Recently in Writing Category

The Denver Post article I interviewed for ran today. It's available online here. I'm quoted near the end.

I was a little surprised at first that the article tended to focus on the difficulties and resistance some lawyers have encountered because of their weblogs. I'm not surprised at the resistance itself, though. Law firms generally tend to be conservative, especially when it comes to the ways they present themselves to the world.

Knowing that, many young attorneys write anonymously. I explained this to the reporter, Greg Griffin, and it was on this point that he quoted me: It was on this point that Griffin quoted me: "I think I share with a lot of associates a general anxiety about saying something that someone with control over my future might think is unprofessional." I probably have less to worry about because I generally don't write about my practice, and I avoid ever writing about my firm. (Suffice it to say I think it's a great firm that does high-quality work and I enjoy working there. When I comment here on issues that seem to afflict the profession or certain segments of it, I hope you will not think that my firm is similarly afflicted.)

Fortunately, the article turned more optimistic after its initial paragraphs. For those who would think about writing as part of their law practice, consider this statement about Greg Piche's blog: "The blog also brings in business, in part, he admits, because it shows off his expertise. Piche said about a third of his clients found him through the site."

Apparently once Holland & Hart got over its initial anxiety about Piche's weblog, it saw fit to launch two more firm-sponsored weblogs, and I doubt they'll stop there. As the Post article explains:

For many lawyers, blogs are a natural way to stay abreast of an ever-changing legal landscape - and to set themselves apart as experts in their domain. Increasingly, law firms see blogs as a key marketing tool that's far more dynamic than the traditional website and newsletter.

I suspect that law firm marketing will, in the long run, head in the general direction that weblogs represent. I've got a feeling that regional firms and specialty boutiques stand to benefit the most from weblogs as marketing devices. But for now, I'm quite content to keep my writing here separate from my work.

On Law.com, via Languagehat: yet another example of automatic spell checking gone awry.

An appropriate instruction limiting the judge's criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction.

The author meant "sua sponte" — on its own motion, without anyone asking for it first.

AKMA writes, "I really, really dislike the use of ‘reference’ as a verb."

So do I. I'd probably use even stronger terms. But I've seen it all the time — I'll even admit, hanging my head in shame, that I have used the word "reference" as both a verb and a verb-derived adjective. That usage seems to be idiomatic in legal work, at least in Denver. I have regularly seen letters that bore a case name and number as the subject line and then began, "I write in regard to discovery in the referenced litigation." Ugh. Ugh!

Abuses of the English language abound in law. I'm not talking about technical terms or jargon; those are deviations from ordinary speech that have meanings developed through years of court cases and customary usage. I mean, for example, the use of the idiomatic phrase "the instant [noun]" to mean "this [noun]." I've seen this most often in pleadings, where the author would use the phrase "the instant litigation" to mean "this case." The only argument I can envision in favor of this usage is that "the instant litigation," is a shorter, simpler form of "the above-captioned litigation" or "the above-referenced litigation." So apparently it's a bad alternative to a worse option.

What on earth is wrong with just saying, "this case," or "this litigation?"

Some archaic idioms, born out of the Norman conquest, are causing confusion and litigation in American law even today. An Ohio Court of Appeals had to sort out whether "clear title" is any different from "free and clear title." (Here's the opinion [Warning: It's a MS Word file]. Here's an excerpt:

III. The Normans Strike Again

Monfort contends, "Although a ‘clear title’ is one that is not subject to any restrictions, the case at bar involved a ‘free and clear’ title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what?

Would that Harold had not lost the Battle of Hastings.

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.

The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . .

(Thanks to Eugene Volokh and one of his readers for noticing the case.)

Doc Searls wrote the other day that "[b]logs are outlines, and blogging is a form of outlining."

My question is, are blogs any different from so many other forms of writing in this respect? At least in the non-fiction world, content organization is a hallmark of good, clear writing. Fiction writing forms may have different rules, but I'd guess they also depend on some kind of organization. The practice of organizing ideas into writing can itself contribute to analytical thinking. Some of my best thinking has been done while my fingers have been working a keyboard -- usually while drafting revisions, since the first paragraphs on the page are almost always crap.

Prof. Lawley's son Alex (6) asked her, "Mom, why does everything have to have an outline?" While we can't really tell if he was talking about the kinds of things that people in the weblog world are talking about, Alex's and Doc's remarks do make me wonder. Perhaps everything does have an outline, if outlining is just one of the ways that we engage in abstract thinking about the world we're in. We make the outlines, and we revise them as we learn and experience more.

Yes, this is a rather Deweyan or Kuhnian notion, but that won't come as a surprise to those who know me.

Halley Suitt wants to know how to get paid for writing (a blog, in this case).

Don't we all?

There was a time, not so long ago, when web-based advertising was to be the wave of the (advertising) future. Banner ads were to make it possible for everyone to have server space, maybe even bring in an income off of their websites.

It didn't work. Maybe that's partly because the web advertising market was disproportionately closed. Everyone advertised their websites on other people's websites, but few people from outside the website-generating market poured money into it.

Halley says, what about Coca-Cola? "I want Coke for a sponsor. I want to write about Coke because I like Coke." We probably won't see it happen, for a few reasons.