Gruntled Employees

What would Jack Bauer do? Use plain English

The case for using plain English is being made in other places besides this blog. It even showed up in the season premiere of "24."

In the first episode of Season 6, the President's top advisers are arguing about his orders. The National Security Advisor, Karen Hayes, disagrees with the White House Chief of Staff Thomas Lennox's interpretation of the President's wishes. Lennox is the early frontrunner for this season's unscrupulous White House adviser; Hayes, who previously worked for CTU, appears to be the voice of reason. When Lennox passes along an order that contradicts what the President had said, Hayes calls him on it.

"In plain English," she says, "you're second-guessing the President."

Lennox snarls, "Plain English does not allow for the nuances that my job requires, Karen."

Perhaps lawyers feel the same way, that plain English is inadequate for handling the "nuances" needed for legal writing. They think that legalese allows them to express themselves more precisely, as if talking about "said contract" is more precise than "this contract," or that "two (2) weeks" is more exact than "two weeks."

They're mistaken. As the leading reformer of legal writing Bryan Garner writes in his Dictionary of Modern Legal Usage, the "myth of precision" is one of the greatest problems with legalese:

Traditionally, lawyers have aimed for a type of "precision" that results in cumbersome writing, with many long sentences collapsing under the weight of obscure qualifications. That "precision" is often illusory for two reasons: (a) ambiguity routinely lurks within traditional, legalistic language; and (b) when words proliferate, ambiguities tend to as well.

Plain English is not dumbed-down English. As world-class plain-English advocate and law professor Joe Kimble writes in his essay "Answering the Critics of Plain Language":

As for the notion that plain language is unsophisticated, once again just the reverse is true. It is much harder to simplify than to complicate. Anybody can take the sludge from formbooks, thicken it with a few more provisions, and leave it at that. Only the best minds and best writers can cut through.

So while the Machiavellian Chief of Staff might fear that plain English won't get his point across clearly, he would do well to listen to Jack Bauer, who regularly uses plain English to great effect:

• "The only reason you're conscious right now is that I don't want to have to carry you."
• "When I'm finished with you, you're gonna wish you felt this good again."
• "I'm gonna need a hacksaw."

Mandatory arbitration: stupid employer trick

A growing number of employers are making employees sign agreements that require any disputes to be heard by an arbitrator instead of a court. (Usually the agreements say "any and all" disputes, even though once you say any, you've got all covered. Lawyers: "Why use one (1) word when you can use three (3)?" But I digress.)

The thinking behind mandatory arbitration is that it is faster and cheaper. The unspoken thinking behind it, especially for large employers, is that any given arbitrator is more likely to have future cases with the employer than with the particular employee, and the arbitrator wants the large employer to use him or her again in the future. I don't buy that, because it suggests that arbitrators will subvert a case to curry favor with a large employer. I believe most arbitrators are ethical, and would never do that.

But arbitration is not good for employers. (By the way, I'm only talking about employment arbitration — not labor arbitration involving unions, which is a whole 'nother kettle of fish.) And there are three reasons why:

1. The parties choose the arbitrator.
   But Jay, you say, this sounds like a good thing. It's not like you pick your judge in a court case. Isn't it good to have some control? You might think, and employers often do. But it's not. Here's why:
   
   An arbitrator only gets a case when both sides agree to choose that arbitrator. (Well, duh, you say.) The way it works is that the American Arbitration Association or whatever group you're using gives you a list of a dozen or more available arbitrators. The company's lawyer and the employee's lawyer then pick a few acceptable choices from the list. When both sides find one they agree on, bingo — you got yourself an arbitrator.
   
   And how does the lawyer choose? Based on his or her own experience with the arbitrators, the experience of friends and colleagues, and the arbitrators' general reputation. And now we come to the problem:
   
   If an arbitrator has a reputation as being more employee friendly than employer friendly, I'm not going to pick him or her. (Again: duh.) And the converse is true, too. So an arbitrator has a built-in self-interest to come down the middle — to rule in favor of management and employees in roughly equal proportions. And that's the problem, because employees don't normally win half of the cases filed. For example, at the Massachusetts Commission Against Discrimination, employees win probable cause — that is, they get to proceed with their cases —  only about five to fifteen percent of the time.
   
   If an arbitrator was known to come out in favor of the employee only five to fifteen percent of the time, do you think any plaintiff's lawyer would agree to pick that arbitrator?
   
   The only way to fix this problem is to remove the parties' ability to choose the arbitrator. Until that happens, avoid arbitration.
   
   
2. There are no rules of evidence or binding precedent.
   Some people incorrectly think that this streamlines the process, making an arbitration less complicated and expensive than a court case. But rules of evidence — while sometimes pesky and seemingly arcane — are designed to increase the chances that testimony and evidence reflect the truth. Hearsay rules, the bane of second-year law students and many litigators, were designed to weed out made-up testimony.
   
   And binding precedent — the notion that earlier cases with greater authority control the current case — means that the parties know the rules beforehand. Without needing to follow precedent, arbitrators are free to come up with their own rules. While arbitrators universally try to be fair, their rulings can sometimes be ... well ... arbitrary.
   
   
3. Arbitral rulings are nearly impossible to overturn.
   Winning an appeal in court is very difficult. But short of misconduct or flagrant bias on the part of an arbitrator, it is next to impossible to get a court to overturn the arbitrator's decision.
   
   Just last week, Ross Kerber of The Boston Globe reported on MassMutual's attempt to get a court to overturn an unfavorable arbitral ruling. The story reports that the arbitration panel  had concluded that ousted CEO Robert J. O'Connell had been unjustly terminated and that he was entitled to $50 million in severance benefits, even though it found that he had had affairs with two women (including the company's general counsel). The company sued in Suffolk Superior Court to have the panel's decision overturned. But the court declined, holding that there was "no evidence of any failings in the procedural aspects of the hearings." The court did not confirm that O'Connell should have won the arbitration; only that he did win.
   
   The story reported that the company planned to appeal further. Good luck with that.

Mandatory arbitration of employment might sound like a good idea to employers. It's not. If you want to save money on employment disputes, consider mediation — a much more valuable ADR (alternative dispute resolution) technique.

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A bit of language trivia: The expression "a whole nother" (used above referring to the fish kettle) is an example of tmesis. It's like they have a name for everything.

Hating lawyers around the world?

Since my recent post, "Why businesspeople hate lawyers," I've learned that this isn't just a problem for lawyers in the United States. There's an excellent legal-marketing blawg in Brazil called, unsurprisingly, "marketingLEGAL." (Or maybe it is suprising. Only the title is in English; the blog is in Portuguese.) The blog's author is Marco Antonio P. Gonçalves, a legal-marketing specialist in Rio who is coauthoring a book on the subject. Marco Antonio devoted a recent post to translating my thoughts into Portuguese and expanding upon them. Apparently, lawyers in Brazil face similar problems of popularity, and the trifecta of hourly billing, legalese, and legal-not-business advice are at the root of the problem. (I'm guessing his solution to legalese would not be "plain English." Is there such a thing as "plain Portguese"?)

A note on language: I listen to a fair amount of bossa nova (the Gilbertos, Jobim, Getz), but I don't speak any Portuguese. Fortunately, we have Google to translate foreign-language blogs and webpages. That an online service can instantly convert a webpage into another language with reasonable accuracy is very cool. But it does lead to some amusing false notes. It calls the post "Why business-oriented men do not like lawyers," and it labels "hourly billing" as "collection for the moment." You can read the translation of Marco Antonio's post here.

Working our way across South America, I just got an email from Ivan Cavero, who writes the Peruvian blawg PracticaLegal: Sólo Marketing Legal. (Google's intepreters can give it to you in English here.) Ivan is a legal-marketing trailblazer in Peru, and he came across my post via Marco Antonio's blawg. He's working on a similar post for Spanish readers.

A while back, I heard from Jim Belshaw, a strategic consultant in Sydney, Australia, who writes the excellent and thought-provoking blog, Managing the Professional Services Firm. He's got some good thoughts on work-life balance and associate retention.

Some might be concerned that the problems US lawyers (and their clients) face are shared around the world (or at least, I guess, the Southern Hemisphere). But I find it comforting to know that people like Marco Antonio, Ivan, and Jim are adding to the conversation and helping to find solutions to these problems. So: obrigado, gracias, and ta, mate.

Legalese: code for "assumes the reader is a moron"

In my last post, Why businesspeople hate lawyers, I complained that legalese is one way for lawyers to show off their basic lawyerliness. This sets them apart from their clients, and puts their own interests before their clients'. And what is the defining characteristic of legalese? It is where the writer — a lawyer, or someone trying to act like a lawyer — writes in a way that Assumes The Reader Is A Moron.

Let's call it ATRIAM for short.

Examples abound. For instance, most legal briefs and motions begin like this:

____________________
                                 
John Smith,          
    Plaintiff               

v.

Example Corp., Inc.,
    Defendant
____________________

Defendant Example Corp., Inc.'s Motion to
Compel Production of Documents from
Plaintiff John Smith Pursuant to
Fed. R. Civ. P. 34

Now comes Defendant Example Corp., Inc. (hereinafter, "Defendant"), who moves to compel the production of documents (hereinafter, "the Documents") from Plaintiff John Smith (hereinafter, "Plaintiff" or "Mr. Smith") pursuant to Fed. R. Civ. P. 34 (hereinafter, "Rule 34"). For the reasons stated below ...

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Put aside for now the superfluous "now comes" business and the omnipresent "pursuant to" (do lawyers have trouble saying "under"?). Let's talk about the "helpful" parentheticals:

Was the lawyer thinking that the reader — in this case, a judge — wouldn't remember what he or she read ten seconds ago? Is the judge really going to read the caption (which names the parties), read the title (which says what the document is), and then get to the first paragraph and go, "Who the heck is this John Smith? And what is he doing here?"

Journalists don't have this problem. Have you ever read a newspaper article that turns a person into a defined term? Roger Clemens ("Mr. Clemens") struck out eight batters yesterday. After the game, Clemens said ... Would the reader not know who "Clemens" was without the parenthetical? Are sports-page readers smarter than brief readers?

Maybe the lawyer thinks the hereinafter parentheticals are helpful, or perhaps more precise. But in this brief, there's only one Example Corp. and there's only one Smith. The caption identified them, and said who's the plaintiff and who's the defendant. The only time a parenthetical is helpful is when the names are confusing, or when you need to distinguish one "Smith" from another.

In fact, most lawyers write this way because most lawyers write this way. We've been reading briefs and judicial opinions and memos since law school, and we think that's what we're supposed to do. We don't really know why.

But that's not a good enough reason. A lawyer shouldn't write anything without knowing why. By adding the unnecessary parentheticals, the lawyer is sending the ATRIAM message: that he or she assumes the reader is a moron.

More examples to follow ...

Why businesspeople hate lawyers

Oh, they may tell you that they don't. "Hate" is such a strong word, and so forth. But most businesspeople really, really don't like lawyers.

Why?

Three reasons, all of which are related:

1. Billing by the hour
2. Using legalese
3. Giving legal answers instead of business answers

And what do these three things have in common?

They're all examples of lawyers putting themselves first, instead of putting clients first. Hourly billing prices legal services based on the time the lawyer spent, not on the value the client received. What difference does it make to the client whether something took two hours or four hours? Rarely does the client get twice as much value when something takes twice as long (and thus costs twice as much).

Next, lawyers speak and write in legalese to show off that they are, in fact, lawyers. Rather than trying to find the clearest way to communicate with their clients, lawyers fall back on shopworn phrases whose meanings they're not even certain of. "Wherefore, premises considered" — I mean, who really talks like that? Lawyers use legalese the same way doctors and cops use the jargon of their professions — to set them apart from the people they serve. (For more on jargon, see Abandoning jargon "at a high rate of speed.")

Finally, businesspeople ask their lawyers business questions but get legal answers in return. How many of you have asked a lawyer a question about your business only to receive a memorandum on what a statute or regulation or court opinion says. You don't care about the dicta in Smith v. Landingham; you just want your lawyer to solve the problem.

So as we start the new year, lawyers should add to their lists of resolutions three things that put the client first:

1. Price legal services based on the value to the client
2. Use plain English
3. Give clients business answers

For more about putting clients first, read Dan Hull's always-excellent What About Clients? blog. Dan's a lawyer who understands about putting his clients first. His blog's tagline asks the fundamental question: "True service — are we lawyers delivering?" I'm certain that businesspeople don't hate Dan.

Dan started the year off with a terrific list of client-service blogs, which include heavy hitters like Guy Kawaski's How to Change the World and David Maister's Passion, People and Principles. Check out the list here.

Happy New Year!