It is simply too easy for lawyers to quickly lose credibility within the bar and before the judiciary. It seems we've already lost this battle with much of the public, but within the profession I like to think we begin our careers with an undeserved presumption that most of us (at least those without the last name "Madoff") are straight shooters. This presumption should be nurtured and guarded for the gift it truly is.


A lawyer's individual reputation for honesty is as important, if not more important, than his or her intelligence or skill set.  Why? Most of us quickly learn that if we're out of our comfort zone skill-wise, we have choices.  We can involve another, more experienced practitioner.  Or we can double up on our research until we completely understand an issue or area.  Skills can be improved.  The same is not true for reputation.  Once our reputation for honesty is placed at risk, it is nearly impossible to fix.

The easiest way to lose credibility is almost too obvious to mention: to be untruthful, even about the most trivial detail. It's not necessary to falsify documents or manufacture evidence; a lawyer's reputation for honesty can be ruined simply by stretching the truth when "memorializing" a telephone conversation. We hang up, I read your letter, realize you've mischaracterized our discussion and from that point forward I don't trust a word you say. Worse, when my law partner mentions ten years from now that he's got a case against you, the first thought that comes to mind, which I surely share, is that you're not to be trusted. And just like that, you're no longer trusted.

Being untruthful with the court is even more dangerous.  Setting aside the risks of sanctions, contempt, complaints to the state bar, etc., judges have institutional memory which can follow you your entire career. Just as I'll tell my law partner that you can't be trusted, judges do talk, and have lunch together and, I am informed, discuss their cases and the lawyers appearing before them.  Let just one judge conclude that you are a lawyer capable of lying to the bench and that alone could devalue any statement you ever make in the same courthouse or even jurisdiction.

Many lawyers believe we only have our time and intelligence to sell on the open market.  I would add that neither time nor intelligence have any value at all without a reputation for honesty. Once we lose the trust of our colleagues and judges, everything about the practice of law becomes more difficult, especially winning cases and getting referrals.  Don't risk it.

as originally published at www.atcounseltable.com
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I cut my teeth as a young lawyer doing almost exclusively automotive product liability defense.  What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial--and won!  How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer?  Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.

A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case.  He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors.  No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn't care much about cars at all, understand a component, and comprehend why a company chose design A over design B.

What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury.  If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn't available or why the design advocated by the plaintiff's expert wouldn't work or would have produced the same (or even worse) result.  This is why it's so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.

A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers.  To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves.  I like to think this principle can be equally applied to any context in which jurors are going to be asked to evaluate highly technical evidence.  It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.


This blog was originally posted on July 21st on the blog Atcounseltable. Alex Craigie is a member at Dykema Gossett in Los Angeles, California. 

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Categories: Evidence | Product Liability

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I came across a post on the Lawyerist on the question whether good legal writing is inherited or developed.  Putting aside that debate (the answer is both, by the way), it occurred to me that there are two steps that mediocre legal writers can take to immediately improve their writing.

There are actually three steps.  The first is to realize your legal writing needs help and care enough to try to improve it.  There are lots of advocates who slog through an entire career filing nearly incomprehensible briefs.   Don't be that lawyer.  Take pride in your product.  The fact you have read this far, rather than clicking on to something more compelling, means you are at least curious, or you just got an Apple and haven't figured out how to navigate away from this page.

The first sure-fire way to improve your legal writing is to strive to use an active rather than a passive voice.  It's ironic that I spent several (ok 6, but who's counting) years getting a degree in Literature-Writing from a really solid university, but it wasn't until I was a staff member on Law Review that I truly began to understand the importance of active voice.  If you missed the special torture that is editing a legal journal, or were otherwise never trained to write in active versus passive voice, I'll provide a very easy example to illustrate the difference.  Using passive voice, a lawyer might construct a sentence that reads: A man, woman and two children were shot by the defendant.  Contrast that sentence with one written using active voice: The defendant shot a man, woman and two children.

See? Simplest thing in the world.  But, even those of us who generally strive to use active voice occasionally fall into passive voice.  The key is to recognize when you're doing it and decide whether the sentence you've created could be improved by changing the voice.

The second way to immediately improve your legal writing is equally simple.  Pare back the number of words you use to say what you're trying to say.  This was something my mentor taught me when I was a baby lawyer and I've generally tried to adhere to the principle, at least when writing to a court or opposing counsel.  Basically, every word in any sentence should be necessary.  Nothing extraneous.  This will automatically take care of the tendency to include "herein" and other pointless words.  It also forces the writer, you, to think about what you're trying to say and how to say it in the clearest way possible.  Judges and clerks appreciate clarity.

Now.  This second "way to immediately improve your legal writing" is not a rule.  It's just an approach.  And, it's an approach I freely disregard when I want to emphasize something through repetition or diction (word choice).  Hell, I often write entire paragraphs in the passive voice  and include a lot of extra words.  But, when I do it, I do it purposely, usually for effect.  Otherwise, I strive to write clean, spare, Hemingway-like sentences, in the active voice, as free as possible of legalese.*  (*Ok, I'll admit an affinity for ancient latin phrases like sua sponte, ab initio, inter alia.  I know that writers who know what they're talking about, as opposed to armchair poseurs (who me?), have zero tolerance latin phrases.  If I give in to the urge to use them in an early draft, I almost always delete them.)

There.  If you struggle with your legal writing, try these two suggestions.  I guarantee you'll see results.

(As originally posted at http://atcounseltable.wordpress.com/2012/07/02/two-sure-fire-ways-to-immediately-improve-your-legal-writing/)

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