by Susie Salmon THE LEGAL WORD
Susie Salmon is the Director of
Legal Writing and Clinical Professor
of Law at The University of Arizona,
James E. Rogers College of Law. Before
joining Arizona Law, she spent nine years
as a commercial litigator at large firms
in Tucson and Los Angeles.
Let Future Historians Wonder
No one can forward a
one-on-one conversation.
“When in doubt, don’t
write it” might be a good
rule of thumb.
I generally spend this column discussing how to write effectively. But let’s consider another question: In what circumstances should
you consider not writing at all?
I’ve dropped hints in past columns that I’m more than a little bit
obsessed with Lin-Manuel Miranda’s Hamilton: An American Musical.
And in many ways, Alexander Hamilton—both the historical figure and
Manuel’s interpretation of him—presents many positive examples for the
legal writer. In other ways, however, he’s a cautionary tale.
Take, for example, the Reynolds
incident. Hamilton engaged in an
extramarital affair. The woman’s
husband, James Reynolds, knew of
the affair and blackmailed Hamilton for years. When Reynolds was
jailed in connection with a financial scam, he asked Hamilton for
help. Hamilton refused, and Reynolds hinted to some of Hamilton’s
political rivals that Hamilton was
involved in the scam. Although
Hamilton resolved that accusation,
The lesson? Some things do not belong in writing. We know this.
We tell our clients this, and we become frustrated when they do
not follow our advice. We see the results of bad decisions to put
things in writing in courtrooms, newspapers, and splashed across
the Internet. And yet, lawyers—even smart lawyers, like Hamilton—write things that they shouldn’t every day.
Inflammatory Language, Personal Attacks
Hamilton frequently dashed off strongly worded pamphlets—
sometimes anonymously published, but often not—criticizing
and impugning the integrity of his rivals. This earned him enemies and sometimes alienated those who could have supported
him.
As lawyers, we may find ourselves frustrated with opposing
counsel, opposing parties, judges, and even co-counsel and cli-
ents. It may be very satisfying to draft a snide email or letter. But
unless you’d want something attached as an exhibit to a motion
or a pleading, don’t put that frustration into writing. And refrain
from slipping personal attacks on opposing counsel into motions
or pleadings. If you must highlight bad behavior—in a motion
for sanctions, for example—stick to listing the damning facts
without editorializing. Your arguments will
seem more credible and less personal.
Personal Matter on Office Computers
Early in my career, I spent time reviewing
client documents (and materials on client-employee hard drives) for relevance and privilege, preparing to respond to requests for
production. Attorneys who have conducted
that type of document review know that you
see all kinds of things that the computer
user never intended some random stranger
to see. Most of that material is marked “not
relevant” and never produced, but it’s still
potentially embarrassing. You also learn that
the company’s IT department can access anything on any employee’s computer easily.
And we’ve all heard stories where these
materials made their way to the media or
went viral.
Sensitive or Privileged Information
Need to communicate bad news to a client or discuss bad facts in your case with
another attorney in your office? Need to
counsel a subordinate regarding work performance or other embarrassing topics?
Rather than dashing off an email, consider
walking down the hall or picking up the
phone. You may need to document some
aspects of the conversation in writing later,
but it’s generally best to deliver upsetting
information in person. Writing can seem
impersonal, and of course you want to avoid
putting statements in writing that might
embarrass someone unless absolutely necessary. Even if something is privileged, that
doesn’t prevent it from landing in the hands
of someone whom you would not want to
read it. But no one can forward a one-on-one conversation. No one can thoughtlessly
add a third party to an in-person discussion
already in progress, appending all that previous sensitive material to an unrelated,
unprivileged discussion.
When a lawyer wrote an ill-advised statement
in 1792, it might live on one piece of paper;
any copies were laboriously made by hand.
Now, our mistakes can travel instantaneously
and last forever. “When in doubt, don’t write
it” might be a good rule of thumb.
