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.
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.” (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” 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.
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.