A few days ago I received a copy of Ross Guberman’s new book Point Made: How to Write Like the Nation’s Top Advocates
. In it, Ross cites examples drawn from the work of fifty top advocates, and he uses them to illustrate fifty practical writing tips. Hats off to Ross Guberman, that in a field so thoroughly plowed as that of litigation writing he’s been able to come up with a book as original, instructive, and lively as Point Made.
While I’m at it, I’ll note that Point Made reminded me of how drastically different contract drafting is from litigation writing. I know Ross, and we keep in touch. He’s a ball of fire and a very congenial guy. But when he has gently suggested that I might benefit from being a little less in-your-face, I’ve pointed out that we’re in very different fields. I can think of five significant differences:
First, because it regulates conduct, contract language is vastly more limited and stylized than is the prose of motions and briefs—it’s analogous to software code. To screw up badly, all it takes is an ostensibly minor slip, such as articulating as an obligation something that should be a condition. By contrast, an infelicity in an otherwise accomplished motion should be swept away in the flow of the argument.
Second, litigation writing is nowhere near as precedent-driven as contract drafting. If you want to upgrade your brief writing, all that’s required is that you pay attention to what Ross has to say. By contrast, after digesting A Manual of Style for Contract Drafting you’re left with significant hurdles: How much time do I have to retool the contracts I work on? (Probably very little.) Who’s going to pay for whatever retooling I have time for. (Presumably not the client.)
Third, although you might find as many dinosaurs in law-firm litigation departments as in corporate departments, I expect that the software-code and precedent-driven nature of contract language makes resistance to change in contract language more tenacious than it is in the case of litigation writing.
Fourth, any contract you draft will be reviewed by the other side, and they represent another potential source of inertia. That’s not something you have to worry about in litigation writing.
And fifth, litigators have long acknowledged the benefits of working on your prose. The notion that contract language is in need of serious help is a relatively recent one.
So because contract language is more a matter of black-and-white than is the prose of briefs and motions, so am I. And because the forces of inertia arrayed against change in contract drafting would seem more formidable than their counterparts in litigation, I have to be more forceful in order to be heard.
But all that is a self-indulgent digression from my original point—to congratulate Ross on his impressive new book. It almost made me wish that I could once more try my hand at brief writing.
