– Lawyers as Publishers: Words are their Product

7 LAWYERS AS PUBLISHERS

WORDS ARE THEIR PRODUCT

Add up all the pages of the documents—memoranda, opinion letters, motions, briefs, settlement agreements, contracts, resolutions, trusts, wills—produced in a typical week by even a small law office, and the total will easily be in the thousands. Then apply a rule of thumb: 400 double-spaced pages equals one 275-page book or one issue of the Wall Street Journal. The math is indisputable: Every week a small law office publishes (that is, produces for distribution to outside readers) more material than a major book house or a national newspaper.

That’s why we believe that law offices should take a few lessons from their counterparts in the publishing industry. A single practitioner or a small firm resembles a freelance writer or a newsletter publisher who relies on desktop publishing. Appellate lawyers often have plenty of lead time and can think of themselves as magazine writers. A big firm with lots of takeover business operates on a schedule closer to that of a major metropolitan newspaper: the lawyers do their writing on tight deadlines, often in an afternoon or overnight.

Even if all lawyers wrote seamless prose when they graduated from law school—and few do—the demands of modern law practice conspire against good writing. Lawyers live by the clock. They bill their time in units of six minutes. Yet, despite their credo that “time is money,” they foolishly waste both time and money. Not even Lewis Carroll could have created a crazier system: those whose time is worth the most spend hours editing those who are paid the least.

That is how it works in many firms: Associates write long and carelessly, often checking their writing only for spelling and typographical errors. They pass their twenty-page draft along to a more senior member of the firm whose hourly rates are much higher. The senior lawyer slashes the twenty pages to ten and then edits, rewrites, and polishes those ten.

One senior partner who reviews associates’ drafts told us, “If time permits, the associate does a draft, which I edit. If time does not permit, I do the major rewrite myself.” A corporate partner boasted that “one of the best things I’ve done is to cut a 62-page summary judgment motion [prepared by an associate] to 25 pages.” Few top editors at a newspaper or magazine would perform radical surgery on a story, whether or not close to deadline. Journalists build in time for editing— the most crucial stage of the writing process. Just like senior partners, top editors are paid for their judgment, and they hire assistant editors to carry out their wishes.

Lawyers approach writing differently, of course, depending on their quirks, the size and type of their practice, and the importance and complexity of the documents that they produce. Some lawyers do use their time wisely. Some who sit atop the pyramid touch only the most important documents and only at the most pivotal stages. Like first-rate editors, they multiply their effectiveness and can attend to many written matters at once. Marvin E. Frankel described his approach to writing: “In briefs for which I am responsible, I will often write a sketchy document with many blanks in order to show junior colleagues the major headings and the order of argument as I conceive it. My most competent colleagues—like many law clerks of another era—take liberties and make significant improvements, produce a reasonably polished product for me to edit and revise.”

But Frankel’s approach is the exception, not the norm. Too many senior-level lawyers have adopted inefficient, unproductive habits: they waste their time heavily revising the work of their juniors, and they refuse to allow anyone else in the office to lay eyes on their own writing. “I keep tight control of the master and do not let others ‘polish’ my work,” said one senior partner at a major New York firm. Such pride of authorship has no place in law.

The central publishing function that goes unstaffed in law firms is editing. “Our single biggest problem,” a partner in a large New York law firm told us, “is that people don’t edit.” Lawyers should edit their own work. But they also need an outsider—not the associate who researched and wrote the first draft and not the supervising partner—to edit a nearly finished document. Some lawyers would erect the attorney-client privilege as an obstacle to hiring professional editors. But that is wrong. Many people at a firm, including secretaries and proofreaders, read confidential matters although they are not lawyers. Some lawyers— especially those away from the large law factories—do rely informally on a second pair of eyes.

Many firms employ proofreaders, but copy editors bring a different set of skills to the documents they review. Proofreaders check for misspellings, dropped lines, and other typographical errors. Copy editors read for sense, meaning, consistency, and style. They also put themselves in the shoes of the intended audience—judge, client, or opposing counsel—to gauge whether the document communicates to those readers.

Copy editors at large newspapers, who have been in short supply for several years now, earn $80,000 and up, about half of what leading metropolitan law firms paid their first-year associates in 2002. Skilled copy editors would return their investment in a short period; vastly improved documents would be the daily dividend. Particularly at firms that produce more material than any single lawyer can review, a professional editor (or a small cadre of capable editors) can make sure that all documents receive scrubbing and polish before they go out the door.

That is how newspapers, magazines, and publishing houses work. Individual copy editors look at every piece. Their job is to improve the copy (and most writers, even those with large egos, bow to this function), to challenge the writer as appropriate, and, equally important, to leave a piece of clean copy alone.

Every publishing firm has its own philosophy of and approach to editing. At most book publishing houses, the top editors do little or no detailed editing. They spend their time acquiring manuscripts and looking for trends. Sometimes editors read for major gaps. Copy editors, often freelancers, review completed manuscripts line by line.

The pace at newsweeklies and newspapers is quicker. A handful of these are known as “writers” publications; they hire talented writers and give them wide latitude. The budget is allocated mostly to writers, not editors, because it is presumed that star writers require minimal editing.

Most publications emphasize editing. At Time and Newsweek, squads of editors often homogenize the drafts of dozens of writers and reporters. Researchers gather background materials; reporters in the field put their observations and interviews into a file. A writer based in New York City then blends the materials unearthed by the researchers and filed by reporters from different locations into a single story that is subjected to several stages of editing.

At newspapers, important writing projects, in contrast to “spot” news stories, are rarely completed overnight. Skilled reporters may work for weeks or months on these stories, which may still be extensively edited or rewritten before they are printed. Stories that end up on page one in the Los Angeles Times, the Washington Post, the New York Times, and other first-rate papers receive special editing care, but only rarely are they totally rewritten. At the Wall Street Journal, front-page stories go through a special desk of editors who often heavily rewrite pieces that staff reporters have turned in as “finished.” On most other sizable papers, reporters turn in stories to different “desks.” A financial story is edited by editors who specialize in business news; a local story is given to a metropolitan desk. Supervising editors make sure that copy flows smoothly throughout the day and decide which stories from the different desks are the most important.

The torrent of words that flows each day at newspapers is too great for the top editors to read every article before it is published. (In contrast, at magazines, where the pace is slightly more leisurely, an editor may read every word before it appears in print—sometimes more than once. That editor reads for tone, checks for conflicts among different stories, and sees that stories have no major gaps.) At law firms, too much happens at the last minute, under tight deadlines. Firms should recognize that lawyers are not fungible and that, like journalists, they have different skills. Those with a knack for research should be assigned to research. An imaginative writer, not just any associate, ought to do most of the early drafting of an important brief. By adopting some of the conventions of publishing and journalism, law firms will inevitably improve their written product.

In borrowing procedures from the publishing industry, law firms can pick the features most congenial to their organization and working style. In general, senior partners should act as editors in chief, delegating editing functions to a new department—the copy desk.

A smoothly functioning copy desk, overseen by an office editor, would be responsible for reviewing all or a designated portion of the office’s output. The desk would help set and monitor deadlines, oversee the word processing and proofreading staffs, and edit drafts before passing them on to the senior partners for final approval. Law offices that now work feverishly up to deadline would have to reorganize their timetables for researching, composing, and editing. However painful in the short run, this rescheduling would enable law firms to improve the quality of their documents in a cost-effective manner.