Dear Mr. Garmon,
Thank you for inviting Minnesota Lawyer’s Legal Writing Notebook to be your writing coach! I always enjoy working one-on-one with lawyers and appreciate the opportunity to review your letter to Mr. Thompson of Lightfoot Franklin White LLC and offer some feedback. My suggestions may seem blunt, but it’s important to embrace the spectrum of writing issues so that we can prioritize them appropriately.
First, the positives. The general theme of the letter comes across plainly: You are asking AL.com to stop publishing what you claim are defamatory statements about your clients Chief Justice Roy Moore, his wife, and their foundation. The paragraph length and sentence length are generally appropriate. The use of headings, while more typical in a complaint than a demand letter, breaks up the text nicely. You’re using quite a few English words that I recognize and understand. And your letterhead is above reproach.
All that said, we’ve definitely got some work to do. Let’s look at a few representative paragraphs, shall we? Here’s the final paragraph on page 1:
Your client as an outlet is carelessly and perhaps maliciously reporting that my client, Judge Roy S. Moore, noted and signed a Yearbook of an accuser as a “DA” and in a manner which experts, to include our own, have confirmed is not consistent with his handwriting (To wit: structure, strokes, slant, base alignment, etc.) and does not comport to his typical vernacular.
This 63-word single-sentence paragraph loses track of its destination from the moment it refers to the opposing party as “an outlet” (an outlet for what?). Try using simple sentence structure — subject, verb, object — and add clauses only when needed to clarify a point. When a clause modifies a noun (here, “as a ‘DA’” appears to modify “my client, Judge Roy S. Moore,”) keep the clause close to the noun so the reader doesn’t get lost. Dial back the legalese: Not even my great-aunt says “to wit” anymore. And check your preposition/verb agreement carefully: comport takes with, not to.
Let’s experiment with a rewrite:
Your client reports that, while he was a DA, Judge Moore signed an accuser’s yearbook. Our experts have examined the yearbook and have confirmed that neither the handwriting nor the inscription is characteristic of Judge Moore.
Two sentences, fewer words, arguably more persuasive. Just a thought. Now page 2:
Note that your client, to include its agents, have a duty to preserve and maintain evidence. We do, thus, demand that you preserve and protect any potential evidence. Refusal or failure to do so could result in a legal presumption that the spoliated evidence was adverse to you, your company and it’s interests.
Nice use of spoliated in a sentence — that actually is a word (although some of us believe it shouldn’t be). The big problem here is number agreement. You may recall there’s a difference between singular and plural nouns, right? Well, whichever one you choose, the verb has to match. So the client (singular) has, not have, a duty. I know, I know, it can get so confusing when you want to include examples — but when they’re in a dependent clause like that they’re not really the subject of the sentence. Trust me.
You’ve also got a bad case of surplus-wordia. What’s easier to read: “We do, thus, demand” or “We demand”? Think about it. Finally, note the misplaced apostrophe in the final sentence: Its interests is possessive, exactly like its agents in the first sentence, but in contrast to other possessives, it does not take an apostrophe. Misplaced apostrophes are distracting because they make the writer look dumb or lazy, which is surely not the impression you’re hoping to make. Do make time to proofread your work before it goes out, because no other step in the writing process will do more to enhance your credibility as an advocate.
Speaking of which, proofreading can also catch malapropisms like this:
Thus, even if your client is not a held to have defamed or otherwise worked civil damages upon our clients, your client may remain responsible in a Court of law for damages caused by the failure to preserve evidence. This is often times referred to as “Adverse Interference.”
I understand you’re an experienced trial lawyer; perhaps you meant adverse inference? (Remember, spell-check is not always your friend.) A careful proofreader would also have caught the extra a in the first sentence (“not a held”). (I will note parenthetically that the tone is slightly off the mark; although you may have been going for a folksy or friendly tone, it may sound condescending to a fellow lawyer.)
Finally, a few words about paragraph structure. Consider this example from page 3:
Thus, do note this clearly, yet significant difference which your client’s publication(s) have failed to distinguish. And the legal requirement that your client retract the stories, to include the details which clearly are false. It is also clear that your client’s organization is attempting pre-election to conspire and orchestrate a “trial by media” and is playing to a “mob mentality”. We demand this circus cease and desist immediately.
Generally a topic sentence shows the direction of the paragraph; weak topic sentences are a wasted opportunity to lead the reader to your conclusion. Here, it would be an understatement to call the first (and second) sentences here weak; they are mere fragments, requiring an editor’s urgent attention simply to revive them sufficiently to do duty in the middle of an undistinguished paragraph. Better yet, they should be summarily executed, as they bear no relation to the last half of the paragraph. As for the “trial by media” and “mob mentality,” please know that scare quotes are overrated; you could lose both sets and the sentence would be just as clear(ish). But if you keep them, remember final punctuation such as a period should be placed inside the quotation marks.
In summary, your letter exhibits flaws that are very common in legal writing, but I rarely get to see them assembled in a single document so thoroughly. With respect, the mistakes distract the reader from your message. It’s like trying a case while wearing a gorilla suit: Who can pay attention to the factual substance under the hairy surface?
I hope this has been helpful. You can see how important it is to get some feedback on your writing before you send it out; once you send out a letter like this to opposing counsel in a high-profile case, mistakes like these do tend to go viral. (You haven’t sent it out, have you?)