Some Instincts Die Hard

I'm drafting an employee incentive bonus plan right now. When I'm trying to think of how I want to say what I want to say I have this little internal dialogue that goes: "I wonder how lawyers phrase this particular concept? I wonder if we have any forms on the system that do what I'm trying to do right now and how they said it." And then I say, "Yo, dummy, you ARE a lawyer and you can phrase this just as well from scratch as you would if you found some old document saying something tangentially close and then modified it extensively. Just write it." And I do. But man, my habit as a young associate is to assume that there are special non-intuitive, non-straightforward lawyery ways to say everything, and that I'm not actually privy to what they are and so need to go find something someone else has written first. Because I don't trust myself to be able to discern properly, every time, which words are just blustery filler and the redundancy lawyers seem to love and which ones are really legally significant. The truth is that I do know, most of the time, how to discern them. But my habit is to assume that I'm not qualified. When do you outgrow this? I'm getting much, much better, both about having the confidence to draft my own paragraph first rather than modelling it on something someone else has written and about actually writing in language that sounds lawyerly while remaining reasonably clear.

And I've been pretty darn good at (or at least really confident about) editing language drafted by others for quite some time now, so once I've cobbled something together I can go in with my editor's hat on and tinker with it until it reads all right.

Comments

[Jack]

There are really only two ways to go in balancing the use of forms or precedent on the one hand, and original drafting, on the other hand. You can start with the precedent and modify it accordingly, or you can start with your own drafting and look to the precedent to make sure that you didn't leave out anything relevant or important. In any case, it is risky to write a fairly commonplace document without any reference to the work of lawyers who have gone before, so the only real issue when in the process you crank up your brain.

My old firm, Latham & Watkins, had oodles of forms with blanks and countless transactions, so it was rarely necessary to think up entirely new words. The trick was to avoid using the precedent as a crutch. I remember that many of the forms used to have bold legends in the instructions, to wit: "Remember, no form is a substitute for thinking." Probably good advice in many jobs, but absolutely so for transactional lawyers.

I must say, I love your blog, your writing, and your spirit. Good luck with it!

[David Giacalone]

I was just going to say all the things Jack said about using forms -- they really can be convenient checklists.

What you can add to the effort is (a) your ability to say many of the points more clearly; and (b) your own insight into additional issues that may be needed in your case or irrelevant ones that can be omitted.

Reinventing the wheel is often the sign of inexperience, and is very inefficient. Knowing when to borrow is a sign of maturing into your role as a lawyer and growing in confidence. Three year-olds may insist on doing everything for themselves, but third-year associates shouldn't.