November 26, 2014

Legal Writing Pro: Are “Indemnify” and “Hold Harmless” the Same?

Drafting reformers hate couplets. They say, for example, that “terms and conditions” means nothing more than “terms.”

But can couplet aversion go too far? Take “indemnify” and “hold harmless.” Double trouble—or a distinction with a difference?

At least one authority claims that “hold harmless” protects against losses and liabilities, while “indemnify” protects against losses alone.1

Yet not all courts agree. Black’s Law Dictionary treats the two as near synonyms. And some experts even suggest cutting “hold harmless” and leaving just “indemnify.”

A Couplet to Love

My advice: Leave “indemnify and hold harmless” intact. If anything, you should add to this phrase, not subtract.

You can include language that clarifies what the indemnifying party promises to indemnify:

Seller shall hold harmless and indemnify Buyer against any losses, liabilities, and claims arising out of or relating to this transaction.

You can also spell out when the seller is obliged to indemnify the buyer: When the buyer incurs a loss or a liability? Thirty days after the buyer gives notice? After the claim is resolved?

Defend Yourself

If the seller intends to defend the buyer against claims, you could also add “and defend.” Thus “Seller shall hold harmless, indemnify, and defend Buyer.”

You Are Hereby Absolved

Some courts suggest that “hold harmless” is broader than “indemnify” because it prevents a seller, for example, from holding a buyer responsible for claims arising out of the buyer’s own negligence.2

But do you really want to rely on this distinction? Just state whether the seller intends to indemnify claims arising from the buyer’s own negligence.

Want More?

For more on indemnification and other key boilerplate provisions, I highly recommend Tina L. Stark’s Negotiating and Drafting Contract Boilerplate (2003).

_____

  1. Mellingkoff’s Dictionary of American Legal Usage 286 (1992).
  2. See, e.g., Rooz v. Kimmel, 55 Cal.App.4th 573, 582 (1997) (explaining that defendant not seeking indemnification but relying on “the general ‘hold harmless’ provision … to prevent plaintiff from directly recovering against defendant for damage he incurred from defendant’s own negligence.”).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Project Visibility: Understanding the Strengths and Needs of the Elder GLBT Community

There is increasing evidence that gay, lesbian, bisexual, and transgender elders in our community are uncertain where to turn and what to do if they need care or support services. They are concerned with the level of sensitivity and awareness on the part of staff at facilities, businesses, and agencies. The GLBT Center and the Denver Regional Council of Governments (DRCOG) recognize that with a growing population of GLBT elders in the Denver area, steps need to be taken now to ensure a safe and healthy future for these older adults.

Project Visibility is a sensitivity program that began through Boulder County Aging Services, and has developed into a dynamic and continually updated training format that has touched hundreds of concerned providers in Colorado and across the country. The training is comprised of a moving film that showcases the lives of lesbian and gay elders, a Power Point presentation, and discussion of the steps service providers can take to provide good service for the GLBT community.

Free training for people serving older adults will be provided Wednesday, February 15, 2012 at Denver Regional Council of Governments Area Agency on Aging 1290 Broadway, Denver CO 80203, from 9:00 am to 12:00 pm.

Participants will receive

  • A new awareness of the strengths and needs of elder GLBTs
  • A manual to help you get started on simple and effective steps to communicate that your services/agency is welcoming and safe, and
  • Inclusion in a directory of service providers for GLBT elders developed by DRCOG and The Center.

To take part in this free training, contact Jennifer Solms at (303) 480-6796 or jsolms@drcog.org, or Shari Wilkins at (303) 733-7743, ext. 122 or swilkins@glbtcolorado.org.

Legal Writing Pro: Avoid These Clichés Like the Plague

1. An Apple a Day

Example: “The State prosecuted the astronaut on a more serious charge because it wanted a second bite at the apple.”

Don’t distract your reader with an imaginary fruit salad. Instead, explain why your opponent shouldn’t get what it wants: “The State added a new charge only because the court rejected its first bail request.”

2. Giant Ball of Twine

Example: “Her state tort law claims were inextricably intertwined with Medicare regulations.”

Popular variations: inextricably linked and inextricably connected.

Don’t get stuck in the tangled web. Instead, emphasize why the connection matters: “Unless the provider violated Medicare regulations, Plaintiff’s state tort claims must fail.”

3. Your Eminence

Example: “Dr. Smith’s resume demonstrates that she is eminently qualified to opine on damages.”

Have you ever heard of an expert who is qualified, but not eminently so? I didn’t think so. The same goes for such expressions as eminently reasonable and eminently clear. Just stick to the facts: “Mary Smith is qualified to testify because she has a doctorate in economics and has testified in 24 other federal antitrust cases.”

4. Slip Sliding Away

Example: “If the Court allows large punitive damages in this case, it will head down a slippery slope.”

When I was in law school, my contracts professor challenged us to get through our entire course without once using the phrase slippery slope. We held out for just two days before someone slipped. In its place, just explain the danger of not doing what you want: “If the Court allows large punitive damages here, Defendants will be forced to pay many times for the same claim.”

5. Bald Faith

Example: “Plaintiff’s conclusory allegations and bald assertions cannot withstand scrutiny.”

I’m convinced that some of us lawyers develop keystrokes for these couplets. Is any allegation not conclusory? Is any assertion not bald? Judges tell me that these predictable pairs are like fingernails on the chalkboard. Better to focus on what makes the assertions so bald: “Although Jones claims promissory estoppel, he cites no facts to suggest that he relied on Smith’s alleged promise.”

I’ll stop now so I don’t go down a slippery slope of my own. But if I’ve opened Pandora’s box here and you think clichés are the Achilles’ heel of legal writing, please send me more of these tempting truisms—either the ones you love to write or the ones you hate to read.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Judges Gone Wild

Is the country’s malaise affecting our judges as well?

The Seventh Circuit just referred a lawyer to the state ethics board for possible suspension of his license. His sin? “Rampant grammatical, syntactical, and typographical errors” (full opinion).

A federal judge in Texas recently issued a “Kindergarten Order” comparing the lawyers in a discovery dispute to squabbling kindergarteners. (The judge himself was then chastised for “caustic, demeaning, and gratuitous” rhetoric by the Chief Judge of the Fifth Circuit but has refused to back down.)

Also in Texas, in a civil-rights case filed by the mother of a high-school cheerleader who didn’t make the squad, the Fifth Circuit accused the firm representing the plaintiff of “miscues” that were “so egregious and obvious that an average fourth grader would have avoided most of them.” Although the errors flagged by the Fifth Circuit may be “obvious”; many other issues in the main offending paragraph are far less so.

Can you spot 15 writing issues in the highlighted parts of this passage?

The Magistrate’s egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

As I mentioned, there’s much more to this passage than meets the eye—and met the Fifth Circuit’s wrath.

Here are 15 issues, by category:

Four attention-to-detail issues

  1. “Vacateur” is misspelled, though that error is neither “obvious” nor “egregious.”
  2. In the last sentence, “principals” is the wrong spelling. This error may seem “obvious,” but this word is the most commonly misspelled word in legal writing. (Trick: When you mean “rule”, spell “principle” with an –e. Every other time it’s spelled “principal” with an –a.)
  3. Also in the last sentence, “are” agrees with “principals,” not “incompetence.” (Although this error may seem “obvious” as well, I’m not sure that it’s “egregious.” Many other lawyers make the same mistake, not because we don’t know about agreement but because under time pressure, we tend to agree verbs with the last noun we typed.)
  4. As a singular name ending in –s, “Sanches” is made possessive with an apostrophe –s, not just an apostrophe. (Exception: biblical, classical, and mythological names like Jesus or Moses.)

Five redundancy issues

  1. “Failure to utilize or apply the law” says the same thing twice. So often, when we use two verbs, either they have the same meaning or one swallows the other. “Failure to apply” is plenty. Not to mention that “utilize” is jargon for “use.”
  2. “Applying improper legal standards” and “ignoring precedent” mean the same thing.
  3. “Failing to consider Sanches’ 1983 claims” and “summarily dismissing them” mean the same thing.
  4. “Summarily dismissing them” and “without analysis or review” mean the same thing.
  5. “Analysis” and “review” mean the same thing.

Three legal-convention issues

  1. The proper term is “Magistrate Judge,” not “Magistrate.” (In my view, the Fifth Circuit was too harsh in pouncing on this error.)
  2. Inconsistency in using pronouns to refer to the Magistrate Judge. You can make a case for “he” or “she” and “his” or “her.” You can also make a case for “it” and “its” if you see the Magistrate Judge as a proxy for an institution. But you can’t go back and forth. Plus the lawyers dropped the “the” before “Magistrate” in the second sentence.
  3. Don’t “elegantly vary” the language you use to refer to the same thing. If it’s “Court,” call it “Court”; don’t switch to “Judge” or “decision-maker.” Here, then, the lawyers should have avoided shifting between “Magistrate” and “Court.” Switching terms in such a way just confuses the reader.

One syntax issue

  1. If “ignoring precedent” had to be there at all, it should have been much closer to what it modified: “the Magistrate [Judge] applied improper legal standards.” Instead, it dangled at the end of the sentence. (Tip: put all –ing phrases as close as possible to what they modify.)

One rhetorical-construction issue

  1. “Because” is a great word, but it must introduce a true cause-and-effect relationship. Surely “incompetence at applying the law” isn’t “ordinary” for Article III judges—and yet that’s what the lawyers suggest.

One tone issue

  1. Speaking of the “incompetence” line, the main reason for the Fifth Circuit’s tirade was not the various errors in isolation. It was the overall tone: The language is too snarky, even aggressive, suggesting that the lawyers just didn’t think about their audience here. (Tip: The angrier you sound, the more your readers will assume that you don’t have the goods to back up your claims.)

I’ll leave it to you to decide whether the Fifth Circuit’s own language was too harsh, just right, or not harsh enough. But I’m sure we can agree that many of the issues in this paragraph are more common than the court suggests. And if you learn nothing else from this brouhaha, make sure you don’t mess with a Texas cheerleading mom!

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Mentoring Program to Kick Off 2012 With Revamped Curriculum

The Denver Bar Association is now accepting applications for both mentors and mentees for the 2012 Mentoring Program. This year the program will be part of a pilot project that is a cooperative effort by the Colorado Bar Association and the Chief Justice Commission on the Legal Profession. For the DBA’s mentoring program to qualify as a pilot program, we have altered it to mirror the proposed program.

We encourage all DBA members who are interested to consider becoming a mentor or participating in the program as a mentee. Our goal for the upcoming year is to have 100 pairs for the program. The following is a brief description of the program.

Click here for additional information or to apply. Applications are being accepted through November 30, 2011.

Objectives: To promote pride in the profession; excellence in service; and strong relationships with the bar, courts, clients, and the public, through teaching the core values and ideals of the legal profession and the best practices for meeting those ideals.

Qualifications:  To qualify as a mentee in the program, you are not required to be a member of the DBA, but you must be in your first three years of practice following admission to practice law in Colorado, or within your first year of practice in Colorado if you have been in practice three or more years in another jurisdiction. Mentees can petition for inclusion in the program if they do not fit into either of these two categories.

Curricula: The 12-month Mentoring Plan curricula is developed by the mentee and mentor, but must cover certain subject areas, and include an initial planning meeting between the mentee and mentor;  personal and professional development; the Colorado bar and legal community; history and importance of the legal profession; and professionalism and civility. A typical Mentoring Plan involves monthly in-person meetings between the mentee and mentor, which last one to two hours.  The Mentoring Plan can be developed by the mentee and mentor to best suit their schedules and needs.

Benefits: Each mentee and mentor will receive 15 free CLE credits, including two ethics credits, on successful completion of the program (application for CLE credit is pending). The program has components that include group activities, but an emphasis is placed on the one-on-one professional relationship between the experienced lawyer and the new lawyer, because this is one of the best ways to pass on the values, ideals, and best practices of the profession.

Mentors Have Much to Gain from this Role. They have the chance to assist younger attorneys in developing important skills. Lawyers who have been mentored are more likely to stay in the practice than those who are not. The development of these close bonds also helps further the practice of law.

Mentees Can Take Control of Their Career Development. Sometimes new hires may expect the firm to be responsible for their professional development, because many firms today offer resources such as orientation, in-house CLEs, trial colleges, marketing development, retreats, and mentoring programs. However, your future success will in part be dependent on your ability to make connections with those around you and gain their trust and respect. It simply makes good sense to use these offerings to your advantage. Twenty years down the road you may be able to attribute your success, in part, to assistance you received early on from another professional.

The 2012–13 chairs of the DBA Mentoring Program are Melissa Ogburn and Craig Joyce. We will have a kick-off reception for the 2012 mentoring program on January 5, 2012. We look forward to DBA members’ participation in this very important program.

Melissa Nicoletti is the Director of Sections and Committees for the Colorado and Denver Bar Associations.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Ross Guberman: Client Alert or Client Asleep?

Many law firms market themselves by sending out “client alerts” about the latest hot case or regulation.

Here’s a secret: These client alerts leave most clients cold.

Why? Because they fail the “So what?” test.

A Typical Alert

A typical client alert starts like this:

In Verzini v. Potter, No. 03-1652 (3d Cir. 2004), the court discussed the relationship between two defenses that employers can use under the Americans with Disabilities Act (“ADA”). The Court considered both the “direct threat” defense and the “business necessity” defense. The Plaintiff, a postal worker, told his supervisor that his neighbors were peering into his windows while he slept. The supervisor was concerned that the employee was not fit for duty and ordered him to be examined by a psychiatrist. The psychiatrist diagnosed the employee with chronic paranoid schizophrenia. The Postal Service eventually fired him. Plaintiff sued for disability discrimination, but the Postal Service insisted that it had a “business necessity” to fire him because it had to ensure workplace safety. . . .

Any clients still reading are tapping their pens.

A Better Approach

Start by telling your clients what they can or should do now. Only then discuss the case or regulation—and only to highlight the “So what?” factor.

Try something like this:

Under a recent Third Circuit ruling, if an employer fires an employee to preserve workplace safety, the employer need not prove that the employee has directly threatened anyone. In that case, for example, the court allowed the Postal Service to fire an employee who was “unfit for duty” simply because he had refused treatment for paranoid schizophrenia. Although this case appears to allow employers to fire an employee for legitimate business needs alone, employers should take the following steps before doing so. . . .

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Point Made: How to Write Like the Nation’s Top Advocates

Point Made: How to Write Like the Nation’s Top Advocates

by Ross Guberman
338 pp.; $19.95
Oxford University Press, 2011
198 Madison Ave., New York, NY 10016
(800) 451-7556; www.oup.com/us

Reviewed by Charles C. Tucker

Charles C. Tucker is a founding member of Korb Tucker PLLC in Fort Collins, where he represents clients in business, employment, real property, and estate planning matters. He also is The Colorado Lawyer’s Modern Legal Writing columnist—(970) 266-5156, ctucker@korbtuckerattorneys.com. This review was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 79). Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

The legal writer has no shortage of sources to which to turn for advice. The best resources are those that writers can readily put to use. In How to Write a Sentence: And How to Read One,1 law professor Stanley Fish imparts his love of the craft of language with splendid examples from many literary sources. Bryan A. Garner, in The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts,2 uses before-and-after examples to help legal writers cut out the clutter. Judge Aldisert employs a different nuts-and-bolts approach in Winning on Appeal: Better Briefs and Oral Argument,3 and includes many short paragraphs of advice by other federal and state court jurists.

For examples of top-flight writing from actual briefs, though, consult Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman. The book bristles with sentences and paragraphs from appellate documents written by nationally known advocates, including President Barack Obama, U.S. Supreme Court Chief Justice John Roberts, and U.S. Supreme Court Justice Elena Kagan.

Guberman directly tackles brief-writing from the lawyer’s point of view. He identifies fifty techniques for achieving the most persuasive effect at every level, from organizing the brief to the choice of individual words. The techniques are pithy and useful, and therefore memorable:

#3. Why Should I Care? Give the court a reason to want to find for you.

#6. Show, Not Tell: Let choice details speak for themselves.

#21. Interception: Claim that a case your opponent cites helps you alone.

#32. Zingers: Use colorful verbs.

Each of the fifty sections is just a few pages long and includes examples and Guberman’s brisk commentary. Each example is shaded and easy to find. A busy reader can read one or two sections at a time or skip from one example to the next.

In contrast to Judge Aldisert’s systematic method, Guberman’s approach is freewheeling and anecdotal and generally directed at more experienced writers. Some experienced appellate attorneys may question whether briefs ought to have the kind of punch and bite that Guberman advocates. For example, he says that rhetorical questions can be used “to great effect” and to “put the court on the defensive”—though he also warns that they can have a “sarcastic and scathing” effect. A greater flaw, perhaps, is that the examples are not accompanied by citations or a table of cases, which hinders readers who may wish to search for the briefs Guberman praises so highly. The index is thin but does include case names and the names of the writers quoted.

Overall, Point Made is fun to read and a remarkable achievement. The examples alone are worth the book’s modest price.

Notes

  1. Fish, How to Write a Sentence: And How to Read One (Harper, 2011)
  2. Scalia and Garner, Making Your Case: The Art of Persuading Judges (Thomson/West, 2008).
  3. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed., National Institute for Trial Advocacy, 2003).

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. His legal writing articles are often featured by Legal Connection and can be found here.

Another book written by Ross, The Attorney Toolkit: Standout Legal Writing Every Time, one of the most clear, compact, and concise guidebooks on legal writing in the country, is also available for purchase. Click here for more information.

Larry Port: Working Like A Computer

We can learn how to be more efficient from our silicon-based friends.

Let’s face it: those of us working are lucky to be employed in our apocalypse-teetering day and age.  But we’re asked to do more with less, and our attention is scattered in a million different directions.  We multitask, we communicate with people through Facebook, Twitter, text messages, phone calls, email, and who knows what else.  It’s increasingly difficult to focus, and performing all of our responsibilities at a level we’d like to is a tall order.

As a software engineer and productivity junkie, I can’t help but make comparisons to my evolved system of personal management and the way a computer works.  The irony is that many ideas in computer science, like memory, are analogies to human cognitive processes, which have been abstracted for so long they seem to be forgotten.

Organize Daily To-Dos The Way a Computer Uses RAM

We all know we’re supposed to look for a certain amount of RAM when we buy a computer, but a lot of people don’t know why.  When people talk about how much memory a machine has, they are referring to RAM, and it’s what the computer uses to operate.  RAM is an acronym for Random-Access Memory.

But RAM is not permanent memory like a hard drive:  it’s a temporary workspace.    When you launch a program, such as Word®, your computer loads it from the hard drive into RAM, and Word then uses as much memory as it can get a hold of to do what it needs to do.  If you’re composing a long document with a lot of pictures, Word will require more RAM than if you’re writing a one-page letter.  And when you shut off a computer, everything the system stored in RAM is cleared out.

My approach to my daily to-do list is analogous to the hard drive/RAM relationship.  The whole idea is to keep a global store of everything you’re tasked with and differentiate the global store from daily activities.  For example,  I capture everything I have to accomplish in an electronic management program, both short-term and long term, and across multiple projects.   I use Rocket Matter, but plenty of programs manage to-do lists, including Outlook, Mail.app, Remember The Milk, and others.

This global store of my data is like a hard drive.  It’s there every day when I “boot up” in the morning.  Then, every morning, I move some of these tasks into my own personal RAM: I write down everything I’m going to do that day on a fresh page in my notebook, and cross them off as I complete the list.  Organizing my to-do items globally and also on a daily basis is one of the most powerful productivity boosters I’ve experienced in the past year.  It allows me to prioritize my activities every day in the morning and not become overwhelmed by my heap of to-dos.

Reboot: Downtime is Critical For Clarity

When a computer reboots or shuts down, a lot happens system-wide, and as we discussed previously, all data stored in RAM is cleared out.  Computers are more stable now, but those who have worked with earlier versions of Windows remember the need to constantly reboot to clean out all the gunk.  Even today, occasional rebooting is required on our most stable operating systems.

Like a computer, you need to step away from the task at hand.  Rebooting is critical to your performance.  You need your sleep, you need your exercise, and you need your vacation days.

With careers, clients, and kids, it’s difficult to get enough of any of those things.  But when you forgo downtime, you’ll encounter a litany of problems, including decreased memory and ability to concentrate, increased stress, and an increase in your potential for injury.   And that’s leaving alone the obvious benefits of a healthy lifestyle.   Recent studies on sleep indicate that when adults get less than 7-8 hours of sleep a night, the ability to solve problems and recall details decreases.  So you have an excuse to sleep more:  you’ll be less liable to make a critical mistake.

Employ Algorithms to Standardize Processes

Computers execute programs, which are really just a series of commands that operate with data.  A sequence of instructions to solve a problem is called an algorithm, and guarantees that given the same inputs, the program will operate exactly the same way every time.

For example, consider a chess program.  The following algorithm would dictate the moving of a pawn:

  1. If an opposing piece sits in an adjacent, diagonal square, move to that square to capture the piece.
  2. Otherwise, if the space in front is open, move forward one space.

These are simple rules, and would have to be elaborated for opening moves, strategy, and en passant.  But that’s the idea.  The pawn has a very simple algorithm, or set of instructions, and never deviates.

Likewise, to the best of your abilities, you should identify steps for repeatable processes.  Your monthly invoicing, client intake, and hiring processes should be follow the specific instructions of an algorithm.  When you have standardized repeatable processes, you introduce fewer errors into your process, cut down the time needed for operations, and free yourself up for your core work:  providing legal services.

Larry Port is the Founding Partner and Chief Software Architect of Rocket Matter, the leading web-based legal practice management and time tracking product. A speaker and award-winning writer at the crossroads of the legal profession and cutting edge technology, Larry writes extensively for legal publications, including Legal Management, Law Technology News, Law Practice Today, ILTA’s Peer to Peer, Lawyerist, FindLaw, Chicago Lawyer, and others.Larry spoke about legal technology for solo attorneys at the Hanging Your Shingle program this August. The program is available as a homestudy in three formats: video on-demand, mp3 download, and audio CD recordings. The course materials are also available in hardy copy or as an electronic download.

Jay Shepherd: Small Firms, Big Lawyers – Supervising Partners and Teaching Partners

Recently I talked to a fourth-year-associate friend of mine who’d been working at a new small firm for several months. When I asked him how it was going, he said “great” in a way that suggested anything but. So I pressed him for more. The work was fine, he insisted. The clients were fine. His associates were cool. Great, I said. So what was the problem?

Well, he finally let on, there was this partner.

OK, I said. What about this partner?

Well, he said, he’s making my life a living hell. In fact, my friend said, it was so bad, he was thinking of leaving the firm.

What made this partner so horrible?

It wasn’t so much that the partner was horrible. It was that he was merely a “supervising partner.”

Look at the seven things my friend complained about:

1. Not being consistent

First of all was the capriciousness. My friend the associate never really knew where he stood with the supervising partner. It seemed to vary from day to day, even hour to hour. On some days, my buddy thought that he was doing fine, occasionally getting praise from the partner. But on other days, he was pretty sure that the partner thought my friend was the worst excuse for a lawyer ever. Not knowing where he stood with the partner was driving my friend crazy.

2. Not telling what it was all about

When the supervising partner gave my friend assignments, they tended to be narrowly defined and compartmentalized. “Research the collateral-estoppel effect of so and so.” But my friend wanted to understand why he was researching the collateral-estoppel effect of so and so. What was the big picture? How was his work helping the client’s goals? These were questions that partner didn’t seem to want to answer, or even discuss.

3. Not letting him deal with clients

And speaking of clients, that was another thing the supervising partner wouldn’t let him do: deal directly with the clients to any great extent. One time, when he and the partner were scheduled to interview a company witness, the partner got called away for a courtroom conference. He told the associate to reschedule the investigation meeting. My friend suggested that he go ahead and do the investigation without the partner, since he was the one who knew all the details and who had written all the questions anyway. The partner wouldn’t hear of it, and told him again to reschedule. Wouldn’t give him a good reason either.

4. Not getting a chance on his feet

My friend was now a fourth-year lawyer, having spent three years at another small firm before this one. But he had yet to argue a motion in court; not even a minor one. He had never appeared before an administrative agency. And he had never conducted or even defended a deposition. He had attended many, watching and learning as the supervising partner did all the talking. But he had never done it on his own.

5. Not teaching about writing

The supervising partner was very particular about how documents that came from their firm looked. He was a decent writer, and he was very picky and exacting. More times than my friend could count, the partner would mark up his document drafts with bright red ink, rewriting whole sections without much explanation about why. Sometimes, when a brief’s deadline was imminent, he would take my friend’s draft and rewrite it himself. It would just take less time, the partner would mutter.

6. Not letting contribute to strategy

My friend is a sharp guy, and he has good instincts. He enjoyed learning about the strategic reasons for taking actions during litigation. He also had many ideas of his own, and he wanted to share them and feel like he was contributing. But the supervising partner made it clear that strategic considerations were not the domain of associates, and he discouraged my friend from offering his own suggestions.

7. Not teaching him how to market

Lastly, my friend complained that he was learning nothing from the supervising partner about marketing his practice. The partner was an excellent marketer. He could go to a bar conference or a cocktail party, and inevitably return with a new client or a new piece of business. My friend wanted to learn how to develop those skills, but the partner had no apparent desire to teach.

My advice to my friend: get out. This was not a place where my friend was going to develop into an experienced and skilled professional because the supervising partner was keeping him down, whether on purpose or by default didn’t matter. The partner obviously didn’t understand that the partner-associate relationship was not one of supervisor and subordinate, or master and clerk. If anything, the partner’s responsibility is to be a (don’t say “mentor,” don’t say “mentor”) teacher to the associate — a far more valuable teacher than any law-school professor could be. (And even worse than saying “mentor” is when people try to turn it into other words, like “mentee.” Or a verb: “ment.” Do that near me and I’ll ment you in the nose.)

This partner evidently thinks that my friend is there to research cases and write drafts and otherwise do his bidding. But that’s not the primary job of an associate.

The primary job of an associate is to learn how to someday be a partner.

Maybe not a partner at that same firm, but a partner in the sense of a fully formed, experienced lawyer, ready to teach new associates. See how a teaching partner contrasts with a supervising partner:

  1. The teaching partner is consistent with associates so that they know where they stand and how they’re doing.
  2. The teaching partner shows the associates the whole picture, to demonstrate to them where their work fits in and why it’s meaningful.
  3. The teaching partner emphasizes client contact for the associates, early and often. This partner shows the clients that they should have confidence in the associates, and feel comfortable calling them (so that the partner can move on to other work).
  4. The teaching partner gives associates a chance to perform on their feet, early and often. Associates can watch and learn to some degree, but they’ll never really get it until they actually do it.
  5. The teaching partner shows associates how to write, because writing is the most important part of a lawyer’s craft.
  6. The teaching partner brings associates into the strategy discussions, because even the most junior lawyer might come up with something unexpected and helpful.
  7. And the teaching partner shows associates how to go out and get business, giving them a valuable skill and taking some of that burden away from the partner.

My friend wasn’t working for a teaching partner, so he was wasting his time. Sure, it might not be a great job market out there, but he should start looking around right away. Otherwise, he’ll never grow into partnership material himself.

For more advice on this problem — for both the associate and the partner — read the excellent post “The Apprentice Who Can’t Take Over the Practice” at the Golden Practices Blog.

Reproduced with permission of NEWSTEX, LLC, from Above The Law, Small Firms, Big Lawyers: Supervising Partners and Teaching Partners, Jay Shepherd, September 7, 2011; permission conveyed through Copyright Clearance Center, Inc.

Jay Shepherd runs Prefix, LLC, a firm that helps lawyers learn how to value and price legal services. Jay also spent 13 years running the Boston management-side employment-law boutique Shepherd Law Group. He writes the ABA Blawg 100 honoree The Client Revolution, which focuses on reinventing the business of law, and Gruntled Employees, a workplace blog. Jay also writes for Above the Law, where this post originally appeared on September 7, 2011. Follow Jay on Twitter at @jayshep, or email him at js@shepherdlawgroup.com.

Domestic Violence Awareness Month: Serve Your Clients Better by Screening Them for Domestic Violence Issues

October is Domestic Violence Awareness Month. Are you aware of whether domestic violence affects your clients?

You may be asking yourself, “Why should I be?” Let me endeavor to convince you.

I have witnessed the prevalence of domestic violence and have seen how it intersects with almost every practice area in the law. After laboring on the problem of domestic violence for twelve years, in both a legal advocacy and a public policy capacity, I still marvel at the complexity of the matter and the myriad of other issues with which it traverses. But, that is not just my own professional reality. Given that 1 in 4 women will experience domestic violence in her lifetime, and given that domestic violence impinges on people from all walks of life, chances are good that some of your clients are, or have been, in abusive relationships.

It is vital that you screen your clients for domestic violence. Here’s why:

Shame, self-blame, fear, embarrassment, thinking it is irrelevant to the legal advice she is seeking, or not identifying herself as a victim of domestic violence – these are all very valid reasons why a survivor may not disclose abuse to you. Survivors have limited occasions within which to disclose abuse safely and confidentially. Telling an attorney whose communications with her are privileged is one such opening. If you don’t ask questions to uncover potential abuse, you may miss a significant opportunity to provide life-saving referrals to local community resources and to reinforce that the abuse is not her fault, not to mention enhance your legal representation.

For reasons of efficacious and ethical representation, and to avoid the “M” word (malpractice, of course), it is critical to know whether your client is a survivor, and to consider how the context of domestic violence impacts your legal strategizing and advice. A complete picture of the risks and an understanding of the needs arising from your client’s experience are necessary in order to best represent them and to avoid the unintentional harm that can result from uninformed representation.

Of equal importance are safety considerations: your client’s and yours. There are many steps you can take to help increase the safety of survivor clients who continue to be at risk and to manage your own potential risks. The first step is being aware of the domestic violence and whether your client’s physical safety is an ongoing concern. However, risk management and enhanced safety for survivors is far more complicated than seeking solutions to address physical safety alone. For example, without economic security there can be no safety for survivors. With an understanding of the financial risks a survivor client is facing, you are in a position to increase your client’s safety and personal agency by weaving economic justice tactics throughout your legal strategizing and representation.

This Domestic Violence Awareness Month I am advocating for several things. Include domestic violence screening as a standard part of your intake process. Take the time to become familiar with local resources. Learn how to safety plan with your client and for yourself. And become aware of available legal remedies to domestic violence. All are essential for follow-up when domestic violence is disclosed. The tools to get you started are out there, such as this one from the American Bar Association’s Commission on Domestic Violence.

So, I ask you: Why not take action this October (and beyond)?

Amy Miller is the Public Policy Director at the Colorado Coalition Against Domestic Violence. Visit their website for further information and resources or join the discussion on their Facebook page. Amy can be reached at amiller@ccadv.org.

Ross Guberman: Legal Writing Lessons from The New Yorker

Editor’s Note: Jeffrey Toobin will be the keynote speaker at the 2011 Judicial Excellence for Colorado Dinner on November 1, 2011. The annual dinner event is hosted by the Colorado Judicial Institute, which will also be presenting the year’s Judicial Excellence Awards to several local judges and magistrates. Click here for more information.

Looking for some writing inspiration?

Start with The New Yorker, the nation’s best-edited publication. Add Jeffrey Toobin, one of the most talented legal journalists. Now mix in the unsolved murder of a Seattle federal prosecutor, a story Toobin told in a recent issue.

Here are ten great techniques at work in Toobin’s tale:

1. Start sentences with light openers.

Wales, an Assistant United States Attorney in Seattle, had planned to have dinner and spend the evening with his girlfriend, Marlis DeJongh, a court reporter who lived downtown. But that afternoon Wales called DeJongh and said that he had projects he needed to work on at home.

The notion that McKay was fired for failing to prosecute Democrats is plausible. But the passion that McKay brought to the Wales case may have played a part, too.

2. Link the first sentence of a paragraph to the last sentence of the one before.

Neither Wales’s romantic life nor the fender bender yielded promising leads in the murder investigation.

Wales’s work on gun control also failed to produce suspects.

3. Begin a paragraph with a short sentence.

Progress came slowly. Anderson remained the only suspect; in 2004, the Seattle Times reported that the F.B.I. had searched Anderson’s home in Beaux Arts and removed twenty-seven boxes of possible evidence.

4. Follow a long, complex sentence with a short, punchy one.

By 2000, the investigation of the helicopter-conversion industry was winding down, with disappointing results for Wales and the U.S. Attorney’s Office. Only one case remained.

The firm, called Intrex Helicopters, which was based at Powell’s home, was renovating a single helicopter for civilian use. Still, the stakes were substantial.

5. Use a signpost to link your sentence to the previous one.

Several local entrepreneurs decided to retrofit the surplus military models for civilian use. Such conversions were legal, as long as they were conducted in accordance with safety rules established by the Federal Aviation Administration.

6. Convey chronology through transition phrases rather than dates and times.

  • In July, three months before his death, Wales had been involved in an altercation at a parking garage near his office.
  • About fifteen minutes later, someone shot him three or four times through the window from the back yard.
  • Two weeks after the murder, the Senate confirmed a new U.S. Attorney for western Washington, John McKay.
  • A month after [Wales] was killed, the group held a benefit in his honor, which was attended by more than five hundred people, including many prominent Democratic politicians in the state, and raised five hundred thousand dollars.
  • Meanwhile, Wales’s friends began to talk about creating a memorial.
  • Not long after the meeting, John Ashcroft visited Seattle to give a speech at a Coast Guard base, but he didn’t meet with McKay’s staff or mention the Wales case.

7. Use semicolons for parallel constructions.

[United States Attorneys] establish the priorities for each of the nation’s ninety-four judicial districts and announce significant indictments and arrests; many are well known in their communities. Assistant U.S. Attorneys are more like civil servants; they perform the day-to-day work on important investigations and their public speaking is typically limited to the courtroom.

8. Hyphenate phrasal adjectives for clarity and elegance.

  • cell-phone towers
  • gun-control initiative
  • death-penalty case
  • law-enforcement official
  • information-sharing system
  • high-school students
  • highest-ranking official
  • organized-crime unit
  • forty-year-old pilot

9. Set off explanatory phrases with dashes.

The proposal brought out the full might of the gun-control lobby, which spent four million dollars—primarily on television advertisements and direct-mail appeals—and voters rejected the measure, seventy-one to twenty-nine percent.

The F.B.I gave the investigation the code name SEPROM—short for “Seattle prosecution murder”—but the bureau set the reward for tips leading to a prosecution in the case at twenty-five thousand dollars, which was widely regarded in Seattle as an insultingly small amount, and did not offer local investigators assistance from Washington, D.C.

10. Use a colon to set off an explanation that could stand as a complete sentence.

The phrase was partly a joke, a bit of feigned grandiosity to justify a tendency toward excessive meticulousness: Wales did things slowly.

Original Article: Jeffrey Toobin, “An Unsolved Killing” (August 6, 2007)

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Moot Court Judges Needed for National Asian Pacific American Bar Competition

The National Asian Pacific American Bar Association (NAPABA) will be hosting the Rocky Mountain Region Thomas Tang Moot Court Competition at the University of Denver on October 28, 2011. Volunteers are needed to serve as judges.

No experience, judicial or litigation, is necessary. All judges will receive a bench brief with all main issues and applicable case law, as well as suggested questions to ask competitors. Breakfast and lunch will also be provided.

For more information or to volunteer, contact Nicoal Miller or click here.

The Thomas Tang National Moot Court Competition was founded in 1993 by the Asian Pacific American Law Student Association of the South Texas College of Law. It is administered by the NAPABA Law Foundation and the NAPABA Judicial Council. The Competition honors the late Judge Thomas Tang, a champion of individual rights, an advocate for the advancement of minority attorneys, an ardent supporter of NAPABA and the moot court competition. Judge Tang served on the United States Ninth Circuit Court of Appeals from 1977 until his passing in 1995. Judge Tang’s wife, Dr. Pearl Tang, continues the legacy and participates every year.

The Competition is open to all students but is especially designed to reach out to Asian Pacific American law students and provide them with an opportunity to showcase their writing and oral advocacy skills and compete for scholarships totaling $10,000.