Hello from Ed Lintz, and welcome to the first edition of Ed’s Writing Secrets of Successful Advocates! This column will highlight the writing techniques used by one standout legal writer to help his or her clients win.
For the inaugural issue, let’s focus on how Paul Hastings powerhouse employment lawyer Nancy Abell uses repetition.
But doesn’t repetition have a sordid reputation? The great Swiss novelist Max Frisch famously called it his “greatest fear.” (Now one of the great refrigerator magnet quotes of all time.)
William Safire advised writers that “a great deal of repetition can be avoided by re-reading and editing.” Safire was right, but for lawyers, repeating a key term can help focus the court on a key issue and thus help your client win.
So how does Nancy Abell use repetition in her briefs? Take a case in which a former employee sued her client Microsoft for employment discrimination. In her fact section in a motion to dismiss, Abell repeats the term “stolen” five times in her heading and subheadings alone.
- Jackson Retained Stolen Property Belonging To Microsoft …
- The Stolen CD Contains Privileged Attorney-Client Communication
- Jackson Admitted That He Knowingly Received Stolen Property And That It Is Against The Law To Receive Stolen Property
- Jackson Gave A Copy of Documents From the Stolen CD To His Attorneys For Use In Devising Their Litigation Strategy …
Abell focuses the judge’s attention on the most important term in the case to her client. And she doesn’t stop there. She repeats “stolen” 14 times over the next few pages!
Her repetitive technique is certainly eye catching, but is it effective? Yes. Writers less confident than Abell might engage in what H.W. Fowler, the author of Modern English Usage, derisively labeled “elegant variation” by using synonyms like “purloined” and “filched” to avoid repeating themselves. Not Abell. She wants to repeat herself. She wants the court to both see and hear the term “stolen” again and again. She wants it to stick in the judge’s mind. And it does!
How about another example? When a former Irell & Manella partner sued the firm in state court for unpaid compensation, the firm hired Abell to try to resolve the matter in arbitration. In the fact section of her Motion to Compel Arbitration, Abell repeats a term four times in the first three paragraphs:
- [Plaintiff] joined Irell in 1993, and was subsequently elevated to full equity partner in 1997, a position in which she remained until her voluntary withdrawal from the firm in August 2009.
- In addition to holding the title of “Partner” from 1997 until her voluntary departure …
- When [Plaintiff] became an Irell equity partner in 1997, she voluntarily signed the firm’s Partnership Agreement.
- [Plaintiff] voluntarily voted in favor of [two] amendments to the Partnership Agreement.
Three pages later, Abell incorporates her key term into the crux of her argument: “[Plaintiff], then an Irell equity partner, voluntarily voted in favor of the Arbitration Agreement. She cannot claim surprise.”
Let’s look at one more example: Abell’s brilliant use of repetition in Dukes v. Wal-Mart, the largest employment class action in history. As highlighted by my colleague Ross Guberman in Point Made, in her Ninth Circuit appeal, Abell repeats her keynote term 15 times in one paragraph:
The named Plaintiffs are four former and two current Wal-Mart employees. They worked at different stores, at different times, in different positions. They were promoted to (and demoted from) different job classifications, disciplined for different offenses, and paid different amounts for performing different jobs. They transferred to different stores and different positions within stores, applied for different management training opportunities, and quit (or were fired) for different reasons. They claim to have been discriminated against on the basis of sex in different ways, by different managers, in different circumstances. These are their different stories: [Abell goes on to list distinguishing characteristics of each named plaintiff].
Abell’s goal: to cement the theme that these women are individuals, different individuals, whose diverse workplace experiences do not involve a common issue, and thus don’t meet Rule 23(a)’s commonality requirement for class certification.
So what are the key takeaways from Nancy Abell’s use of repetition? Repeating a key word or phrase isn’t a writing technique as much as a strategic one. Isolate the dominant theme that will best help your client win, then focus the judge on that theme by repeating its signature term. Note that the terms Abell chooses to repeat are usually adjectives like “stolen,” “voluntary” or “different.” Adjectives are flexible and pair well with other key terms in the case. In your next motion or brief, don’t rule out highlighting your keynote term. After all, would we remember Macbeth’s famous soliloquy as vividly if he began “Tomorrow and the couple days after that” instead of “Tomorrow and tomorrow and tomorrow”?