Category Archives: Writing

IMPROVE YOUR BUSINESS WRITING SKILLS

“Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be.”

Samuel Clemens aka Mark Twain

I was a bad writer as a young lawyer.  I believed big words and long sentences would impress clients and judges.  I overused adjectives.  My best arguments were buried in the middle of briefs.  Readers waited until the middle or end of a brief — if they got that far — to know what I wanted.

I learned how to write from a partner assigned to edit my work.  Returned drafts resembled murder scenes — with splattered blood everywhere (aka his red ink edits).  These were pre-Microsoft Word days, when paper still ruled.  Red-faced, I would leave the partner’s office, shuffle down the hallway to my office, and start over.

You don’t need to do the walk of shame to become a better writer.  To write better:

  • Use short sentences. 
  • Eliminate extra words (e.g. profoundly, literally, completely, totally, very).
  • Get to the point at the outset of your email/brief/letter.
  • Avoid long emails.
  • Avoid long paragraphs — Think:  do you like reading emails with never-ending paragraphs?
  • Use headings, especially if you must write a longer email or letter.  
  • Use “because” when making your request or point:  “I would like you to buy our product because it is three times more effective, and less expensive, than our competition’s product.”      
  • Don’t bury your best point midway through your writing; if you see you have done this, move it up to the beginning of your letter. 

Do an experiment: the next time you read someone else’s, or your own, writing, look at my tips again. Ask yourself:  could the email/letter/legal brief be improved?  I’ll bet you answer “yes.”  If yes, edit the document, unless it is too late — an opportunity lost.

Comic strip authors are perhaps the best writers.  Forced to tell a story in as little as three or four sentences, they capture your attention, get to the point, and waste no words.  “Dilbert” by Scott Adams is one of my favorite comic strips because of its satirical office humor.  Read it a few times and you will find yourself thinking, “hey, that reminds me of [so and so] in my office.”

Adams gives great writing advice.  I leave you with his article “The Day You Became a Better Writer”:

I went from being a bad writer to a good writer after taking a one-day course in “business writing.” I couldn’t believe how simple it was. I’ll tell you the main tricks here so you don’t have to waste a day in class.

Business writing is about clarity and persuasion. The main technique is keeping things simple. Simple writing is persuasive. A good argument in five sentences will sway more people than a brilliant argument in a hundred sentences. Don’t fight it.

Simple means getting rid of extra words. Don’t write, “He was very happy” when you can write “He was happy.” You think the word “very” adds something. It doesn’t. Prune your sentences.

Humor writing is a lot like business writing. It needs to be simple. The main difference is in the choice of words. For humor, don’t say “drink” when you can say “swill.”

Your first sentence needs to grab the reader. Go back and read my first sentence to this post. I rewrote it a dozen times. It makes you curious. That’s the key.

Write short sentences. Avoid putting multiple thoughts in one sentence. Readers aren’t as smart as you’d think.

Learn how brains organize ideas. Readers comprehend “the boy hit the ball” quicker than “the ball was hit by the boy.” Both sentences mean the same, but it’s easier to imagine the object (the boy) before the action (the hitting). All brains work that way. (Notice I didn’t say, “That is the way all brains work”?).

That’s it. You just learned 80% of the rules of good writing. You’re welcome.

“So the writer who breeds more words than he needs, is making a chore for the reader who reads.”

Dr. Seuss

Art Bourque is an AV rated lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art is a commercial and tort litigator. Art also practices employment law and conducts management training to help businesses operate efficiently and avoid mistakes.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli. 

Art wishes to thank John Lemaster, who taught him how to write.  John is not only a solid lawyer, he is a good human being.  That’s right, a few attorneys are human, too. John, thank you, and I sincerely apologize for all the edit angst I caused you “back in the day.” 

THE ART OF THE DEMAND LETTER — HOW TO GET WHAT YOU WANT AND STAY OUT OF JAIL

“There are many different kinds of people in the world, and you can never assume that everyone will react to your strategies in the same way. Deceive or outmaneuver some people and they will spend the rest of their lives seeking revenge. They are wolves in lambs’ clothing. Choose your victims and opponents carefully — then never offend or deceive the wrong person.”

Robert Greene, The 48 Laws of Power

Some people do not honor their promises or pay their debts. We first learned this as children, when we had to make a stand in the schoolyard or in the street.  We demanded the return of our ball, prized baseball card, or the cool action figure we loaned our brother or sister.  Sometimes it did not go well.

As adults, the stakes have changed but the dynamic remains the same:  someone owes you money or has your property and you need to get it back; you have tried the “nice” way, but you are being ignored or rebuffed.  You have a choice — give up or fight for what is yours.  

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If you are going to reclaim what is yours, do it well.  Plan your strategy.  Do not rush into battle (litigation) unless it is your only option.  Instead, start with a demand letter — a request stating what you want. 

A good demand letter must:

  • Be clear and concise
  • Be strong, but professional
  • Identify exactly what must be done/stopped
  • Contain a deadline for compliance
  • State the consequences for non-compliance
  • Not contain any threat of public disclosure or criminal prosecution

Your demand letter should not incite antagonism.  Gratuitously angering someone is rarely effective and often counterproductive.  You may create a lifelong enemy.  Strike the balance between demanding what you want and being professional.

Another reason to be professional:  courts or juries may see your demand letter if the matter proceeds to a lawsuit.  Do not risk being perceived as unreasonable or as a bully.

Depending upon the nature of your demand, you may need to include language to comply with certain laws, such as the Fair Debt Collection Practices Act governing certain debts.  Consider consulting legal counsel before making your demand.  

The biggest mistake you can make in your demand letter is handing your opponent the keys to your jail cell:  sending a demand letter that constitutes extortion or blackmail.  Here are the Arizona and federal laws that criminalize such conduct:

Arizona Revised Statutes Annotated Section 13–1804(A)(6) states:

A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following:

….

6. Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair his credit or business.

Federal law, 18 U.S.C 875, states:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Understand the difference between writing a good demand letter and a committing a crime.  For example, federal prosecutors recently indicted attorney Michael Avenatti, claiming he told Nike he had evidence that Nike employees channeled money to recruits in violation of NCAA rules.  Avennati threatened to release the evidence unless the company paid him and his client $22.5 million dollars.  If true, this is a crime.

Do not be like Mike [Avennati].  When composing a demand letter, think back to when you were a child.  Remember the unpleasant — even violent — occasions where you took a stand and your opponent struck back.  Understand, little has changed.  Human nature remains what it is, only now we are adults and the stakes are higher.  Do not hand your opponent a weapon he can turn on you.  Instead, provide a demand he cannot resist.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art provides employment law, business operations, and other training to help companies and individuals operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

TEN TIPS FOR WRITING EFFECTIVE WORKPLACE EMAILS

“With great power comes great responsibility.”

Uncle Ben, Spiderman

I missed the class on writing workplace emails. You did too? Probably because the class does not exist.

Most of us are left to our own devices, so to speak, when composing emails and hitting the send button — forever losing control of our words. This can lead to many problems down the road. How many of us have read, or sent, regrettable emails?

Perhaps worse are the emails that nobody reads because they are long, winding, and unorganized. Want to be irrelevant?  Be a boring, rambling, windbag in your emails.

This article gives business owners, HR professionals, and others simple tools to convey effective messages that will stand the test of time — and scrutiny.

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WRITING TO WIN

Steven Stark’s Writing to Win  is my go-to book for simple, effective writing tips.  As Mr. Stark observes, the average person now gets so much email that the tendency is to read a few lines and then lose interest, especially because email is often read while the recipient is doing something else at the same time.  If you want people to read your electronic communications you have to take steps to make them readable.

Here are what I believe are the ten best tips to ensure your emails have the best chance of getting read, understood, and acted upon:

  1. Lead with conclusions:  tell your reader why you are writing them and what you want them to do in response.
  2. Keep it short — 150 words or less:  write anything longer than five sentences and you risk that the email will go unread or be forgotten.
  3. Write in simple English:  that’s right, KISS (keep it simple, stupid) applies to emails.
  4. Assume unknown readers:  your email is a “forward” away from being read by many others; anticipate this.
  5. Pause and think before you send:  the heat of the moment is not the time to send an email; put a timer on yourself when you are mad or fired-up and want to hit send.
  6. Don’t pick a fight:  escalating tensions is rarely effective; can you convey a message or viewpoint without using inflammatory or abusive language?  Of course you can.
  7. If you’re writing anything confidential, inflammatory or contentious, enter the recipient’s name in the “to” box after composing the email:  this way you do not risk inadvertently hitting “send” and losing control of an incomplete or unintended email.
  8. Beware the “reply all” button:  need I say more?
  9. Avoid questionable phrases or sentences:  Don’t make comments like “I don’t know if this is legal but…” or “I really shouldn’t put this in writing.”
  10. Don’t overuse email:  excessive emails are a nuisance at least and, much worse, risk making you irrelevant.

GO FORTH AND SPREAD THE WORD(S)  

Consider putting the bullet point tips in this article directly into your Employee Handbook or a separate email policy.  Too many handbooks and policies tell employees what not to put in emails, but omit any mention of how to write an effective email.  For help in updating your employee handbook for 2017, or in developing  workplace policies and handling business law issues, contact Art Bourque at Bourque Law Firm.

Otherwise, while you ponder your next email, enjoy this brilliant —  and really funny — use of rhetoric in response to an attorney’s nasty demand letter (don’t try this at home):

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TOP TEN THINGS TO CONSIDER WHEN DRAFTING EMPLOYMENT AGREEMENTS

Drafting a solid, enforceable employment agreement is essential to (1) understanding your relationship with your employee and (2) determining what will happen at the end of employment — whether the end is good, bad, or ugly.

Despite the importance of employment agreements, many businesses use old or borrowed forms, make a few “tweaks” to the forms, and proceed to start the employment relationship with a bad agreement.  Only when the relationship sours or ends does the employer realize that it has a lousy agreement.  Oftentimes this results in getting out the checkbook to pay the ex-employee a large sum of money.

Do not put your company in a position of having to enforce or defend a bad agreement.  Instead,  consider the following ten action items.

1.  DO NOT USE A FORM AGREEMENT

Form is a four letter word when it comes to drafting employment —  and many other  — agreements.  Avoid form agreements.  Draft an employment agreement that is appropriate for your business.

2.  AT WILL OR FOR CAUSE OR…?

Decide upon the nature of the relationship with your employee.  Most businesses will want an “at will” relationship.  This allows employers maximum discretion in the relationship.  “At-will” employment means that the employee may be terminated from employment at any time for any lawful reason or for no reason.

Key employees or others may require that they only be terminated “for cause.”  If a business must engage in this kind of employment relationship it should carefully consider what circumstances will constitute “good cause” and who gets to decide whether it applies to a given scenario.

Employers typically want “good cause” to include a broad range of non-performance and misconduct; they also want to have maximum discretion to determine whether non-performance or misconduct has occurred.  I have seen numerous drafting mistakes in this area which have led to significant pain for employers by way of litigation and writing large checks.

There are any number of permutations on the spectrum between a pure at will relationship and a for cause relationship.  The trick — which is not really a trick so much as understanding  your objectives — is to decide upon what you want and write an agreement consistent therewith.

3.  TERM AGREEMENTS

Employers (or employees) sometimes desire a so-called “term” agreement.  This type of agreement calls for the employment relationship to last a specified period of time, unless an event occurs to cause early termination.

Term agreements can be an effective way to demonstrate confidence in the budding employment relationship.  They can also provide the security of locking the parties into a long term relationship — one which is not subject to the “whims” of a pure at will relationship, where either party may exit at any time.

Term agreements, however, must be drafted very carefully.  On one hand, employers cannot allow themselves to be stuck in a bad relationships with underperforming employees for a long term with no way out; yet on the other, employees want to be assured that if they perform the employer cannot end the term early on a whim.

Both of these needs can be served with a well-drafted agreement.  Conversely, a poorly drafted or inapplicable agreement can trigger a domino effect of misunderstandings and disagreements.

4.  WHAT WILL HAPPEN UPON TERMINATION?

Ironically, one of the first issues to consider in starting an employment relationship is what will happen when it ends.  There are many issues to consider but, in most cases, money tops the list.

Employers typically want to pay nothing upon the termination of the employment relationship.  However, many employment agreements call for payment to the employee upon an early termination (where there is a term agreement) and/or if the employment is terminated without cause (where there is a for cause agreement).

There is often a significant amount of interplay between (1) the term of an agreement, (2) the type of relationship, (3) who initiated the termination (employer or employee), and (4)what will happen upon termination.  Employers should always play out a number of hypotheticals to ensure they fully understand the variety of situations that may occur and their corresponding obligations.

5.  SCOPE OF JOB RESPONSIBILITIES

Both parties to the employment relationship should know what is expected of the employee.  The best way  to “get on the same page” is to have a provision describing the employee’s job responsibilities.

Significant thought and care should go into describing an employee’s job responsibilities.   Management should carefully discuss and formulate the best job responsibility clause possible.  Otherwise, the relationship may get off to a bad start when expectations are not fulfilled.

No employer, however, can accurately predict every task an employee may be asked to perform.  Changing needs caused by a shifting business environment may dictate that the employee’s job responsibilities be broadened or reduced.  Thus, include language that affords your business with maximum discretion to change job responsibilities.

6.  NON-DISCLOSURE AND CONFIDENTIALITY

Non-disclosure and confidentiality provisions should be part of any employment agreement.  Businesses should ensure that these provisions are as broad as possible to protect their interests.  In my experience, form agreements can be excessively narrow, fail to accurately describe the applicable documents and information sought to be protected, and can fail to afford the employer with maximum discretion to enforce the agreement.

7.  NON-COMPETITION AND N0N-SOLICITATION

Is it important to ensure that you do not invest in and train your new employee, only to have that employee compete against you and solicit employees and customers upon termination?  Then include non-compete and non-solicitation provisions in your employment agreement.

Do not use form agreements to draft non-compete and non-solicitation provisions in your employment agreement.  They may arise from other states that have different laws, and may include language that is outdated or inapplicable.  If you care about competition at the end of employment, start planning wisely with  appropriate non-compete and non-solicitation provisions at the beginning of employment.

8.  DISPUTE RESOLUTION AND REMEDIES FOR BREACH

Hope for the best, but prepare for the worst:  decide up front what mechanisms you want to use to resolve any disputes or pursue legal claims.  Issues to consider in this area include, for example:

  • The benefit or detriment of a cure period for breaches of the agreement
  • Whether mandatory mediation or arbitration provisions are advisable
  • Whether liquidated damages in the event of breach are appropriate
  • What laws should apply and the applicable forum (court) to decide the dispute

9.  OTHER “STANDARD” PROVISIONS

There are many other so-called “standard” provisions in employment agreements (e.g. integration clauses; notice provisions; etc.).  Please read each of them.  You may find that one business’ standard provision does not work for your business.

10.  PLAN LIKE A GREEN BERET

I recently read that our Green Berets and Special Forces  train for missions by spending a significant amount of time on what can go right and on what can go wrong.  Of course, everyone wants the former.  Then why are Green Berets arguably at there best when things turn ugly?  Because they have planned for any number of scenarios — good, bad, and ugly.

Your employment agreement should embody this same principle of planning  — focusing both on the potential success and potential failure of the relationship.  As observed by Daniel Coyle, author of the Talent Code:

“When it comes to approaching a major performance test, most of us follow advice that can be distilled into three words:  Focus on success.

That is, we prepare ourselves by banishing doubt and visualizing the positive. We vividly imagine ourselves making all the right moves with fluid grace, with zero mistakes or missteps. And it feels good.

What’s interesting, though, is that when you look closely at world-class performers, most don’t use this feel-good approach. In fact, they do the opposite — what you might call the Feel-Bad-First approach.

It goes like this: First they focus on the mistakes — and figure out, in detail, how they will react to them. Then they visualize the positive.

A great example of this is the Green Berets, the U.S. Army Special Forces soldiers. Teams spend weeks training for a mission (most of which happen at night). On the day of the mission they follow a two-part routine.

First, they spend the entire morning going over every possible mistake or disaster that could happen during the mission. Every possible screwup is mercilessly examined, and linked to an appropriate response: if the helicopter crash-lands, we’ll do X. If we are dropped off at the wrong spot, we’ll do Y. If we are outnumbered, we’ll do Z.

After some hours of doing this, the team takes a break and has lunch together. They socialize, relax, and maybe take a nap.

Then they spend the afternoon in phase two, talking about everything going exactly right. They review each move, visualizing each step, and vividly imagine it going 100 percent perfectly.

You might call this Balanced-Positive Approach: equally split between negative and positive, and ending on the positive. Notice the complete wall of separation between the two phases. They don’t toggle back and forth between positive and negative. The two phases are kept as separate as night and day: first comes all negative, then all positive.

Many top performers (Peyton Manning and Steve Jobs jump to mind) embody this approach. Half the time, they are persnickety, chronically dissatisfied, negative, doubtful, obsessed with potential failures. The other half of the time, they’re incredibly positive, confident performers.”

Approach your employment agreement like a Green Beret would his next mission:  plan for success and a smooth mission, but also allot significant thought and preparation into what will happen if the employment relationship hits the proverbial rocks.  It all begins with a solid employment agreement.

CONCLUSION

An employment agreement can be a useful, necessary tool; or, it can be a hammer that is used against your business.   Which employment agreement is your company going to choose?  I thought so.  Nice job!

 

 

DRAFTING A GOOD VACATION POLICY IS AS EASY AS A DAY AT THE BEACH

January is a time to get back to work. With holiday vacations and 2014 now solidly in the rear view mirror, employees are working hard — and again starting to accrue vacation time. This edition of the HR Law Insider discusses what is required of employers when it comes to vacation time and vacation pay.

No law requires Arizona employers to provide vacation or vacation pay (PTO is treated the same). Providing vacation or PTO to employees is purely voluntary. Most employers provide the benefit to attract quality employees, allow employees time to recharge, and because it is almost unheard of not to provide it.

HOWEVER, if an employer provides a vacation benefit, the employer will be bound by its policy — until and unless it changes that policy. Once vacation is “accrued” or earned, an employer cannot retroactively change its policy. Rather, any change must be applied prospectively, to future events.

In my experience, employers frequently err by not a evaluating what they truly want their vacation policy to look like or how it will work in real world situations. This typically results from the use of “form” employee handbooks handed down from third parties or cut and pasted off the internet. Significant problems can occur when an employer binds itself to something it didn’t intend, such as the unpleasant surprise of having to pay a long time employee tens of thousands of dollars in unused, accrued vacation pay upon the employee’s departure.

Here are important questions every employer should ask and answer when implementing or updating it’s vacation policy:

*  Whether to allow employees to take vacation time before it is accrued.  If allowed, and an employee ends employment with a negative balance, how to treat the situation.

* Whether to allow vacation time or vacation pay to roll over into the next year, or to have a use it or lose it policy.

*  Whether to cap the maximum amount if rollover is allowed.

*  Whether to reduce exempt employees’ vacation balance if they take partial days off (this will not remove the exemption from paying overtime, whereas docking the employee’s pay would remove it).

*  Whether and how much notice will be required of employees requesting vacation.

*  Whether to have a policy that any accrued vacation is forfeited at the end of employment, or forfeited if the employee is terminated or resigns without notice.

*  Whether to treat some employees differently, and if so, how to evaluate the risk of a discrimination claim presently or in the future.

*  Whether the employer is keeping good track of vacation time and accounting for any large balances in employees’ accounts (if rollover of vacation time is allowed).

*  When and how to seamlessly implement a new policy.

Employers should review their vacation policy annually to determine whether it needs to be tweaked, overhauled, or outright scrapped. This simple task will result in a policy that works for your business, your employees, and your needs. Because there is no requirement to provide vacation, employers have unlimited discretion in drafting a policy that fits their needs.