[00:00:00] Max Cadmus: Today on Speaking of Litigation, we're discussing the importance of written advocacy and what to avoid in legal writing. We'll talk about overly aggressive writing versus writing that's maybe not aggressive enough, and the process of what's called earning your tone. We'll also talk about some of the less obvious consequences of poor, or just not stellar legal writing, how getting too cute or out over your skis can turn into a PR nightmare.

[00:00:32] Max Cadmus: And finally, we'll talk about how you can test for and recognize good legal writing. We'll touch on the key elements of effective legal writing, from the importance of stylistic syntax to the use of headers and even the table of contents. Hello, everyone. I'm your host today, Max Cadmus. I'm an attorney in Epstein Becker and Green's litigation practice.

[00:00:53] Max Cadmus: There are lots of books that have been written about how to write good legal briefs and good legal analysis, but no books about how to recognize good legal writing. If you've written a book about how to recognize good legal writing, please DM us because we're not aware of it. And with me to talk about that today is Tom Kane, a trial lawyer in EBG’s Princeton office who practices in the commercial litigation group.

[00:01:20] Max Cadmus: Tom is experienced in health care provider reimbursement disputes with commercial insurance companies, as well as unfair competition and other business torts involving hospital systems. Tom, thank you for joining us.

[00:01:36] Tom Kane: Thanks, Max. Very happy to be with you.

[00:01:38] Max Cadmus: Also with us today, we have Ed Yennock. Ed is a trial lawyer in EBG's New York office. He works in the labor and employment litigation practice, and he's been there since 2016 with a focus on the financial services industry. Ed is experienced navigating challenging and sensitive transnational discovery and liability issues. I can't think of anybody better to have on the call, Ed, thank you.

[00:01:54] Ed Yennock: Thanks Max, good to be with you, good to be with you Tom as well.

[00:01:59] Max Cadmus: So Tom, just to get us started, why are we talking about this? I've seen Suits. Doesn't lawyering really boil down to standing up and making an argument in court?

[00:02:14] Tom Kane: Yeah, that that's the problem Max, is that I think because of popular culture we have, even lawyers sometimes have this view that what really counts is the big summation before the jury or maybe in some legal thrillers, you know, it might be an argument before an appellate court or something like that.

[00:02:37] Tom Kane: And those things are important. I've tried cases. I'm very proud of my trial record, but that's a topic for another day because what they don't show you in Suits or in any of those other things is the hours and hours that those attorneys spent pouring over and writing briefs for the court before that case ever got to a jury, or got to an appellate court.

[00:03:04] Tom Kane: When you think about it, by the time a complex commercial case, the types that I usually deal with, by the time that gets to a jury you're years into litigation. You've had a motion to dismiss, discovery motions, motion for summary judgment, motions to eliminate, Daubert motions. Both sides have written a good sized novel, in essence, if you put it all together, about that case before a single juror has ever been picked.

[00:03:28] Tom Kane: And each one of those points along the way had both opportunities for one party, and peril for the other party. And that's why so few cases actually get to trial and even fewer cases get up on appeal, because long before that, important decisions are made, determinative decisions are made based on the writing and based on what the judge thinks of your case based on your writing. So ultimately, it's a lot more important in most cases.

[00:04:07] Max Cadmus: Tom, I think you could probably count the number of hours, even in a big case, that you've spent in court on both hands. But you would need a calculator to count the number of hours that are spent reading and writing the briefing, even in a big case or even a small case.

[00:04:22] Tom Kane: Yeah, the difference is exponential. There have been times where there are major briefs that I've written, a lot of major briefs I've written with you, Max, that we've spent hundreds of hours on, maybe an entire month of that being … A busy, busy month of that being really the only thing that we're working on, 1 or 2 people, a small team of people working on a major brief. And you submit it to the court, and you may not have oral argument at all. Or if you do have oral argument, maybe that argument is going to last an hour. I think one time in federal court on a summary judgment motion, I had about a 3-hour summary judgment argument on briefs that had taken exponentially more than that. Really, it's a huge difference in the amount that you're spending on writing compared to the amount that you're spending on oral advocacy.

[00:05:17] Tom Kane: And let me add one other thing to that: even in the cases where your oral advocacy is important, you've gotten to oral argument or something like that. The court in particular has already read those briefs, and so they come to that oral argument, if they're going to hear you for an hour, the judge is going to hear you for … An extreme case, like three hours where I had one time. The judge has already read the briefs on both sides in exacting detail and probably is coming in not to hear your best Atticus Finch summation, but is coming in because there are specific issues that the judge feels was not covered well enough in your briefing and is pressing you on those points because you papered over them.

[00:06:03] Tom Kane: So the judge comes in with questions and preconceptions and the case is already shaped by the time you get there.

[00:06:09] Max Cadmus: Tom, I think you and Ed are two ideal people to have on this podcast because, and correct me if I'm wrong, I think you do more than 50 percent plaintiff side work and Ed does more than 50 percent defense side work.

[00:06:24] Max Cadmus: And I'm guessing there are some pretty big differences in how you craft your legal writing as a result. And one of those things is tone. I keep hearing about tone in legal writing, choice of tone. What does tone mean and how do you craft tone?

[00:06:42] Ed Yennock: Tone is really important and I think it's something a lot of lawyers get wrong.

[00:06:45] Ed Yennock: I read a lot of briefs that are loaded with histrionics and outrage and almost always I think that's to the detriment of the cause. So I think when you're talking about tone, there's a few kind of dynamics, right? First off, the client has to be comfortable with the tone that you're taking, especially on the defense side.

[00:07:09] Ed Yennock: The client has interests that often go beyond the four corners of the case in front of you. So as outside counsel, you have to be plugged into those interests. You might have a great idea for a really pithy line that you think is going to work really well with your tribunal. But if this is a case that might receive media coverage, might you be creating a soundbite for negative media coverage?

[00:07:33] Ed Yennock: So you have to think about those sorts of consequences when you're talking about tone. In the employment context, there's often a concern about alienating the existing workforce. So the adversary in front of you may well merit contempt in your case, but you have to think, what are the, not only the external, but also the internal PR implications of being hyper aggressive, at least right out of the gate.

[00:07:54] Ed Yennock: And that sort of brings up the issue of earning your tone. And what I mean by that is you might believe in a given case that your adversary is intentionally misleading the court, let's say, but usually you shouldn't come right out of the gate with the most accusatory aggressive tone.

[00:08:15] Ed Yennock: You've got to build your record and chip away at the adversary's credibility. And then you earn the right at that point, whether it's in the eyes of the arbitrators or the judge or whoever you're in front of, to dole out scathing criticism to your adversary. And if you overplay your hand in terms of tone, you risk being dismissed as hyperbolic, right?

[00:08:37] Ed Yennock: And that can impact you going forward in the case. Last thing I'll say about tone is that you need to understand your audience. Are you writing for, as I mentioned, an arbitration panel that sometimes might not even be comprised entirely of lawyers? On the other end of the spectrum, are you writing a federal appellate brief?

[00:08:56] Ed Yennock: The appropriate tone is going to be dictated substantially by who your audience is. Generally, you're going to have a lot more flexibility with tone before that arbitration panel than you're going to be with a federal circuit court where you're generally going to have to play it pretty straight in terms of the tone of your brief.

[00:09:14] Max Cadmus: Tom, you've seen many, many briefs. What are some examples of what you would consider an overly aggressive tone, and what is a tone that is not aggressive enough?

[00:09:26] Tom Kane: An overly aggressive tone, first and foremost, is simply personal attacks on opposing counsel. Judges really don't like that. On opposing parties too.

[00:09:42] Tom Kane: Most people that are brought into litigation, even corporate litigation, you have executives, they're good, decent people, and you're starting out at a credibility deficit if you're trying to convince the court that these are bad, evil people. Another one, and this is really more in the appellate context, but this is the biggest no, no. Attacks on the lower court judge.

[00:10:08] Tom Kane: No matter if you have a judge, and I've never had this, thankfully, but if you have the worst judge in the world, who is drunk and incompetent during the course of your proceedings, and should totally not be sitting on any bench anywhere. You still treat that judge, in your writings, with the utmost respect. And it's not the judge who made a mistake.

[00:10:35] Tom Kane: The court erred, or there was an error in the court's opinion, or you use  a respectful tone, even under those circumstances. Now, let me say also though, here's the counter to that. And this goes to your question, Max, about not aggressive enough. That doesn't mean that you let real, I'll use the term misconduct, have a pass.

[00:11:02] Tom Kane: It doesn't mean that you ignore things. It means, like Ed said, that you have to earn it. There's an old adage that I always use with young attorneys, and it comes from the novel, not the movie, but the novel To Kill a Mockingbird. And Atticus at one point in time says to Scout his daughter, when you're dealing with lawyers, ignore the adjectives and you'll have the facts.

[00:11:28] Tom Kane: And I think that's the approach that you need to take sometimes, or if you're in-house counsel, and you're looking at the writing that you're seeing from in-house attorneys, and you're judging the quality of it, are they just throwing a lot of inflammatory adjectives out there, or have they built a factual predicate that justifies the conclusion?

[00:11:49] Tom Kane: Put differently, you don't tell the reader that the other side is bad or the other side did something wrong. You show it to them, and you show it to them by letting the facts speak for themselves. And then, almost to the point where the reader, the judge, has already come to that conclusion for themselves.

[00:12:12] Tom Kane: Then, and only then, maybe, maybe you put a conclusory term on it in an appropriate and respectful way. But if you've earned it, then it may be possible, but that's where it happens. Other examples, Max, your question of not being aggressive enough. We're lawyers. We're advocates. Our briefs should read like advocacy.

[00:12:35] Tom Kane: They shouldn't read like law review articles. Noone is reading the brief in your 100 million dollar commercial lawsuit because there's some interesting undetermined issue of law that we're all getting around trying to decide. You're reading it because somebody is accusing someone else of violating the law, and he's saying that they're owed a lot of money.

[00:12:57] Tom Kane: So don't do that. And then, and this loops back around to my original point, not enough discussion of the salient facts. When you are writing any sort of legal writing in the litigation context, and your discussion becomes too disconnected from the facts of your case, you're losing that appropriate tone of advocacy.

[00:13:22] Max Cadmus: There are obvious risks to poor, or just not ideal legal writing. If you have the wrong tone you can turn off the court or the audience. If you don't have good advocacy, you can obviously lose your motion or your case. But there are some non-obvious consequences as well that in-house counsel and attorneys need to be aware of. How can a legal brief become a PR nightmare?

[00:13:45] Ed Yennock: I touched on this earlier, right? And again, speaking from the defense perspective here, a fantastic legal brief that is really effective for its primary purpose can still cause big problems for a client. Generally speaking, the more sophisticated the client's business operations, the more risks that might be lurking out there outside the four corners of your case.

[00:14:04] Ed Yennock: So I'm always hyper aware of unintended consequences of whatever I'm writing, i.e. stepping in it, right? And this generally takes two forms. The first is making an argument, as I mentioned, that is … might be accurate and befitting of the case, but nevertheless might play poorly in the press or with constituencies, like the client's business partners or the workforce.

[00:14:29] Ed Yennock: The second issue, I think, is more difficult to anticipate and to navigate. And that's the impact of what you say and how you say it in case A on a client's broader docket, not only of existing litigation, but of potential future litigation as well.

[00:14:54] Ed Yennock: In terms of the client's existing docket, you need to understand it as well as you can so that you don't say something in case A, that is going to undercut the position that the client is taken in case B. Is the GC going to catch that sort of thing? Often they will, but as outside counsel we have to be proactive about that.

[00:15:14] Ed Yennock: We can't just assume that someone else is going to appreciate all of those risks and will catch them 100 percent of the time. You may not know the docket thoroughly, but you can think creatively in the abstract. Might what I'm writing here come back to haunt the client in some foreseeable way given just the nature of its business, given the kinds of disputes that tend to arise.

[00:15:39] Ed Yennock: And I know specifically in the labor and employment space, employment suits might often be running in parallel to other either related employment matters or even the commercial, in a litigation or arbitration. So you need to tread really carefully and understand the hierarchy of cases, really, from a client's perspective.

[00:16:00] Ed Yennock: Maybe I really want to make an argument here in this case, but I shouldn't because there's a more important higher stakes case where that argument might come back to bite us. So my overarching philosophy is this: it's outside counsel's job to make in-house counsel look good in front of all of their constituents.

[00:16:21] Ed Yennock: Including the business that they answer to. So making an incredibly persuasive witty argument isn't a success if it winds up getting the client in hot water elsewhere.

[00:16:34] Max Cadmus: I can see how that would happen all the time in the employment context. Tom, when you are litigating, do you often have other cases that you can see, that what you're saying in this brief could impact an argument in another case for the same client or on the same issue?

[00:16:52] Tom Kane: Sure. Absolutely. In complex commercial cases you always have the overlay of the case that you're in, the next case that may come, other litigation based on similar contracts to the one you're litigating over, securities implications of things that you're saying. I do a lot of plaintiff side, commercial litigation.

[00:17:25] Tom Kane: I'm representing companies, often large companies, that are saying they've been injured by other large companies. As an advocate I probably want to play up the damage to my client. But I've got to think about, if I overstate that … First of all, you shouldn't overstate it because you shouldn't overstate it.

[00:17:49] Tom Kane: And that goes to your own credibility and to the credibility of a client. But if I overstate it, am I triggering something from a securities’ point of view? Are there shareholders who are going to be concerned because the litigation wasn't properly disclosed? That sort of thing.

[00:18:10] Tom Kane: You also, to circle back around to Ed’s point, I'm old enough to remember the days when I first started practicing before electronic filing, and if you filed a brief, you would make two copies of it and send it down to the clerk's office and one will get stamped and you'd keep the other one and then you'd send courtesy copies to the judge. And there'd be three copies of it in existence. And they're public documents, so if somebody wanted to see it, they could go down to the clerk's office and copy it, but people are lazy and usually did not do that in those days.

[00:18:42] Tom Kane: That's not the case nowadays. Everything we do, I think every court across the country that I have appeared in, in say the last 5 years, certainly since COVID, has done electronic filing. Even states that were slow to adopt it, now, have pretty much adopted it. And what that means is that now you're filing a PDF, and somebody just has to sign on to the clerk's office through the Internet and maybe pay a nominal fee and then they have access to it.

[00:19:12] Tom Kane: That's the difference and that's what can come about. And even on, we're talking about the macro level of other people, and bad PR, and implications in other cases. But there's also the impact within your own case because attorneys build a reputation with judges and clients build a reputation with judges.

[00:19:37] Tom Kane: And if you are the litigant who cried wolf and you are constantly making claims that are not going to be backed up with the facts, then obviously the next time the judge sees something, even if it is meritorious, they're going to be a lot more skeptical of it.

[00:19:58] Tom Kane: So you do harm within your own case, and you do it on the macro level outside of your case.

[00:20:04] Max Cadmus: So now we know the risks. Let's pretend that we are all in-house counsel and we're managing litigation with outside law firms. How are we going to evaluate the legal writing that comes to us from our retained firms and make sure that we're getting good advocacy, that our tone is correct, and that we're not going to fall into some of these pitfalls we've been discussing?

[00:20:28] Max Cadmus: Ed, what are some of the first steps of a successful brief that we would be looking for?

[00:20:33] Ed Yennock: From our perspective, the first step is to get on the same page, right, with your client from a macro-strategic sort of standpoint. Maybe it's not always desirable for the client or practicable to see an outline, but that's generally a good practice.

[00:20:50] Ed Yennock: Optimally, there's at least going to be a discussion in terms of general themes and what positions are going to be prioritized in a piece of legal writing. And likewise, as we talked about, what are some worthy points we could make, but we need to avoid, or we need to be really careful about because of the broader implications?

[00:21:10] Ed Yennock: Also, I think, before you begin typing, sometimes you're presented with an opportunity to make new law in a particular jurisdiction, for better or worse. And in those instances, it's really important to think about whether this case is the right vehicle for doing that, for making those arguments.

[00:21:29] Ed Yennock: Is it worth the risk in making an argument that could set precedent, that the company is going to have to live with for better or for worse?

[00:21:47] Ed Yennock: Once you get beyond those kind of macro-strategic decisions, I think organization of thoughts is often, if not always, the key first step to a successful legal brief. So you draft your anticipated point headings. Maybe they're too long at first, but it's your way to organize your thoughts and apply an initial frame to your facts and arguments.

[00:22:13] Ed Yennock: You think about your main theme or themes, and the order in which you're going to present your arguments to maximum effect. And to me, I don't want to put a percentage on it in terms of how important it is to the overall product, but I think it's really important, in terms of organization and the order of things. To me the battle is won in that first step where you're thinking about, how do I present this?

[00:22:40] Ed Yennock: What are my best arguments? Where do I put them in the brief? Those types of organizational decisions really dictate outcomes more so than how you fill it in at the end. What you do after that, I think, is really subjective and circumstance dependent, in terms of good legal writing and how you evaluate it.

[00:23:01] Ed Yennock: I've written briefs where the first thing I do is write the intro. I've written briefs where it's the last thing I do. I've written briefs that start out with a couple of really catchy turns of phrase, and we build it out from there. I started out framing the request for relief in other instances.

[00:23:19] Ed Yennock: The point is, I think beyond the initial pivotal decisions around organization and the flow of the arguments, and that's really, as a GC, I think what you're looking at initially is, is this really easy to understand just based on the flow of things and the organization of things?

[00:23:36] Ed Yennock: Beyond that, it's hard to say there's a really sort of one-size-fits-all approach. It's going to depend on the nature of the brief and really the way that the ideas have germinated in your head before you start typing.

[00:23:49] Max Cadmus: So Ed mentioned organization as one of the first things that we can look at in evaluating a brief.

[00:23:55] Max Cadmus: And Ed, you also mentioned point headings. Tom, I know you have, that you place great importance on well-crafted and well-organized point headings. Can you tell us what your approach is to the use of point headings?

[00:24:11] Tom Kane: I always go into writing a brief, and I think this is the perspective that in-house counsel should take when they're reading work product from the attorneys that they work with.

[00:24:19] Tom Kane: I always take the approach that my audience is a judge who is intelligent, almost always above average in intelligence. Objective. They want to get the right answer. Interested. They are interested in your case, but they are very, very busy. Imagine you're that person. You're smart, you want to get the right answer, but boy, you're getting pulled in a lot of different directions.

[00:24:47] Tom Kane: What's going to make a brief easy for you to read? So one of the ways is that it almost becomes like architecture, and you're building the bones first. And the bones are usually your point headings. And the point headings are: here's the introduction, here are the facts. Point A, we entered a contract. Point B, we violated the contract. Point C, it hurt us.

[00:25:14] Tom Kane: You know, legal argument: Point 1, this is a breach of contract because they violated it. Point 2, we were damaged by that because whatever. Those point headings should be prominent, should be argumentative, should not just simply be a label of the contract, as opposed to, “the contract was violated,” something along those lines.

[00:25:37] Tom Kane: It should not be, you know, I have a point heading, the law of contracts versus this contract was violated because dot dot dot. And so they appear prominently. They also become your table of contents.

[00:26:05] Tom Kane: And so when that intelligent, interested, but very busy judge picks up your brief and wants to see what it’s about, the first thing that he or she can do is go to the table contact and say, okay, I see. I gotcha. I see their main arguments. Okay. I understand. And then that's going to match with what they're reading. That structure of your argument usually will appear in some form, even if it's in a, what I would call a, just a road map paragraph in your introduction, to let the court this is what this case is about and this is what I'm about to tell you. It's almost like this is the test, when you take that interested, very busy judge: if an earthquake hits in the middle of the judge reading my brief, and he or she only gets to page 5, or only gets halfway through, I should still have said enough that they understand what my arguments are and that they're basically persuaded by it.

[00:27:03] Tom Kane: And that's the way I think you do that, is to give it to them up front, show them the structure up front and show the judge where you're going with things. And it's not the most exciting, you know there's no cliffhangers involved here. There's no M. Night Shyamalan twist at the end that they get in subpoint 3 of your argument section. Show all your cards up front.

[00:27:29] Tom Kane: This is what I'm going to tell you, and this is what I'm going to show you, and then show it to them. And I think that's the most persuasive thing in the world.

[00:27:36] Max Cadmus: Tom, some cases are very complex, and some cases are actually relatively simple. How do you modulate your writing to address a simple case versus a very complex case?

[00:27:49] Tom Kane: In my mantra, when it comes to these issues, simpler is almost always better. And particularly the trend among lawyers nowadays, for whatever reasons, is to make things more complicated than they need to be. So my test is always, what's the simplest way of putting something without losing accuracy? And let me tell you what I mean by accuracy.

[00:28:21] Tom Kane: We are dealing with the law, we are dealing with legal cases, some that were written even a long time ago, where they had more stilted writing styles. Those cases often set out the standards for us. So in New Jersey, for example, where I live and practice, if you're doing a tortious interference case, you're always going to cite a case called Printing Mart.

[00:28:44] Tom Kane: That lays out the standards for tortious interference. I may not like some of the writing in Printing Mart. I may wish that it was put more simply. I may wish that it was less ambiguous in some cases, but I can't simplify it to the point where I'm changing the operative language of Printing Mart because I may not like the style that judges wrote with back in the 70s and early 80s.

[00:29:15] Tom Kane: That I can't change, and oversimplifying it there would make what you're doing inaccurate. But other than that as simple as possible. And here's the test that I recommend for general counsel when they're reading outside councils work to determine whether something is too complex. Try reading a brief out loud.

[00:29:40] Tom Kane: If you can't read a brief out loud because the sentence structure, the words, are just so complicated, then chances are one, it can be simplified. And two, it's going to be very laborious for that overworked, but intelligent and interested judge to read. So that's a great way to get a sense for tone.

[00:30:09] Tom Kane: It's not going to read like Shakespeare. It's not going to read like Hemingway. But it should be something that you can at least articulate that way. That's the test that I recommend.

[00:30:22] Max Cadmus: So we have organization, and the test for that is, look at the point headings. They will tell you how the brief is organized.

[00:30:29] Max Cadmus: Then we have complexity. Are you hitting the right level of complexity? The test for that, read it out loud. Read it out loud to see if it's clear enough. Ed, earlier we talked about tone and we talked about avoiding adjectives to the extent possible. What is a test for tone, and how can we avoid adjectives? What do we mean by that?

[00:30:53] Ed Yennock: There is a quote attributed to Mark Twain. I'm not sure if he said it, but it was attributed to him. “If you catch an adjective, kill it.” It's also the name of a useful book on good writing. But generally speaking, if you're looking for good writing and you’re in-house counsel, you want to see perhaps zero adjectives.

[00:31:14] Ed Yennock: Maybe not that harsh, but if you spot too many that's a sign of poor writing, or at least writing that is not as economical as it could be. So usually you can eliminate adjectives and adverbs and replace them with a stronger verb, right? A stronger action word. So an example would be, instead of saying somebody “walked angrily” out of the room, pick a better verb.

[00:31:45] Ed Yennock: So that person “stormed” out of the room, for example. Or instead of saying someone is “arguing vigorously” against something you could say that person inveighed against something. So generally speaking, using more powerful descriptive verbs is the way to go, especially in persuasive writing. It not only makes it more persuasive, but it generally will make it shorter.

[00:32:12] Max Cadmus: So we have organization, complexity, tone; what other skills have you found are most important when evaluating legal writing?

[00:32:23] Ed Yennock: In my experience, flexibility is a valued trait for outside counsel. As I alluded to earlier in the labor and employment context, GC often has to balance competing interests. The business, HR, the workforce more broadly, other litigation, potential litigation, and there are going to be diverse viewpoints among the stakeholders in an organization.

[00:32:49] Ed Yennock: And sometimes the business wants certain points to be made, or points to be made in a certain way. Has certain views that they believe needs to be reflected. And your client, the GC, can’t generally just ignore those voices. So as outside counsel you have to have the skill to be able to respect that situation and to find a way to thread the needle.

[00:33:14] Ed Yennock: You frequently don't agree, necessarily, with some of what the business wants to see in a piece of legal writing or how they want to say it. And maybe you can try to change minds, but if that isn't an option, and often it's not, you, as outside counsel, just have to make it work. And so you write the best brief you can write while accounting for the sometimes divergent views of the stakeholders.

[00:33:40] Ed Yennock: So in my view, that's a really practical skill that outside counsel needs to have and that in-house counsel will generally value and be on the lookout for.

[00:33:51] Max Cadmus: Tom, Ed, I don't know how you guys got so smart about legal writing. I suspect it's because you've read some very, very good guides on legal writing. That, and practice. If anybody listening to this wants to improve their advocacy, what books, do you have anything you can recommend, resources that they could look at to try to do that?

[00:34:11] Ed Yennock: I recommend a book, this is not a legal writing book, but it is a book called How to Write a Sentence and How to Read One by Stanley Fish, first published in 2011, I think. Specifically it's on good writing and sentence craft, as the title would imply. In my view, legal writing texts like Garner are obviously very useful, and can make someone a more proficient legal writer.

[00:34:38] Ed Yennock: But in terms of taking it to the highest level, especially in terms of the storytelling skill that you need to have often, in my opinion it can be really useful to consider advice from experts on creative writing. And Fish provides a lot of great advice in terms of crafting opening and closing sentences.

[00:34:58] Ed Yennock: But what sticks with me the most about that book is his rumination on the purpose of a sentence, which is, as he puts it, not to just mirror reality or to state reality, but to shape it. And he conveys with a whole bunch of examples what winds up being a point that seems really obvious, but it's a really helpful way to think about what we do, which is the immense power you have in deciding what to put into a sentence and what to leave out of it.

[00:35:28] Ed Yennock: And that essentially shapes the reality that your reader is going to be presented with. So it is an empowering book and I would definitely recommend it.

[00:35:37] Max Cadmus: Tom, any book recommendations?

[00:35:39] Tom Kane: It's hard for me to top what Ed just said. I read that Stanley Fish book on my honeymoon on the beach on Horseshoe Bay in Bermuda.

[00:35:50] Tom Kane: But that's the sort of person I am. It's hard to narrow it down. Anything by Bryan Garner. This one, The Winning Brief, is a tremendous piece, particularly for younger attorneys. For more senior attorneys I'm partial to a book called Point Made, by Ross Guberman. Who also, by the way, I'll digress to say, has a great Twitter for people who are interested in legal writing. And he will often post interesting decisions and comment on why he thinks they are interesting.

[00:36:29] Tom Kane: But what I like about Point Made is that Ross goes through briefs from very noted practitioners, briefs that were filed with courts of appeals and with the Supreme Court. And will select passages and talk about why they're good and why they illustrate some of the bigger principles that we've been talking about.

[00:36:51] Tom Kane: It's fun. It's an easy read. It's easy to see what other people, what other great attorneys are doing. And it's very entertaining. He's just a good writer in his own right and makes it a very entertaining experience.

[00:37:05] Max Cadmus: I think those are both great recommendations and I actually have my copy of Point Made right here, but I would recommend Making Your Case by Justice Scalia and Garner.

[00:37:18] Max Cadmus: And the reason why I mentioned that one is because this is, I think, as close as you can get to having a book on legal writing that is written by an audience of legal writing. That's as close as you can get to an evaluation of legal writing.

[00:37:43] Max Cadmus: Ed, Tom, I think there's a hole in the market. I think we should write a book about evaluating legal writing. What do you think?

[00:37:49] Tom Kane: Oh, that sounds good. In our spare time.

[laughter]

[00:37:53] Max Cadmus: So thank you both very much. And thank you to our audience for watching and listening. Subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.