Sunday, March 28, 2010

To Go Boldly

I've had a great time lately expanding my reading list to include poetry.  Kay Ryan's recently published The Best of It, is a treasure trove of interesting and provocative bits of language.  Her poetry makes me slow down and think--always a great thing for a hyperactive lawyer.  In any event, her thoughts and words reminded me how much I like to write, and write well.  For your reading and writing pleasure, here's a re-run of one of my favorite posts on effective legal writing, first posted on May 16, 2009.




I have been a Star Trek fan since about 1969. Growing up in North Dakota, where the sun set at about four in the afternoon for many months of the year, meant that the television was turned on early each day. My siblings and I watched Captain Kirk, Spock, Bones, and the rest of the characters religiously, and years later my husband-to-be and I spent many of our early "dates" watching re-runs under the watchful eyes of my parents. Every time a new version of Star Trek emerges, we're first in line at the theater (loved the latest—except for the cheesy "Spock meets Spock" scene.)

In any event, imagine my dismay when, as a young lawyer, one of the partners at the firm where I worked as a summer soundly criticized the split infinitives in my writing. I loved the cadence of "To boldly go where no man has gone before." But it was apparently wrong, so wrong. Ditto, starting sentences with and, but and or. So many lyrical phrases that I favored from the classical and modern writers were "improper." As I began my legal writing career, with the Internal Revenue Service pronouncements as my model and the Internal Revenue Code as my muse, writing became an exercise in formula, drudgery, and passivity.

So that is one of the many reasons I love the May Book of the Month Club selection: Garner on Language and Writing, by Brian Garner (ABA, 2009). There is a place for split infinitives, conjunctions as sentence starters, and colloquialism in persuasive writing! An active voice can shout from the page! Brevity is good. Garner reminds us, in his essays, that a good writer simply knows when and how to use these techniques. I will warn you, though, that the book is daunting not just for its length (839 pages) but also for its implicit challenge to lawyers.

Garner's essays of course touch on persuasive writing skills, but surprisingly also address both transactional and legislative drafting techniques. A huge fan of plain language writing, Garner's collection seems downright obsessive on the topic, and with good reason. Few lawyers start out as good writers; law schools, in general, don't have time or interest in teaching writing skills (they're rightly focused on bar passage rates). Those few newly-minted lawyers who do have the ability to write clearly, concisely and persuasively usually have those skills ground out of them in a few short years spent in the oppressive grind of Big Law. Even if they aren't tax lawyers.

In any event, I highly recommend the book to every lawyer whose performance review has ever included the remark "writing needs work." It's silly to expect law firms to teach writing skills—successful lawyers are busy enough working for their clients, they don't have time to teach new lawyers how to write well. Writing is a skill that most people can learn from reading Garner and others in his recommended reading list, and from daily practice.

So here is my suggestion: if you want to be a better writer, get Garner, and read an essay each night (they are brief, most take only ten minutes to read.) Then, following Garner's advice about daily writing practice, start a blog. If you are shy about your writing, keep the blog private except for a few close confidantes whose opinions you'll gladly hear. Then write every day about your favorite legal topic. Garner's essays will lead the way, but you have to do the work. You'll find in no time that your legal writing will also improve. The exercise will kill three birds with one stone: you'll improve your writing, become familiar with blog technology, and write daily about your legal area of interest. I suspect that serious students of this method will eventually make their blogs public, and will then be on the road to a serious, well-written web presence.

Go, boldly!
Cynthia

Wednesday, March 24, 2010

Humility, Part Two

Today's post continues my musing on how to write bills that clients will pay, particularly where the initial engagement promises discounted fees. In my last post I shared my views on red flags that indicate a discounted arrangement is unlikely to work, and that the deciding factors for me revolve around the client's level of humility or, conversely, arrogance. Just as a good client recognizes the lawyer's skills, expertise, and generosity in taking on any client problem, lawyers should send invoices recognizing that it's a privilege to work for every client.  Both parties should enter into the lawyer-client relationship humbly, recognizing and respecting the other's role.

The opposites of humility are entitlement and arrogance, and those traits can be found in lawyers, as well as clients. An arrogant lawyer sends bills reflecting little information about the quality and quantity of effort spent on solving the client's problems. An entitled lawyer block bills with vague descriptions of work provided. An arrogant lawyer sends a bill before the answer or the document is provided to the client. An entitled lawyer waits months after conclusion of a matter before billing for it. An entitled lawyer spends time far beyond what she knows the client can afford to spend for the matter, and sends an invoice despite knowing the client isn't in a position to pay it.

A humble lawyer, on the other hand, provides a realistic budget in advance, communicates with the client when unexpected issues or costs arise, and relates in a timely invoice a clear narrative of the attention paid to the client's work with a cover letter that invites a dialogue from the client about the bill. After all, a legal bill is merely a suggestion of what the lawyer thinks the value of her work was to the client. Occasionally, mistakes are made, or clients will disagree with the suggested amount. If, over time, a client and lawyer consistently disagree about the value of the work provided, it's obviously not a suitable arrangement and the client should be referred elsewhere. But its best to do that in the context of a professional, respectful relationship rather than in a contentious fee dispute that's heading toward litigation with a former client. When a lawyer-client relationship devolves to that point, it's usually a reflection that neither party recognizes the role of humility.

IMHO.

Cynthia

Sunday, March 21, 2010

Humility, Part One

I had a couple of conversations this past week about the philosophy of discounting legal fees. One caveat before my ramblings, though: these thoughts are relevant only to practices that generally bill by the hour or project, not for practices where the standard is contingency arrangements. I have no personal experience with marketing to clientele that expect to pay legal fees only contingent on a successful outcome.

In any event, unpacking my thoughts today reveals two topics, I think: When to take on new work at a discount, and how to write bills that clients will pay. In an ideal world we sell our services only to nice clients at a fair price that reflects the effort put in to develop our legal expertise, judgment, and reputation as a lawyer. The ideal client recognizes all that, and when looking at the bill each month believes it to be fair—not a great deal, but certainly not excessive. Of course we're not going to hit that sweet spot with every invoice, but that should be the goal.

So what are the red flags that indicate a discounted fee arrangement isn't appropriate, because either the lawyer or the client will feel cheated? Whether the client is the right fit for the lawyer's expertise often becomes clear in the very first conversation; this has taken me years to learn, and many good and bad experiences to appreciate.

Introductions that begin with "you don't know me, my company, or my legal problems, but can I just pay you for five minutes of your time?" are a clear indicator that the client is not going to appreciate the legal work. That client prospect may know all about the lawyer, the practice he or she has developed, and her reputation in the field. The client believes skill and effectiveness translate into speedy cheap service. Or, the client has no idea what it takes to provide effective legal help. Another red flag arises with a client who purports to have a business plan for a product or service that will change the world, but has no capital at all and wants the lawyer to invest in his venture with his time, reputation, expertise and insurance.

There is a time and a place for a lawyer to give a very quick response, there are unsophisticated new clients who have no idea what they are getting into but turn into fine client relationships, and there are many good reasons to invest "free" hours in a new client's idea. The tough part is knowing when.  I've come across these situations many times over the years and have jumped in and helped.  But  I've also taken a pass on many such clients and referred them elsewhere. My decision about which to take, and which to pass, isn't random though: my test for whether to proceed in spite of red flags is the prospective client's humility.

I bet you think that's odd. Perhaps a better way to say it is that if I'm seeing these red flags, and I also sense a flavor of arrogance or entitlement, I expect I'm setting myself up for an unpleasant relationship with a client who doesn't respect quality legal work, who wants something for nothing, and maybe even expects me to bear some of their burden for the situation they're in. In any of those cases, I'll take a pass.

Next post will be on humility in sending bills. Yes, it does work both ways.  And I'll tell you why I think so.

Cynthia

Monday, March 15, 2010

Haiku #15

Warm spring day, bees swarm
Wanted: New home for the Queen
Just not in mine, please!

Cynthia

Saturday, March 13, 2010

Happy Volunteers

Here's the question of the day: does volunteering make people happy, or do only happy people volunteer?

This is my season for weekend volunteering with Tax Aid, which operates 28 clinic sites throughout the San Francisco Bay Area, each of which is staffed entirely by volunteers for three or four days during tax filing season. In our third session this morning, a happy crew of about 15 people spent several hours on a glorious spring day in the windowless basement of a church, helping clients file their tax returns. Yes, I know what you're thinking—ick. Well, it's actually quite the opposite. The group of volunteers spread happiness to our clients, and to each other.

A number of studies talked about in the popular press lately have described data showing how a person's happiness is greatly influenced by the happiness of the people around her. I don't know if those studies are valid or not, but I can add anecdotally that over the course of the four years I've been involved with this volunteer effort, the volunteers are all happy when they arrive, and we all leave each session even happier.  Plus, we've spread happiness to our clients.

Get the volunteers talking and there's another big surprise: they all have a variety of other causes for which they also volunteer—in fact several of this morning's team members were on their way this evening to another voluntary service project. Cynics out there might suggest that these people have nothing better or remunerative to do, but those cynics are wrong.  (BTW, people with nothing better to do sit at home, surf the internet and write blogs... but that's a topic for another day.)

Voluntary service makes people happy because they are thinking of others, not of themselves. Real volunteer service, that is not compelled or done as "business development" or for "hours credit," is enormously satisfying to most people. There may be exceptions--I'm thinking of perhaps dysfunctionally narcissistic people, or those lacking any ability to feel compassion for others. But for any of you dear readers feeling a general angst, or low level depression due to lack of meaning in life, try volunteering on some cause you care about. I guarantee you'll be happier.

Cynthia

Sunday, March 7, 2010

Story Tellers


So I'm sitting here with my daughter critiquing Hollywood and the people that make the movies we all love.  I haven't seen many this year so my Oscar comments are pretty much limited to apparel, makeup, facial hair and other such superficial things, rather than the quality of the stories, the film makers, and the people whose acting skill has put them on stage tonight.  And that leads me to reflect on the place that telling stories has had in human cultures across the millenia.  From Native American Storyteller dolls, to books, to motion pictures: stories are an integral part of cultural education, and our messages to eachother of caution, remembrance, love, hate, comedy, tragedy, and beauty.

So today's theme on women, law and story telling comes to us from guest blogger, Caitlin Sislin, Advocacy Director for Women's Earth Alliance:

As the Advocacy Director for Women’s Earth Alliance, I build and steward a pro bono legal and policy advocacy initiative to support indigenous environmental justice campaigns. Advocates within the Sacred Earth Advocacy Network apply their skills and expertise in collaboration with indigenous women environmental leaders, working towards justice and sustainability while challenging resource extraction, waste dumping, and sacred sites desecration.

In facing the seeming intractability of these entrenched, systemic problems – the exploitation of land and concomitant decimation of culture – I often consider: how do we act most effectively as advocates? What, in fact, is advocacy? I believe that advocacy can be characterized as storytelling with a purpose, storytelling that makes change.  Which stories do we tell?  To whom do we tell them?  How do we tell them?

As to environmental matters, particularly: which stories must we surface in order to alter our shared cultural narrative, moving towards sustainability, balance and justice? Who are the decision-makers endowed with the power to get us there? And how do we tell these stories when our legal system is not entirely equipped to respond to them? 

Environmental advocates apply our collection of federal and state environmental statutes in order to protect and preserve land, resources and people. Simultaneously, however, we see that the legal system often remains invested in exploitation of natural resources and land.

So how do we defend a sacred, alive world within the confines of a system that has little room for the sacred, which instead sees the world as a collection of non-living resources? By telling stories which say no to devastation, and telling those stories according to the terms of the system; simultaneously, we also tell stories which say yes to alternate narratives that transcend the supposed duality between economic progress and environmental sustainability. Despite some inherent limitations, the law remains our most effective tool for telling stories on behalf of and in defense of life. So we defer to the internal logic of the system, while laying a pathway for that logic such that it leads inevitably to a new result.

Caitlin Sislin, Esq. is the Advocacy Director for Women’s Earth Alliance, where she coordinates the Sacred Earth Advocacy Network — a network of pro bono legal and policy advocates in collaboration with indigenous women environmental justice leaders. For more information about participating in the Advocacy Network as a pro bono advocate, or its three 2010 Advocacy Delegations to sacred lands in the U.S. Southwest, please contact Caitlin at caitlin@womensearthalliance.org.

Cynthia

Monday, March 1, 2010

What Women Want

AmLaw Daily ran an interesting piece last week on reporting by law firms of women partnership statistics.  In What Women Want: Partnership Details, posted on February 24, 2010, reporter Vivia Chen writes about a NALP request for the breakdown of equity versus non-equity partners by gender from the member firms in their annual data request for the Directory of Legal Employers.

Law firms suggested several reasons for refusing to give the information:  that it is private business information, that it would stigmatize the nonequity partners, that clients would insist on lower billing rates if they knew that the lawyers handling their matters are nonequity (?! don't quite get that one), or that it would highlight the real lack of progress in women attaining parity in partnerships. 

One partner commented, interestingly, that all partners, equity and nonequity, have equal rights and votes.  I don't think many lawyers actually believe that.  The reality is that, equity or nonequity, "voting" rights are generally illusory in all law firms.  Only partners who control a relatively large share of client relationships will have any influence at all in firm decisions.  Unless and until a lawyer has the book of business, it won't matter what you call her. 

In any event, NALP shouldn't have caved to its members who refused to divulge the statistics.  It's no more private than the number of partners, the average profits per partner, or any of the other publicly supported statistics.  You can bet that if the statistics showed parity among the various categories of diversity, the firms would share the data. 

Cynthia