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Legal writing in the digital age | Neil Guthrie

Tuesday, December 03, 2019 @ 8:46 AM | By Neil Guthrie

Neil Guthrie %>
Neil Guthrie
All kinds of questions arise from the new (or newish) technology we use in legal practice. Should you communicate with your clients by text message, for example? The answer is probably not: there are security and privacy issues, privileged and confidential information may find its way to servers in the United States (and therefore be subject to scrutiny by U.S. government officials) and your chat history may be difficult — or impossible — to retrieve if you need to establish exactly what was said and when.

E-mail is a bit better, but not much. Common pitfalls are messages that get into the wrong hands because of an unthinking “reply all” or the autofill feature when you type a few letters in the recipient box. E-mail is for many a default filing system, and unless you have a lot of discipline or your IT department forces you to file e-mail in the document management (DM) system, you’ll be one of those people with 10,000 messages in the in-box and no easy way to sort through them.

Technology has also changed the way in which we communicate. It’s hard to imagine it now, but lawyers actually used to chat in hallways or the library, or call each other on the phone! Now, many just type away in the solitude of their offices. We write (or at least type) more. Law students will e-mail a question rather than call or pop their heads in the door. No wonder people in the legal profession suffer from high rates of loneliness and depression.

We also go through far more drafts of individual documents than in the days when it was a pain in the neck to have the typing pool revise a mostly final agreement. (Although perhaps there were more handwritten drafts before it got to the typing pool.) Legal authors can easily keep adding material between editions, resulting in shaggy, undisciplined texts.

Because e-mail is, for many, the default method of communication, it means that what used to go in a research memo is conveyed in the body of an e-mail. That’s an effective way to communicate, but it may mean that the legal analysis in that e-mail is not captured in the DM system and gets buried in the depths of someone’s 10,000-item in-box. Not good for sharing knowledge, promoting consistency of legal advice or reducing risk. At my firm, we encourage students to convert a memo-like e-mail to a Word document so it can go into DM, but I fear the somewhat fiddly process for doing this acts as a deterrent.

If you must convey a memo-like amount of information in an e-mail, think about how the reader will see it. Long sentences and long paragraphs are not easy on the eye when read on a computer, and this is compounded on the smaller screen of a phone or tablet. The reader gets a solid (and rather scary) block of text. A screenful of text makes me anxious when I see it on my mobile, less so when I get back to the office and see it on a larger screen, even less so when I print it out.

This is partly the Twitter effect: we are being conditioned to absorb information in smaller chunks and, I think, to gloss over something long (and scary looking). Matthew Butterick, in his excellent Typography for Lawyers, advises writers not to quote long excerpts, even when they are offset with wider margins than the main text. His point is that the reader’s eye will want to skip over the harder work of reading the quotation — so he recommends shorter excerpts, explaining what a long passage says if you really have to quote it, or just paraphrasing.

Partly the Twitter effect, but also a matter of ease on the eyes, and here again Butterick is good on what is visually appealing. Spacing, headings, notes, tables, page layout, fonts (he despises Arial and doesn’t love Times New Roman). Some fonts are more readable on the printed page than on the screen and vice versa. You didn’t go to law school to become a graphic designer, but it would be a good idea to think about how your written work looks; it affects readability.

In some ways we are at a point comparable to Europe in the late 15th century, with printed books but also monkish scribes still beavering away. We haven’t quite lost pre-digital habits. Long paragraphs in e-mails are one example, and so is how we are adapting old-fashioned correspondence style to e-mail and texts. E-mail is seen as more casual than a letter, but is that always appropriate in a professional setting?

Emoji have infiltrated business correspondence, with mostly bad results. A smiley face has no place in your note to the senior partner, but on the other hand it may help to convey tone to a peer (tone being notoriously difficult to get right in an e-mail) and it’s just fine in casual exchanges with your assistant.

Trickier is the way to open and close an e-mail. The younger generation seems to think that “Dear Bob” may sound inappropriately affectionate (which I doubt it is), but just “Bob” may sound curt or peremptory. “Hi Bob” may be a bit too chirpy to use with an older person. Maybe “Hello Bob” is the safest option.

Closings are equally problematic. “Yours truly” is a bit stuffy, but may be appropriate if you’re sending a formal legal opinion to a party you don’t know well. “Regards” of all kinds strike me as insincere, even cheesy — but “Best” on its own doesn’t make cringe as much as it used to (although don’t get me started on “Kindest”). “Cheers” is too casual for me. A simple “Thanks” followed by your name is safe and neutral.

Better yet, pick up the phone or drop by if you don’t really need to put it in writing.

Neil Guthrie is director of professional development, research and knowledge management at Aird & Berlis LLP in Toronto. He is the author of Guthrie’s Guide to Better Legal Writing (Irwin Law, 2018). The views expressed are his own.

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