I gave up swearing for Lent.
This has crippled my ability to communicate effectively. To a staggering degree.
Opposing counsel in some (not all) of my cases now operate under the delusion that I’m “reasonable.” The associates I’m working with are left to conclude that their performance has improved dramatically–except for Finney, who knows what “mumpsimous” and “ninnyhammer” mean. (I’ve had to learn a lot of new words, too.)
But at least one area remain unaffected by my Lenten vow: my legal writing.
Now, obviously, pre-Ash Wednesday I wasn’t submitting profanity- or threat-laced tirades to the Court. That would be
Taboada v. Daly Seven, Inc., 636 S.E.2d 889 (Va. 2006) crazy.
But more than that, I try always to, in Bryan Garner’s words, “write with a smile.” As frustrated, impatient, or downright ticked off as I may feel in real life, I try never to let that bleed into my writing.
The challenge in writing with a smile comes when opposing counsel is writing with a dagger.
Cheap shots and stray insults in the other party’s briefs used to get under my skin. Sometimes they still do. But as I’ve grown more experienced, I’ve learned that:
- Judges see that trash for what it is. As Judge Weckstein puts it, if a lawyer has the goods, he’ll deliver the goods. If he doesn’t, he unload a pile of invective and pettifoggery.
- Losing your cool or responding in kind betrays weakness and a lack of character.
- Only when opposing counsel makes a direct, serious accusation that you have misrepresented something to the Court is it even worth responding–and then, only in an even tone and with a reasoned explanation.
Which sounds good in theory, the younger lawyers on our team would say, but how many times can you just sit there and take it while the other side calls you “desperate,” “disingenuous,” or whatever the currently trending adjective happens to be?
One of my brilliant partners has found the answer. He’s developed a system that will allow you to absorb a near unlimited amount of verbal abuse with a smile. His solution:
Actually, [expletive deleted–sounds like “juicebag”] Bingo.
For years, said partner has collected cheap shots, low blows, attacks on credibility, malignant adverbs, unfair characterizations, inflammatory metaphors, and other examples of verbal assault into a mental database. From time to time during contentious cases, he has used this collection to generate bingo cards.
Here’s the kicker: you don’t even have to play bingo. I suppose you could, if you wanted to. Or maybe some people would call that unprofessional. I don’t know; it doesn’t matter. Once you’ve gone through the exercise of making the bingo cards, passing them out to your team, and sharing a laugh, it becomes exceeding difficult to take that sort of writing seriously ever again.
Years later, when you receive a brief from a prominent partner at a prestigious firm larded with zingers, you’ll see it for what it is: pathetic. I mean that literally. You will be moved to compassionate or contemptuous pity that a lawyer at the pinnacle of his or her profession would operate this way.
And then, with a smile on your face, you will get back to the business of the law and the facts.