Turning Legalese Into LegalEASE

Comes now, the author of this article who, pursuant to said article, for the reasons set forth herein, prays inter alia, for relief from the antiquated expressions, needless Latinisms, and convoluted legalese that plagues most legal writing. Stubbornly clinging to language that they would never use in any other context, many legal writers have an irrational aversion to expressing themselves in plain English. But is it really necessary to “pray” for relief rather than ask for it? Is it more convincing to argue that the client is entitled to relief “pursuant” to Section 4.16 rather than merely “under” Section 4.16? And, is the Plaintiff really coming now? The general consensus is that the answer to all three questions is a resounding “no,” and that legal writing is, in fact, much more effective without the legalese.

The Plain-English Movement

Over the past two decades, the movement away from legalese and toward legalEASE has been palpable and heartening. In his book, “the Winning Brief,” legal writing guru Bryan Garner includes chapters on such tips as “eliminate the jargon known as legalese,” “strike pursuant to from your vocabulary,” and “don’t use such as a pronoun.” The University of Virginia School of Law alumni page touts its legal research and writing program as helping students “win the battle against legalese.” A UCLA professor publishes an online page entitled “eschew, evade, and/or eradicate legalease.” We are bombarded by advertisements for CLE writing seminars that promise to teach us to how to write clearly, in plain English. Yet, many attorneys continue to cling to their legalese.

Resistance to Abandoning Legalese

It seems evident that confusing jargon is the enemy of clarity and persuasiveness, but the fact that we need to attend seminars or read books to teach us how to write in simple English is a testament to how deeply engrained this strange lawyerly language has become. Why the resistance? One explanation may be that aspiring attorneys spend three years in law school reading cases—decisions that are often centuries old—and assume that 21st century lawyers should write like 19th century judges. They continue to write in this style out of habit, or a misguided sense of tradition. Other lawyers are convinced that legalese is more precise. However in most cases the opposite is true: legalese is less precise, redundant (“cease and desist,” “by and through counsel”), and unwieldy (hereinafter, “unwieldy”).
Underlying the resistance may be a vague, insecure sense that lawyers need to write in legalease in order to sound lawyerly and separate themselves from the rest of the population. After all, can’t any person of average intelligence draft a contract or an appellate brief in plain English? The answer, of course, is no. Replacing the “parties hereto” with “Jones and Smith” devalues the importance of attorneys no more than calling a megapixel a “millionth of a screen” would render computer technicians obsolete. Lawyers aren’t paid for their ability to wield incomprehensible jargon. Rather a unique ability to reason like a lawyer, to weave persuasive arguments from facts and precedent, and to pay exacting attention to detail, separates legal writers from the rest of the population. Of course, there will always be a unique legal lexicon, filled with such terms of art as “fee simple,” and “res judicata.” Every profession has its jargon. But the legal profession is the only one that has felt the need to have its own pronouns, unique to the English language, and to use same to alter said language.
In Conclusion

WHEREFORE, for the reasons set forth herein, we respectfully request that this honorable reader abandon legalese and start making clear arguments in plain English.

--Doug Groene, Esq., Staff Attorney

New York City Bar Weighs in On Overseas Legal Outsourcing

The exponential growth of overseas legal outsourcing in recent years has benefited the legal profession in many ways, not the least of which is to level the playing field, allowing smaller firms or sole practitioners affordable access to the type of resources previously enjoyed only by large firms with the capacity to throw an army of lawyers, paralegals, and legal assistants at a given project. But the practice has also raised ethical considerations, as attorneys struggle to apply traditional rules of professional responsibility to an increasingly global legal industry.

Last summer, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics weighed in on the ethics of overseas outsourcing in a formal opinion, published online at http://www.nycbar.org/.

Attorney Supervision is Key

Like almost every other ethics opinion from various jurisdictions that have considered the issue, the New York City Bar Association affirmed that there is nothing inherently unethical about outsourcing legal support services to overseas attorneys or laypersons. Lawyers within firms have routinely delegated tasks to clerks, secretaries, and other laypersons, and delegating research, brief writing, or similar tasks to overseas firms is analytically no different. In both cases the key is supervision over the non-lawyer.

The outsourcing attorney must, at all times, shoulder complete responsibility for the work. This entails setting the appropriate scope for the project, and vetting the non-lawyer’s work to ensure its quality. The opinion suggests that, in order to ensure proper supervision, the hiring attorney should obtain background information on the overseas firm and the non-lawyer working on the project, conduct reference checks, interview the non-lawyer in advance, and maintain communication during the project.

Client Consent May Be Necessary

The opinion also considers the thorny issue of protecting client confidences. It is often necessary to reveal confidences to the overseas lawyers in order for them to properly complete a project. But many overseas jurisdictions have less stringent rules of confidentiality. The ethical solution, according to the opinion, is for the hiring attorney to obtain the client's informed consent in advance. The client should be told which confidences will be shared, and the extent to which the rules of confidentiality in the foreign jurisdiction may offer less protection.
Like the New York State Bar Association, the New York City Bar concluded that attorneys do not need to reflexively inform clients every time work is to be outsourced overseas to a non-lawyer. However, the hiring attorney does have a duty to disclose the outsourcing when non-lawyers will play a significant role in the matter, when client confidences are to be shared, when the client expects that only the law firm and its personnel will be working on the matter, or when non-lawyers are to be billed to clients on a basis other than cost. In fact, absent a specific agreement with the client, a New York attorney should charge no more than the direct cost of the outsourcing and a reasonable allocation of direct overhead expenses from the outsourcing.

The New York City Bar opinion concluded that a lawyer may ethically outsource legal support work overseas provided the hiring attorney rigorously supervises the non-lawyers, takes measures to protect client confidences and avoid conflicts of interest, obtains client consent when necessary, and bills appropriately.

--Doug Groene, Esq., Staff Attorney

'A Modest Proposal' on How to Make Your Billables

The Snark
Fulton County Daily Report
January 29, 2007

According to rumor and legend, there was a time when lawyers, including Big Firm lawyers, did not have to bill a minimum number of hours each year. Apparently, they were merely required to get their work done. Madness.
Luckily, some managing partner figured out that Big Firms could make more money off of their Associate Cogs (and even their Partners) by requiring them to bill clients for a minimum number of hours each year.
As the "market" demands that Cogs get larger and larger paychecks, many Big Firms pay for these raises by steadily increasing the number of hours an associate must bill each year. The fact that the number of hours in a day never changes does not seem to deter firms from increasing the number of those hours an associate is expected to spend billing. In 1958, the American Bar Association suggested a full-time attorney could bill 1,300 hours per year. No kidding. By the mid-'90s -- some 40 years later -- many firms thought 1,800 or 1,900 were reasonable targets. Now? Try 2,100, baby.
Many of you Big Firm Cogs complain and wonder how you can possibly bill more hours in a day when the length of a day remains a constant. You whine about not having time for silly things like walking your dogs or feeding your children.
I have a few simple solutions to this dilemma.
MOVE TO THE CITY
This one is a given. If you bought a house in the 'burbs so that you could afford a bigger lawn, more bedrooms and easy access to Barnes & Noble and Williams-Sonoma, you might want to do the math. The commute is the obvious part, of course, (about 1.5 hours a day, round-trip). But don't forget the valuable time you spend pruning your bushes, edging around your custom landscaping and mowing your 1.2-acre lawn -- about four hours per month -- and chasing your kids around the living room (about 1.5 hours per week). Sure, you can outsource such things to others (as many Big Firm attorneys do), but don't forget the time you spend playing golf at the club, walking up and down your three flights of stairs and sipping tea on your front porch.
You can bill at least an additional 200 hours a year by moving to a condo across from your office. Surely, there is one being built or available right now! This goes for you in-town homeowners as well. Forget about the yard and driving to work. You'll spend far less time on home maintenance when you trade your 4,500-square-foot suburban manse on one and a half acres for your lawnless, 1,200-square-foot loft in a trendy rehabbed warehouse. And the lack of walls (and floor space) is almost guaranteed to bring your family closer together (in the limited time you're not billing hours and are actually at home, that is).
Speaking of family, let's just be honest here: Children are a real time-suck. You've got to play with them; listen to them; ferry them back and forth to school, soccer and ballet; clean up their messes; and plan for their college educations. You'd save a lot of time -- maybe as much as 2,000 hours a year -- if you didn't have those kids. And that time could be spent billing. I know some of you may bristle at this advice, but if you take a moment (an unbillable moment, granted) to think about it, you'll see that I'm right. I'd also suggest getting rid of your spouse as another time-saving device, but so many of you appear already to have considered this option that I didn't want to be redundant.
For you young and single Cogs, don't waste time on homeownership or renting. Just find a vacant office at the Firm, place an "Under Construction" sign on the door and move in! You'll have all the amenities you need: a full kitchen, free coffee, bathrooms, fine art plus central air and heat! All for free! Why waste your time driving to some "home" where you only sleep? Just get a nice mattress and you're set!
STOP EATING
As a Big Firm attorney, you live a sedentary existence in front of your computer or at your desk. You just don't really need that many calories to fuel such minimal activity. A simple Campbell's drink-a-cup-of-soup will do for lunch. Chewing takes unnecessary time and doesn't burn enough calories to count as exercise. You can still read a noncompete agreement while sipping that tomato-basil goodness -- without sacrificing 1.1 billable hours consumed by heading out with your co-workers to eat a burger.
And with the calories you save by opting for a liquid lunch, you don't have to waste another 1.2 hours walking on a treadmill, lifting weights or kickboxing. Besides, your heart rate will be elevated every day for one billable reason or another: when the partner you are working with screams at you because the mailroom misplaced the box he shipped himself from the conference in Detroit or when you realize you accidentally e-mailed the draft partnership agreement to opposing counsel instead of to your client.
If you insist on actually exercising, you can squeeze it in by simply taking the stairs instead of the elevator or jumping in place during conference calls.
SHAVE YOUR HEAD
Seriously. With a once-a-month buzz of the old clippers, you can save at least 15 minutes each morning by not having to wash, blow-dry or apply styling product to your mop. That gives you an additional 91.25 hours of available billing time each year! As an added bonus, you will not have to take the time to drive to a barber and sit in the chair and chat with the locals about the latest movies every few weeks -- that's another 20 hours a year. (By the way, if you are still wasting valuable time watching movies, download some 20-minute podcasts to fill your entertainment cravings.)
Some of you ladies may not have the full shave as an option. Many Big Firms frown on such nontraditional looks in their female attorneys. You may have to opt for keeping your hair long to avoid frequent visits to the salon. Just slick it back and put it in a ponytail. Every day. Curling and straightening are out. Highlights are out. No way do you have time to waste for that hours-long process plus touching up your roots. And forget about any waxing, tanning, micro-dermabrasion or other such self-indulgent and time-consuming activities. That goes for the men too.
With these simple and timesaving solutions, nothing but your own laziness can stop you from billing 2,800 hours a year!
As long as firms continue to link raises and/or bonuses to increased billable-hour requirements, we are all going to have to think long and hard about how much sleep we really need to function and whether Depends diapers are really just for the incontinent. Bathroom breaks can really cut into billable time!

“ The above article has been reprinted from www.law.com and LegalEase Solutions LLC does not hold any rights to the same”