David Foster Wallace: Avoid Noxious Puff-Words

I confess that I dream of having the kind of following that if I said, “Read David Foster Wallace or you’re dead to me!” there would be a subtle, but statistically significant, uptick in sales of Infinite Jest the following week. Sadly, I do not have that kind of following, and cannot afford to tell readers they’re “dead to me” in any event.

But that won’t prevent me from quoting one of his “Twenty-Four Word Notes” from another favorite, Both Flesh And Not. Specifically, discussing the term utilize, he writes:

“Utilize  A noxious puff-word. Since it does nothing that good old use doesn’t do, its extra letters and syllables don’t make a writer seem smarter; rather, using utilize makes you seem either like a pompous twit or like someone so insecure that she’ll use pointlessly big words in an attempt to look sophisticated. The same is true for the noun utilization, for vehicle as used for car, for residence as used for house, for presently, at present, at this time, and at the present time as used for now, and so on. What’s worth remembering about puff-words is something that good writing teachers spend a lot of time drumming into undergrads: ‘formal writing’ does not mean gratuitously fancy writing; it means clean, clear, maximally considerate writing.” (p.261)

While not targeted toward an audience of lawyers, this is excellent advice to any writer, including lawyers. Avoid puff-words. They’re just noxious.

And no, the irony is not lost on me that this writer, who here urges “maximally considerate writing,” foisted upon us, his readers, arguably the most frustrating, wonderful, puzzling, brilliant, maddening and challenging novel since Joyce penned Ulysses. Infinite Jest spans 1,079 pages and includes 388 separately numbered endnotes (some of which have footnotes of their own). Nope, I love irony.

Five Rules of the Rules of the Road

A couple of posts back, I tried to address the difficulty of getting jurors to apply commonly used, but inherently ambiguous, legal terms and principles, such as “reasonable” to the facts of a particular case. For example, when the jury is instructed that a defendant is liable if he/she/it acted “unreasonably” under a set of circumstances, what are jurors supposed to do with that term?

A solution proposed by Rick Friedman and Patrick Malone, in their popular book, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability,† involved developing a set of rules or principles or standards which, when applied to the evidence of what occurred in the case, yield the conclusion that the defendant did not act reasonably (or indeed acted reasonably, depending on whether you represent the plaintiff or the defendant). In that post, I promised to follow up with some guidelines, or rules of the rules of the road. Here we go.

Rule No. 1: A rule of the road should be a requirement that the defendant do, or not do something. (22) The authors describe the basic structure as follows:

“A [type of defendant] should (or should not . . .) do [fill in relevant conduct sought to be enforced by plaintiff].” (23)

Here’s an example: “A surgeon should carefully identify what it is he/she is supposed to be cutting before commencing surgery.” Or, “An insurance claims examiner should fully, fairly and promptly evaluate and adjust a claim for coverage.”

Rule No. 2: A rule of the road should be easy for the jury to understand. (22) After all, the whole point of having rules of the road is to aid the jury in understanding an already ambiguous word or concept in a way that is favorable to your client. To illustrate this point, the authors suggest that, in the context of a physician’s alleged failure to diagnose a disease, a rule of the road can be gleaned from an internal-medicine textbook. However, the language from the textbook may be unnecessarily arcane, and a principle that jurors can easily understand may need to be refined into more accessible wording. (I realize my own wording is often inaccessible and arcane and my blog posts should probably be re-written to be easier for readers to understand. Blame all those philosophy books I read in college.)

Rule No. 3: A rule of the road should be a requirement that the defendant (or, if your client is the defendant, then the plaintiff) cannot credibly dispute. (22) Your opponent may not easily buy into the rule but, as the authors point out, “[d]isagreeing with the Rule should hurt the defense as much as or more than agreeing with it. If a doctor endorses a text as authoritative . . . he is going to look bad disagreeing with a simple, straightforward principle stated in that text.” (25-26)

Rule No. 4: A rule of the road should be a requirement the defendant has violated (or, if you represent the defendant, one he has not violated). (22) Otherwise, why would that principle or standard matter?

Rule No. 5: A rule of the road should be important enough in the context of the case that proof of its violation will significantly increase the chance of a favorable verdict. (22) “This is not like issue-spotting in law school. Your case does not get better in proportion to the number of Rules you add to your list.” (30)

The Rules of the Road approach offers a strategy to bridge the chasm that inevitably exists between broad, ambiguous legal terms and principles and the concrete evidence received by the jury during trial. As the authors note, “[w]e cannot let jurors make up their own definitions.” (15) And you certainly shouldn’t let your opponent do the defining. Developing a set of rules that adheres to the requirements above should help you avoid getting broadsided at trial.

†Citations are to the second edition.

Defining Unreasonably Indefinite Words, Like “Reasonable”

One of my great pleasures in raising my daughter is watching her encounter and struggle to make sense of the inherent ambiguities of our language. Puns are a particular favorite. She first learns to draw a picture. Then her mother suggests she’s going to draw her a bath. She gets into bed and draws up the covers. We have yet to draw a conclusion, but that’s coming. Whenever we encounter a word with multiple meanings, it is a simple matter to draw her attention back (pun intended) to the d-word.

I am not a poet, but I do delight in the elusive, liquid ambiguity inherent in language. Except, that is, when drafting (and hoping a jury will understand and follow) jury instructions. Then the indeterminate nature of our language can become an obstacle. An obstacle to understanding. An obstacle to winning.

A great example occurs when we ask jurors to apply a “reasonableness” standard. Was a driver’s operation of his vehicle reasonable? Did the doctor act reasonably when he did not order a particular diagnostic procedure? Was it reasonable for the insurance carrier to deny coverage based on the information available to it?

Whatever issues scholars raise about the “reasonableness” standard, I’m speaking now only about the difficulty in getting jurors to understand and apply such a term in deciding the outcome of my client’s case. And, because I am, yes, a lawyer, by “understand” I mean to know and use the term in a way that guarantees a verdict in my client’s favor.†

Rick Friedman and Patrick Malone, have dealt with precisely this challenge in their popular book, Rules of the Road. Of course they describe the problem far better than I do:

“For the jury, we need to define ‘reasonably prudent doctor’ and ‘reasonable basis’  . . . and all other ‘reasonables’ . . . too. We cannot let jurors make up their own definitions.” (p.15)*

But, without guidance, we know jurors will absolutely make up their own definitions. And, as Messrs. Friedman and Malone point out, they’re not likely to get this guidance from the judge or other jury instructions. It’s up to the trial lawyers to teach the jury about the meaning of reasonableness, so they’re prepared to apply the otherwise nebulous standard to the evidence of the case.

How to do this? As you can imagine from a book subtitled, “A Plaintiff Lawyer’s Guide to Proving Liability,” their methodology is presented 100% from the plaintiff’s perspective. But that doesn’t dilute the quality of their solution to the problem for a lawyer representing either a plaintiff or a defendant. Essentially, the lawyer formulates a set of “rules of the road” which are guiding principles for the conduct of a reasonable actor (i.e., doctor, insurance company, driver). By developing these “rules,” and then establishing that the defendant did not do some or all of them, it becomes possible to educate and persuade the jury to find in the plaintiff’s favor on the ultimate question whether the defendant was unreasonable and, thus, liable.

As the authors point out, the “rules of the road” for a particular case can derive from several sources, including statutes, case-law, textbooks, industry standards, articles, expert opinion and contract provisions. The most comprehensive example given in the book of a set of “rules of the road” involves the standards and principles an insurance company should adhere to when handling a claim. Here are some they list:

“4. Company must conduct a full, fair, and prompt investigation of the claim at its own expense.

5. Company must fully, fairly, and promptly evaluate and adjust the claim.

* * *

7. Company may not deny a claim or any part of a claim based upon insufficient information, speculation or biased information.

* * *

11. Company must give claimant written update on status of claim every thirty days, including a description of what is needed to finalize the claim.” (pp.16-17)

During opening statement and expert testimony, the jury learns that these principles are valid and accepted standards for an insurance company to follow when handling a claim presented by an insured. The evidence is then framed so that it is easy for jurors to see how the standards were not met. (Conversely, for the defendant, that the standard was met.) If, for example, a claims adjuster is not prompt in evaluating a claim, and does not provide regularly written updates on the status of the claim, he has violated two of the “rules of the road” for insurance claims handling. If the evidence establishes the insurer did not have sufficient information on which to base its denial of coverage, there’s another rule broken.

In closing argument, in discussing the ultimate question, i.e., whether the insurance carrier was reasonable in its handling of the plaintiff’s claim, it becomes much easier to educate the jury how, given the accepted claims handling standards they’ve heard so much about, the carrier was most certainly not reasonable and a verdict in plaintiff’s favor against the company is appropriate.

I recognize this is unfairly reductive. It is not reasonable or even possible in a 900 word blog post to do justice to a 300+ page book. But this is the goal of the book, providing a framework for trial lawyers to break down complex or undefined terms, like “reasonable” into concepts that readily guide a trier of fact into returning a favorable verdict. I plan to do a follow-up post in the future which discusses the authors’ criteria for developing “rules of the road” which apply to a particular defendant or case. Until then, stay in your lane!

†Yes, I do know there are no guarantees.

*All citations are to the second edition.

Knowing The Score Before You Open Your Mouth

Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ‘em as you see ‘em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.

On the Beauty of Process: The E-Myth Attorney

Like many business books, the Attorney entry into Michael Gerber’s E-Myth series is substantively less revolutionary than it sounds.  But, it contains advice which, if followed, can be transformative. 

What is an E-Myth Attorney? “In short, the E-Myth says that most attorneys don’t own a true business–most own a job disguised as a legal practice.  They’re doing it, doing it, doing it, hoping like hell to get some time off, but never figuring out how to get their business to run without them.  And if your business doesn’t run well without you, what happens when you can’t be in two places at once?  Ultimately, your practice will fail.” (From the Preface, xvii.)

The book is largely about transforming lawyers’ approach to their practices, so they think more like entrepreneurs.  There seems to be a cherished, romantic view that professionals, like doctors and lawyers, should somehow be above treating their practice as a business.  As if being called to the priesthood, one is called to the practice of law, and lawyers should avoid transforming this calling into a profitable enterprise.  I read blog posts and commentary that frown upon the notion that lawyers should build their law practice like a business.  That thinking is noble and all, until it comes time to pay off student loans or put a child through college.  Though we constantly confront media reports to the contrary, I’ve argued that there’s nothing mutually exclusive  about being a highly ethical professional, but also thinking like a business person.  This is exactly the premise of The E-Myth Attorney.

How should a lawyer think more like an entrepreneur?  The E-Myth authors focus heavily on the development of systems, ultimately a “system of systems.”  It’s not complicated.  Using the fantastic success of McDonald’s as a case study, the book discusses how that company “needed to turn pimply-faced, ADD, teenaged kids into productive workers in charge of multimillion dollar franchises.”  (64)  How did they do it? By developing a system for performing every task of the business which is imparted through meticulous training to every “pimply-faced, ADD” employee.  Figure out how to make the perfect hamburger or french fry, and train every employee to do it that way every time.  Starbucks uses the same philosophy, so I know a Grande nonfat latte in Toledo, Ohio or Montecito will taste just like it does in downtown Los Angeles.

Of course lawyers don’t make burgers, fries or lattes.  But much of the nuts and bolts of what we do–at least those parts that do not require our active thinking and involvement–are not too dissimilar from making burgers and fries in the sense of repeatability.  For example, a law practice that caters to individual clients, such as estate planning or family law, should develop a system for client intake, information and file management, calendaring and billing.  These aspects are required for every client, every case.  Most intelligent law practices already have systematic procedures for these tasks.  But there are other aspects of the practice that are capable of systematization, but which we tend to shun or put off systematizing.  Not only should we develop and use form files (they benefit attorneys and clients), but forms should be organized in a way that provides instantaneous access.   A practice which sees the same or similar claims or defenses over and over should have form discovery which goes out in every such case and which can be quickly tailored to fit unique or individual facts or claims.  Systematizing the familiar and repeatable parts of our practice frees us to direct our minds and attention away from the mundane, and toward that for which each of us are uniquely, and expensively, trained. 

The book encourages attorneys to develop a manual about every element of the practice which can be given to a new employee.  Without this, the authors argue, the departure of a staff member becomes the kind of catastrophic event from which it takes months to recover.  And, the authors touch upon other points, including the notion of being selective in accepting clients, alternative billing arrangements, managing time and alternative marketing strategies. 

But, for me, the E-Myth is ultimately about appreciating process.  I would argue that actively utilizing process and developing systems won’t just make our law practices more profitable and tolerable (what, take a vacation?!?), but it can help us do a better job as advocates.  I’ve seen the beauty of process first-hand, as my long time mentor is nearly obsessed with developing repeatable procedures for everything from answering an email from a client (must be the same day even if a substantive response is not immediately possible), to maintaining discovery notebooks for every case into which are gathered discovery, responses, correspondence about discovery and matrices of document productions in a single place.  I’ll confess that, after nearly two decades of trying to follow these procedures, it’s only now that I recognize that attention to process should appeal to everyone, not just the anal-retentive members of our profession.  It will make our practice better and our life easier.