We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.


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Does Plain English Make a Difference to Clients?, by Louis J. Sirico, Jr., Legal Skills Prof Blog


According to an empirical study by Christopher Trudeau, the answer is yes. I think his 2012 article deserves greater attention–The Public Speaks: An Empirical Study of Legal Communication, 14 The Scribes Journal of Legal Writing 121 (2012) (here).

In a carefully designed study, subjects compared passages written in plain English and similar passages that contained the failures that plain English attempts to eliminate. The study provides a good bit of valuable information. It also results in 10 practical pointers.

First, do not underestimate the importance of oral communication. Over half of all respondents preferred some type of oral communication to written communication.

Second, deliver written documents electronically even when you must send a hard copy.

Third, use clear, understandable written communication.

Fourth, do not assume that all readers will understand commonly used legal terms. Instead, define these terms if you must use them.

Fifth, avoid complicated terms and Latin words. They generally bothered or annoyed nearly seven out of ten clients.

Sixth, prefer the active voice. Respondents preferred it almost 70% of the time — and clients at a higher rate than non-clients.

Seventh, avoid multi-word prepositions like pursuant to and prior to and with regard to. They are among the worst aspects of legalese.

Eighth, remember that the more confusing the sentences become, the more likely that a reader will prefer plain language.

Ninth — and this needs to be proclaimed repeatedly, ceaselessly— the vast majority of clients and non-clients prefer plain language. For the choice-of-language questions, readers chose the plain-language version 80% of the time.

Finally, use plain language no matter what the reader’s educational level. Contrary to my original theory, as the level increased, so did the respondent’s preference for plain language.

It’s National Grammar Day!


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National Grammar Day, by Kristin Hare, Poynter.org


Turns out we have a lot of pet peeves about grammar.

Happy National Grammar Day! On National Grammar Day eve, we shared the pet peeves of a handful of journalists and asked people to share their own. We got a lot. Enjoy!

[View the story ‘’Don’t make me kill you’‘ on Storify]

If you’re ready for more National Grammar Day fun, Poynter’s News University has the Webinar ‘National Grammar Day 2015’ at 2 p.m. Eastern. Use the code 15PPGRAM50 for a discount. News U’s ‘Language Primer: Basics of Grammar, Punctuation and Word Use’ is also always popular. The American Copy Editors Society is having a grammar day #ACESchat today from 4 p.m. to 5 p.m. Eastern on Twitter.

Here are a few of the pet peeves we shared yesterday: . . . .

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Defendants Recover E-Discovery Costs And How They Did It.


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Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates


Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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Is Claustophobia A Viable ADA Lawsuit?


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Lawyer’s Claustrophobia ADA Suit Survives Motion To Dismiss, by Debra Cassens Weiss, Undisputed Legal Inc.


A Philadelphia lawyer who claimed her law firm failed to accommodate her claustrophobia may proceed with her lawsuit, a federal judge has ruled. E refused to dismiss the disability suit against the law firm Marshall Dennehey Warner Coleman & Goggin, the Legal Intelligencer (sub. req.) reports. The plaintiff, former law firm associate Erica Serine, had claimed the law firm refused to accommodate her disability and then fired her.

According to Schiller’s Feb. 25 opinion (PDF), Serine had requested a transfer in 2012 from a Marshall Dennehey office in Moosic, Pennsylvania, to an office in Philadelphia or Cherry Hill, New Jersey, to be close to family in the area. The firm allowed a transfer to the Philadelphia office.

But Serine says she experienced anxiety and other symptoms of claustrophobia beginning with her elevator ride to the 24th floor of the Philadelphia office on Oct. 1, 2012. She ‘obsessively researched evacuation plans’ and had trouble sleeping and eating, the opinion said. She was extremely nervous at work, particularly when in the elevator or when away from a window.

The law firm allowed Serine to work from home while she sought treatment with a psychologist, but turned down her request to work at the Cherry Hill office or Pennsylvania offices in King of Prussia or Doylestown.

In December 2012, Serine was advised she could work in Philadelphia or Moosic, but she could not continue to work from home. She was fired the next month. . . .

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A Legal Analysis of Shaken Baby Syndrome.


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Shaken Baby Syndrome: A Differential Diagnosis of Justice, by Ken Strutin, LLRX.com


When King Solomon resolved history’s best-known custody dispute, he implicitly divined that the death of the absent child was due to accidental infanticide, not intentional homicide.1 And his method was an early testament to truth finding. Today, the investigation of infantile death is too often accompanied by hurried accusations and false confessions.2 And the search for truth is left to lawyers and experts who have become as adversarial as the testificants in Solomon’s court. The concept of Shaken Baby Syndrome (SBS)3 has become a battleground where medical evidence and legal presumptions clash, testing the limits of judicial wisdom.4

The investigation and prosecution of SBS cases5 has revealed an historical and ongoing tension among medical experts6 and legal practitioners and scholars.7 From the Supreme Court on down, judges in these cases have had to struggle with complex emotions, societal impulses, conflicting witness and expert testimonies, as well as ineffectiveness of defense counsel, need for appointed experts, admissibility under Frye-Daubert, and assessment of newly discovered evidence.8 Thus, legal investigation into the reasons behind infant deaths has turned into a medical “who done it” with the suspects ranging from accident and natural causes to the criminal conduct of parents and caretakers.9

This is a collection of recent and select court decisions, law reviews and news articles that explore the ongoing scientific and legal arguments about the definition and exclusivity of shaken baby syndrome evidence. . . .

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Can You Use iPads or iPhones in Court? Maybe – Maybe Not.


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Court Rules on iPhone, iPad Use, by Jeff Richardson, iPhone J.D. Blog (with hat tip to Ray Ward, Louisiana Civil Appeals Blog)


If there are rules for or against using any type of technology in a courtroom, you will normally find the court’s preference in its local rules. Courts don’t write local rules just for fun. They mean it when they say they don’t like something. If your court clearly states in its local rules that certain types of technology are not tolerated, don’t temp fate by assuming that you will be the exception.

Please note the comments at the end of the article. There is more valuable information about other court rules. -CCE

There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.

I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. . . .

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Ken Adams Shares What It Takes To Be A Great Contract Writer.


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What It Takes to Be a Great Contract Drafter, by Ken Adams, Adams On Contract Drafting


If you write or work with contracts, this is a “must read” post by Ken Adams. Drafting a good contract is a special type of legal writing. A good, solid contract is a work of art. Also, please don’t ignore the Comments at the end of the post. There’s more good information there as well. -CCE

Here’s what it takes to be a great contract drafter:

Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.

Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.

Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science. . . .

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No Question About It – Bad Legal Writing Squanders Your Money.


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Face It — Bad Legal Writing Wastes Money, by Matthew Salzwedel, The Lawyerist Blog


A recent article on FindLaw.com called Five Ways Attorneys Waste Money claimed that attorneys can cut clients’ costs by avoiding needless motions, staffing cases leanly, focusing on the important issues, avoiding petty spats with the opposition, and being smart about when to settle.

But the article ignored the most important way attorneys can save money for their firms and clients: by learning how to write in plain English.

Most attorneys don’t believe that writing style matters. They might concede that writing in plain English can be aesthetically pleasing to the reader; but they also say that it’s not worth the time to learn how to do it because there’s no evidence that writing in plain English saves time or money.

But these attorneys ignore what legal-writing experts have taught — and what the empirical evidence has shown — for more than 50 years: that plain English saves time and money by increasing the ability of readers to understand and retain what they have read. . . .

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Using Legal Citations to Persuade the Reader.


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The Art of Persuasion Through Legal Citations, by Susan W. Fox and Wendy S. Loquasto, 84 Fla. B. J. 40 (2010).


Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority,1 but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations.

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it — as the case requires to advance your client’s position — is in large part dependent upon credible citations and sound reasoning based upon the citations. . . .

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Formatting for Persuasive Legal Writing Makes A Difference.


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Paragraphs and Indentation Formatting for Persuasive Writing, by Collin Walke, Vol. 86 OBJ No. 5 (2014).


Contrary to that pesky little voice in your head at this very moment, formatting is not a boring topic and is absolutely critical when writing a legal brief. Aside from the technical rule requirements for formatting briefs, which will be discussed in greater detail below, formatting is essential for persuasion. One of the best legal writers I have ever had the privilege of working with has a paperweight on his desk that reads: ‘Good writing is clear thinking made visible.’ Without good formatting, quality content will be lost in the mire of facts, law and argument.

The point of this article is to outline what good formatting looks like. First, the brief must be written in accordance with the formatting rules of your particular court. A brief for the district court of Oklahoma County will look different from a brief for the Western District of Oklahoma. Second, the format of the brief must be laid out so that it assists the reader in understanding your position. Finally, your format should match the needs of the particular brief. . . .

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What A Judge Needs To Give You What You Want.


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Effective Legal Writing: One Judge’s Perspective, by Retired Judge Wayne Alley, originally published in the Oklahoma Bar Journal, Feb. 14, 2015– Vol. 86, No. 5.


This is one of the best articles I have read on how to write to win your case. Judge Alley tells you exactly what a judge wants to read in your brief. So put yourself in the judge’s shoes, and imagine that you’re reading yet another brief at the end of a long day at the end of an extremely long week.

Here you will find what a judge needs to give you what you want. -CCE

What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. . . .

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A Classic — “The Becky Klemt Letter.”


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The Becky Klemt Letter, published in Law And Disorder, Legal Assistants Division State Bar of Texas ©1999


If you have been around long enough, my bet is that you will recognize this right away. If not, then enjoy. It’s a classic.  -CCE

Becky Klemt is a lawyer in Laramie, WY (with the five-person firm of Pence & MacMillan). On Aug. 17, 1988, she wrote a letter. It was only one letter—’just one funny letter’ as Becky describes it. But these are the ‘reviews’ of The Becky Klemt Letter, by various lawyers, judges and clients, as quoted in an article in The Wall Street Journal (Sept. 6, 1990) ‘A Lady Lawyer in Laramie Writes A Landmark Letter’:

‘Hilarious’. . . ‘a masterpiece’. . .’ a jewel’. . . ‘brutal’. . . ‘skewers the pretentiousness of big-city lawyering with incomparable wit’. . . ‘the pot-shot heard round the world’. . . the ‘most photocopied letter in legal history’. . . ‘the best writing (ever done) on legal stationery.’

Tom Scott of Midland (Bullock, Scott, etc.) got copies of the letters from Becky after reading The Wall Street Journal article and—since The Letter was not printed in that article—suggested that it be published in full in this column. So here it is, together with two other letters which set the scene for The Becky Klemt Letter. . . .

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Why Circuit Courts Reassign Cases To Different District Judges On Remand.


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Standards For Reassignment To A Different Judge On Remand, by Raymond P. Ward, Louisiana Civil Appeals


In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in a nutshell:

  1.  The district court rendered summary judgment in defendants’ favor.
  2.  On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3.  A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit’s instructions on remand.

Starting at page 25, the decision includes a survey of case law enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

I Have A Little List . . . .


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40 Essential Rules Of Client Management (Collected Over 10 Years), by Matthew Stibbe, Bad Language Blog


For the last decade, I’ve been compiling a list of ‘rules’ for client management based on very personal, subjective reactions to things that happened to me, mainly in the business world. I was partly inspired by NASA’s 100 rules for project managers.

I always meant it to be very personal and some of the rules relate to very specific things that happened to me. But I realised that with proper scrubbing it might be interesting for you too. . . .

Arbitration Panel Makes Come Back, Giving Lance Armstrong $10 Million Bench Slap.


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Lessons From Lance Armstrong About the Finality of Arbitration Awards, by Liz Kramer, Arbitration Nation Blog (with hat tip to Karl Bayer, Disputing Blog)


On February 4, an arbitration panel ordered Lance Armstrong to pay $10 million to his former promotions company, SCA, as a result of his ‘unparalleled pageant of international perjury, fraud and conspiracy’ that covered up his use of performance-enhancing drugs. (Read the NYT story about it here.) What is curious about the award, from an arbitration law standpoint, is that SCA essentially re-opened an arbitration that it had lost with Armstrong in 2005 to obtain this new award.

The general rule of thumb is that arbitrators lose jurisdiction once they issue the final award. Other than the short period within which parties may request that arbitrators correct a clerical or computational error under the arbitral rules (AAA gives 20 days; JAMS gives only 7), the arbitrators turn into pumpkins for all practical purposes after the final award is issued. The arbitral rules do not have any equivalent to Rule 60, which in state and federal courts allows a judge to re-do a judgment or order based on newly discovered evidence, fraud, or mistake. (But even Rule 60 sets a deadline of one year after the judgment is entered to request that the judgment be vacated…)

There is even a fancy Latin name for the reason that arbitrators turn into pumpkins after they issue final awards: functus officio. The policy is that arbitration awards are supposed to bring finality, and we wouldn’t want arbitrators revisiting awards based on improper or ex parte information. However, one of my favorite arbitration resources, Domke on Arbitration, suggests that there are now so many exceptions to the functus officio doctrine that they just about swallow the rule. Courts have allowed arbitrators to revisit their awards to correct mistakes, to rule on an issue that was submitted but not decided, to clarify an ambiguity, and always, if the parties contractually authorize the same panel to hear a new issue.

That last exception explains how the SCA got a second bite at its arbitration with Armstrong. . . .

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Teensy Change To Rule 41 Would Change Scope of Technology Search Warrants.


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Small Rule Change That Could Give the U.S. Government Sweeping New Warrant Power, posted by Richard Salgado, Legal Director, Law Enforcement and Information Security, by Sabrina I Pacifici, BeSpacific Blog


‘At the request of the Department of Justice, a little-known body — the Advisory Committee on the Rules of Criminal Procedure — is proposing a significant change to procedural rules that could have profound implications for the privacy rights and security interests of everyone who uses the Internet. Last week, Google filed comments opposing this change. It starts with the Federal Rule of Criminal Procedure 41, an arcane but important procedural rule on the issuance of search warrants. Today, Rule 41 prohibits a federal judge from issuing a search warrant outside of the judge’s district, with some exceptions. The Advisory Committee’s proposed change would significantly expand those exceptions in cases involving computers and networks. The proposed change would allow the U.S. government to obtain a warrant to conduct ‘remote access’ searches of electronic storage media if the physical location of the media is ‘concealed through technological means,’ or to facilitate botnet investigations in certain circumstances. The implications of this expansion of warrant power are significant, and are better addressed by Congress. First, in setting aside the traditional limits under Rule 41, the proposed amendment would likely end up being used by U.S. authorities to directly search computers and devices around the world. Even if the intent of the proposed change is to permit U.S. authorities to obtain a warrant to directly access and retrieve data only from computers and devices within the U.S., there is nothing in the proposed change to Rule 41 that would prevent access to computers and devices worldwide. The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties (MLATs). Google supports ongoing efforts to improve cooperation among governments, and we are concerned that the proposed change to Rule 41 could undermine those efforts. The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.’

iAnnotate App For iPad — Annotate And Manage With Lots of Tools!


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iPad App: iAnnotate – A Powerful PDF Tool for Lawyers, by Travis Francis, Legal Productivity


iAnnotate is a powerful document mark-up and management app that allows users to annotate, manage and share PDF, DOC, PPT and image files.

With iAnnotate, documents can be synced and imported from Box, Dropbox, Google Drive, Microsoft SkyDrive or WebDAV, and other iOS apps.

Once downloaded, the app includes numerous annotation tools including pen, highlighter, typewriter, stamp, straight-line, note, underline, strikeout, photo, voice recording, and date stamp. Locating these tools is easy and you can even customize the toolbar to include your most-used tools.

Users are also given the option of saving and syncing their annotations to either the original document or to a copy of the document.

The $9.99 iAnnotate iPad App (also available for Android devices) is particularly useful for lawyers. Jeff Richardson over at iPhone JD notes:

“All federal court pleadings on PACER are in PDF format and many state courts are moving to PDF electronic documents, other counsel frequently send me files in PDF format, when I do legal research I download the cases in PDF format, exhibits are in PDF format…[and iAnnotate] seems to be the most powerful and sophisticated app that I’ve seen for working with PDF files on the iPad.”

Check out also, Using iAnnotate to Review Court Decisions on your iPad: A paperless way to highlight text and take notes, then email or upload into Dropbox.

If you are looking for a powerful, comprehensive tool to annotate and review documents while on the go, iAnnotate is definitely worth the try.

Google Now Voice Commands for Android Phones.


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Updated 20/20/15 – A List of All The Google Now Voice Commands, by Jason Cross, greenbot blog


You pick up your phone and say ‘OK Google’… and then what? Your phone is listening. The microphone icon is pulsing. What do you say to your phone? What can you say to it? Google Now’s voice function has become surprisingly robust over the years.

Here’s a list of just about everything you can say to Google Now. Try experimenting with different phrasing, you’ll be surprised how much it understands. The part of the phrase in [brackets] can be replaced with any similar term you choose.

If Google Now doesn’t get your spoken commands right, you can correct it by saying ‘No, I said…’ and trying the phrase again. . . .

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Seat Belt Use Evidence Now Admissible In Texas.


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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)


For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

How “Readable” Is Your Writing?


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Check Your Language Level, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog


Dr. Brada-Bahm makes a good point. Our job is to be understood, regardless of the method of communication. There is, however, an easy way to check your document’s readability statistics if you use Microsoft Word.  

To set readability statistics for in Word, click on “Options,” then “Proofing.” Scroll down to “When correcting spelling and grammar in Word.” Check the box for “Show readability statistics.” Afterwards, when you run a spell check on any Word document, it will show the readability statistics for your document. -CCE

The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about ‘reading level analysis‘ as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the ‘readability-score‘ site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click ‘calculate score’ and you instantly get a ‘reading ease’ number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at. . . .

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10th Circuit Uses Sentence Diagramming To Decipher Federal Gun Statute.


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The Tenth Circuit Applies The Art of Sentence Diagramming, by Judith D. Fischer, Legal Writing Prof Blog (with hat tip to Brian Glassman!)


he Tenth Circuit recently interpreted a statute so confusing that the court decided to diagram some of its language. In United States v. Rentz, the court observed that ‘Few statutes have proven as enigmatic as 18 U.S.C. §24(c),’ which concerns crimes committed while using a firearm. Puzzling over what the statute’s modifiers mean, the court used the same device some of us learned in grade school—setting out a clear diagram of how words relate to one another grammatically. The court thus reached enough clarity to affirm the district court’s decision. Still, the court stated, ‘Even now plenty of hard questions [about the statute’s meaning] remain.’

My conclusions: 1) The art of diagramming sentences should be revived, and 2) Congress should focus more on clear drafting.

Which Party Bears The Responsibility For The High Cost of Litigation? Plaintiff or Defendant?


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Who Is To Blame For High Litigation Costs: Plaintiffs For Filing The Lawsuits Or Defendants For Refusing To Deal And Instead Fighting?, by Dennis Crouch, PatentlyO Blog


The recent WSJ op-ed by John Chambers (CEO Cisco) and Myron Ullman (CEO JCPenny) is interesting, but largely not compelling. What the article does do is indicate that patent lawsuits is the avenue being by non-practicing patent holders and it is pretty clear that manufacturers and retailers would be better off (at least in the short term) without being charged with patent infringement. The core of their argument is here:

A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka non-practicing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.

A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.

The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail. When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem. And, at this point – where the primary complaint is high litigation costs – the solution is not to favor one side or the other, but instead to look for systemic changes that substantially decrease the cost of resolution.

Gene Quinn provides his take on the op-ed at IP Watchdog.

“Know All Men By These Presents” — Who’s Getting All The Gifts?


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Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog


Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.

Can I get a witnesseth?

At Depositions, Ask the Witness To Show, Not Tell.


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Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©


The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

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Impose An Obligation On Someone To Control Something They Can’t Really Control – What’s The Point?


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A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting


Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).

Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.

In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):

If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.

King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.

While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.

The court then went on to hold that King’s impossibility defense didn’t excuse his breach.

So, what does this case have to say to contract drafters? . . . .

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