"Writing Your Ticket" In-house
Updated: Sep 7, 2020
Keys to writing success for in-house counsel
A reputation for exceptional writing ability can make any professional a more highly valued member of the team. At the risk of belaboring the obvious, good, clear writing is often associated with good, clear thinking. Since we're in the business of being great thinkers, lawyers should aspire to be great writers.
The career implications of good or bad writing for in-house lawyers can be particularly significant. Unlike many firm attorneys, routine written missives of in-house counsel are likely to land in front of department heads, company execs and even board members. Earning the reputation as a top writer in a company can be your ticket into many high level discussions and communications.
In my own in-house career, I have long been the final set of eyes on business plans, board presentations, press releases, regulatory correspondence, SEC filings, investor communications, key briefs and court filings and other influential communications.
Consequently, in-house attorneys should view every writing or editing task as an opportunity for career advancement or career reversal.
This post isn't about protecting attorney-client privilege or attorney work product. These are assumed. This is about effective communication. But for what it's worth, the author doesn't say much of substance to his clients or constituents by email.
Basic Tips for Better Writing
Here are a few basic tips for better writing, no matter what your profession:
Master the Fundamentals
Good writing requires a command of the rules of grammar and also an understanding of the more subjective aspects of writing composition, sometimes referred to as “style” – i.e., writing actively instead of passively, using paragraph and sentence structures that lead the reader along logically and painlessly, varying sentence lengths, favoring positive statements over inverted negative ones, using clear, definite language, etc.
If you have any doubt about the foundations of your writing skills, re-learn the basics. At a minimum, reading through Strunk and White’s 85 page classic “The Elements of Style” is a very easy way to go over the basics and perhaps prevent yourself from committing common word choice and punctuation errors.
Planning and Organization
Approach every writing assignment, large or small, logically and with appropriate preparation. What are you writing? Why? For what audience? Think carefully about the assignment before starting and make sure you understand the desired end result. Work backward from there to organize your composition so it flows smoothly and logically from beginning to end.
Read your drafts aloud to yourself. Does it flow rhythmically through variations in sentence length and proper use of punctuation? Or is it clunky, choppy, long-winded or droning? Are there words you wouldn’t use in normal conversation than can be replaced with simpler ones? Does it sound stuffy, pompous or stilted? Correct your drafts until they sound close to how you talk when speaking reasonably carefully and they will be easier for your audience to read and understand.
At every phase of drafting and editing, remove every unnecessary word, sentence and paragraph. Never assume your reader is reading for pleasure. He or she is engaged in a task – make that task as easy as possible.
The Word “of” as a Red Flag.
Search your document for all uses of the word “of.” Consider rewriting any sentence containing the word "of" to see if the sentence can be written in a simpler, more direct or active style without that word. This simple trick may surprise you.
When your draft has passed through all of the above, it often helps to hold a physical copy in front of you and look at it as you would a piece of art. How do the margins and other white spaces look? Is there balance? Do the paragraphs flow nicely? Should any of them be broken up? Would captions, bullets, underlining or bolding help anywhere? Or have they been overused?
Every memo, letter, press release, contract, litigation document, press release – and even important email – should be easy on the eyes and draw in its audience.
Remember - You are Surrounded by Non-Lawyers!
In-house counsel must adapt to the reality that they are surrounded by non-lawyers. These folks have functions to perform and goals to meet. Their driving concern when legal questions or processes arise is generally “will this slow me down?” Or worse yet, “will this prevent me from meeting my goals?”
Non-lawyers also often have a view of law and regulation that is more diffuse and, shall we say, more pragmatic, than the average attorney. In-house counsel’s career success is almost wholly dependent upon working productively, efficiently and positively with all of these busy, goal-driven and sometimes skeptical non-lawyers.
The goal in every interaction with in-house constituents should be to instill confidence that both legal and business judgment will be brought to bear.
Avoid Overly Conservative Positions
Less experienced attorneys often retreat to the safety of unnecessarily conservative positions. Almost invariably the most conservative answer is not the preferred one for the business team. They rightfully expect their counsel to roll up their sleeves and demonstrate creativity to remove barriers and find solutions.
Sometimes getting to “yes” requires in-house counsel to dig deeper, consult more broadly and think harder about risks than he or she might have initially expected. The greatest legal epiphanies often come some distance after less ambitious minds have thrown in the towel.
And never discount the ability of non-lawyer colleagues to help you think through a conundrum. Talking and thinking through an issue together before taking a position not only leads to unexpected successes, but also demonstrates business judgment and a commitment to shared goals.
Write Only When Necessary
As with many things in life, when it comes to writing for in-house counsel, less is often more. Much of the advice and guidance sought from in-house counsel can and should be conveyed orally. Writing well can be time consuming. Save it for when it’s truly needed. Putting everything in writing is inefficient and can drag down in-house counsel’s work quality and responsiveness.
Do Not “Cover Your Anterior”
And always resist the temptation to write CYA memos and emails – those missives intended to say “I told you so” in advance of a possibly bad outcome.
In addition to being openly self-serving and offputting to their recipients, CYA memos also subject the client organization to unnecessary risk. As counsel, your role is to counsel and advise. If you have earned the trust and confidence of your non-lawyer colleagues by not frequently hiding behind overly conservative positions, you should always be able to either come to a mutually acceptable course of action or, when necessary, discourage a course of action that would subject the organization to unacceptable risk.
In those extremely rare cases when you must “report up” under the Rules of Professional Conduct, then do so. The same with “reporting out.” But if you frequently feel the need to document significant concerns in memos to your non-lawyer colleagues to protect your own career or reputation, either you’re doing something wrong or you’re running with a bad crowd – most likely the former.
Can it Fit on One Page?
Unlike law firms, where long, analytical memos with extensive citations are appreciated, in-house constituents just want the answer. Now, as lawyers, we like to explain our work - i.e., that we were asked to consider a particular issue, that we considered certain rules, regulations and case law, and that we have thoughtfully applied those strictures to the facts at hand.
Great, but try this: state your conclusion first. Then, as succinctly as possible work backward from there and write about the rules and regs you considered in reaching your conclusion – until you have filled one page. Whatever doesn’t fit stays on the editing room floor.
Avoid case citations, long statutory names, legal jargon and other legalese that non-lawyers have no interest in. Remember, they just want the answer, and perhaps just enough more to make them feel a little smarter. Anything more is just for you, so keep it short.
100% Certainty is Not Required
For various reasons, law firms often analyze issues to an extremely high degree of certainty. And even then, their answers are hedged with warnings of possible uncertainties or different outcomes should any of the facts change. This degree of analytical rigor is appropriate for issues in the upper right-hand quartile of the “likelihood – materiality” matrix.
But for routine, lower risk questions, there are substantially diminishing returns for analysis beyond, say, the 80% certainty mark. In-house counsel need to understand this and it should be reflected in how they approach written work – and in decisions to forgo written work.
Often the most important thing is simply to get the work done quickly and keep teams moving. Focus time and energy on the harder, more material issues and keep the other ones moving.
If a colleague wants a memo on something immaterial, politely decline the request and/or simply give him or her a one or two sentence email so they feel protected – i.e., “Bob, I’ve considered the issue you raised regarding the xyz project and I do not see any significant regulatory or legal issues. Please see me if you have additional questions.”
Inject a positive tone whenever possible with in-house clients – both verbally and in writing – “Great idea. We may have to do it slightly differently than what you were thinking, but still get to the same place….”
And certainly avoid gratuitously negative language in internal communications, no matter how tempting it might be to stomp out a bad idea. Slights are remembered long after any ephemeral satisfaction of issuing them.
Write Quickly and Actively
Writing should be an active, mentally engaging process. Try to get through all of the steps and considerations above as quickly as possible.
In a dynamic in-house environment, there is precious little time for lethargically obsessing over memos. Get any writing task done quickly, get it done right and move on. In-house it’s all about results, not the process. There’s no reward for loading up the project with billable hours. A timely produced document is almost always far more valuable to business colleagues than one that arrives days late after over-analysis, hand-wringing and inefficient editing.
Every in-house counsel should aspire to be the best writer in the company. As an attorney, this should not be a “stretch goal.” Every attorney should consider it his or her professional obligation to be an outstanding communicator. Written and verbal communication are core tools of the trade. If your skills in either area are lacking, you owe it to yourself and to your client(s) to step up and improve.
In-house counsel should also understand that the financial health of their client requires that every employee find ways to add value. Beyond merely helping to manage risks, in-house counsel add value by removing barriers and helping colleagues find paths toward business success – or at a minimum, using their skills to help colleagues do their work more efficiently.
Every written product should be measured against this standard – did I take advantage of every opportunity to add value?
Lastly, ambitious in-house counsel should strive to be thought leaders within their organizations, demonstrating the ability to see the bigger picture, to see opportunities where others see only challenges, to think a few steps ahead of the crowd, and to add value in thinking through business priorities.
Expressing yourself skillfully and intelligently so that your ideas are heard, appreciated and sought out can put you on the road to ever increasing influence and responsibility. So write well and prosper my friends.
Paul Swegle has served as general counsel to numerous tech companies and advises a dozen others as outside counsel. He has completed $12+ billion of financings and M&A deals, including growing and selling startups to public companies ING, Capital One, Nortek, and Abbott.
Paul has authored two authoritative and practical business law books, available for preview and purchase here:
"Contract Drafting and Negotiation"