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Creating a Valued and Successful (Law) Publication

The previously predicted and wholly predictable sale, by Informa PLC to Montagu, of 80% of the former’s Maritime Intelligence business unit will be one to watch for its affect on law publishing. The fact that Jane’s is part of the Montagu portfolio may be a relevant factor in the sale, and indeed over the years there has been shuffling of key personnel between Jane’s and Lloyd’s. Assuming that Informa’s i-Law, together with the range of books, law reports and journals under a handful of imprints, form part of the sale, and/or, if so, they are subsequently sold on, it will be interesting to see what happens next. It would be surprising if growth and expansion in law publishing were the results while in the hands of venture capitalists, and, more generally, one way or the other, jobs in the industry may be at risk.

Even as the number of law books, published in print and/or electronically, reduces, given that the majority of them are subsequent editions of earlier ones, they are nowhere close to disappearing as an information medium and a key point of reference for added-value research. I believe that it is possible to spot the potential winners, not least because each brings with it its own evidence, namely the extent to which it has succeeded in previous editions. As with financial investments, previous performance is not always an indicator for the future, but often it is.

A recent unrelated event caused me to ponder on these matters, including the ability of the legal or similar author to communicate the necessary mix of opinions, facts, research supported by evidence and, of course, judgments and primary source content. It was an unnecessary and regretted argument between a highly respected and informed person and me, but one about which, by my perception, neither of us was expert, which was replete with generalisations, contained little evidence in support of propositions and did not pause to ensure any meeting of minds as to definition of terms. Purely personal opinion and bias were the key drivers of argument, but neither party was especially in tune with or supportive of the opinions of the other; a case of Paul Simon’s “people talking without speaking, people hearing without listening”. In short, it was a pointless but familiar casual shouting match, which produced no useful outcome from which anything was learned or taught, other than a lesson for the future.

One might hope that the standards of bar-room banter would find no place in the writing of a law book, but only the best of them meet the high standards required to achieve acclaim, reputation, longevity and commercial success. The purpose of the author is to be able to bring to the project all the necessary experience, skill, clarity of thought and delivery, authority and reputation which are optimal. The purpose of the publisher is to know what is required, how to find, recognise, critique and improve what is potentially successful and support it with all that is necessary to avoid wasting time and money. On the publisher side, whether or not a recently graduated student of literary fiction or suchlike, or even one with a post-graduate degree in publishing, is the best person to deliver the desired outcomes in the role of a legal editor, might be a matter for debate; there may be more rewarding places for them other than in law publishing.

Not as an expert in law, legal writing or anything else that is relevant, but only as one who has publishing experience, I would suggest that a first-class law or similar book is a body of argument initiated only by the author(s) as the protagonist(s). The opposing views need to be presented, analysed, supported and challenged from meaningful standpoints, with conclusions adduced, if, in the unlikely event, these are possible. The views are all there in the law reports and in the decisions of the judges, as they support, evolve and overturn previous cases, recognising societal, technical and other changes, and, of course, seek to apply laws of all kinds. The authors’ job is to make sense of the judicial reasoning and to unpick, for example, the madness of the majority theocratic US Supreme Court’s politicised and reactionary abominations, as in Roe v. Wade. Different jurisdictions have their different approaches to procedures, requirements, precedents and sources but those which are generally thought to pertain in democracies which have some basic level of respect for the law, follow not too dissimilar traditions.

For the author and the publisher, serving markets and needs that are many and varied, shortcuts and omissions of certain kinds must be possible, as it would be absurd to think that every book needs to be 2000 pages in length. Much can be abbreviated or extended as appropriate, but optimum quality to meet requirements should be a given. As much as in a medical or chemistry text, there can be no tolerance of errors of fact and in explicable misunderstanding or misstatement of critical and official documents. Put another way, no second-rate or otherwise inexpert lawyer should ever be asked to write or contribute to a law book. Likewise, it would seem to be unwise to ask someone without measurable experience of law to write about it, without their motives, perhaps of criticism, journalism or simply casual commentary, being made clear. Brilliant legal academics are easier to find and hire than are brilliant legal practitioners, as distinguished authors; the reasons for this are obvious. Yet to secure the commitment of the latter, perhaps in combination with the former, is more likely to achieve the best outcomes in a practice market. Often have I observed practising lawyers sneer at books written by those without experience in practice. Some law publishers retain knockabout legal authors upon whose services they call frequently to contribute to or fire out content as and when required. This might, but is less likely to produce valued and successful product. An even darker view is indicated by legal blogger, Kevin O’Keefe, who writes that the primary reason for which lawyers write content is to generate business, and that the output of smaller firms is sometimes suspect. Based on publishing experience, I would not share this view as, in my opinion, it confuses and seeks to conflate disposable news aggregation, blogging (some of which is referred to as the stuff of shameless self-promotion and considered as spam) and client marketing writing, with the serious version. Of course, I cannot speak to the ethics and standards of legal practice, but am reasonably clear about those which should relate to law publishing.

Many, though not including me, dislike footnotes, hypertext links, cross-references and similar pointers to further clarification, explanation and sources. Generally, in contrast, I mistrust publications which avoid footnotes, lists of cases, statutes and other sources and, perhaps especially, detailed indices, and those which do not contain proper case citations, taking the view that their absence reduces value and indicates lack of seriousness and engagement. Sometimes it is to eliminate or reduce costs or because the product is not intended to be taken seriously. Therefore, simple tests of likely quality, fitness for purpose and the potential for commercial success lie in a book’s unambiguous title, its internal signposting and the complexity, relevance, perhaps topicality and importance, of its subject.

Then there are those publishing houses which purport to be focused on law but, in reality, operate on its less measurable and less complicated fringes, with much on mindfulness, pseudo-psychological therapy and mental health for lawyers, “the business of law”, law firm marketing, legal technology, leadership in law firms, what is in vogue and the like, wherein there is sometimes an inclination to offer propositions without evidence. Of course, they can be of value within their own terms, but they are not in the categories under present discussion. At the same time, some may consider this view to be élitist and narrow-minded, flying in the face of the trend in favour of soft skills, plain language and simplification.

For those of opinion that the need for, and era of scholarly content have passed, and that it has been superseded by artificial intelligence (AI) software, legal technology editor, Alex Heshmaty’s article, AI legal technology: fact vs fiction suggests that references to artificial intelligence within the context of legal technology should generally be viewed, in the words familiar to everyone who studied law, as ‘mere puff’‘”. I am certain though, that the broad and vague definitions of “artificial intelligence”, like so many emotive words and phrases which are captured by every conceivable competing force to support that which it wants to achieve, it can be used to mean whatever is convenient to the marketing department. Perhaps it would be better to use more specific language which precisely defines purpose, functionality, features and benefits, just as one can easily do in describing a law publication. Newly launched, with a focus on Canada and the USA, Jurisage, a new venture co-founded by Compass.law’s Colin Lachance, offers functionality to improve legal research within existing tools and workflow. Its undoubted contribution will speak for itself, regardless of any buzzwords to trigger emotional responses. In print and electronic content, ever-more sophisticated ways of more deeply analysing source material, subject, inter alia, to cost:benefit factors, are almost always likely to be of value.

However, if the law has functions which, when laudable, progressive, fair and just (subject to the frequent misappropriation and abuse of those words), serve the most honourable motives, rather than the basest of them, it is for the legal experts and scholars, where appropriate, by means of their learned writing, to explain and comment on it, through the medium of valued, law-focused publications. It would be a tragic reflection of a society if, within it, they were not seen in abundance or if, like some publications produced by Thomson Reuters/Sweet and Maxwell, they are accused by some of being exclusionary and out of step with progression. Perhaps part of the democratisation of access to law is better served by the current litigation on competitive challenges and defences among content providers, together with their need to maintain the highest of customer service standards.

Comments

  1. “I mistrust publications which avoid footnotes…”. Fair enough.

    However, could there ever be too many footnotes? I’ve come across law text manuscripts where every other word has a footnote attached. Would this be considered overkill or just right?

    Should there be a general rule about the length of footnotes? Again, there are textbooks with very few words in the body of the text while the footnotes comprise an entire page or two in length and are copious in number.

    What are your thoughts on how footnotes are used? Should there be guidance given to authors on this matter? Do the number and length of footnotes affect readability and/or accessibility?

  2. Many thanks Verna.

    I take your points and thank you for your questions.

    It’s a long time since I received my training in such matters, at Sweet and Maxwell, but I’m sure that there were rules, most of which I have forgotten. Then, decisions were often made based on avoiding costs and for typesetting and page makeup purposes, rather than in the interests of readers and to deliver excellence. Nowadays, I believe the specific cost issues are less relevant. Nevertheless, the page should look attractive, and the content should be as easy to digest as is optimal. Text, I think, should predominate on the page, rather than footnotes, whose scale and positioning should be as their name suggests. I find it annoying to see footnotes extend on to subsequent pages, thereby separating them from related text. I believe that they are not helpful when placed at the end of chapters or beyond. Where one sees overkill, as often as not, it appears to be as a result of authors trying to show how clever and learned they are, sometimes less-experienced academics, for whom proof of scholarship expressed through published work is a route to career progression. That no one can or does read or benefit from their over-indulgence is not a factor that is always taken into account.

    I seem to remember being told, and agreeing, that if something is to be written or argued, the place for it is in the text, rather than in the footnotes. I find it annoying to see lengthy argument in footnotes, unnecessarily separated from the main body of it above. I believe that the primary purpose of footnotes is to offer readers case, statutory and other citations, together with cross-references to other relevant sources to which the reader can refer for purposes of deeper research. Of course, the volume and extent of this should be reader and market focused. There is little point in offering extensive references and citations if the product is aimed at those who would have little or no access to such sources or for whom research is not their purpose in reading the text.

    In my view, the number and length of footnotes do affect readability and/or accessibility. They should help, rather than hinder, allowing the reader to use or ignore them as they wish and without too much thought. If the eye is allowed easily to notice a footnote number and seamlessly pick up the note below, then the system is working.

    I don’t think there need to be general rules about footnotes, other than they need to be subservient to and supportive of text, and this should determine their length. This need not diminish their importance, however. I seem to recall, as a legal editor, finding as many errors to correct, made by authors, in the footnotes as in the text. A specific rule might be that footnote numbering should be contained within individual chapters, returning to 1 at the beginning of each new chapter.

    Extent and complexity should follow that of the publication, increasing or decreasing as appropriate.

    I do think that authors should be given guidance on these and many other related matters. For the most part, authors have little understanding of markets and how to segment them, it being for the publisher to make decisions of reaching and creating markets and serving their needs. Furthermore, decisions on footnotes are critical to determining overall page length, so are an enforceable component of the author-publisher contract.

    Of course, most of these applies to print and extensions thereof, such as content presented as PDF files. Electronic markup language, hypertext linking and suchlike are other issues.

  3. Thanks for answering my many questions, Robert. I’m certain your sound advice will be adhered to by the many legal content developers and authors in their pursuit to produce valued and successful law publications and content.

  4. Thanks Verna,

    A terrifying thought!

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