Talk a Good Game

by admin 24. July 2013 12:22

By Melanie Berkowitz

This month, I’m going to tell you a story about a partner who used to come into my office to yell—and how he made me a better writer.

I was about halfway through my first year at a large law firm when I inherited the “second chair” position on a case from a fifth-year associate who was moving out of the country. Work swamped the firm, and there was no one else to take over this piece of years-old commercial litigation that had an arbitration date less than two months away.

Our client was a manufacturing company that was suing its architect for overdesigning a factory that cost millions more to build than promised. I spent a feverish two weeks buried in boxes and files, trying to learn as much as possible before the fifth-year officially left and I was on my own with an unfinished brief I felt completely unqualified to write. 

I had met the partner before, but always with the buffer of the more-senior associate.  The first time he came to my office alone, I had no idea what to expect.

“HVAC,” he announced without preamble. “They designed a $2 million HVAC system for what is essentially a big square box. They didn’t need special ventilation. They didn’t need high-tech filters. There was absolutely no reason that they couldn’t have put inexpensive units on the roof. And yet, they designed the type of system you might see in a high-end apartment complex.”

I had no idea if he wanted an answer—his commentary was not in the form of a question. But, by some small fortune, I had recently read the deposition that dealt with the HVAC system, so I jumped in. And disagreed.

“Well, the building was also meant to house some corporate offices,” I said. “And our client did admit that he wasn’t crazy about the look of huge cooling systems on top of buildings.”

Had I really just told a senior partner that he was wrong? I braced myself to be dressed down.

“But he was much more adamant that the project not go over budget, Melanie,” the partner continued. The use of my name startled me; until that moment I hadn’t been completely sure he knew what it was. “And the cost of the HVAC, as designed, nearly equaled the entire budget for the project. It is inconceivable that the architect did not know he was going against the client’s wishes.”

His voice had risen, but I sensed that the emotion was not directed at me. I sifted through the facts I knew and came up with another counterpoint to his argument, reminding him that our client had seen some of the billings for the HVAC system as it was being designed and the parts were being ordered.

And so it went for an hour. At some point I pulled out a legal pad and began scribbling down our discussion, which was sounding more and more like an argument one might make in court.

When the partner finally left my office, I felt like I’d run a marathon. I had never talked through a case prior to writing before. I knew how to outline, I knew how to cite facts, I knew how to organize with “IRAC” (issue, rule, analysis, conclusion). But I had done it all on my own, always drafting a fairly complete document by myself before turning it over to someone else for critique.

The benefits of this new method were soon apparent. As I took a fresh look at the brief, I referred to my pages of notes and saw they suggested a way to organize and defend the HVAC issue and gave me a good sense of what arguments would be better deleted. 

Over the next few weeks we engaged in verbal sparring matches on an almost daily basis. One day it was the roof; another, the decorative exterior. I got used to the way the partner paced in my small office and raised his voice whenever he felt particularly adamant about a point. I relished my role as devil’s advocate and continued to document what I had come to think of as our dry run for the upcoming hearing.

I no longer felt completely incompetent. Having another memory and perspective to help organize the facts of the case taught me how to craft a more concise and persuasive brief than I could ever have done on my own. I learned to depart from IRAC when necessary. I learned that, yes, sometimes it is best to bury bad facts as much as possible (my way), but that sometimes, addressing them front and center before shooting them down was powerful. I learned to think like a lawyer and not a law student.

Two days into the arbitration hearing, the case settled, and the next week, the partner invited me out to lunch. Over sandwiches he admitted that when I had taken over the case he hadn’t expected me to be much more than someone to hand him papers and listen to him talk. He’d assumed the brief would need major editing and that I was going to be more work for him than help.  His pronouncement that my grasp of the facts had been better than the departed fifth-year was the biggest professional compliment I had ever received.

In return, I confessed that I had expected to fall on my face and that writing the brief was probably the most difficult thing I had done so far as a lawyer. To this day I am grateful for the fact that the partner went ahead and engaged me in the case despite his misgivings about my experience. I am thankful that I had the insight to realize the gift I was being given. Even though I no longer practice “traditional” law, I still make the effort to talk out a new project with a fellow writer or lawyer before I begin. My writing is stronger for it.

I am sorry to say that I did not keep in touch with that partner once I left the firm. I may have learned valuable writing skills from him, but I did not realize that I could continue to benefit from his guidance after the case was over. That was a lesson to be learned another day. 

 

Melanie is a lawyer who is passionate about writing and a writer who is passionate about the law. After trying "the law-firm-associate thing" (at Sonnenschein, Nath and Rosenthal), the "teaching-legal-writing thing" (at The John Marshall Law School) and "the clerkship thing" (for the Hon. Marvin Aspen and the Hon. Michael Mason), Melanie found the perfect job, combining her labor and employment background with her writing skills as an in-house legal writer at Seyfarth Shaw. Three kids later, she co-founded The GhostWriters legal and business writing practice. She now makes her own hours as she writes, blogs, lectures and generally carries on a torrid love affair with her computer.

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Melanie Berkowitz | Write to the Point

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