Karin Ciano, BridgeTower Media Newswires
Recently I asked lawyers about the piece of legal writing that they most wanted to improve. Briefs won, of course. But guess what came in second? Correspondence.
For readers under 30, “correspondence” once meant exchanging letters with someone; I take it now to mean any exchange of written communication including email or text. In grade school I learned to write letters. My first one, minus the misspellings, probably went something like this:
Dear Mom and Dad,
I love you.
Sincerely,
Karin
Hour for hour, correspondence is how most of us spend our time. Each year I may write a dozen briefs or legal memoranda — yet I may write a dozen letters each week and a dozen emails each day. If my grade-school self were to translate one recent example, it would go something like this:
Opposing Counsel:
Your last letter annoyed me. Why do you have to be such a jerk? Go pound sand.
Very truly yours,
s/ Karin
There has to be a better way. So I followed up my question by sitting down with a great group of lawyers interested in writing better correspondence, and together, we crowdsourced how to write an alternative to the nastygram. Here’s the recipe:
Ingredients: A good night’s sleep, a healthy dose of compassion, and a second pair of eyes.
Step 1: As dispassionately as possible, consider your audiences. For a letter to opposing counsel there are always at least four — opposing counsel, their client, your client, and the court. The court will want to see that you’re not being a bully and breaking the rules. Your client may fantasize about your being a bully and breaking the rules, but what they really want is to get things done and never see you again. The opposite client wants R-E-S-P-E-C-T. Opposing counsel wants respect and courtesy and prefers to get things done, but will likely accept the consolation prize of delivering a snarky verbal beat-down if you insult their intelligence, question their motives, or waste their time. (Oh wait, there’s one more audience: the internet, waiting for us all like a trooper at a speed trap. To keep your letters from going viral, mind the speed limit, buckle your seat belt, and stay in your lane.)
Step 2: Organize your thoughts. Who are you? Whom do you represent? Why are you writing? What do you want? At the start and end of the letter, what business will you be asking for? (Consider whether correspondence is necessary at all: a phone call may be faster and better if relations are cordial and you don’t need to create a record).
Step 3: Write in such a way that if you received the letter, you would be inclined to grant the request.
Let’s take the example of what is commonly called the “demand letter,” but, as one of the lawyers in my group observed, might more profitably be thought of as a “settlement proposal.”
Compare:
A: Your client is the most evil person on earth and must pay my client the sun, the moon and the stars.
B: Under Plaintiff v. The Universe, 123 N.W.2d 456 (1970), my client will be entitled to the sun, the moon, and the stars if it can prove at trial the following elements... Here’s the evidence that I believe will establish each element... As a result, I believe we will prevail at trial. However, I recognize that discovery is expensive, trial is uncertain, and I may not yet be in possession of all the facts — so I would like to propose ...
What’s the difference, you ask? Well, the first is a demand that could be made by a grade-schooler and is likely to be settled at recess on the playground (if at all). The second invites a lawyer to reason from a set of shared values. I may reach a different conclusion or prefer a different case, but if I get letter B, I am being invited to respond like the grown-up professional I (hopefully) have become. Think about it. Have you ever sent letter A to opposing counsel and received in response, “Yes! You’re right. How would you like us to make out the check?”
I didn’t think so. Tantrums are for Twitter. Letter A raises the temperature; letter B lowers it. If you want to get a grown-up response, make a grown-up proposal. And if your client doesn’t feel like they should have to act like a grown up, persuade them. (That’s what we do, right?)
Step 4: Assume opposing counsel has the best of intentions, and humanize them if you can. Can you say something that’s nice and true, for example, that you really enjoyed seeing them at a continuing legal education course? (You might be surprised how often opposing counsel acknowledge that they read this column and even enjoy it. A little appreciation won’t win their case for them, but it might just make me pick up the phone a little faster when they call.)
Step 5: Let your writing marinate as long as possible. I mean it. If you’re angry, step away from the keyboard. Ask a friend to read what you’ve written and give you honest feedback: is it too snarky? Are you litigator-‘splaining something your audience already knows? Are there mistakes that make you look careless or inattentive? Does it make sense? Once they’ve read it, what do they think of you, your client, your case? What do they want to do next? The answers may surprise you. Getting tone right takes time and practice, but it’s worth the investment.
Step 6: Proofread for typos one last time, then send (to whichever audience comes next — your client or your opposing counsel).
Serves: Everybody.
