"Short and to the point" is all well and good -- up to a point

Checking my email this morning from the Blue Line train, I saw an ad for CLE presentations planned for the upcoming ISBA/IJA Joint Meeting. One was designed to help attorneys tighten up their writing skills. A snippet from the ad:

Gone are the long, flowing email messages with pretty graphics and lots of attachments. Today’s communication – almost 100% electronic – is immediate, brief, clear, and powerful. Designed to boost your instant (or near-instant) message drafting skills, this program examines the ways in which lawyers' traditional training in writing and communication ill-prepares them for this new age of "short and to the point."

I certainly understand the need for lawyers to tighten up their prose. One of the many reasons I resisted Twitter for so long was that I didn't think a lawyer can say good morning in fewer than 140 characters. (I'm working on it.)

One of my favorite bloggers, Ken Levine, wrote this useful 2010 piece on the perils of overwriting. Mr. Levine was talking about writing TV scripts, not legal briefs, but his advice applies equally well to legal writing: Trim. Edit. Lose page 8 (OK, that one Levine borrowed from Earl Pomerantz).

As you might expect, judges are often the strongest advocates of shorter, tighter legal writing: They have to wade through our verbiage.

I recall one judge years ago, in DuPage, who threw my 12-page brief back at me on the day appointed for hearing. I didn't think the brief overlong; after all, it was comfortably within the standard 15-page limit observed in many Cook County courts. But I didn't realize that DuPage then had a 10-page limit. (Well, Cook County is bigger than DuPage.)

As he gave me back the brief and reset the hearing date, the learned judge admonished me, "I read this. You could have said this in eight pages."

(I probably resisted the urge to ask, since he'd bothered to read it, why we couldn't have our hearing. Probably. My memory is indistinct on this point. If I didn't resist, I apologize nunc pro tunc.)

I recently had the experience of updating an article I'd first done for the CBA Record back in 1996. If it was good enough to be updated, I reasoned, I should probably keep the length about the same.

My reasoning proved faulty: Publication standards had changed in the last 17 years and I was ordered to lose over a thousand words.

It wasn't exactly easy to lose the first 500 of those words -- it took more than two hours and I felt like a butcher -- but the resulting draft was better for the pruning. Of course, I still had another 5-600 words to go. Each successive pass through the article took just as long as the first 500-word chop -- and never yielded more than a 100 word net loss.

There is a point of diminishing returns: The complexity of the ideas conveyed or the persuasiveness of an argument in a brief, a blog post, or article is of necessity diminished when compressed beyond a certain point. Sloganeering on Facebook or flaming tweets may be "immediate, brief, clear, and powerful" -- but entirely useless for persuasion or rational discussion. See, cable TV news programs. See also, Congress. Truly persuasive arguments must be developed, not hurled like a gauntlet; important facts must be explained, not glossed over. Not everything is black or white; lawyers in particular must distinguish shades of gray. Can we do so more efficiently? Certainly -- but shorter usually takes longer.

My late father was a regular CLE presenter in his day. He'd go on a statewide tour every year, alternating, from year to year, between his employer and IICLE. He told me he could give a two-hour talk on five minutes' notice. If someone wanted him to speak for 15 minutes, however, he'd insist on a week to prepare.

I submit that the same is true for legal writing: Without a deadline for the opinion letter or brief and no ceiling on the number of hours that can be devoted to the project, we could all produce shorter and tighter work product. But will clients really appreciate paying double or triple for a tight two-page letter rather than a faster, cheaper five-page essay? (If you think the answer is 'yes,' you have never dealt with clients.)

Granted, it would be wonderful if lawyers could learn to write better and faster. But "instant (or near-instant) message drafting skills" are not always helpful. I'm old enough to remember when the fax machine was cutting-edge technology. Clients could fax in a problem -- and since it reached us in minutes, they expected a response in minutes as well. Email has only exacerbated the problem.

Yes, there may be some questions that lawyers can answer instantly. And it is surely useful to learn tips on how to turn a blank screen (or blank page) into serviceable prose without undue hemming and hawing.

But the reflex answer is not always the right one. "It depends" is not always a dodge. Sometimes, in trying to explain our initial answer, we realize that we are dealing with an exception to the general rule, or perhaps a different rule than we thought applicable in the first place. "Short and to the point" is a valuable objective -- but not so short that the point is watered down or missed entirely.