Avoid These Mistakes When Writing Your Brief’s Statement of The Facts.


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Your Statement of Facts Matter, by Kirby Griffis, Brief Right!


When lawyers get started writing a brief, they often seem to get themselves warmed up by explaining to the court what the brief is about. Or so they think. These early sections, which might be called ‘Procedural Background,’ ‘Background of the Motion,’ or something related, are a good place to look for this common briefing error.

It starts with a blitz of irrelevant dates, which may be further muddied by a seeming lack of certainty about those same dates. Here’s an example: ‘Plaintiff filed her Complaint on or about June 5, 2011.’ Why would you ever say this to the court? . . . .

What Can You Do When The Divorcing Spouse Hides Marital Assets In A Trust?


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Divorce & Hidden Money: Collecting Evidence About Assets Concealed By A Trust, by Fred Abrams, Asset Search Blog


Mroy post ‘Four Asset Concealment Tools‘ says that assets can be hidden by fraudulently transferring them to a trust. This 15th post in the ’Divorce & Hidden Money’ series concentrates on the evidence a divorcing spouse might try to collect if marital assets are concealed by a trust.

A spouse can use the pretrial discovery phase of a divorce to gather evidence about any marital assets concealed by a trust. Based on this evidence, the divorcing spouse may be able to credibly argue that assets at the trust are marital property subject to distribution by the Court. A divorcing spouse might also claim the trust was void if the trust was ‘self-settled‘ (i.e. the grantor and beneficiary were found to be one and the same). Under certain circumstances a divorcing spouse can additionally assert the trust veil should be pierced because the trust wrongly concealed assets &/or facilitated fraudulent transfers. See Babitt v. Vebeliunas (In re Vebeliunas), 332 F.3d 85, 91 (2d Cir. 2003) (discussing New York cases where right to pierce trust veil was preserved). . . .

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Lawyer Sanctioned For Throwing Paralegal Under The Bus To Explain Mistake To Court.


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Judge Sees ‘Self-Congratulatory Blather’ In Biglaw Brief; Paralegals Blamed For Error, by Debra Cassens Weiss, ABA Journal (with hat tip to William Statsky!)


A Florida bankruptcy judge overseeing a fight between investors in a shuttered fashion mall made no secret of his dissatisfaction with a Duane Morris pleading during a sanctions hearing on Friday.

U.S. Bankruptcy Judge John Olson said the law firm appeared to be throwing a paralegal ‘under the bus’ when it blamed her for a mistaken court filing, and its sanctions brief was lacking the proper tone, the Daily Business Review (sub. req.) reports.

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Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.


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Embrace Plain English Jury Instructions, by Dr. Ken Broda-Bahm, Persuasive Litigator


I often play the role of the ‘judge’ during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about ‘preponderance,’ and ‘proximate cause,’ and making the plaintiff ‘whole,’ I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, ‘Look, my point is not for you to understand this… it is just to be realistic.’ And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. ’Jury instructions are written by lawyers,’ the American Judicature Society points out, ‘and are often filled with legal language whose meaning is not apparent to those without legal training.’ . . .

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Jury Selection – There’s An App For That.


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iPad App: iJuror – Jury Selection at Your Fingertips, by Travis Francis, Legal Productivity


Gone are the days of using sticky notes and legal pads to assist with voir dire and jury selection. Now from the convenience of your iPad, attorneys are able to track their jury pools and organize notes throughout a trial by downloading iJuror.

iJuror is a jury selection app that helps attorneys select from a jury pool by maintaining juror information and responses during the jury selection process. . . .

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Legislative Drafting And Plain English – They Are Not Mutually Exclusive.


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A Classic Example Of Bad Writing, by Judge Mark P. Painter, Judging Strictly By Merit


In my last column I gave kudos to the U.S. Supreme Court and its rules committee for rewriting the Federal Rules of Civil Procedure in plain language. But the fight goes on. Legislative drafting continues to be particularly egregious. . . .

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Ross Guberman’s Eight Comma Commandments.


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Avoid the Most Common Comma Crimes Committed by Counsel: Eight Commandments, by Ross Guberman, Legal Writing Pro


From the loftiest law firms to the grandest judicial chambers, I see the same comma errors time and time again. In the name of consistency, and perhaps even sanity, consider committing to these Eight Comma Commandments. . . .

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Kentucky’s Bill To Prevent “Frivolous” Nursing Home And Other Medical Abuse Claims, But Is That The Problem?


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Senate OKs Bill For Review Panels In Medical Lawsuits After Lively Debate Between Doctors, Lawyers, Others, by Melissa Patrick, Kentucky Health News


The Senate has approved a bill that advocates say will help weed out ‘frivolous’ medical malpractice lawsuits and speed up litigation for legitimate suits.

‘Right now, Kentucky has one of the nations most litigation-friendly environments, making our commonwealth a prime and profitable target for personal injury lawyers preying upon our health care providers,’ Sen. Ralph Alvarado, R-Winchester, a physician and sponsor of Senate Bill 6, told the Senate Health and Welfare Committee. Opponents disputed that claim.

The Senate passed the bill Thursday 24-12. It is not expected to pass the House.

The bill would establish panels of three medical experts, two chosen by each side and the third chosen by the other two, to review suits against health-care providers to determine if the case has merit before the lawsuit can proceed. Panel findings would be admissible in court but not legally binding.

The Republican-controlled Senate passed a very similar bill last year but it got nowhere in the Democrat-controlled House, and its prospects are similar this time. However, Wednesday’s committee meeting provided a detailed and lively explication of the issue, lasing almost two hours.

Vanessa Cantley, a Louisville personal injury attorney, told the committee that most medical malpractice cases are legitimate. She cited a Harvard University study published in the New England Journal of Medicine that concluded ‘portraits of a malpractice system that is stricken with frivolous litigation are overblown’ and reported that 97 percent of claims for medical injury evaluated over a decade were deemed to be meritorious.

However, Michael Sutton of Louisville, a civil defense attorney, said defendants win 80 per cent of medical malpractice suits.

Cantley said there are 2,700 deaths in Kentucky each year due to purely preventable medical error, but, according to the state Department of Insurance, fewer than 500 lawsuits a year are filed by abuse and neglect victims. . . .

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Another Way To Number Discovery Documents With Microsoft Word.


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Making Numbering Interrogatories and Requests for Production/Admission Easy (with Video), by Matt Albrecht, Remedial Action Law Blog (with hat tip to Sam Glover, Lawyerist Blog, and Patricia Lyons)


Not surprisingly, Pat Lyons, RP, from Rhode Island, one of the sharpest paralegals I’ve ever met, knows a neat trick. Thanks, Pat! -CCE

Numbering requests for production and requests for admission is something that legal secretaries and attorneys loathe. It’s something that systems administrators loathe to see take so long to do. It’s an error-prone process that occasionally results in mis-numbering and confusion, and when mistakes occur, it just looks bad.

Microsoft Word has auto-numbering features that can make things like this easier. One way that we use auto-numbering is for legal-style numbered paragraphs. Properly applied to Styles in Word, numbered paragraphs are easy, automatic, and they update themselves. We use multilevel lists to accomplish numbered paragraphs, and it works wonderfully. . . .

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Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!


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Judicial Plagiarism, by Tiffany Johnson, Esq., Good Legal Writing Blog


Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick to your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Well, hold your horses, cowboy. A recent case from Tennessee illustrates the possible dangers that may lie ahead up in them there hills. . . .

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Imaging A Hard Drive = Making A Copy And Within Plain Meaning Of Taxation Of Costs.


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Stating Reality: Imaging a Hard Drive Makes a Copy, by Josh Gilliland, Esq., Bow Tie Law


Taxation of cost cases do not generally have happy endings for recovering eDiscovery costs. The United States Court of Appeals for the Sixth Circuit issued a very important opinion on March 17, 2015 well grounded in the reality of civil litigation and the law where eDiscovery costs were recovered.

It also takes a swing at Race Tires, which is always a welcome read.

The Court of Appeals held that the cost of video deposition synchronization and transcript were properly taxed. Colosi v. Jones Lang LaSalle Ams., Inc., 2015 U.S.  App. LEXIS 4184, 2-3 (6th Cir. Ohio 2015). The Trial Court had determined the synchronized video deposition was ‘reasonably necessary’ and the opposing party never explained how the costs were either unreasonable or unnecessary. Id.

For anyone who has conducted deposition review, this is good news. I have spent many hours reviewing depositions and video depositions. ‘Reasonably necessary’ is an understatement. Synced video depos allow you to understand the context of the testimony. A simple question and answer in a transcript can look harmless, but if the video shows the deponent turning bright red, biting his lip, and answering the question with his teeth clinched, you know that testimony is important. . . .

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What’s The Purpose Of The Opening Statement Anyway?


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How Long Should Opening Statements In a Trial Last? by Robert Gerchen – Senior Consultant, Litigation Insights


In a recent article, we explored how long closing arguments should be (hint: the shorter the better). Yet almost just as often as we are asked how long a closing should be, we are asked how long an opening statement should last. This answer is a little different. First, though, let’s take a look at the true purpose of an opening statement.

The Purpose of the Opening Statement – It’s More Than a Road Map

‘Tell ‘em what you’re going to tell ‘em.

‘The opening is a ‘road map’ of what is going to be presented in the case.’

So goes conventional wisdom, which says that the opening isn’t intended to persuade, but rather just to foreshadow – a preview, as it were. Like a trailer to a movie.

Have you ever noticed how we often (read: almost always) determine whether we’re going to like a movie based on viewing the trailer? If the trailer is bland, or evokes no emotion within us, do we want to see the movie? If it’s loaded with action and humor and characters we can already tell we’re going to like, don’t we want to see the movie? How often in a theatre have you turned to a friend after viewing a trailer and whispered, ‘I want to see that,’ or, ‘I think I’ll pass.’ Pretty much every time, right? . . . .

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Defendant in Motor Vehicle Accident Files Motion In Limine to Exclude BAC Evidence – Nice Try.


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Admissibility of BAC Evidence Requires Proof of Intoxication, by Daniel E. Cummins, TortTalk Blog


(Please contact Daniel Cummins at dancummins@comcast.net if you wish to review a copy of this opinion.)

In his recent February 9, 2015 Opinion in the case of Ritter v. Van Campen Motors, Inc., No. 12-00,379 (C.P. Lycoming Co. Feb. 9, 2015 Anderson, J.), Judge Dudley M. Anderson addressed Motions in Limine pertaining to DUI evidence filed by a Defendant in a motor vehicle accident case.

According to the Opinion, this matter involved a motor vehicle accident during which each party claimed that the other driver crossed the centerline resulting in the fatal accident. Accident reconstruction experts offered by each party came to opposite conclusions.

The Defendant filed a Motion In Limine to preclude evidence that the Defendant driver had a BAC of .257 at the time of the accident as confirmed by an autopsy report, testimony that the Defendant had been drinking prior to driving that day, and evidence that there was beer in the Defendant’s vehicle at the time of the accident. The Defendant contended that the BAC evidence was inadmissible absent proof of intoxication. . . .

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Use The GoodReader App To Sign PDF Documents On iPhone or iPads.


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GoodReader Update Adds Signatures, by Jeff Richardson, by iPad J.D. Blog


The GoodReader app is one of the most frequently used apps on my iPad because it has such great tools for organizing my documents, syncing them to my computers, and annotating PDF files.  And perhaps best of all, the developer is constantly finding ways to make the app even better.  This week, GoodReader version 4.10 was released, and it adds the ability to create and add signatures to your documents.  I’ve used many other apps with a signature feature, but GoodReader does such a nice job of implementing the feature that it may now be the best way to sign a document on an iPad or iPhone. . . .

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Are Shorter Appellate Briefs Better? Appellate Judges Seem To Think So.


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Federal Appellate Judges Want To Shorten The Length of Briefs, Lawyers Object, by Professor James B. Levy, Legal Skills Prof Blog


If an appeal is extremely complex, would a reduction in the size of a brief compromise the ability of a party to win an appeal to a federal appellate court? Apparently, appellate judges do not think so.

Before making up your mind, please read Professor Sirico’s posts, also included by Professor Levy in his original post. It may not be a question of length, but experience. What do you think? -CCE

The Wall Street Journal Law Blog has posted this story about the reaction by many appellate attorneys to a proposal that would reduce the word count on federal appellate briefs under the federal rules of appellate practice from 14,000 to 12,500. (Interestingly, my co-blogger Professor Sirico reported last month on a new study (and here) that supports the lawyers’ objections to the proposed rule change insofar as the study found that longer briefs filed by appellants ‘strongly’ correlates with success on appeal. However, the authors of the study cautioned against inferring that it is word count, rather than the complexity of the underlying issues which may require more thorough explanations, that explains the correlation). . . .

Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.


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Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates


Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .

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Useful Information for Jury Selection?


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Study Finds Racial, Ethnic Divide In Attention To Crime News, by Sabrina I. Pacifici, BeSpacific Blog


 ‘Crime consistently ranks as one of the most followed and discussed topics by the public, and it receives more attention in local news media than almost any other subject. A recent Pew Research Center report reinforces these findings but also suggests that certain groups of residents pay closer attention to local crime than others in the three cities studied. A difference that particularly stands out is between racial and ethnic groups. . . .’

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Why We Should Care About The Loss of Precedent.


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The Harms of Issuing Non-Precedential Opinions, by David R. Cleveland, Appellate Advocacy Blog


In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, ‘what’s so wrong with deliberately declining to create precedent?’ By his answer, an implied ‘nothing’ because ‘[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent,’ he seems to be asking, ‘what’s the harm?’ . . . .

No Sandbagging!


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Thou Shalt Not Sandbag, by Raymond P. Ward, Louisiana Civil Appeals Blog


In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as ‘[t]he act or practice of a trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.’ Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as ‘suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

  • ‘The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy…. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.’ Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
  • ‘The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.’ Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
  • ‘If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.’ U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

Ththere no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.

10th Circuit Tips and Resources For New Attorneys and Infrequent Attorney Filers.


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Filing Your Appeal – For New and Infrequent Attorney Filers, The United States Court of Appeals for the Tenth Circuit



If this is your first time in this court, welcome. If it has been a while since you filed a brief with us, welcome back. Practicing in a federal appeals court is different from practicing in a trial court, state or federal, and there are even notable differences from state appellate work. With this in mind, there are a number of resources available to assist you.

As an initial matter, if you intend to practice in this court, you can count on referring frequently to the Federal Rules of Appellate Procedure, and especially our local Tenth Circuit Rules. Our Practitioner’s Guide is also a good source of information.

If you can’t find the answer to a question in the rules or if you have a special concern about an appeal, do not hesitate to call the clerk’s office at 303-844-3157. We have real people answering the phone and a well-trained staff who can assist you.

The following sections provide general information you may find useful. However, this information is no substitute for a careful review of the federal and our local rules. . . .

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Patent Law’s Most Influential Supreme Court Decisions From 2005 through 2015.


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Most Cited Supreme Court Patent Decisions (2005-2015), by Dennis Crouch, PATENTLYO Blog


The list below considers all of the U.S. Supreme Court patent cases decided during the past decade (Since January 2005) and ranks them according to the number of citations.  Citation offers some insight into the influence of decisions, but is obviously limited for a number of reasons. Cases may be cited because of their importance in changing the doctrine (KSR, eBay) or simply as the court’s most recent statement of the law on an important issue (Microsoft v. i4i and KSR) or for a narrow procedural issue that applies in many cases (Unitherm). Bay’s high citation rate is also boosted because its principles have been applied broadly to injunctive relief across many areas of law. Some cases with low citation counts may also have major impacts. They may, for instance impact a small number of very important cases (Caraco) or perhaps they cause folks to change behavior so that the issue stops arising.

With this list we also have the timeline problem where older cases are more likely to be highly cited since there has been more opportunity for those cites. I Alice Corp to rise in the ranks Nautilus and Teva, on the other hand, may well flounder (based upon the Federal Circuit’s treatment of those cases thus far). . . .

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Preserving Issues On Appeal.


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Series Of Posts On Preserving Issues For Appeal, by Raymond P. Ward, Louisiana Civil Appeals


The first of Mr. Ward’s series on this subject. -CCE

Monday’ blog post reminded me of some materials I’ve accumulated on preserving errors for review in Louisiana state courts. Recently I shared those materials with a colleague, who suggested writing an article about the topic. I decided instead to self-publish a series of posts here on preservation of error. I figured that breaking down the topic into a series of short blog posts and self-publishing them would be easier than trying to write one big lengthy article and then shopping for a publisher.

Let’s begin by defining preservation of error. Black’s Law Dictionary defines it as ‘the taking of all steps necessary under the rules of procedure or at common law in bringing an improper act or statement to the trial court’s attention so that, if not corrected, the mistake can be reviewed on appeal.’ Black’s Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014). In Louisiana, substitute Code of Civil Procedure for rules of procedure, and substitute case law or jurisprudence for common law. This definition is reflected in La. Ct. App. Unif. R. 1-3, under which the court of appeal ‘will review only issues which were submitted to the trial court ….’

But why must an error in the trial court be brought to the trial court’s attention before it can be argued in the court of appeal? The next few posts will answer that question.


Oh Joy! Oh Rapture! The 20th Edition of The Bluebook Will Be Out Soon!


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20th Edition of the Bluebook Expected by this Summer, by Mark E. Woicik, Legal Writing Prof Blog


Be still my heart! -CCE

Professor Brian Sites of Barry University Dwayne O. Andreas School of Law shared the news that the 20th edition of The Bluebook ‘will be available in the late spring/early summer of 2015.’ Oh, goodie! Click here for more information.

A Valuable Cache of Legal Writing Articles by George Gopen.


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Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog


There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE

George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.

I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.

The Marshall Project Asks How Hard Is It To Count Deaths By The Police?


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Missed by a Mile – How Hard Is It To Count Deaths By Police?, by Eli Hager, The Marshall Project


A day before administering a searing condemnation of the police department of Ferguson, Mo., where an unarmed black teenager was shot and killed by a white police officer, the Department of Justice quietly published a separate report on the number of Americans killed at the hands of law enforcement.

The verdict? In a startling admission, the Bureau of Justice Statistics confirmed that the government’s own data on so-called police-involved deaths have been off for more than a decade — by more than 100 percent.

The report estimates that there were ‘an average of 928 law-enforcement homicides per year’ from 2003-2009 and 2011 — which means that previous yearly tallies by the BJS and the FBI included fewer than half of all such deaths. The FBI, for example, reported an average of only 383 ‘justifiable homicides by law enforcement’ per year over the same period. The BJS was slightly closer to reality, averaging 454.

These numbers, by the way, do not include the deaths of bystanders, deaths during vehicular pursuit, or deaths at the hands of federal agents.

The new report was released at a pivotal moment in the national conversation about policing and the use of force. Not only was the ‘Ferguson Report’ released on Wednesday, but national outrage about violence by the police has spawned recent calls from President Obama and top officials for reforms, beginning with more accurate data on just how many people are killed by the police.

‘There was a great emphasis on the need to collect more data,’ the president said after a meeting of his task force on policing. ‘Right now, we do not have a good sense…of how frequently there may be interactions with police and community members that result in death.’

In February, in a moment of candor during a speech at Georgetown University, FBI Director James Comey admitted that, ‘It’s ridiculous that I can’t tell you how many people were shot by the police in this country — last week, last year, the last decade. It’s ridiculous.’

The dearth of reliable statistics, widely suspected but never before acknowledged in such detail by a government report, goes to show why Congress last year reauthorized the Death in Custody Reporting Act. The law, an earlier version of which expired in 2006, requires the BJS to compile data on killings by law enforcement and in prisons. That data is to be gathered from a wide range of sources, including coroner’s reports, direct reports from police, media reports, Google alerts, and analysis by program staff. The notion is that this mesh of information will offer a more complete picture than the FBI data, which rely mainly on self-reporting by the police.

However, even in the years before the old reporting law expired, when the BJS was supposedly harvesting information from a wide range of sources, the bureau fell far short of a complete tally. In its best year, it identified only 49 percent of police-involved deaths.


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