|
In
This Issue |
|
1. They Will Be Killed by
Us. Passive voice is not liked by
me.
2. Was It Known by
You? Associate salaries take a flying
leap.
3. Zany
Miscellany. The best teacher
of legal writing knows funny.
4. Manhattan Will Be Taken by
Him. Steve Susman becomes
a part-time Knickerbocker.
5. Patent Spending.
Jurassic Park meets the U.S. patent
office. Plus: Do patent infringement
cases have to cost so much?
6. Heated
Lunch. Partner-maker,
partner-maker, make me a partner. Find me a
firm. Catch me more
scratch. | |
|
Was It Known by You?
Associate salaries stagnated after
the go-go years of the late 1990s, but lately they have
leaped
to new heights. A first-year
associate starting in the fall of 2006 now may
expect to receive $140,000 or more plus bonus,
usually in the $10,000 to $25,000 range. That
represents a salary increase of around $25,000 per
annum, or almost 23 percentum.
Does the rise reflect a seller's
market for associate flesh? Probably
not. Hourly rates and work hours continued their
upward march even as salaries went sideways.
Profitability per lawyer likewise increased.
Associates noticed the disconnect and
had the bad grace to point it out. So the salary
growth simply catches them partway up. The pyramid
model lives!
At SG, associates will earn salaries
that match competitive levels plus discretionary bonuses
that may rival their salaries. In 2005,
bonuses for partnership-track associates came to 59
percent of their base salaries, and in 2004 they
exceeded 100 percent.
|
|
Manhattan Will Be
Taken by Him
Stephen
D. Susman
The results of last month's
on-line survey have arrived. Nobody but my
sister answered it.
SG partners nonetheless voted
to send the big unit -- Steve
Susman -- to Manhattan on a part-time basis to
open the new office. We'll also have a
full-time resident associate to start.
Steve says he personally
wants to handle only contingency work in New York and
environs, including class actions. That usually
means representing plaintiffs, but negative
contingency arrangements (in which the firm benefits
from a favorable defense result) can provide an
attractive option for clients who find themselves
on the right-hand side of the "v."
The offices will go in
midtown. Stand by for the date of the
ribbon-cutting and open
house. |
|
Heated Lunch
|
When I started practicing at Susman Godfrey in
1985, the typical time to partnership at the best Texas firms
ran seven years -- six for superstars.
Now the track in almost all big time law firms
lasts eight to 10 years. Little wonder that they've had
to increase salaries -- to compensate for shrinking
partnership prospects and extra years of toiling as an
employee. (See Was It Known by You?
above.)
SG has bucked the trend. In 25 years,
we've moved the bar only once -- to four or five years from
three or four. Can you say eat
what you kill? And the partners reaffirmed
the policy this spring.
That makes me proud.
It also makes sense. SG never has
operated on a pyramid model. Today, we have fewer
associates than partners. Promoting lawyers to partner
has a wonderful way of encouraging them to become even more
efficient and productive, to do even better work, and to
obtain excellent results for our clients. And we
all benefit. |
|
They Will Be Killed by
Us
A dear client in a hard case once took to assuring
our trial team of victory by telling us that
"we will kill them." An Italian by birth,
upbringing, and temperament, the client rendered "kill"
as "keel", which made his assurance more,
well, assuring. It worked for us.
In the years since, I've comforted other clients by
telling them the same thing -- even saying it
the same way that my friend Alberto Lombardi did.
They love to hear me say we will keel them!
I've said we will keel them so many
times now that people in my office use it to make fun of
my obsessive distaste for passive
voice. My colleagues taunt me with they
will be killed by us. Ouch.
I don't like passive voice. I don't like it one
bit. Not even a tiny bit is it liked by me.
In my view, passive voice reveals either of
three unflattering things about the writer --
cowardice, fuzziness of thinking, or slothful
ways. Cowardice in this context means that
the writer doesn't have the guts
to identify the actor or wants to hide his
identity ("mistakes were made" instead of "I
made mistakes"). By fuzzy thinking I
mean that the author doesn't have the
wattage to fix the imprecision of his
writing ("mistakes were made" seems perfectly fine
to this dullard). Slothfulness
suggests that the author could take the time
to connect the actor to the action but chooses not
to do the work or to do it in a loopy way ("mistakes
were made by me").
A judge who reads passive voice in a brief should
extend the magisterial antennae of skepticism.
Alarms should go off. Red flags ought to
billow. The writer either wants to hide something,
doesn't know what to say, or rates his time as more
valuable than yours.
All this adds up to one thing: passive voice in
legal writing shows disrespect to the
reader. It lengthens, complicates, and obstructs
writing; it forces the reader to remember too much, to
fill too many gaps, to work too durn hard.
The audience deserves better.
Active voice propels the reader forward. It
holds interest. It makes reading easier, more fun,
and maybe irresistible. It can even
save writers from writing nonsense because it
forces them to think through exactly what they mean.
[To show why passive voice produces ugly writing,
I've used it in the titles of several items in
this month's newsletter and sprinkled text
with additional passive voice
constructions, sharpening (I hope) the
contrast.]
Please use active voice always. Or
consequences will be suffered. By you.
Barry
Barnett, Editor |
|
Back to
top |
|
Zany Miscellany
.
Detail from cover of A New
Miscellany-at-Law. Copyright © Sir Robert
Megarry and Lindsay Merriman 2005.
More has been done byBryan
Garner for improving the writing of commercial
litigators than any other human alive today. A
short list of his scrivenings must
include Black's Law Dictionary, The Oxford
Dictionary of American Usage and Style, The Winning
Brief, Garner's Modern American Usage, and --
of course -- The Rules of Golf in Plain
English. Mr. Garner also teaches legal
writing in seminars around the country
and over the pond. Judges, lawyers, and
entire law firms hasten to hear the Garner gospel
on framing deep issues, unleashing the madman
within, and cutting verbosity in legal documents.
Now Mr. Garner has edited A
New Miscellany-at-Law (Hart 2005), on which he
collaborated with former Vice-Chancellor The Rt.
Hon. Sir Robert E. Megarry of Lincoln's Inn in
London. A new miscellany-at-law, you
say? Didn't hear of the first two? No
matter. You'll love this one.
Miscellany rhymes with zany, and zany
describes several of the stories that this book
tells. A favorite involves an English
barrister arguing his case to an unconscious
juror. When he berates the panel for not
paying attention, the judge recalls a Scottish minister
who complained during a sermon that too many church
members failed to attend services and that those who
did, bar the village idiot, slept as he
preached. A voice rose from the pews:
"If I'd nae been an ideot I had been asleep too."
The rhythm and flow of the English idiom in New
Miscellany may take American readers a little time
to penetrate, but anyone who appreciates gentle poking
of fun at life in the law will find the small effort
well worth the large reward. |
|
Back to
top |
|
Patent Spending
Moving right along with our literary theme this
month, it was learned by me from an op-ed item
in The New
York Times recently that a Harvard M.D. who
writes best-selling thrillers has taken on a
new mission -- reforming the regime for issuing U.S.
patents. The author, Michael
Crichton, sees in the U.S. Patent and Trademark
Office a threat to humankind more menacing than the
bloody raptors in Jurassic Park, the
global warming goons in State of Fear, and the
robotic bad guy that Yul Brenner played in
Westworld.
Dr. Crichton believes that the PTO has gone too
far by allowing inventors to patent "facts",
such as the link between a patient's high level of
an amino acid (homocysteine) and possible deficiency in
vitamin B-12. He describes the situation as
"idiotic" because, in his opinion, it will
lead to patents on things like Kobe
Bryant's basketball moves and the plot
elements of stories about dinosaurs.
Poppycock. Dr.
Crichton's major complaint boils down to the same
argument that defendants deploy in every patent
infringement case -- that a patent thwarts competition
and therefore reduces consumer welfare. But the
monopoly that a patent grants on an invention exists to
encourage innovation. Once the patent expires, the
monopoly ends, and anyone can use the
invention. In the meantime, others
can employ it by paying the patent holder
for a license. Further, the patent must "teach"
the invention, giving others the opportunity to advance
the state of technology and perhaps obtain their own
patents. And patent law doesn't allow a
patent on an obvious invention or on one that
someone has already reduced to practice. Although
no one would call the system perfect, the crucible of
litigation burns off patents that shouldn't have
issued.
If we leave his hyperbole to one side, Dr. Crichton
may have a small point about the breadth of
patents. But I have a different worry.
It has to do with the cost of litigating infringement
cases. The high stakes and
complexity give one side or the other an
incentive to fight over every point, to complicate and
confuse the issues, and to put off judgment day as long
as possible. Federal judges, who alone have
jurisdiction over patent disputes, struggle
against the adversaries' impulses, striving to
maintain control and move the cases forward.
Some courts have done better than others in keeping
patent cases on a short leash. The judges in the
Eastern District
of Texas have performed especially well.
Home to the Telecom Corridor and many high-tech
companies, the Eastern District handles more than
its share of patent infringement suits. Many go to
trial in places like Marshall,
Tyler, Sherman, and Texarkana. And having trials
encourages efficiency more than anything else.
Even Dr. Crichton might find the Eastern District a
good venue choice. He claims to "own the patent
for 'essay or letter criticizing a previous
publication'" and warns that "anyone who criticizes
what I have said here had better pay a royalty
first, or I'll see you in court." I haven't paid a
royalty for writing this. So, Mikey, you will
be met by me in Lufkin.
|
|
Back to
top |
|
Copyright © The New Yorker. Used with
permission. |
|
Back to
top | |
