a case in federal court, and tells the new associate, "I want you to handle this issue. I want to see how you do." The judge chastises the new associate for not having a document. The new associate blames it on opposing counsel, and instead of resolving things quietly, the new associate starts talking loudly, berating the opposing counsel. The judge holds the new associate in contempt and fines him $100. On the way out of the courtroom, the partner offers to pay the new associate's fine. He's thrilled with the new associate's performance. "They're scared of us now! They'll settle. You watch." The new associate comments later on, "I never would have done that if I'd been working for someone who was more thoughtful and cerebral and didn't like a fight. But I knew this guy would love it, so I gave him what he wanted."
2. Write from an outline.
As another law school career counselor says, one of the biggest flaws you can make in a piece of writing is not to organize it well. If you write from an outline, that can’t happen.
3. If the lawyer mentioned a certain case when (s)he gave you the assignment or anytime during your research, be sure to mention it in your final product.
It may be that during your research, you find that the case the attorney cited to you is actually bad law. Or maybe you’ve found cases that are more on point. Regardless, another law school career counselor advises that if the assigning attorney mentioned the name of a case to you, they’ll be looking for it in the work you turn in. Make sure it’s there!
Summer clerk at a large firm. Partner asks her to research an issue. She has difficulty finding anything applicable and goes back to him looking for guidance. He mentions the name of a case. It turns out that the case he mentions has been overruled. She does the best she can, looking for rules in secondary sources. When she turns in the assignment, he calls her back to his office half an hour later, and, beet-red, asks, "Where's that goddamn case I gave you? This is a piece of s***!" She explains that it had been overruled. She is right, but he is embarrassed, and mumbles, "Well, you should have mentioned that."
4. Don’t forget the “A” in “IRAC.”
Arrgh! I know what you’re thinking. Are you ever going to get away from IRAC? Well—no. The reason I mention it here is that when you’ve done a whole ton of research, the temptation is to just disgorge everything you’ve found. As Georgetown’s Marilyn Tucker says, “It’s not enough to write a good reiteration of the law on a specific topic but fail to analyze the law and how it relates to the pattern of your case.” An attorney from Honigman Miller Schwartz & Cohn in Detroit adds, “Most attorneys are not looking for a summary of cases when they assign projects to associates. Attorneys want to see that you can apply your research to the facts of their particular case or issue.”
5. Be clear, be brief, and be seated.
Have you heard that saying before, about wedding toasts, “Be funny, be brief, and be seated”? I hadn’t either until my new brother-in-law said it at my wedding, as an introduction to his own toast.
Whether you’ve heard the saying or not, when you’re writing something for an attorney, brevity is really important. As one lawyer put it, “A B- student who figures it out in a page is more valuable than a Law Review student who goes on for seventeen pages. So many people get quality and quantity confused.” Another law school career counselor points out that “When a lawyer asks for an answer to a particular question, that’s all (s)he’s looking for. Don’t respond to a narrow securities question with a ten-page treatise on the history of 10b-6 motions. When a lawyer asks for ‘X,’ (s)he’ll be annoyed, not impressed, if you respond with the entire alphabet.” Another attorney recounts that “When I was the director of a summer program, I used to give my own evaluation of summer interns’ written work by taking it home the night before the review and reading it all at once with the TV on before I went to bed. I figured that that approach gave me the perspective of a typical harried, tired, and distracted attorney who only wants to get to the point. If I could easily find the main points and conclusions, I knew that the intern had done a great job.”
Another law school career counselor recommends that after you finish writing, go back over each line and ask yourself: Is it necessary? Why did I say it? Does it relate back to the topic? She also suggests you try reading it out loud or try explaining what you’re writing to someone else. “It’ll be more concise that way,” she says. Another law school career counselor suggests putting your writing to the “Mom” test. “Pretend you’re explaining it to your mom, and not your boss.”
An attorney from Dickstein, Shapiro also suggests that when you read back over what you’ve done, “Take at least a few seconds to reflect on the audience. Judge? Partner? Client? No matter who it is, if you want to persuade, think of who you’re trying to persuade. For a judge—will (s)he buy this argument? If it’s a memo to a partner, is the issue so complex that it’ll put him/her to sleep and draw away from the strength of the first two arguments? If that’s the case, drop something? to footnotes! Make strategic decisions about what will sell. You can still show how creative you are in a footnote or mention issues that you found but didn’t include for the following reasons. A good lawyer knows when to shut up and stop.”
Finally—as I mentioned when we talked about clarifying the assignment, earlier in this section—if the attorney gave you a page limit, make sure you obey that limit! One lawyer talked about his first writing assignment, where he was asked to write a synopsis for the CEO of a corporate client about the next big issue in litigation. “The partner told me, ‘keep it short. Give me two pages.’ I wrote five pages, which I considered short. I took it to the partner, and she said, ‘This is great. Now make it two pages long.’ The CEO didn’t have the time or impetus to read five pages, and the partner knew it.”
6. There’s no such thing as “just a draft.”
As another law school career counselor points out, “Sometimes they’ll say, ‘Oh, just give me a draft.’ Don’t fall for it.” Lewis & Clark’s Lisa Lesage says that “Even if they say they only want a draft, everything you write must be ready for the eyes of a client or a partner. It should be complete, accurate, thorough, and formatted correctly.” Alex Epsilanty adds that “When lawyers ask new associates and summer clerks for a draft, they sometimes get a pile of notes. It drives them over the wall!”
If what they want is a final product and not a draft, then why don’t they just say that you’re wondering. Well, it’s not entirely deliberate. Sometimes, as Marilyn Tucker points out, they’re thinking about the work they get from mid-level associates. Once you’ve got a few years of practice under your belt, then your “drafts” will look a lot more like final products.
Here are the reasons why you want a “draft” to be picture-perfect:
a. “They’re forming an opinion of you, even if they say, ‘Oh, nothing fancy, just pull something together,’” says another law school career counselor.
b. Once you turn in your work, as Marilyn Tucker points out, the assigning attorney will often forget that what you were asked to produce was the first draft. (S)he may look at what you’ve given him/her—handwritten notes, a typo-filled or grammatically incorrect document—and think you’ve lost your mind. As Hamline’s Vince Thomas says, “People won’t think, ‘Oh, he was hurrying,’ they’ll think, ‘He’s an idiot.’ Write everything as if your career depends on it, because it does, even if you’re just writing to the other associates in the firm.”
If the attorney you’re working for really is in such a time crunch that they mean it when they say “draft,” then CYA. Send an e-mail or memo confirming that the work you’re doing is “just a draft” as per their request, and parrot back any comments that they made to you about whether a stack of highlighted cases or handwritten sheets will suffice. And when you turn in the work, make sure that it is as standard as you have time to make it, and clearly write “DRAFT” across the top of every page.
Law clerk, working at a firm during his third year in law school. Three days before Christmas, an attorney asks him to do a rush project that he has to deal with the very next day. The clerk explains that he has a plane ticket booked for the following day to go home and see his family, and the attorney responds, "That's fine. Give me whatever you find, your handwritten notes, anything. I don't care if it's typed. I'd rather that I just get your research." On the clerk's return from Christmas vacation two weeks later, he finds that the attorney hasn't looked at the materials the clerk handed in before Christmas. When the attorney does get around to it, he complains to everybody about the clerk's unprofessionalism and his disbelief that the clerk would hand in something that was handwritten.
7. Make sure your written product is perfect
You want to hand in written work that’s as perfect as you can make it. I’ve already addressed the quality of your research and the way your written work is organized. What we’re talking about here is the “polishing” step. You’ve got to make sure that your grammar is perfect, your work is neat, your spelling is flawless, your blue book form is—well—by the book. The fact is, it doesn’t matter if your substantive work is great. As lawyers at Latham and Watkins point out, “If you don’t attend to the details—organization, grammar, typos—people will assume that you failed to attend to the substantive points as well.”
a. Make sure your grammar is well.
Sitting and reading over a writing assignment isn’t the ideal time for polishing your writing skills. If you’re not sure your grammar is as good as it should be, do yourself a few favors. Number one, get yourself a good grammar book and keep it handy. I particularly like two grammar books, mostly because they’re funny: Woe is I and The Transitive Vampire. You probably have the Strunk and White book The Elements of Style from law school, and if you’re happy with that, great—rely on that instead.
Number two, have somebody you trust read your work before you hand it in. People at work are going to get fed up with you in a hurry if you continue to make the same grammar mistakes, so don’t press your luck there. If you get any feedback at all that your grammar needs work, hire yourself a tutor from the local high school or college.
Number three, xerox this list and keep it handy. Somebody sent it to me over the Internet, and I think it’s not just funny but useful as well.
Rules for Writers
1. Verbs has to agree with their subjects.
2. And don’t start a sentence with a conjunction.
3. It is wrong to ever split an infinitive.
4. Avoid cliches like the plague. They’re old hat.
5. Be more or less specific.
When you hand in work to an attorney, you’ve got very much the same problem. If your work has typos, the attorney who reads it won’t know whether what you’ve said is reliable. As Gail Cutter says, “If you don’t demonstrate your care and diligence on simple tasks like proofreading, you’ll never be entrusted with complex matters.”
On top of that, typos in legal documents can have very serious consequences. If your work goes out with a mistake, it could be worth a lot of money. As another law school career counselor points out by way of example, “The difference between LLC and L.L.C. can be costly. Even though there’s no difference between LLC and L.L.C. in the abstract, if the opposing client’s name is ABC, LLC you write ABC, L.L.C. on the signature line of the contract, you might not have obliged the correct entity.”
While spell-checking takes you part of the way there, as that example shows, you’ve got to proofread as well. That’s because some words are easily misspelled as other words, so spell-check won’t pick them up. Most of the funnier examples I’ve seen have to do with resumes and cover letters. One young woman’s cover letter talked about her “precious lobs,” where what she meant to say was “previous jobs.” Another student had a letter that lauded his summer experience, saying that “I’ve seen things that will go down in the anals of criminal law.” In my Guerrilla Tactics book I talk about the young woman who sent out a three-hundred-piece mass mailer in search of a job, only to realize the next day that in the objective line of her resume, “Seeking a position in public interest,” she’d mistakenly left the “1” out of “public.” Loyola’s Pam Occhipinti recounts how, as a lawyer herself, she waited at the fax machine for a fax from opposing counsel. As it came through, the word “transmission” at the top of the page was missing an “s.”
I know proofreading is boring. But you’ve got to do it. It’s very dangerous to assume that your secretary will catch your mistakes, or the partner will review your work before it goes to the client or the court. As lawyers at Akin Gump point out, “It wastes client money to have a senior attorney do your editing!” And you can’t assume that a partner won’t mind a few rough edges in your work. As lawyers at Perkins Coie point out, “They do mind. And they will remember.”
To make sure that you’ve proofread perfectly, an attorney from Holme Roberts in Denver suggests that you “Read your document backward, starting with page 10, then 9, then 8—take it out of context so that you’ll catch things that would have escaped your notice normally.” Another law school career counselor adds that you should hand- count pages and hand-count exhibits.
All of this fine-toothed-combing is worth it in the long run. Over time, your typos disappear. Your work gets more perfect. So you’ve got that to look forward to. And it’s just a lot easier to develop a reputation up front for perfection so that people will cut you a break later on. As Marilyn Tucker advises, “Your written work lives on. Long after you’ve forgotten about it, it’s still there. It doesn’t disappear. Make it perfect.”
c. Make sure your work is “complete.”
Before you hand anything in, check samples of work in the for-mat you’ve been requested to produce—remember, I told you about this in the beginning of the research section—just to be sure that you haven’t left anything out that could come back and embarrass you.
As lawyers at Barnes & Thornburg advise, “Don’t hand in incomplete work product. For instance, drafting a pleading and submitting it without a signature line gives the impression that you’re not confident the pleading is worthy of a signature. If that’s the case, go back and rework it until it is ready for a signature. Otherwise, it gives the impression that you don’t appreciate the partner’s time, in that the partner can prepare the signature line just as easily as you can.”
d. Appearance counts!
You work hard on your projects. You don’t want them to look like the written equivalent of Pig Pen in the Charlie Brown cartoons. One partner lamented work he’d received from a new associate: When you hand in a written assignment, anticipate that the attorney will ask you, “Are you comfortable with your answer? Did you cover your bases?” As another law school career counselor says, “Look them in the eye and say, ‘Yes, I am’ and ‘Yes, I did.’ Be confident! When they ask you about your work, don’t back down and say, ‘I think it’s OK’ or ‘I did the best I could.’ They want to hear that you’re confident with your work and that they can rely on it as a result.”
“He handed me a bunch of xeroxed cases that I’d asked for, but they looked terrible. The pages were wrinkled and catercornered. And he had highlighted great big sections he wanted me to read with a “Z”—he didn’t even bother to highlight the lines individually! His work was good, but it just didn’t /ooActhat way. I showed him something I’d received from another clerk. It was a neat, unwrinkled stack of cases with tabs on some of the pages and a summary on each tab. It looked perfect. As I explained to him, the presentation creates an impression of the work. If you’re going to take the time to do it, make it look professional!”
8. Remember that at some point, you’ve just got to let it go.
As a lawyer at Goulston Storrs observes, “You can always edit a written assignment again. You will always find some word that you want to change or some concept that you need to tweak. However, at some point the edits become counterproductive. It can be a very scary thing to turn in a written assignment. But I’ve found that the memos I’ve been the most nervous about turning in have come back with the least edits and revisions!”
9. Just before you hand in your work, shepardize it one more time.
Another law school career counselor reflects on a case she handled as a new lawyer. “The day before we filed our brief in a case—the day before—a higher court reversed a case that we’d relied on. The only way we knew it was to do an instant-cite search on Lexis. That saved us. It’s imperative that you know that your cases are still good when you file documents with a court!”
10. Anticipate that you’ll have to defend your work.
No matter how much time you spend on your legal writing, sooner or later you will likely have to defend it from criticism. Whether it is due to an omission, typo, or other error, you need to be prepared to accept responsibility for the error and ensure the person pointing it out that it won't happen again. Sometimes the only way to get better at something is by making a few small mistakes along the way.