“Making It Sing: How Rhetorical Writing Techniques Can Improve Your Writing” was originally published in the Summer Edition of the Vermont Bar Journal. It is republished here with permission.
I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.
The late Professor Fred Rodell of Yale Law School once observed of legal writing, “I am the last one to suppose that a piece about the law could be made to read like a juicy sex novel or a detective story, but I cannot see why it has to resemble a cross between a nineteenth century sermon and a treatise on higher mathematics.” Those words, written in 1962, still ring true today, as any law student reading judicial opinions and any judge reading lawyers’ motions and briefs can attest.
Several likely culprits account for the poverty of style in much legal writing. First, many of the topics that must be addressed (e.g., sovereign immunity, laches, or the statutory standard for modifying a spousal maintenance order) are not inherently engaging. Second, lawyers often face considerable time pressure while writing; hence they are satisfied with pleadings and appellate briefs that are clear, grammatically correct, and reasonably concise. Rhetorical elegance may be a luxury they feel unable to afford. Third, they probably did not learn how to write elegantly in law school because the writing professor was necessarily preoccupied with purging comma splices, the passive voice, and hoary legal jargon from a small mountain of papers.
Consequently, unless a lawyer uses uncompensated time to learn how to write elegantly, that lawyer will at best write serviceable, but unmemorable, prose, thus foregoing an extra edge that could mean the difference between winning and losing a case. To give you that extra edge, this article will present rhetorical techniques you can use to dress up your prose without bloating it with adjectives or otherwise sacrificing the clarity and brevity that legal writing requires. For examples, it will draw on the work of several of the Supreme Court’s best writers, who used rhetorical techniques to produce some of the most momentous opinions in the Court’s history.Rhetoric: A Short History
The word “rhetoric” has a negative connotation these days, calling to mind “meaningless political exaggeration or mere stylistic embellishment.” But rhetoric is a venerable discipline, dating back to the ancient Greeks. Rhetoric is most succinctly defined as “the art of civic persuasion.” Its importance to public discourse is reflected in the words of its most prominent practitioner, Aristotle, who said, “[I]t is not enough to know what to say—one must also know how to say it.”
Despite its classical pedigree, rhetoric was controversial even in ancient Greece; indeed, Plato (Aristotle’s teacher) had no higher opinion of it than do modern voters who use it to characterize what they perceive as empty promises by politicians at election time. In Plato’s view, rhetoric was manipulative and unable to lead to truth; only “dialectic” (philosophy), a reasoned exchange of ideas between two scholars, could reveal the truth. Put simply, Plato thought rhetoric lacked intellectual substance. Rhetoric likely got its bad reputation from the Sophists, contemporaries of Plato who were courtroom advocates and teachers of rhetoric known for trying spurious lawsuits, thereby spawning the term “sophistry” to denote clever, but false argument.
Aristotle, however, defended rhetoric, arguing that a rhetorician attempts to persuade not only by appeals to the emotions (pathos), but also by appeals to logic (logos) and by demonstrating an ethical character (ethos). Therefore, in Aristotle’s view, rhetoric served justice rather than thwarting it, by facilitating the consideration of opposing viewpoints, which begets truth in the courtroom.
Rhetoric was out of favor in American legal education during the nineteenth century, as law schools adopted a truth-seeking “scientific” approach to teaching law that cared not for how a legal argument was presented, only for the truth of its contentions. By the turn of the twentieth century, though, rhetoric began to enjoy a renaissance, as Plato’s quest for absolute truth had become outdated, and scholars increasingly saw truth as relative and the offspring of a rhetorical process. Nowhere is such skepticism more evident than in the famous statement by Justice Oliver Wendell Holmes, Jr., that “[t]he life of the law has not been logic; it has been experience.” Implicit in that statement is the recognition that judges decide cases not by finding absolute truth, but instead, by reconciling competing and relative interests, which necessarily involves subjective judgment. More recently, Judge Richard Posner of the Seventh Circuit has written that rhetoric is important because “many legal questions cannot be resolved by logical or empirical demonstration.” Put another way, no matter how compelling an argument one can make that the Supreme Court decided Lochner v. New York wrongly, “[i]t’s impossible to prove Lochner was decided wrongly.”Using Rhetorical Techniques in Legal Writing
Sprinkle, don’t pour, rhetorical devices on your writing.Imagery
Legal writing can benefit from several rhetorical devices, including imagery, figures of speech, word choice, rhythm, and literary allusion. Vivid imagery is always more memorable, hence likely more persuasive, than colorless or muted language. For example, if you were writing the statement of facts for a memorandum or brief in a drunk-driving case, you could write: “On his way out the door, Smith staggered against a serving table, knocking a bowl to the floor.” But your description would better evoke intoxication if you wrote: “On his way out the door, Smith staggered against a serving table, knocking a bowl of guacamole dip to the floor and splattering guacamole on the white shag carpet.”Figures of Speech
Figures of speech are designed primarily to add drama and emphasis to a discussion. They do so by using familiar words in an unfamiliar way, often injecting eloquence into an otherwise mundane sentence. Consider, for example, two figures of speech traceable to classical rhetoric: “isocolon” and “antithesis.” Isocolon denotes a sequence of clauses of identical length, and antithesis is a method of contrasting ideas through the use of opposites. Both techniques are evident in the following sentence:
The patent system rewards those who can and do, not those who can but don’t. The clauses “those who can and do” and “those who can but don’t” illustrate isocolon because they are of identical length. They also illustrate antithesis because they present direct contrasts by juxtaposing a word and its opposite twice in quick succession. The rhythm of the two matching clauses and the juxtapositions of opposites make the sentence above easier to remember than if it merely stated that “the patent system rewards action.”Word Choice
Word choice is another feature of classical rhetoric that can enhance the power of legal documents. Teachers of classical rhetoric taught their students to maximize the persuasive effect of words by presenting items and actions in groups of three. This device is known as “tricolon.” Julius Caesar must have been paying attention because he was careful to summarize his military campaign in Gaul by stating: “I came, I saw, I conquered.” Other noteworthy examples are the New Testament’s reference to “faith, hope, and love”; the promise of “liberty, equality, and fraternity” in the French Constitution; and the aspirations of “peace, order, and good government” in the Canadian Constitution. The most famous American example of tricolon is probably the Declaration of Independence’s reference to “life, liberty, and the pursuit of happiness,” to which goals the drafters, in another bow to classical rhetoric, pledged “our lives, our fortunes, and our sacred honor.” The latter phrase is especially rhythmic, hence easy to remember, because it not only identifies three separate concepts, but also proceeds from a one-syllable word (lives) to a two-syllable word (fortunes), to two words with two syllables each (sacred honor).
Other examples of word choice derived from classical rhetoric are similes and metaphors. Despite being rhetorical cousins, they differ in that similes make explicit comparisons, whereas metaphors make implicit comparisons. Moreover, even when a simile makes a figurative comparison between two things that are not literally alike (e.g., a sprinter leaving the starting blocks and the proverbial “bat out of hell”), it uses an explicit word of comparison, usually “like.”
I am reminded of funny similes I have heard. A South Dakota farmer once told me that during hard times, one has to “hunker down like a jackrabbit in a hailstorm.” Years later, another man educated me to a wonderful West Virginia simile, which describes a politician who is “as slick as goose poop on a hoe handle.” Somehow, I doubt Aristotle ever heard either of those.
Similes can work as well in legal writing as they do in conversations over the back fence. For example, in Jesperson v. Harrah’s, the plaintiff employee sued her former employer, a casino, after she was terminated for refusing to wear makeup on the job, contrary to the employer’s grooming code. An amicus curiae brief for the employer defended the grooming rules, arguing that standards were necessary lest the employer have “employees who sport jewelry like Mr. T., wear makeup like Gene Simmons of Kiss, dress like Dennis Rodman, have hair like Fabio or [have] beards like a member of ZZ Top.”
A more restrained, but still vivid example of a simile appears in a concurring opinion by Justice Robert H. Jackson, whose name almost always appears on lists of the Court’s all time best writers. In Edwards v. California, the Court reversed a man’s conviction for transporting his brother-in-law, who was indigent, to California in violation of state law. Justice Jackson concurred, reasoning that because the indigent man was obligated, as a citizen, to defend the United States, he had a concomitant right to migrate wherever he wished in this country. Jackson then added,
Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.
Metaphors are more versatile and variable than similes because they can take different grammatical forms; they can be complete sentences or even complete paragraphs, yet they can also be phrases, clauses, or individual words. Writers can use metaphors to express logos, pathos, or ethos. Metaphors serve the logos function by providing readers with symbolic analogies that can magnify, hence clarify, a writer’s substantive point. They serve the pathos function, too, either by invoking an emotional reaction the writer sought or simply by being pleasing to the ear, thereby heightening the reader’s interest and attention. They even serve the ethos function by elevating the reader’s estimation of the writer’s intelligence and credibility.
Justices Jackson and Holmes were the grandmasters of metaphor among Supreme Court justices. Many of Jackson’s metaphors startle at first, but then enlighten as the reader acclimates to the appearance of evocative words in unfamiliar settings. For example, Jackson wrote, in various opinions, that the practice of expelling aliens after long residence in this country “bristles with severities” and that the due process clause is “cryptic and vagrant.” In other Jackson opinions, an inadequate court record “shows us something of the strings as well as the marionettes” and the invalidation of an ordinance regulating speech may “convert the constitutional Bill of Rights into a suicide pact.”
No more powerful metaphor has ever illuminated a judicial opinion than that of “free trade in ideas” penned by Justice Holmes in his dissent in Abrams v. United States. A Holmes biographer, Max Lerner, described Holmes’s Abrams dissent as “the greatest utterance on intellectual freedom by an American, ranking in the English tongue with Milton and Mill.” The language on which this testimonial focuses is in the final paragraph of the dissent, which begins as follows:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.Rhythm
Holmes, like Jackson, had a remarkable ear for the rhythm of language, which is why the opinions of both men sang as much as they spoke. Holmes and Jackson are famous for aphorisms: short, pithy phrases or sentences that encapsulate the thesis of an entire opinion. Holmes wrote that “taxes are what we pay for civilized society” and that “great cases like hard cases make bad law.” He also wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic.” Of course, Holmes’s sense of rhetorical rhythm also prompted him to defend forced sterilizations of the intellectually impaired by proclaiming that “three generations of imbeciles are enough.” The latter example reminds us that rhetoric can serve both dubious and desirable public policy goals.
Jackson’s aphorisms used a rhetorical technique known as “inversion,” which transforms a direct statement into a complex proposition or even a paradox, which the aphorism then solves. In one example, he observed, “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” In another, referring to the Supreme Court as an institution, he noted, “We are not final because we are infallible, but we are infallible only because we are final.”
A fine, flowing rhythm is also evident in the following passage from Justice William Brennan’s majority opinion in New York Times v. Sullivan, which broadened press freedom by raising the bar a public figure must clear to establish defamation. It illustrates what Judge Ruggero Aldisert has called Brennan’s capacity for expressing “the perfect blend of sobriety and emotiveness … ”
Thus, we consider this case against the background of a national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The rhythm in Justice Brennan’s language derives from its use of tricolon, the ordering of concepts in groups of three discussed earlier. Note, for example, his emphasis on the principle that public debate should be “uninhibited, robust, and wideopen,” even though one result might be “vehement, caustic, and sometimes unpleasantly sharp attacks” on government and its officials. The double dose of tricolon makes this sentence roll easily off the tongue when read aloud, reflecting its author’s careful attention to rhythm.Literary Allusion
Space remains to discuss one last rhetorical tool evident in elegant opinions: literary allusion. References to literature in judicial opinions, like metaphors and similes, derive their power from surprise; therefore, if used frequently, they lose their novelty, like the oft-repeated punch line of an outdated joke. Robert Jackson’s uncanny ear for language helped him to use literary allusions to underscore the strength of his substantive points. For example, in rejecting the Court majority’s explanation for upholding an administrative decision that had been previously disapproved, he wrote in frustration, “I give up. Now I realize fully what Mark Twain meant when he said, ‘The more you explain it, the more I don’t understand it.’” Regarding the Court’s endorsement of the separation of church and state, yet its approval of public support for transportation to parochial schools, Jackson observed, “The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, ‘whispering, “I will ne’er consent,” consented.’”
The caution that “irresistibly” comes to my mind regarding literary allusions is that they are only effective when they are familiar. Therefore, avoid annoying the judge in your case by inserting in a motion or brief an obscure literary reference the judge is unlikely to recognize.Conclusion
Good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
The rhetorical techniques presented here may well elude you when writing a first draft, but try to incorporate them into your editing process. Recall the earlier examples. If you are prosecuting a DWI case, edit your prose to paint a verbal picture of the defendant’s clumsy exit from the party, which caused a gooey river of guacamole to ooze its way through the pristine pile of the host’s white shag carpet. In a patent case, do not settle for your first draft’s statement that “the patent system rewards those who can and do” when you can add the rhythm provided by isocolon and antithesis, resulting in: “The patent system rewards those who can and do, not those who can but don’t.” When revising, use tricolon whenever three nouns or adjectives are appropriate and available. “Life, liberty, and the pursuit of happiness” is easier to recall than just the first two. And be alert to an opening for a metaphor, a simile, or both. Perhaps, in a criminal case, you can say that the codefendant was a perverse puppeteer who manipulated your client like a marionette in a misguided puppet show.
Remember, though, that elegance is not an end in itself; it must serve the overarching goal of persuasion, so sprinkle, don’t pour, rhetorical devices on your writing. And take to heart the words of painter James McNeill Whistler, who said, “A picture is finished when all trace of the means used to bring about the end has disappeared.” The same is true for your legal writing; good editing will leave no trace of its presence, just prose that flows naturally, occasionally flashing a gleam of elegance along the way.
J.J. McCullough, a Canadian political cartoonist has put together a collection of judges’ costumes from around the world. It’s pretty amazing to see them all in one place. Here, of course, is the classic UK getup. This is the Lord High Chancellor, who gets the prettiest lace.
Many of the judges’ robes are a variation on black, though many countries add some lace or a medallion. Somewhat surprisingly, many former British colonies kept the wigs and robes. Many former French colonies likewise kept the funny hats. I like the outfits in Pakistan and Malaysia, which have character and dignity, but are definitely not boring.
Then there is the Supreme Court of Canada:
I don’t want to spoil the thing by putting up too many images here. McCullough did the work and you should go see the whole collection at his site.
Edit: Bonus picture, from Slapmesillymusic, the Swedish Supreme Court:
Most of the cases considered by the U.S. Supreme Court come through a “petition for a writ of certiorari.” A writ of certiorari is an order from the Supreme Court directing a lower court to send the record of a proceeding up for review. Basically, when a court of appeals makes a decision that one of the parties thinks is wrong, the party files a petition for a writ of certiorari (or a “cert petition,” for short) to the Supreme Court, asking the Court to review the court of appeals’ decision. If the Supreme Court thinks the decision is worth reviewing, it will grant the petition and put the case on its docket.
So let’s say you’ve been wronged by the court of appeals. How can you get the Supreme Court to right that wrong? Here are three tips — saving the most important for last:1. Don’t Waste Your Time If you want the Supreme Court to take your case, you have to have a case worth taking.
The Supreme Court receives about 10,000 cert petitions each year, and grants only about 75-80 of them—which translates to a success rate of less than one percent. That doesn’t bode well, if you’re hoping the Court will take your case. But don’t despair just yet: this low success rate is skewed by the truckloads of meritless petitions that the Court receives from pro se litigants who don’t know what they’re doing. And the success rate is even further skewed by the many petitions filed by practicing lawyers who likewise don’t really know what they’re doing—because they don’t fully understand how things work at the Supreme Court.
The Supreme Court — unlike the court of appeals — is not in the business of error correction. In other words, the Supreme Court isn’t going to take your case just because a lower court “got it wrong.” The Supreme Court’s job is to resolve questions of significant national importance and to make sure that the law is interpreted and applied consistently throughout the nation. Thus, it isn’t enough for you to complain that the lower court got it wrong.
The most common basis for granting cert is a “circuit split.” This is where the federal appellate courts are in disagreement over how to interpret or apply a particular point of law. If the Third Circuit just handed you a big loss, but it turns out you might have won in another circuit where they’ve decided the same issue differently, then you might have a decent shot at attracting the Supreme Court’s attention. Similarly, a good basis for seeking cert exists where state courts are disagreeing over how to interpret or apply federal law.
If your case doesn’t involve an issue or scenario that will give the Supreme Court good reason to take notice, don’t waste your time and money filing a cert petition. (The Supreme Court still requires briefs to be filed in hard copy, so the printing, copying, and filing costs alone will be somewhere around $3,000 — and that’s not counting the required appendix, or the time it takes to actually write the petition itself.) In other words, if your cert petition isn’t cert-worthy, your chances of getting it granted really are less than one percent.
So the tip here is to spend some time figuring out whether your case is cert-worthy. Most cases aren’t — but if the case is important to you (or your client), it’s worth investigating. And it’s a lot cheaper to figure out up front whether you’ve got a cert-worthy case, than to simply press forward with drafting and filing a cert petition that has no chance at being granted.
If you’re not sure how to figure out whether your case is cert-worthy, talk to an appellate attorney who has some Supreme Court experience. And start looking into it before the court of appeals has issued its decision.2. Don’t Get Ahead of Yourself
For now, forget about why you should win. Instead, focus on why the Court should take your case.
After you lose at the court of appeals, the natural inclination will be to tell the Supreme Court why you should have won. But an appeal to the Supreme Court is a two-stage process, and the cert petition is just the first stage. If your cert petition focuses on why you should have won, you’re getting ahead of yourself — and you’re probably going to kill your chance at getting the Court to take your case. Don’t worry: if the Court does take your case, both parties will file briefs on the merits. That’s when you’ll explain why you should win. But in your cert petition, you need to focus on telling the Court why it should take your case in the first place.
In other words, the cert petition is where you explain why your case is cert-worthy (see Tip #1). This is much different from telling the Court why you should win, so it requires a much different approach. For starters, you need to think a lot less about your particular case and a lot more about the bigger picture involving lots of other courts and cases. In the lower courts, it’s usually hyperbolic (and frowned upon) to claim the issue at hand is one of national importance. But in your cert petition to the Supreme Court, you really do need to explain — convincingly — why the issue at hand is one of national importance. Don’t be afraid to make policy arguments, and to talk about not only what has happened in prior cases but also what might happen in future cases, if the Court doesn’t resolve the issue at hand.
In short, don’t worry (yet) about telling the Court how it should rule; instead, tell the Court why it should rule. Save the bit about winning for later.3. Focus on Framing the Issue
To paraphrase Sun Tzu: “Those skilled in war bring the enemy to the battlefield of their choosing.”
Perhaps the most important component of your appeal to the Supreme Court is the “question presented.” It appears on the first page of your cert petition, and it will (or should) guide everything that follows. Indeed, if you frame your question effectively, it will guide the Court’s decision — hopefully in your favor.
Ideally, you’ll have just one question to present to the Court. If you have more than one, they should be closely related. If you have multiple questions that aren’t closely related, your case might look too complicated and messy — and the Court will be inclined to wait for a case that provides a cleaner “vehicle” for addressing whichever issue it might have been interested in. Usually you can weed out multiple issues when you’re researching the cert-worthiness of your case, because you’ll need to determine the cert-worthiness of each issue — and few cases have more than one cert-worthy issue. (See Tip #1.) Once you’ve figured out what your issue is, it is crucial that you frame it to your advantage.
Issues are framed as questions for the Court to answer — but often they’re presented as statements. (Yes, that’s what I said: a question in the form of a statement.) For example, the question presented might look something like this:
Whether a court errs by vacating an agency’s decision and remanding for further administrative proceedings, when further administrative proceedings will have no effect on the agency’s decision and will serve no other substantive purpose.
This question has been framed (i.e., phrased) in a way that nudges the reader toward a particular answer. (“Well, of course it seems like error for a court to vacate and remand for further proceedings, if further proceedings are pointless!”) This nudging-through-phrasing is part of what we’re talking about when we talk about “framing” the issue.
But framing the issue is much more than mere phrasing. Framing the issue is about choosing your battlefield. How you frame your issue will have a lot to do with whether you win or lose your appeal.
A good example can be found in the Hobby Lobby case decided by the Supreme Court last term. The central issue in that case was whether a provision in the Affordable Care Act (ACA), which required employers to provide employees with health coverage for contraception, infringed on Hobby Lobby’s rights under the Religious Freedom Restoration Act (RFRA), which prohibits Congress from enacting a law that burdens a person’s exercise of their religion. Hobby Lobby is a for-profit corporation—but it is owned by some religious folks who objected, on religious grounds, to providing access to certain contraceptives. The attorneys for Hobby Lobby framed the question presented so that the focus was on whether Hobby Lobby qualified as a “person” under RFRA—because if Hobby Lobby qualified as a “person” under RFRA, then it was protected under RFRA, and the ACA’s provision should be ruled unenforceable.
With the issue framed this way, the outcome was practically foreordained. RFRA’s statutory definition of “person” includes corporations — so of course Hobby Lobby qualifies as a “person” under RFRA. And sure enough, based in part on this reasoning, the Supreme Court’s majority decided the case in Hobby Lobby’s favor.
But as Justice Ginsburg pointed out in her dissent, the Court was answering the wrong question. The real question, according to Ginsburg and the dissenters, was whether a corporation like Hobby Lobby could “exercise” religion — because if a corporation can’t exercise religion, then the ACA’s coverage requirement can’t be a burden to Hobby Lobby’s religious exercise. Framed this way, the dissenters all agreed that corporations can’t exercise religion — so of course the ACA provision did not violate RFRA.
See what I mean about choosing your battlefield? This is a great illustration of how important it is to frame your issue effectively — to strategically point the Court toward the precise question you want it to answer. Ideally, this framing should begin while you’re still in the district court, or by the time you’ve reached the court of appeals. But at the very latest, it must occur on that first page of your petition for a writ of certiorari.
Devote the lion’s share of your time to framing your issue — searching and researching, thinking and rethinking, writing and rewriting — to get it just right. And this should be part of the process for determining cert-worthiness (Tip #1) — because cert-worthiness itself might be determined by how you frame the issue. These two things, framing the issue and determining cert-worthiness, are a big part of what Supreme Court practice is all about.
Featured image (modified): “Petition For Divorce” from Shutterstock.
TranscriptPad, like TrialPad, is the benchmark in iPad apps for litigators. I transitioned to a paperless office over 5 years ago, but one of the nagging complaints I had was the lack of a good paperless option for summarizing and annotating depositions. TranscriptPad fills that bill. It allows you to:
All this costs just $89.99, a fraction of the cost for comparable PC-based applications. (I know, I know. You’re used to paying $4.99 for applications for your iPad. Well this isn’t a game you play to waste time; it is an application you’ll rely on to get real work done.)
If you are handling depositions, you should get TranscriptPad. (And by the way, if you are trying cases without TrialPad, it just may be malpractice.)
At the end of a recent talk by Jack Newton, CEO of Clio, a bombshell:
[F]rom the back of the room, an attendee stood up and stated (roughly, to paraphrase): “I am Jan Lindsay, President of the Law Society of BC. This is black and white: BC lawyers are prohibited from using non-BC-based cloud computing providers, including Google and Dropbox.”
If you could only use cloud providers from your state or province, that would effectively eliminate the cloud as a computing option. It has to be a misstatement. No other North American bar association has gone so far; most are moving in the opposite direction and enabling lawyers to use the cloud. If Lindsay’s statement is true, it is a major technological step backwards for BC lawyers, and an especially big disadvantage for solos and small firms.
Update: David Bilinsky has tried to clarify the rules for BC lawyers. Unfortunately, I think it’s the LSBC president who needs to weigh in and explain to BC lawyers how she came to her conclusion that “BC lawyers are prohibited from using non-BC-based cloud computing providers.”
Update 2: LSBC president Jan Lindsay just published a statement:
I don’t believe I said that non-BC cloud computing services were not permitted, but if I did I was wrong.
Well that settles it. Lindsay refers lawyers who want to know more about their cloud-computing obligations in BC to Bilinsky’s post.
Law professor and prolific blogger Jonathan Turley has “agreed to represent the United States House of Representatives in its challenge of unilateral, unconstitutional actions taken by the Obama Administration with respect to implementation of the Affordable Care Act (ACA).”
As Ken White put it:
"Wow. Just Wow" is overused, but … Wow. Just Wow. http://t.co/HDjvffezfF
— Popehat (@Popehat) November 18, 2014
From Bitter Lawyer:
The deposition transcript shows that a half hour into the deposition, defense counsel asked Ryan’s client, the plaintiff, about an interrogatory answer. After the plaintiff struggled for more than one minute to answer defense counsel’s question, the following exchange between the attorneys took place:
[Defense counsel]: I would like the record to reflect Mr. Ryan is writing notes to his client while she is answering a question. If he wishes to prove that’s not true rather than going on a rampage, he can turn back over the notepad that he just turned over, and he can show us all what he wrote on it. But I will, again, be bringing up to the court that he was writing on a notepad. And when I looked at him, he turned it over.
Featured image: “Students passing notes in class” from Shutterstock.
As a general rule, you should not CC your clients on emails.
First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.
In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.
Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.
Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.
The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal accumen to help them understand what is going on.
So don’t CC your client. There are certainly some exceptions to this “rule,” or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.
Featured image: “email symbol, at sign, grey background” from Shutterstock.
Jacob Berlove, 30, of Queens, is the best human Supreme Court predictor in the world. Actually, forget the qualifier. He’s the best Supreme Court predictor in the world.
But you could use this decision tree (there’s one for each justice) if you prefer:
[S]ome subscribers’ passwords had been compromised and used to access the database. The types of information involved included addresses, date of birth, and in some cases, driver’s license numbers and Social Security numbers.
Although no bank account or credit card information was involved, whoever scraped the Westlaw database now has all the information they need to open some bank accounts and sign up for some credit cards.
Fortunately, it looks like the breach could be fairly small. According to the report Westlaw made to the New Hampshire Attorney General, just nine New Hampshire residents’ information was involved, and they will receive two years of free credit monitoring. The New Hampshire report did not contain the number of people affected nationally.
It is easy to overlook what defines a good deposition question.
This topic isn’t merely for beginners. Even if you walk into a deposition with a solid plan, your plan can quickly change question by question. It’s at this micro-level — the way you ask each individual question — where many deposition errors are made.
To understand how bad questions can ruin your depositions, consider the anatomy of a good deposition question.The Good Deposition Question Is Simple
There are many benefits to simple questions. Simple questions, which are usually short, are easy to comprehend by the witness, by others who read the deposition, and by a jury if you use the exchange for impeachment at trial. Simple questions are also more difficult for the witness to evade and move the deposition along.
Simple does not mean your deposition question deals with a single fact. At a deposition, you often want to ask open-ended questions that call for the witness to answer expansively, touching on multiple facts such as “what happened next?”
Your questions should also be simple grammatically. If your questions are short, they are probably simple enough. Longer questions that contain numerous clauses will make it difficult to communicate with the witness or to use the transcript in a motion or at trial.
There are exceptions to the general rule of simplicity. In a document-intensive deposition, your questions might expand in length to incorporate quotes from documents. When deposing doctors or other experts, your questions might become more complex as you ask questions about technical topics.
Generally, however, complex cases do not call for complex questions. You could even argue that topics of greater complexity call for questions of greater simplicity. After all, if you use the deposition later in a motion or at trial, you will want the deposition to be simple enough so that both judge and jury can understand.The Good Deposition Question Stands Alone
Reviewing the transcript later, you should not have to turn pages to figure out the topic of inquiry or the meaning of the question and its answer. If so, the deposition will be less useful for impeachment and other purposes. Use these two rules to make your transcript easy to follow after the deposition.
You, not the witness, should be in control at a deposition. Ask open-ended questions when you want to encourage the witness to cover a lot of ground that you can explore later. (If the witness was well-prepared for the deposition, ask several open-ended questions in a row — “And then what happened?” — to get over the witness’s reluctance to volunteer.) Ask leading questions to pin the witness down, then ask sweeping-up questions to box the witness in. (“Is there anything else you remember about the meeting of August 8?”) If the witness doesn’t answer your question the first time, ask the same question again.The Good Deposition Question Withstands Form Objections
This is corollary to much of what has come before. A good deposition question will not be subject to a valid form objection. That means your question isn’t vague, isn’t compound, and isn’t argumentative. A good deposition question is precise, is grammatically correct, and isn’t susceptible to multiple meanings. The good deposition question does not contain excessive negatives. Example:
Wrong: “Unless I’m not understanding you correctly, you don’t agree with me that you didn’t give notice before December 23?”
Right: “It’s your testimony that you gave notice before December 23, correct?”
As simple as these tips might sound, they are often violated, especially in the heat of a deposition when lawyers are trying to juggle multiple lines of questioning. Depositions are often fraught with tension, and when they are, it becomes more difficult to ask good questions.
If asking good questions becomes a habit, on the other hand, you will reap the benefits immediately. The witness will answer the precise question you asked, rather than a question the witness is pretending you might have asked. Your depositions are likely to be shorter and more effective. Your skilled questioning technique — asking clear, concise, and useful questions on the fly — will put opposing counsel on immediate notice they are not dealing with a novice. As a result, opposing counsel will be less tempted to obstruct your deposition with invalid objections and time-wasting bluster.
Featured image: “Businessman holding a paper with question marks on his head“
Not a joke. That’s the real caption →
And it’s not the only one. Kevin Underhill found various lawsuits captioned with various things, including this gem:
United States v. Various Works of Art Owned by Randy
That’s a more typical caption, obviously, and several orders of magnitude more specific even considering all the people named Randy in the U.S. There is more good stuff on Lowering the Bar, and you should definitely go read the rest of Kevin’s post.
The reaction to Avvo Advisor, the new 15-minute consultation service from Avvo, mostly focused on the feasibility of delivering competent legal advice in a 15-minute window. I was a bit dismissive of it for that reason, as well. I don’t think there are a lot of legal problems you can deal with in 15 minutes.
But now I realize that’s not really the point of Avvo Advisor. Although some clients will certainly get the advice they need, it’s really a lead-generation service for lawyers. Granted, lead generation services for lawyers are a dime a dozen. I get please-write-about-our-company requests from lead-generation companies almost daily. They mostly follow a similar model: the company finds the potential clients, you pay a fee for each “lead,” and you do the legal work. The problem is that a lot of the leads are tire-kickers looking for free advice or just dead-ends (wrong jurisdiction, wrong practice area, etc.).
Avvo Advisor is a little different because the potential client has to pay $39 to talk to a lawyer. That automatically excludes tire-kickers, who don’t pay for anything. And Avvo’s system seems like it will eliminate many wrong-jurisdiction and wrong-practice-area calls.
More importantly, it flips the traditional lead-generation model on its head. Instead of charging the lawyer for a lead, the potential client pays for the 15-minute call. Instead of offering a refund for bad leads, as Total Attorneys has done for years, Avvo is offering a refund to unsatisfied clients (who are probably less likely to ask for it).
Crucially, Avvo does not hang up the phone after 15 minutes. The 15 minutes is just the beginning of the phone call. You are free to continue the conversation or quote the client a fee for further representation.
Lawyers obviously have to be able to help people in 15 minutes at least some of the time, or people will stop using the service. But Avvo obviously doesn’t think every legal problem will be solved with a 15-minute phone call. The phone call is really just a paid consultation with a potential client who has already demonstrated a willingness to pay for legal advice.
In a sense, Avvo is taking sides in the debate lawyers have been having for years over whether or not to charge for consultations. With Avvo Advisor, the answer is yes.
Whether it will work or not is, in the end, entirely a function of Avvo’s ability to get potential clients to pay for a 15-minute phone call. With Avvo’s reportedly massive traffic, I think it is a safe bet that it will.
Have you tried giving legal advice with Avvo Advisor? Let us know about your experience in the comments.
From the ABA Journal:
Lawyers with “higher levels of resilience, empathy, initiative and sociability” are more likely to leave law practice than those with lower levels of those traits.
In other words, don’t hire associates that display the characteristics you actually want in an associate.
Microsoft Word is a powerful piece of software that conceals many of its most useful features. Unfortunately, using Word over time doesn’t improve your skill because you won’t stumble across what you really need to know. You can take classes, read a 1,000-page manual, or start reading this series of articles about the rules of Word, which will help you learn to control the most powerful (and maddening) program you may ever use. Here are the first five rules to help you with your next Word document.Rule One: There Is A Feature For That
This is a very important rule and should be a big red flag when you are working on a document. Essentially, if you have to keep doing something over and over to get the document to look the way you want, you must be missing a feature that would make it easier. For example, if you don’t like the way your footnotes look so you are “fixing” them by selecting each one and manually changing its formatting, that would constitute an annoying, repetitive and laborious process for which there must be better approach. In that particular case, you would simply find the style called Footnote Text and change it which would instantly update all of your footnotes to the formatting you want without selecting any of them.Rule Two: Never Create Spacing Between Paragraphs By Using Extra Hard Returns
Many legal documents have single spaced paragraphs with an extra blank line between each paragraph. Using additional hard returns to accomplish this is repetitive, annoying, and requires more (rather than fewer) keystrokes. Further, it makes it easy to end up with too many lines between paragraphs or not enough.
In fact, this is one of the things that Word users routinely look for and fix before printing a document. Word has a feature for creating vertical space between paragraphs automatically. It’s fast, requires fewer keystrokes, and will never allow you to end up with too much or not enough space between paragraphs. You can get to this setting by right clicking on your paragraph, selecting Paragraph, and going to the Indents and Spacing tab. From here, you have four options to create automatic spacing between your paragraphs.
1. Define Spacing Measurements: Generally, 6 points of space is a half line; 12 points is a full line; eighteen points is one and a half lines and twenty-four points is two lines.
2. Define Spacing Before: If you would like Word to automatically insert an extra space above each paragraph, use Spacing Before. Make the Spacing Before 12 pt. This will add a double space above each single spaced paragraph.
3. Define Spacing After: You can do the same thing as above, but the space will occur after each paragraph. Just follow the steps listed for Spacing Before only add the points to Spacing After.
4. Using Lines Rather Than Points: If you find the point system confusing, you can always erase the “pt” measure and type “1 line.” If you switch from points to lines, the up and down arrows will make adjustments in those terms.
Not every character occupies the same amount of horizontal space (even the same character like a space). For example, in the screen shot below, exactly five spaces were entered before and after each paragraph number. I inserted a red line into the screen shot, so you can see how misaligned the paragraphs look with the same number of spaces.
Instead of spaces, you want to use tables, tabs, and indents to line up your sentences. These methods will work perfectly and add to the professionalism of your document.Rule Four: Strip The Formatting of Pasted Text
If you copy text from one document (or another program), you will often bring along formatting attributes foreign to the document. To avoid document issues, it is best to remove all of the formatting when you paste the text. This will allow the text to absorb the formatting of the document you’re pasting into.
The Paste Options button addresses this by giving the user the option to keep the source formatting, match the destination formatting, or strip the formatting (Keep Text Only).
Yes, there are specific rules to outline paragraph numbering and formatting which lawyers routinely violate. Here are the big two:
1. Do Not Number Only One Sub-Paragraph: If you do not have a B. paragraph, you cannot have an A. In that case, the paragraph should be un-numbered. If you have an article with a single paragraph below it before the next article, that paragraph should not be numbered. In other words, the following is incorrect. The paragraph numbered 4.01 should be un-numbered because it is the sole paragraph under that article.
2. Don’t Change Numbering Schemes In the Middle of a Document: In other words, if your document employs numbering or lettering, be consistent about its use. If you properly use Word’s multi-level list numbering, it won’t let you switch numbering schemes in the middle of a document.
Ultimately, how a document looks and its readability impacts how readers feel about you. Following these rules will create the favorable impression you need to make.
After two years in a big firm, I went solo. Running a small or solo practice is much different than practicing law in a big firm, and I quickly found that the bad habits I developed at my firm were hurting my practice and my professional relationships.
Here are four bad habits I found myself doing and what I did to get past them:1. Pick Up The Phone and Talk to Your Clients
American Bar Association Model Rule 1.4(a)(3) says that you “shall keep the client reasonably informed about the status of the case.” During my tenure at a big firm, it became easy to concentrate on billing time rather than paying attention to the people and businesses I was representing. Instead of keeping my clients fully informed about what was going on in their cases, I spent nearly all my time doing “billable” tasks that would keep myself profitable . Sure, I kept the insurance company informed — they were the ones paying my bills — but I rarely initiated contact with the client I was actually representing without being prompted.
Numerous bar journal articles across the country say that communication with clients decreases your risk of a legal malpractice case. When you are running a solo or small firm, many new clients will come through word-of-mouth from your old clients. Affirmatively reaching out to your client just to say hello can go a long way. This is not to say you should show up to your client’s kids’ soccer games, but reach out and talk to them even when you are not obligated to do so.2. Do Not Bill for Everything You Do
In many big firms attorneys bill clients for everything they can think of — telephone calls, letters, even copy-and-pasting subpoenas. But before you start machine-gunning a client every month with 0.1’s, you should understand that your clients have probably hired high-billing attorneys before, and were likely unhappy about being nickeled and dimed.
In my small practice, I tell hourly rate clients at sign-up what I am not going to bill them for: travel time around town, speaking with them on the telephone (no matter who makes the call), or writing and reading emails or letters. I also put this in the retainer agreement. Some clients have actually been shocked (in a good way) that I would not charge for these things.
A caveat: I have not had a client barrage me with calls or emails. If you are worried about a client taking advantage of unlimited free telephone calls or emails, consider setting a daily or weekly limit.3. Cut Your Clients a Break on Fees
How do you want your clients to remember you?
This goes hand-in-hand with not billing for everything that you do. I believe the old adage that everything looks like a nail from a hammer’s perspective applies to attorneys billing a client. If you are able to resolve a case quickly in your client’s best interest, consider cutting your client a break on the total fee. It can pay dividends in the long run.4. Do Not Hide in Your Office
During my tenure as a big firm associate, I frequently ate lunch at my desk. I sat behind my computer most of the day with my door closed, working and entering time. There will always be days you need to spend holed away getting things done, but unless you have no need for new clients, I would strongly recommend getting out of your office and being social. The saying “out of sight, out of mind” definitely applies to attorneys who get business through referrals. You do not want to find you missed out on a referral because your friend or previous client did not know you practiced that particular area of law.
It is natural to pick up habits that are good or bad if you have worked in a big firm. While some habits can help you be productive and profitable, others can hurt your client relationships and referral network.
LawPal went live earlier this year, described in our forum by founder Alex Halliday:
LawPal is part project management, part deal room. It is a way to manage your transactions in a collaborative, efficient way. Document exchange, feedback collection and versioning via email is painful and expensive today and we want to change that. We will be expanding the service to include signing, daily digest emails and more granular privacy controls.
It was a nifty idea, but I found it difficult to get acquainted with:
LawPal violates my #1 rule of software: if I can’t figure out what to do with it within 10 minutes, I move on. I’ve spent more than 10 minutes on it, and I’m not going to spend more time on it until they say it’s ready for prime time.
If you were using LawPal, you have until November 30th to download your information. LawPal will delete all user data on December 1st.
Given our obligations to maintain confidentiality and privilege, lawyers must be aware of our heightened responsibilities regarding data privacy and security. Those are obligations that are getting harder and harder to fulfill, however, as we now know that the NSA is perfectly comfortable with intercepting attorney-client privileged communications.
Before you begin thinking you need to cut up your credit cards and only use burner phones and bitcoin and basically live like a character in The Wire, take heed: there are some steps you can take to hide some of your personal and professional online life from prying eyes. Tor (short for The Onion Router) is one of the easiest things you can do to ensure that your travels on the web remain untracked and unfettered.
You hear a lot about how you need to encrypt the data you store and how certain types of sensitive material, such as banking data, is encrypted on its path across the internet. Encryption is great, but encryption alone is not enough, thanks to traffic analysis.
Internet data packets have two parts: a data payload and a header used for routing. The data payload is whatever is being sent, whether that’s an email message, a web page, or an audio file. Even if you encrypt the data payload of your communications, traffic analysis still reveals a great deal about what you’re doing and, possibly, what you’re saying. That’s because it focuses on the header, which discloses source, destination, size, timing, and so on.
A basic problem for the privacy minded is that the recipient of your communications can see that you sent it by looking at headers.
To scramble that header info, you need a set of virtual tunnels like Tor. Tor is pretty conceptually simple. It works by distributing your data and headers over a number of places on the internet. Basically, your header data doesn’t take a direct route. Instead, it goes randomly through a number of relays and no one on the path can figure out where it is coming from and where it is going to end up.
Using Tor is incredibly easy because all you need to know how to do is install a program and use a browser. Just download the version for your OS (Tor is available for Windows, Mac, and Linux) and then install the Tor browser. Then, just do any of the Internet surfing you would like to hide via that browser instead of your normal one. This is probably the simplest way imaginable to protect your privacy — and potentially your client’s privacy — on the Internet. Tor works best when you change some other surfing habits as well. Don’t install browser plug-ins, always use HTTPS (encrypted) versions of websites when possible, and do not open documents within the browser.
Tor has a not entirely unwarranted reputation as the tool of choice for some of the really seedy parts of the internet, such as child pornographers and drug dealers. But Tor is just that – a tool. It is neither good nor bad, morally. It has some very critical and necessary applications that are relevant to attorneys seeking to protect themselves and their clients. Here’s why.
When you use the internet, all your traffic originates from your IP address. A quick internet search will map your IP address to your city, and it is becoming increasingly easier to map that IP address to something as narrow as a street location. However, Tor masks your IP location, which means that you will not accidentally reveal your location if, say, you’ve traveled to meet with a client.
Tor also hides your IP address when you use the Internet to do things like conduct research on a corporation your client may be suing or when you communicate with a government whistleblower. If you represent any clients with national security concerns, Tor is a must-have, as those types of clients are especially vulnerable to the possibility of surveillance. Finally, Tor lets you view websites that may be blocked in your home country. This might not sound like a big deal in America, but if you have traveled somewhere for work that doesn’t allow Facebook, for example, you will immediately see the benefits of being able to circumvent that restriction.
Tor is not without its problems. First, your data has to leave the Tor network for the very last leg of the journey via an exit node. People using Tor voluntarily choose to be an exit node, which means that the government or a hacker could be the last stop on your way out of Tor. The solution to this problem is to make sure to use encrypted (HTTPS) websites for sensitive data on top of using Tor. Next, though the NSA can’t follow how your traffic twists and turns through Tor, they can see that you are using Tor and that may pique their interest in you or your clients. Finally, for maximum security, your clients should be running Tor as well so that their header info is scrambled on any communications they have with you.
Tor is not a great — or necessary — choice for use for your regular surfing, as all the hops across the Internet will slow your traffic down considerably. If you’re just looking at cat gifs or making a dinner date, it is probably overkill (unless you’re that security minded, of course). But when it comes to your obligations to protect your client’s location, safety, and privilege, masking your trail is critical and Tor is an easy way for you to start doing so.
Frank Sivero, who is most remembered for his iconic role as a frozen corpse in Goodfellas, is suing the creators of the Simpsons. Sivero’s cause of action is based off of the supposed theft of his one-dimensional stereotype in the 1990 Scorsese classic, which Matt Groening et al turned it into a one-dimensional cartoon character that has since had a speaking role in the Simpsons for a grand total of 15 episodes. In other words it’s another banner day for those of use with a vowel at the end of our last name.
Previously, Frank Sivero sues a deli over a sandwich.
Choosing a laptop and selecting a document scanner aren’t covered in law school. To make it easier, here is my “shopping list” for new solos. Just get what you need and get back to focusing on your clients instead of poring over practice management software reviews.
Obviously, this does not cover everything you need, but it definitely contains the basics — everything you need to get a new law firm up and running.Basic Hardware
If you are only going to have one computer, it should be a laptop. And there is no reason to go with a big, heavy laptop when an ultralight has plenty of speed and power and will slip easily into a regular bag.
Mac or PC? It doesn’t really matter, but I’ve always advised solos to get a Mac. You’ll spend less time doing your own tech support, and you will spend less money in the long run. (Yes, you can spend less on a PC, but you will end up with a less-powerful computer that you will have to replace sooner, and that may very well fall apart before you are ready to replace it.)
If you prefer Windows, you can’t do better than the Lenovo ThinkPad X1 Carbon. ThinkPads are rock-solid and last forever. The 14″ screen is pretty much perfect, and the keyboard is fantastic.Fujitsu ScanSnap iX500
You do not want a multifunction printer/copier/scanner/toaster. Instead, just get a good document scanner and laser printer.
We’ve been recommending Fujitsu ScanSnaps for years because they are great scanners with unsurpassed ease of use. The ScanSnap iX500 is a desktop document scanner that will also scan wirelessly to your computer and mobile device. You should have one. If that doesn’t persuade you, read our review of the iX500.HP LaserJet Pro 400 M401dw
A printer is not the most exciting thing on your shopping list, but you do need a fast, reliable one. It needs to be fast so you don’t have to wait around when you need to print out a stack of documents the night before a trial or right before a real estate closing. And it needs to be reliable because you don’t want to replace it very often. And get a laser printer because inkjets just aren’t worth it.
Our current top pick is the HP LaserJet Pro 400 M401dw, which is a solid laser printer and a great value. It even prints wirelessly, which is one less wire you need to plug in every time you set down your laptop. For the details, read Randall’s review.Time Capsule 2TB or WD Elements 2TB
You’ll want two backup methods: one local, one remote. For the local backup, an external hard drive is the way to go. If you use a Mac, get the 2TB Time Capsule, which works with Time Machine to back up your files wirelessly. It also functions as a wireless router.
If you use Windows or are more cost-conscious, get a 2TB WD Elements. This basic drive will work fine with Time Machine or any other backup software, although it will have to be plugged into your computer.Basic Software
You can get by without Microsoft Office, but that doesn’t mean it is a good idea. Just get it. The home and business versions let you install Office on up to two computers. Now that you can use Office for iOS and Android for free, there is really no reason to subscribe to Office 365, particularly since the business plans aren’t a great value by comparison. (The versions of Word, etc., are the same.)
The best email, calendar, and contact management is from Google, and it is now called Google Apps for Work (f/k/a Google Apps for Business). You can use it in two ways. I prefer the web interface for all Google’s products, because then I have the same experience no matter where I am. But you can also use the Google Apps Sync for Microsoft Outlook and you will never know you are using Google Apps.
It’s way better than the email provided by your ISP.Clio or MyCase
I won’t try to take sides between what I think are the two best practice management software options currently on the market. Instead, read our user guides to Clio and MyCase and give them a try. In fact, probably the best way to decide for yourself is to use both of them in tandem on at least one case, and pick the one with the user experience you like best.
There are many other options out there, and some of them are very good. If you have the time and patience, go ahead and investigate them. But if you just flip a coin and pick Clio or MyCase, you will probably be perfectly happy.Xero or Quickbooks Online
I have used QuickBooks for Windows, QuickBooks for Mac, QuickBooks Online, and Xero for my law firm accounting and for Lawyerist. If I were starting a new practice, despite some complaints, I would use Xero. I much prefer it to any incarnation of QuickBooks.
That said, QuickBooks is basically the industry standard small-business accounting software. Your accountant probably uses it, but definitely knows how to work with it. You can’t really go wrong with Quickbooks Online, except that it really isn’t very good. Xero, on the other hand, is very close to good, and within spitting distance of great.CrashPlan
For remote backup, you’ll want something automatic and unobtrusive. CrashPlan is rock-solid, very secure, and offers unlimited storage for your backups. You can even set up your own backup server (I use an old Windows PC) to keep an extra copy under your own control.
That’s it for the basics. If you have questions, ask in the comments or take them to the Lawyerist Lab. If the comments or in the Lab, I will be happy to defend my choices (or omissions) or suggest alternatives.Updates
Featured image: “note and pencil” from Shutterstock.