How to Avoid Ever Thinking “ Oh , I Shouldn ’ t Have Said That ”
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By Mark Bassingthwaighte
I once asked several of our claims attorneys to identify the top habits they felt new lawyers should develop from day one . With one exception , the list they provided covered the habits I expected they would prioritize . And yet , the more I thought about that one exception , the more I realized how spot on they were . In short , every lawyer should make writing well a habit , and here ’ s why .
The professional writing you do , be it an email to a client , a brief filed with a court , or a response to opposing counsel can too easily say more than you might intend . For instance , think about the hastily written email composed with little forethought , a legal brief impetuously penned under a time crunch , or an emotionally written response to opposing counsel . In short order , you could come to realize that , well , as the Hagrid character from the “ Harry Potter ” series would sometimes say , “ I shouldn ’ t have said that .”
The correct choice of words and proper grammar matter because poor writing often results in the sending of a secondary and unintended message that says something about your competency , civility , or even your integrity . The better the writing , the lower the risk .
Start by being intentional , as opposed to impulsive . To allow your emotions to get the better of you with any work-related writing is simply asking for trouble . Better yet , if time permits , read aloud what you ’ ve written or set it aside and come back to review it a day later . Either approach can help you avoid saying something you might later regret .
Next , be concise and write to your audience . For example , if your audience is a nonscientist , which of the following two sentences more clearly answers the question what color is the sky ? 1 ) “ Only on days when the sky isn ’ t completely saturated with an aerosol of a visible mass of minute liquid droplets , the gas molecules that make up the earth ’ s atmosphere will , through a process called Rayleigh scattering , absorb light waves with shorter wavelengths then radiate this energy back out into the sky in many different directions which will result in anyone standing on the ground on such a day seeing a blue sky ,” or 2 ) “ On clear days , the sky is blue .” The second sentence is always going to be the better choice .
In a similar vein , use plain English instead of confusing legalese , because any writing full of gobbledygook serves no one . Consider poorly drafted legal documents . If the understanding you intended to convey is eventually misinterpreted by one or more of the parties due to the inclusion of such gibberish , you may eventually have a serious problem on your hands .
Finally , proofread everything you write and don ’ t rely on spellcheck . Better still , have someone else review what you ’ ve written for two reasons . First , a fresh set of eyes can often catch a few typos you ’ ve been missing ; and second , it ’ s a great way to confirm that your words are being interpreted correctly .
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his JD from Drake University Law School .
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