ABA Section of Business Law
Business Law Today
May/June 1999
Get your crayons out
Sure, you like words. But an image can make your case.
By STEVE WEISE
Weise is a shareholder at Heller Ehrman White & McAuliffe in Los Angeles.
As children, before we could write, we learned to express ourselves by drawing with our crayons. Sometimes we drew on the wall and sometimes on paper. Later we learned to write. As we grew up, we spent more time on words and less time on drawing. When we went to law school, we were done with childish things.
Law schools train lawyers to work in words. Lawyers learn to prize the well-chosen word. Lawyers spend their days (and nights) working in words. Lawyers learn how to write in precise language that describes specific events.
Columns in this magazine and a new rule from the Securities and Exchange Commission reinforce the idea that lawyers should learn how to write clearly and in "plain English." "Plain English" drafting seeks to make writing more understandable to the person reading it. That is a very welcome trend and will improve writing in all contexts.
But words cannot do the entire job — lawyers need to find those crayons that they put away many years ago and learn how to draw again. The use of diagrams is an integral part of improving the clarity of writing.
Lawyers can use drawings to great benefit in their daily work. Drawings can communicate information in ways that words cannot achieve. Drawings can display movement and relationships. We can use words to describe the same things, but that often puts the reader in the position of trying to visualize how the words describe the parties or the transaction. The person writing the words probably already has in her head the picture she is using words to describe. Why not skip the words and go straight to the picture?
Words, sentences and paragraphs are linear — the person reading the words accumulates bits of information one after the other. The reader has to retain each word he has read and then assemble a mental picture bit by bit, one after the other, hoping that he has retained all of the information. The reader constructs his mental picture one word at a time rather than having the opportunity to grasp the "big picture" all at once and then absorb each fact within the context of the full set of facts. The use of drawings to supplement words allows the reader to skip ahead and know the end of the mystery as he reads each clue. It makes it a lot easier to put each additional word — each clue — in its proper place.
The use of drawings helps the reader understand the concepts embedded in the collection of words on the piece of paper. They also help you, as the author, think through what you are doing. As with drafting in "plain English," you are forced to display your thoughts in an understandable fashion. The very process of creating the drawing pushes you to organize your analysis in a logical manner.
Drawings also assist the reader in "seeing" relationships among sets of facts that would be difficult to derive from a series of words on paper. A lawyer could use words to describe the nature of the relationships, but the reader has to visualize in her mind the picture drawn by the words — why not use a diagram to provide the information? In addition, the use of a drawing will often disclose to the writer relationships that the writer would not have spotted. The logical ordering of facts in a drawing can illuminate relationships among facts that might be buried in a morass of facts.
We can use words to plan a deal, to illustrate information in a securities disclosure document, or to demonstrate a provision in an agreement. The examples given below do not come close to exhausting the opportunities to use drawings in your daily work.
Organization charts — Many lawyers are familiar with organization charts. These provide an excellent introduction to the use of drawings. A string of words can describe the familiar direct and dotted-line relationships. However, the effect of how those reporting relationships honor and disregard other persons in the organizational hierarchy may jump out from a drawing:
This diagram starkly illustrates that the manager's reporting bypasses his immediate superior. A series of words describing the same set of relationships might not make the "end run" so apparent.
Corporate families — Prospectuses and other documents often tell the reader about the ownership of the entities involved in an offering or a transaction. These relationships may be complex. A person reading these words has a difficult time holding in his head a written description of a set of business relationships.
The following language comes from a real prospectus (the names have been changed):
50 percent of the capital stock of the company is owned by Robert T. Roberta S. owns 99 percent of Foods Co. and Mr. L. owns the remaining 1 percent. Foods Co. is the record owner of 50 percent of the company.
A reader has a hard time comprehending this set of relationships. A diagram helps a lot:
Flow charts — Flow charts are particularly useful for displaying motion on paper. Word can only describe motion. A flow chart can display motion. Take a simple securitization transaction. It involves flows of money and assets moving in a variety of directions among many parties. A lawyer could describe all of this in sentences, but the integrated nature of the transaction becomes apparent when displayed as a flow chart:
This flow chart readily demonstrates the movement of the accounts and the flow of money owed by the account debtors and the ultimate use of that money to secure and repay a loan. It also shows the motion of the money from the investors and the use of that money by the bankruptcy remote entity to purchase the accounts.
Timelines — Lawyers involved in deals frequently prepare "time and responsibility" charts to allocate responsibilities for document preparation and other events in a deal and to plan the steps of the transaction. These usually take the form of a vertical listing of tasks, persons responsible and due dates. These charts do not give any visual information concerning the relative amounts of time allocated to each task or the time available between tasks. The taskmaster would do much better to supplement any written description of tasks by preparing a time line:
This timeline, unlike the traditional time and responsibility chart, gives a chilling indication of the compression of time as the deal moves forward.
You do not have to be an artist to create these drawings. Your personal computer makes it easier. Several programs are available that provide all the shapes, arrows and connecting shapes that you need to prepare a drawing. These include presentation programs such as Microsoft PowerPoint, Corel Presentations and Lotus Freelance Graphics. If you want more power, there are powerful, easy-to-use programs, such as Visio and Micrografx Graphics Suite. You only have to do the thinking.
So, find those old crayons, shed a few inhibitions, fire up the computer, and draw away.
