Thinking (and communicating) like a lawyer

Readers of a certain age will remember the film and TV series, the Paperchase. Set in a US law school, it tracks the lives of a bunch of law students and their teachers. The star of the show is Professor Kingsfield, a teacher of contract law, whose voice is heard on the introduction to the show saying:

You come in here with a skull full of mush, and, if you survive, you leave thinking like a lawyer.

The good lawyer will first learn how to think, and communicate, like a lawyer. The excellent lawyer, having learnt those skills, will learn when not to think and communicate like a lawyer.

In a different context, Picasso supposedly said:

Learn the rules like a pro, so you can break them like an artist.

Picasso first learnt to paint like this…

IP lawyers learn, if it is not already innate in them, the importance of rigorous accuracy in their professional communications. Errors, or even just looseness of language, are likely to be picked on by supervisors, opponents in litigation, and judges, and criticised. The ambitious, junior IP lawyer or patent attorney learns to make their documents fastidiously accurate.

…before he learnt to paint like this.

IP Draughts has long wondered whether this approach reflects the scientific training of many IP lawyers, or their competitiveness, or both. Or is it just a mysterious trait that has developed in the IP world, without any obvious explanation? IP Draughts would like to know whether the same approach is followed in other areas of law. He suspects, for example, that in the world of entertainment law, personality may count for more than a misplaced semi-colon.

Precision and accuracy may be important qualities, perhaps even dominating qualities, in IP protection and litigation. No-one wants their submissions to be torn apart by opponents or by a bad-tempered judge, in front of one’s clients.

IP Draughts has long thought that this is taken too far. Should a judge criticise a court bundle because of inaccurate pagination, or because a page went through a photocopier askew, leaving some text unreadable? Let’s assume the bundle is 90% right and it has taken 2 hours to get it to that level. It may take another 2 hours (or greater supervision by a more expensive lawyer) to check it so carefully as to ensure that the 10% of errors are removed. Is it a good use of expensive lawyers’ time (and client’s money) to double the scale of the exercise to make the bundle perfect, or should the judge “get a life” and live with the 10% imperfection; or if he needs a replacement page, to ask for it politely and with no hint of criticism?

Whatever the rights and wrongs, meticulous accuracy is a prized skill in the IP professions. For some, it infuses all their communications. They don’t know when to switch it off. Letters to non-lawyer clients read like submissions to the court, and are a big turn-off. Articles on their firm’s website read like an academic thesis.

In IP Draughts’ view, the first thing to think about when writing a letter, an article, a memorandum of advice, or a short reply to an email, is who is the intended reader? What are their expectations? How do they process information? Where on the scale of informal chat to PhD thesis do they want your communciation to be?

Of course, this is not always the only consideration. If you are writing a letter to the other side in litigation, you may also want to advance your client’s cause, influence the other side’s (or their client’s) behaviour, anticipate how a judge would view the style and tone of your letter if it is scrutinised in court, and so on. But for many communciations, the focus should be on the reader.

A small example illustrates the point. IP Draughts has recently been leading on the preparation of a note from the IP professions to government, on the subject of Brexit and IP law. The note is a short document (2-3 pages) that is intended to be read by non-specialists such as politicians and government officials; they will have to consider dozens of areas of commercial law and practice that may be affected by Brexit, and not just IP. Our note needs to be short, clear and quickly engage their attention. The IP professions have made other, more detailed submissions that are being considered by the UK Intellectual Property Office. This note serves a different purpose and has a different audience.

One of the points discussed in the note is the Unified Patent Convention. The note suggests that the UK should seek to participate in the UPC after Brexit, and to keep the court for life sciences that David Cameron, when Prime Minister, negotiated to be located in London.

In IP Draughts’ first draft of this note, he referred to this court being for “the life-science part of the central division of the court”. He was aware that the London court would cover more than just life sciences, but he thought this was a convenient shorthand for the non-specialist reader. During the many rounds of negotiation of the text of this note, he was asked to change this first to the “chemistry (including life sciences)” section. For a quiet life, IP Draughts went along with this form of words, even though it sounded rather lawyerly to him.

This form of words survived several drafts, but at a late stage, when the draft was almost finalised, he was asked to change this to “the section dealing inter alia with life sciences and chemistry”. The person making this request pointed out that, technically, the London court would be for “human necessities” which was wider than just life sciences and chemistry. Thankfully, he recognised that this phrase might not mean much to the intended reader, but he thought it was important to be accurate, and that it would be better to use the phrase that he had suggested.

IP Draughts tried, gently, to push back on this request, but met with firmness.

For a submission to a patent office or court, one could not fault the logic of the IP professionals who requested these changes. But for a short note to a civil servant or politician who knows very little about IP and may care even less, this level of nit-picking accuracy is, in IP Draughts’ view, not only unnecessary, it is positively disadvantageous as it reduces the readability of the note.

Most of the suggested changes to the note were beneficial, and IP Draughts is grateful to all the people who gave up their time to help improve it. The final document was a collective effort and, in IP Draughts’ view was clearly and concisely written. But he wishes he could have been firmer in insisting that questions of tone and style should be left to his judgment.

 

 

 

 

 

3 Comments

Filed under Legal practice

3 responses to “Thinking (and communicating) like a lawyer

  1. Thanks to both of you. I know from your previous comments on this blog how sensible you both are, but in this instance I think your solutions (albeit one is possibly squelched) are elegantly expressed but too detailed for the context. Sometimes, I think, a little inaccuracy is fine, if it gets you from A to B quickly.

  2. vrkoven

    Lawdy! You know, there really is a way to be reasonably precise without, you know, sounding like a lawyer (thereby risking injury to readers’ eyeballs as they roll). “The central division’s section for chemistry, life sciences and other ‘human necessities'” ought to cover the waterfront without a load of cant.

  3. Once a writer enters the realm where either strict accuracy or readability must be sacrificed (memos to busy laypersons), it’s hard to make rules, but rules there must be, or the soundness of judgment calls can’t be assessed. Here’s a humble candidate: ‘Choose in favor of readability unless the proposed deviation from accuracy is reasonably likely to cause unacceptable harm’.
    When reviewing another’s draft, the pertinent question might be, ‘Is there reason to hold the drafter’s judgment generally trustworthy? If so, trust the drafter’s judgment in the specific instance unless it’s clearly wrong’.
    That way I would squelch my inclination to suggest ‘the part of the central court that addresses chemistry and life sciences’.

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