Legal Writing – Why Shorter is Better.

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Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog

https://goodlegalwriting.com/2011/02/11/make-it-shorter-and-shorter/

Regardless of whether, in your own opinion, you are a good writer, we can always improve. Here is an opportunity to polish your skills, take note of some bad habits, and hone your editing technique. -CCE

Here’s a good exercise to promote plain writing and dense writing.  The object is to force you to purge your writing of any words that don’t work their butts off on your behalf.  Take the following sentence and reduce it to as few words as humanly possible, without changing the meaning of the sentence.  Shortest re-write wins a prize (respect)!

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Contract Interpretation and Ambiguity.

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Judicial Disagreement Over Contract Ambiguity: When Are Things OBVIOUS? By Stacey Lantagne, ContractsProf Blog

http://bit.ly/2f3Dtj5

We’ve been talking about contract interpretation in my Contracts class lately and I’m always struck by how many cases involve a lower court ruling of ambiguity and then an appellate court reversal of that ruling, because it always strikes me as such a funny thing. The very definition of ambiguity would seem to be ‘multiple people disagreeing on the meaning of the word,’ but the appellate court decisions in those cases necessarily have to dismiss the reasonableness of the lower court’s understanding of the meaning in order to assert that the meaning is SO OBVIOUS.

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Picking A Jury? Read This First.

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Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires, by Dr. Ken Broda-Brahm, Persuasive Litigator

 http://bit.ly/2gHoIDn

Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.

You have little time to sort this out. It is time to become an expert in human psychology. –CCE

If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.

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Appellate Court Benchslaps Trial Judge – Ouch.

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Appeals Panel Rips Judge Over One-Minute Decision, by Joe Patrice, Above The Law Blog

http://abovethelaw.com/2016/10/appeals-panel-rips-judge-over-one-minute-decision/

The only thing more stinging than a satisfying benchslap is the cool, crisp bite of a sly insult. The understated quip can often accomplish so much more than the breathless broadside. For example, an opinion reversing the court below that signs off with, ‘next time, we assume you’ll do your job,’ boasts more devastating heft than anything Justice Scalia served up. It’s just so cold.

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Email Spam or Have I Got A Deal For You!

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The Holidays Bring More Email Threats, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://www.lawpracticetipsblog.com/2016/11/holidays-bring-email-threats.html

I may be the luckiest person in the world. I receive emails almost daily from people I do not know who want to give me money. I’ve won the lottery or I’m offered a fantastic job as a “mystery shopper.” And, boy, do I win a lot of stuff! Of course, none of this is true.

On the flip side, the tone may be more menacing. Emails from banks and credit cards saying they need me to respond to address a delinquent account or that someone has used my account. I do not have accounts with these folks.

Even with my firewall and my attempts to avoid viruses, Trojan horses, and other attacks on my computer, bogus emails and spam walk right in. I block these emails, mark them as “junk,” and they still come. I suspect many of you get the same things.

Make no mistake. You and I are targets. -CCE

Honey Pot on Appellate Brief Writing.

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The Ten Commandments of Brief Writing, by Keith Lee, Associate’s Mind Blog

http://associatesmind.com/2016/11/17/ten-commandments-brief-writing/

Do not miss this one! Keith Lee gives some excellent advice, and provides a honey pot link to Justice Maria Rivera’s “The Ten Commandments of Brief Writing.” Appellate judges pull no punches when it comes to what works and what doesn’t in appellate briefs. -CCE

What To Say and How to Say It When We All Can’t Get Along.

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The Delicate Art of Confronting Offensive Speech, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/2eR3uAw

Whether you are negotiating a settlement, trying to calm a stressed-out client, or talking about the recent election season, this is good advice. -CCE

What Defenses Are Possible If Someone Wants Out of An Auto Lease Contract?

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 Auto Leases and Contract Defenses, by Nancy Kim, ContractsProf Blog

http://nyti.ms/2eeoaqk

The New York Times ran this article today about car leases and how difficult it is to get out of them.  The article discusses one auto lessee who found that she had a medical condition that prevented her from driving.  When she tried to get out of her lease with Ford, she was told that there was no way that she could escape her obligations unless she joined the military or died.

Which brings me to contract defenses . . . .

Law Library Analytics and the 2016 Election.

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LII and the Election, Legal Information Institute, Cornell University Law School

http://bit.ly/2egNJqQ

LLI has shared a sense of what has interested us during this election cycle through its analytics at its legal research website. -CCE

Given all this, you might predict that statutes related to immigration, Social Security, and other issues that generate heated discussion during election season might also appear in the list, but they don’t. Perhaps that’s because they generate heated discussion all the time. But it may be that, during the most bitter election campaign in decades, substance matters less than criminalizing the behavior of your opponent.

Hacks and Cyberware Are Becoming More Commonplace Than Ever. Do You Know How to Safeguard Your Firm And Home Computer?

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Seven Rules to Stay Safe Online in a Scary Digital Age, by Larry Port, Legal Productivity

http://bit.ly/2eegLYd

If your nerves haven’t been rattled by the October 21st DNS attacks, they should have been. The hysterical tenor of the US election drowns everything out, but this news was a real doozy. Many sites, including Twitter, Spotify, and AirBnB were inaccessible due to one of the largest denial of service attack ever.

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So given the state of a possible escalating cyberwar, how is an attorney to stay safe? Start by making sure you understand and live by these basic security rules . . . .

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The Plain Language Argument Against Using Latin Legal Terms of Art.

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Curiouser and Curiouser Excuses for Legal Jargon, by Chadwick C. Busk & Michael Braem, 95 Plain Language, Mich. B.J. 30 (2016)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2967.pdf

Earlier today, I posted about the use of Latin for legal terms of art, although legal writing scholars usually advise against using them. This article addresses that very subject. -CCE

I don’t know the meaning of half those long words, and I don’t believe you  do either.” —Eaglet, Alice in Wonderland (1865), Chapter III

“Some lawyers and academicians attempt to justify legal jargon and “traditional” legal writing—legal writing that’s ‘wordy, unclear, pompous, dull1’  and even “wretched.’2 But legal jargon in contracts burdens all those who must deal with it: the parties to the agreement who try to understand it, lawyers who mistakenly think they must use it, and judges who have to interpret it. Legal jargon often creates ambiguity, and ambiguity invites litigation. Many legalisms have been fodder for courts to puzzle over, including herein, therein, hereby, and thereof; shall; and/or; and best efforts.

However, some academicians, most recently Professor Lori Johnson of the UNLV William S. Boyd School of Law, have modernized old excuses for legal jargon and concocted new ones. Can these arguments withstand a reasoned analysis, or are they merely fanciful declarations from Wonderland?

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Latin Legal Terms of Art.

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While most legal writing scholars favor plain language and elimination of legalese and Latin words and phrases, there are some well-recognized – and often used – Latin legal terms of art. Some examples include stare decisis, per curiam, certiorari, res ipsa loquitur, ad hoc, mens rea, et alia, in rem, in personam, inter vivos, nolo contendere , and prima facie.

If you intend to take one of the national paralegal exams for certification or registration or if you are a paralegal student, there are Latin terms of art you should know. -CCE

Duhaime’s Latin Dictionary 
http://www.duhaime.org/LegalDictionary/Category/LatinLawTermsDictionary.aspx

Latin Phrases and Expressions, BusinessBall.com http://www.businessballs.com/latin-terms-phrases.htm

Legal Terminology Definitions http://www.pegc.us/_LAW_/latin_legal_defs.pdf

Latin Legal Phrases   http://latin.topword.net/?Legal

CN-Fact Sheet 9, Carter Newell Lawyers©2015 http://bit.ly/2eoQrqg

Another “How To” Really, Really Write Bad Briefs.

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How to Ruin Your Briefs – Or The Screwtape Lawyers, by Austin J. Hakes, 50 Mich. B. J. (Aug. 2016)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2928.pdf

The author has a well-known new client with an unusual request – write the worst briefs possible. The author offers eight rules to as guidelines to fulfill his client’s wish. This will be interesting! And, because it comes from the Michigan Bar Journal’s Plain English Committee, you know it’s going to be good. -CCE

That’s right— he wants us to write terrible briefs. This surprised me too at first, but then he explained his new litigation strategy: suspecting that it might be more effective to ruin judicial minds than to manipulate them in his favor, he wants to use terrible writing to drive appellate judges totally insane. Writing a bad brief is easy enough, but writing a truly disastrous one—one capable of inducing madness—is a task requiring deliberate effort and careful study. Our greatest challenge may be a lack of helpful reference materials, for although there are several good books on the art of writing well, the craft of writing badly has been suppressed and maligned for far too long. In the hope of invigorating the persecuted art of infuriating prose, I offer this letter. It’s a meager beginning, but if you follow these eight rules to the best of your ability, your writing should be sufficiently misguided and maddening to serve our client well.

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How Long Is Too Long? Lawyers and Judges Disagree.

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Judges Want Briefs to Be Shorter but Lawyers Push Back, by James B. Levy, Legal Skills Prof Blog

http://bit.ly/2dQjl5R

Often courts have local rules limiting the length of a brief. Have you ever wondered why? In everything you’ve ever heard or read about good legal writing, can you imagine a judge saying this?

“Yes, please, write a long, detailed brief. Use as many obscure legal authorities as possible. I  have loads of time and plenty of staff to look up each one. Repeat your argument several times to make sure I know how important it is. Above all, make it as hard to read as possible.

I want lengthy quotations. Ideally, make them at least a page long, if not longer. One sentence paragraphs are the best! And by all means, pile on the legalese. Verbosity and obscure language is always appreciated.”

Of course not. They simply do not have the luxury of time to read huge briefs, especially if they are poorly written. I have said before that, while working for an Oklahoma Supreme Court Justice, I literally saw a bad brief go flying across the room. The Judge, in disgust, tossed it aside, and picked up the other side’s brief. Ouch! -CCE

The Difference Between a Preservation Letter and Presentation Notice.

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Crafting the “Perfect” Legal Hold Notice, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2016/10/09/crafting-the-perfect-legal-hold-notice/

When it comes to e-discovery, Craig Ball and his blog, Ball in Your Court, is one of my top resources. Some years ago, he posted “The Perfect Preservation Letter,” as a guide of what you would send to the opposing party to put them on notice of a litigation hold.

This document is similar and just as important – an internal notice or the kind of notice you would give to your client. The following is only a snippet of his post.

When it comes to deciding whether to send a preservation letter or notice, I would err on the side of caution. In the early stages of a case, you may not know whether the legal issue will become litigation. Not all disputes are litigated. But if you wait until it does, e-discovery may already be wiped or corrupted.

Some clients may balk at the scope and breadth of your preservation notice, which is why it Mr. Ball’s rules of thumb are so helpful. A reasonable precaution will be worth the effort. – CCE

[T[he inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive.  You send a preservation letter to the other side.  The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation.  Clearly, we must find better terminology to distinguish the two than just “letter” and ‘notice.’

[I] drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the perfect preservation notice.

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For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.

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Don’t Just Say, “No Emails Found,” by Josh Gilliland, Bow Tie Law Blog

http://bowtielaw.com/2016/10/04/dont-just-say-no-emails-found/

The plaintiff asked the defendant to produce emails relevant to an event on a specific date. The defendant said there were no such emails, and had nothing to produce. The judge agreed that the defendant could not produce what did not exist, but ordered the defendant to show how it determined no emails existed. Simply saying that no emails existed was not a sufficient answer.

 If you are the defendant, what else should you say to satisfy the court? -CCE

Dump This Common Legal Writing Phrase!

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Avoid Beginning Sentences with “The court held that . . . .” by Louis J. Sirico, Jr., Law Skills Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/2d5b89q

Busted! I use this phrase all the time. Here’s a way to take your legal writing to another level. -CCE

What’s Wrong With Using “And/Or”?

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Do Not Use “and/or” in Legal Writing, by Ted Tjaden, Slaw Canada’s online legal writing magazine

http://www.slaw.ca/2011/07/27/grammar-legal-writing/

If there was any question in my mind about whether using “and/or” is good legal writing, it is resolved. After reading Mr. Tjaden’s post, supported by detailed, exhaustive research, you too may become a believer. -CCE

I remain surprised at the number of intelligent, articulate, and well-read legal professionals who still use ‘and/or’ in legal writing.

I am therefore creating this post to document a fairly complete list of authorities that support what I think is the better (if not obvious) view: never use ‘and/or’ in legal writing (or any writing). And yes, I said ‘never.’

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What Does “Shall” Really Mean?

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Shall Means “Must.” Unless it Means “Should.” Mark E. Wojcik, Professor of Law, John Marshall Law School (Chicago), Legal Writing Prof Blog

http://bit.ly/2dg7M46

In the legal writing world of contracts, legislation, and case law, legal writers debate about the meaning of the word “shall.” Many legal writing scholars have argued that “shall” means “must” without exception, and that is what I was taught in paralegal school. Professor Wojcik makes a convincing argument for dropping the ambiguous “shall” in favor of words that leave no question about what they mean. -CCE

How to Persuade the Jury to Blame One Party Over The Other.

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Plaintiffs Should Always Start By Attacking The Defendant, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/plaintiffs-should-always-start-by-attacking-the-defendant

[I]n the 1990’s, trial lawyers Gregory Cusimano and David Wenner investigated the issue. They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff.

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Is A Non-Lawyer A Professional?

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It’s Time to Kill the “Non-Lawyers” by Matt Hoffman, the [non]billable hour blog

http://bit.ly/2cpZOJk

[L]aw firms are professional services businesses and it’s time to acknowledge the large group of diversely talented people who make them run — people who don’t deserve to be labeled ‘non’-anything.

Instead, let’s call them what they really are: Professionals.

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An Update on the New DOL Overtime Rule.

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Michigan Joins Quest to Block New Overtime Rule, by Jason Shinn, Michigan Employment Law Advisor Blog

http://bit.ly/2d5Bpto

The new overtime rule proposed by the Department of Labor is definitely one to watch. Its impact on employee and employer alike is significant.

How will it impact paralegals? As a profession, we began as exempt professionals, and not eligible for overtime. The Department of Labor eventually determined that paralegals were non-exempt because we work under the direct supervision of lawyers, and do not make independent decisions. Personally, I prefer being considered as an exempt professional, but not all paralegals share my opinion.

 A more detailed explanation of the history of the Department of Labor and the paralegal professional can be found here: https://www.paralegals.org/i4a/pages/index.cfm?pageid=3304. -CCE

On September 20, 2016, Michigan joined 20 other states in filing a lawsuit against the U.S. Department of Labor (DOL) to block a new overtime rule that goes into effect on December 1, 2016. Here is a link to the complaint Nevada v. Labor Dept., (9/20/16).

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DOL’s Rule Expands Eligibility for Overtime Pay

The DOL’s overtime rule would more than double the salary threshold, up to about $47,500, under which workers are automatically entitled to overtime pay. This rule focuses on shrinking what is referred to as the ‘white collar exemption,’ which exempts employees who perform ‘executive, administrative or professional’ duties from overtime and minimum wage requirements.

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The Em-Dash.

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When to Use—and Not Use—an Em-Dash, by Chris Lele, read by Mignon Fogarty, Grammar Girl’s QuickandDirtyTips.com™

http://bit.ly/2cGeRNi

When people think of punctuation marks, it is usually the handy comma, the imperious colon, or the overly excited exclamation mark that comes to mind. The stodgy semicolon and sinuous question mark might get thrown into the mix, but rarely—if ever—will somebody mention a punctuation mark that, while omnipresent, often goes unnoticed. This is surprising considering that this punctuation mark is highly versatile and a favorite of skilled writers. It can add a spice—or a dash, if you will—to a sentence by adding emphasis to certain words and phrases.

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Using the “Rule of Three.”

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Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2chpUMD

So simple, but so persuasive. It is especially useful in oral argument, which is the topic of this post from Dr. Broda-Bahm. -CCE

[W]hen litigators are looking for a way to paint a bit of style and rhetorical effectiveness into their oral arguments, openings, or closings, the rule of three ought to be one of the first items in your tool box. Focusing on — you guessed it — three reasons, this post will explain why.

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