Snarky Writing — Usually a Really Bad Idea

September 7, 2014 § 1 Comment

A friend of mine was recently talking about his efforts to “de-snarkify” e-mails written in extreme irritation at the other person’s actions.  “Snarky”  is a terrific word, short, punchy, and even onomatopoeic –a bit like a sarcastic snort.  The definition of “snarky” on Google is “sharply critical, cutting, snide.” Wiktionary defines it as “snide and sarcastic; usually out of irritation, often humorously.”

We’ve all written a bit of snark:  “If you had bothered to…”  “I am sure you are aware that…” , “I can’t imagine you could have meant…” (when you know perfectly well the person did mean it). The common theme of snarky writing is complete disrespect for the target, which on a practical level is guaranteed to make them angry or defeated.  Of course, if you ever have to deal with the person again, it will not lead to an easy solution to any problem.  Even if you are being snarky in something that a third person will read, like a judge for instance, or a friend, there is still a risk that it will come off sounding like you are the one who is the jerk, not the target of the comment.

It might even be bad for your health if it has become a habit. The post The Snarky Voice in Your Head Is Killing Your Productivity – Lifehacker  has a lot about how cynicism is linked to heart disease, closes your mind to new ideas and experiences, poisons your relationships, and is ultimately unethical.  Worth a read.

But what about when being snarky works?  I did say it is usually a bad idea.

Snarky writing can be very funny when it is used to show up someone who is being a bully.   Two examples were posted this summer on Above The Law (A Great Response to a Cease and Desist Letter; and This May Be An Even Greater Response To A Cease And Desist Letter ) 1.  Both responses were made to demands that had been written to bully individuals who had not been trying to make money or to hurt anyone.  The second response is much better than the first, probably because in the first case the lawyer writing the original demand didn’t know what he was talking about (not that that is an excuse), while the second response was to a lawyer at a big firm who really should have known better.

I particularly like the breezy style of both.  In the first response, the attorney asks, “so I may properly counsel my client, please tell me what in Sam Hill’s name you meant by ‘anything confusingly similar thereto.’”  In the second response, the lawyer put a copyright notice at the bottom and then wrote “fair use allowed and encouraged.  Actually, go ahead and publish the whole thing as is; we don’t care.”

But, assuming you are not dealing with a true bully, and in the interest of good relationships, good reputation, and good health, you want to de-snarkify your writing.  Here are a few tips:

Consider whether you were irritated when you wrote it.

If so, are you inclined to roll your eyes, put your hand on your hip, or smirk if you read it out loud?

Eliminate all the phrases like:  “if you had bothered to . . .”  (see above for more).

Re-write it as if it were to a close friend who had made a dumb mistake. You can point out the error, but there is no reason to be nasty about it.

If it’s a letter or e-mail, you can also just delete it, call the person you are writing instead, and ask politely that he or she retract the offending document. If it’s not done, then write.

You’ll feel a whole lot better when you hit send.

1. http://abovethelaw.com/2013/06/how-to-write-a-great-response-to-a-cease-and-desist-letter/

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Community and Other “Co” Words

March 25, 2014 § Leave a comment

A while back I was at a dinner put on by an organization of commercial lawyers I belong to when I made a comment to another guest about what a great community we have.  “Community?” He asked.  “What do you mean?”

The organization hosting the dinner is fairly new, but about half of the 70-or-so members have been in this field over 20 years.  Pretty much everyone knows everyone else, often from being on opposite sides of cases, and sometimes through their kids at school, or through church or temple.  “Community” seemed an appropriate word to me.  I admit, though, that as soon as I said it, I realized it is not the word lawyers usually use to describe themselves.

It might be common to refer to “the legal community,”  but many attorneys might find that to call it their “own community,” as in a “sense of community,” is more than they feel—or than they think they feel.  A “sense of community” is described in psychology  as being made of 1) the perception of similarity to others, 2) an acknowledged interdependence with them, 3) a willingness to maintain this interdependence by doing for others what one expects from them, and  4) the feeling that one is part of a larger dependable and stable structure.” [1](Saraons 1974, p. 157).  This, I expect, falls well within most lawyers’ actual (if not admitted) experience of their “legal community.”   We are certainly “similar to one another” and “part of an interdependent system” where we act towards others in the way we expect of them—a system that for the most part works.  Whether you are a corporate attorney, an appellate litigator, or the hardest of hard-core trial attorneys, the other attorneys you encounter in your work are, in fact,  your community.

It occurred to me that “community” is not the only “co-“ word lawyers generally avoid when talking about their work.   The word “collaboration,” is rare except when talking about a presentation for an education panel.  A quick search on the Internet for “collaboration” and “law,” turns up “collaborative law,”  which is a style of family-law practice focusing on settlement.  Outside of that context, however, the phrase “collaborative law” is hardly used.  Yet collaborate means to “work jointly with others or together especially in an intellectual endeavor”[2]   That, of course, is exactly what lawyers do to litigate a case or negotiate a contract.  And not just within our own firms or companies, but with opposing counsel, as well as  with judges and their staff. Yet we never talk about this work as “collaboration.”

Even the word “cooperation” is used with care.  While no one wants to seem uncooperative, lawyers seldom brag that their cooperation with opposing counsel is a benefit of their service.  This is strange in itself since everyone knows cooperation makes litigation more efficient and less expensive. Negotiation without cooperation, of course, is useless.

So what is with these “co” words that makes lawyers avoid them?  Are they perceived as dangerous in some way, suggesting some softness or capitulation?  They are actually good words and need not be left to a margin of “alternative dispute resolution” (what ever that is–a topic for a different post).  You can use them to accurately describe the quality of the work you do and the relationships that are a part of that work. The next time someone asks what you do, you can say that you are a member of a large (or even “exclusive,” if that is your preference)  community that collaborates with other members to resolve disputes (or negotiate agreements). Try it out .  Hear how it sounds.  These “co-“ words aren’t that dangerous after all.

Flaubert’s Parrot

April 6, 2013 § 1 Comment

After five months of distractions–some surgery (all better now), and training for a triathlon (completed), I’ve returned to my conversation about language. At the moment, though, it feels something like whistling random bits of tunes while walking down a dark street. Someone with an open window might hear heels clicking on wet concrete, starting and stopping again, sounds of water dripping in a gutter—or not. (I have no idea why that image popped into my head; I wasn’t looking for one.)

I picked up a thin novel called Flaubert’s Parrot, by Julian Barnes. It’s about a British professor following Flaubert’s life.  A bit on the back says it is a “metafictional inquiry into to the way in which art mirrors life and then turns to shape it.”  It’s hardly a surprise I bought it.  Besides, I was in this terrific used bookstore called “Recycled Books” on the Alameda—just the sort of book he’s got there.

I’m only on page 20.  After the protagonist twists through all the possible meanings of a parrot that appears in one of Flaubert’s stories, he quotes:

“’I am bothered by my tendency to metaphor, decidedly excessive.  I am devoured by comparisons as one is by lice, and I spend my time doing nothing but squashing them.’ Words came easily to Flaubert; but he also saw the underlying inadequacy of the Word. Remember his sad definition from Madam Bovary: ‘Language is like a cracked kettle on which we beat out tunes for bears to dance to, while all the time we long to move the stars to pity.’ So you can take the novelist either way: as a pertinacious and finished stylist; or as one who considered language tragically insufficient.”

Hmmm. Whatever the intent of the protagonist, or Barnes, or Flaubert, for that matter (assuming this is really a quote), it made me stop.  Am I being devoured by lice here?  I don’t think so.  Sure, I like comparisons; I delight in them, even luxuriate on a good day. I’d go so far as to say that if you’re no good at comparison, then you’ll never get through law school, and that the better you are the better you’ll do—both in an and out of school.

And, of course, we have no choice on the most basic level, since we think by comparing things and use language to express the ideas to ourselves and to others. (See my comments about Lakoff and Metaphors We Live By.) Even though experiencing some things has nothing to do with comparison or language at all–the pain of my ruptured appendix in December, the exhilaration of crossing the finish-line at Lavaman–sharing the experience in a way that evokes the feeling for someone else, or trying to save it, can only be done through language.

Writing this and then wandering through my stack of stuff—bits of notes, articles, case excerpts where judges talk about metaphor working and not working—has gotten me back into the right neighborhood, thinking, and may be writing about, how we think and write.

More soon.

Metaphor and Litigation Part 2 – Prayer and Submission

November 23, 2012 § 3 Comments

The last blog I wrote was about the metaphors of war and combat in litigation and how the tone they add doesn’t help the process much. Instead, it just seems to emphasize the uglier side of what we do. One of the stranger things about these images is that there is no place for the court.  Instead, the words about court and how we communicate with it are all about supplication and submission.  A document filed with the court is a “pleading” which usually has a “prayer.” You represent a “plaintiff,” “offer” proof, “submit” yourself to jurisdiction, and  “move” for relief.  A court “grants” relief and “rules” on a motion. Of course the images of monarchy run all through the descriptions—starting with the “court” and the title of “your Honor.”

The immediate reaction on reading this list is that they are just the remains of when the courts of law were an arm of the sovereign, and that this aspect of the words just doesn’t apply any more.  Yet the cognitive-science pieces I’ve read insist that a group of metaphors with a single theme is not arbitrary, but actually defines how we think about something. This got me wondering whether the meaning of prayer and submission expressed in these metaphors has really faded away, or whether it still reflects some aspect of how we think about what we do.

On a basic level, of course, we are asking the court to help us get what we want by using power that we don’t have (or can’t use legally).  Even so, the language of courts and pleading is far more submissive that simply requesting a neutral decision.  Imagine if the whole thing happened around a conference table with people in jeans using first names and eating pizza. It would feel very different, even if the result were the same.

If, as Lakoff suggests, all metaphor comes with its entailment—the aspects of the source of the image that you may not notice but applies to the thing described—what are the entailments of this language of prayer and submission?  (See part 1 for more about “entailments”).  What do just two words, “prayer” and “honor” bring with them?  Respect and love are the most obvious. What if the next time you write the “prayer” of a motion, or stand for the judge, or address him or her as “your honor, “ the thought flickers by that you are expressing your love?  And what if you are the judge, and that’s what you feel?  And that when you “grant” an order, it is a gift?

Sounds extremely strange, I know.  But there is nothing ambiguous about the words “prayer” and “honor.”

And then there are all those war and battle images.  They seem to be the very opposite of the images I am describing  here, and yet they are presumably describing the same event. Can your really be “attacking” the other side while “praying” to the court for relief?

Metaphors and Litigation Part I — obvious and not-so-obvious images of war and combat.

November 5, 2012 § 2 Comments

It’s a lovely Sunday morning and I am delaying going into work to continue preparing for trial.

I’ve been thinking a great deal all of the loaded metaphors people use in the legal world, the world in which I spend all of my working life, which at the moment I am writing this is most of my waking life.  The most obvious are the metaphors in litigation from war and physical combat.  There are things like “war room,” “hired guns,” “generals,” “soldiers,” and “weapons.”  People make “preemptive strikes,” “win by attrition,” “attack,” and “sandbag” the other side. Elizabeth Thornberg lists piles of them in her article Metaphors Matter: How Images of  Battle, Sports, and Sex Shape the Adversary System (10 Wisconsin Women’s Law Journal 225, 1995).

Some metaphors of war are so embedded in the language of litigation that unless you look you won’t even notice them.   These are things like “defendant,”  “opposing” party, being “on one side,” or having a  “cause of action.” If litigation goes on long enough, one might win by “attrition” when the other side “abandons his position” because he is out of money.   In making an argument, it is much like a fencing match.  You have the “point” and the “thrust” of the argument.  A good argument is  a “penetrating” one, which can then be responded to with a “counter” argument.

So what?  You might ask. Isn’t this just the language we use?  It is certainly possible to argue that the battle-related meanings of these words don’t affect their meanings in litigation.  But the cognitive sciences, and particularly the work in linguistics of George Lakoff and Mark Johnson, and the 20 years of science following them, all hold differently.  Lakoff and others proposed, and have been largely validated, that we use metaphors to help think about new experiences.  In the case of litigation, we use a whole set of words that describe war and conflict to describe this different, and presumably unrelated, activity.  But Lakoff argues that by using a set of words from one event (the “source”) to describe another (the “target”), we also carry over the way we think and feel about the first event onto the second without consciously choosing to.

Part of  metaphors are what Lakoff calls “entailments.”  These are the qualities of the source experience that then attach to target.  For example, a war has generals and soldiers, has an enemy,  positions, tactics, strategy, winning and losing.  All of these are useful images for describing litigation. But many other “entailments” are largely ignored. Whether you are on the winning or losing side of a real battle, it involves waste, destruction, anger, viciousness,  loss, and suffering of every stripe, including  damage to innocent bystanders (“collateral damage”).   Of course, not all litigation has all of these qualities, and not to the degree of a real war, but when the darker results of litigation appear, most of them are never expressly acknowledged.

Most lawyers I know, even litigators, don’t want to see themselves as in a war,  either as generals or as soldiers.  And they certainly don’t see the goal of what they do to be death and destruction, even if that’s what it feels like the other guy’s goal is.  Who really sees himself as the “hired gun,” which, in our world, often just means being a jerk—aggressive for the sake of intimidation?  But doesn’t it feel that way sometimes?  And then, having acted that way all day, or at least felt like you’ve acted that way, how do you then act when you get home?

It is impossible to know if there is a cause or effect here.  Does  the language of litigation tend toward war and violence and its attendant ugliness because that is its character? (A mentor of mine long ago said that litigation was a replacement for winning by battle, and he may be right.) Or does litigation become uglier and more destructive than it needs to be because that is how we talk about it?

Which ever way the answer goes, I realized that a lot of the warlike language is pretty useless, and often undermines specificity. There is no need to call a case-room a “war-room,” an associate a “soldier,” lead counsel a  “general,” or a trial attorney a “hired gun.”  Some more common metaphors are also not needed.  A discovery “battle” might be a dispute, vehement, but not necessarily deadly.  It can even be an “issue” or just what it is: a motion.  Nor do we need to objectify the opposing parties into targets.  Once you’ve established who you are talking about, particularly when you are referring to other attorneys in your field, you can use names. In writing, the other party can be called by his or her name, rather than “defendant” or “other side”.  (Using proper names is a more compelling way to write in any case.)

Even if the more deeply-embedded metaphors, such as “defendants” and “causes of action”  cannot easily be replaced, most of the war and battle metaphors are not needed. Perhaps, by simply being aware of the violent entailment of some of the language we use we can avoid adopting it as part of the way we think about what we are doing.

And if the war images are a surprise, read my next post about prayer and supplication – honestly, the references are everywhere.

-Cheers

A Start

October 1, 2012 § Leave a comment

About this Blog:

I live in the heart of beautiful Silicon Valley, and work as a lawyer—mainly litigating corporate conflicts, but serving as a mediator too.  I’ve been at this for a long time – more than 25 years at this point.

When I am not working or spending time with friends, I think a great deal about how language affects the way we think and about the way we experience our relationships.   I think about philosophy, and mindfulness’ and ethics and professional responsibility, and how all that fits into the way we live our lives and think about the law.

Since I’ve been thinking about this for ages, it’s impossible to start at the beginning—what ever the beginning was.  So this blog is just going to start in the middle.

By writing this I want to add to the public conversations about:

The interface between real people’s aspirations for their relationships—both personal and business–and the legal structures that are assumed to control them;

How those aspirations can be defined, and even undermined, by the images and assumptions embedded in the language of the law, particularly in metaphor; and

How shifting the language we use will create clearer and more genuine communication, which, in turn, will create more meaningful relationships and allow for productive resolution of misunderstandings and changed goals.

Most of the images and assumptions embedded in legal language are in metaphor.  These are not just obvious metaphors like a “hired gun” in litigation, but are in the descriptions we just accept.  A common theme is that a disagreement must be an argument, which must be a war or a fight, for example: the “defense”, the “opposition”, a “claim,” a “counter-claim,”  a “thrust” of an argument., a “strategy” for a case.  This list is long.  There are other themes that can  also bind and even corrupt our relationships – images of containers, or buildings, and, ultimately, of submission.  More on that later too.

A lot of very smart people have thought and written about different aspects of this, but the work is mostly academic and is written mainly for other acedmics.  A few starters:   Metaphors We Live By, by George Lakoff, University of Chicago Press 1980, this is the core work about about how we think with metaphors; Living Speech, Resisting the Empire of Force by James Boyd White, Princeton University Press 2006; and Metaphors Matter: How images of Battle, Sports, and Sex Shape the Adversary System, by E. Thornburg, 10 Wisconsin Women’s Law Journal 225 (1995).  The writing is fascinating , but I find that  academics can over-generalize about legal language simply because they aren’t using in day to day practice.

Some  attorneys have started to explore these alternatives publicly.   Some of this has come out of the movement for open- source software licensing and other non-traditional relationships. One group calls this new view “Sharing Law” For a fabulous discussion of this, see Janet Oral’s http://www.shareable.net/blog/birth-of-sharing-law.  There are also a whole range of efforts to find less adversarial methods of conflict resolution, but almost none of these discussions have reached everyday business or civil litigation outside of the world of family law. I hope to build a list of these alternatives.

Now I have to go prepare for a deposition tomorrow.  How’s “deposition” for a loaded word?  Is to depose a witness to defeat him?  Or to remove him from the throne?  Or do we depose to preserve testimony for “impeachment” at trial?  What would happen if we started calling these “interviews”?