Words. Prizing Piquancy

• Author: Bryan A. Garner
• Pages: 28-29

an improv seminar, a stand-up comedy

workshop, practicums in acting or cre-

ative writing, or a martial arts class?

We can challenge and inspire each

other to attend to multiple well-being

dimensions on a daily, or at least weekly

basis. We can carve ve minutes, 15

minutes, maybe even 30 minutes out of

our billable calendars each week to:

• Acknowledge a work task we nd

satisfying and enjoyable.

• Give thought to one

nancial goal.

• Check in with our emotions.

• Think about moving our physical

bodies in a different way or at a

different time.

• Try one healthy(ier) food or

drink option.

• Learn one new thing.

• Ponder our purpose.

• Connect with someone famil-

iar or new.

• Check out something cultural.

• Do something artistic.

• Rest and recover like athletes and

performers do.

Let’s notice the effects that our

investment in these dimensional strata

have in lawyering performance mo-

ments—in negotiations, depositions,

presentations, oral arguments, conicts,

collaborations, missteps and triumphs.

This endeavor does not have to be

expensive or time-consuming. It does

have to be deliberate, intentional and

inclusive. We don’t need to be elite

athletes, famous rock stars or CEOs to

treat ourselves and our colleagues like

scholar-performers. By collectively in-

sisting on a more dimensional approach

to performance and development, we

can mend our profession together. Q

Heidi K. Brown is an associate profes-

sor of law and director of legal writing

at Brooklyn Law School. She is the au-

thor of The Introverted Lawyer: A Sev-

en-Step Journey Toward Authentically

Empowered Advocacy (ABA 2017) and

Untangling Fear in Lawyering: A Four-

Step Journey Toward Powerful Advoca-

cy (ABA 2019).

Practice Matters | WORDS

Not long ago, I wrote an

appellate brief in a case

involving statutory con-

struction. After I nished

two complete drafts, the brief went

through my usual protocol for editing,

involving four lawyer-colleagues and

one paralegal. Each did two rounds

of tightening, sharpening and bright-

ening—and, of course, fact-checking.

In my ofce, colleagues are evaluated

on the worth of their edits: Everyone

is expected to make the types of edits

that professionals at the copy desks of

major magazines would make. The idea

is that the nal product should sing. It

should be a marriage of rst-rate ideas

with rst-rate expression. It should be

the kind of prose people would pay to

read. Really.

Mind you, I’m not claiming to reach

that goal every time. But that’s denite-

ly the goal. As you’ll probably infer,

I’m quite open to receiving edits: In

fact, I insist on a minimum of two edits

per page from each of my colleagues. I

often get 10 or more. Of my colleagues’

copious edits, I ordinarily accept about

90%. Good edits make you sound

smarter and more skillful than you

actually are.

But back to my appellate brief. I

must be careful here to anonymize the

case and the parties: I work on a dozen

or so briefs each year, and the event I’m

describing here occurred sometime in

the last decade (“not long ago,” in my

book). I’m ctionalizing the subjects

involved in the legal dispute. If you’ve

been my co-counsel in recent years,

please assume that I’m not describing

you here.

Anyway, I sent the thoroughly pol-

ished brief off to co-counsel, who in due

course returned it with praise (much

appreciated) and moderate redlining.

WORDS

Prizing Piquancy

If you’re a lawyer who’s not writing and editing like a pro, get to work

BY BRYAN A. GARNER

Most of the edits involved either adding

pet phrases to all kinds of sentences

or replacing all pronouns with proper

nouns. The pet phrases were inserted

again and again with the notation that

the purpose was either “to track the

language of the statute” or “to align our

brief more closely with the phrases used

by allied parties in the same appeal.”

But the inserted language was un-

gainly and sometimes ungrammatical.

It attened the prose, bogged down

paragraphs and generally served to do

little but anesthetize readers.

That meant, of course, that the brief

wouldn’t do its job well. As Justice

Wiley B. Rutledge observed in 1942

(while still on the D.C. Circuit), al-

though a dull brief may be good law,

only “an interesting one will make the

judge aware of this.”

Here’s a ctionalized passage

I’d written:

When moving for summary

judgment, Summerland apparently

abandoned a series of defenses

it had energetically pursued up

to that point. These defenses had

gured prominently in Summer-

land’s earlier motion to dismiss.

When denying that motion last

January, Judge Positano reserved

ruling on Summerland’s duty to

indemnify until the parties con-

ducted further discovery.

With one punch of a button, I could

accept all my co-counsel’s suggested

edits. We’d have ended up with this:

When moving for summary

judgment pursuant to Fed. R.

Civ. P. 56, Summerland Mutual

Inc. (“Summerland Mutual”)

[they wanted the longer name]

ABA JOURNAL | APRIL–MAY 2020

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