The Quintessential Contract Drafting Checklist.

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A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/07/a-contract-drafting-checklist.html

This is a gem.  It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE

Canada Revokes Paralegal’s License.

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Paralegal License Revoked, by Mike Frisch, Legal Profession Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/29ASMw6

There has been increasing discussion in the United States about creating class of paralegal often called “legal technicians.” Some states already have them. There are arguments pro and con on both sides. The underlying idea is to find a way to provide legal services at a lower rate making legal services more affordable.

But here’s the sticker. There are rules and laws to address situations where lawyers commit malpractice. Are there similar provisions for legal technicians and, if so, what are they? How do they protect consumers, is there any kind if discipline, and who is responsible for that oversight and discipline?

Canada might be good example to help answer some of these questions. What do you think? -CCE

Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,

The Law Society Tribunal revoked a paralegal’s license.

‘[M]r. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000.’

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Why Creating A Timeline Will Help Your Case.

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How to Create a Timeline For Your Case: First Steps to Take and Choices to Make, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/08/how-to-create-a-timeline-for-your-case/

In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.

But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.

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Word Domination.

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Dear Lawyers: It’s Not Word, It’s You, by Barron Henley, Lawyerist.com Blog

http://bit.ly/28X55l1

Here are two important facts about Microsoft Word:

Fact 1: 100% of the formatting problems you’ve experienced when drafting new documents can be completely avoided before they occur.

Fact 2: When editing a document someone else drafted, any formatting glitches can be resolved in just a few clicks, no matter how bad of a mess it is.

Unfortunately, the foregoing facts are true only if you have mastered Word.

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“The Presidents and the Constitution: A Living History”

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The Presidents and the Constitution: A Living History, by Ken Gormley

If you are interested in constitutional law, I highly recommend this book. It was published in May, 2016, and can be found in your public library or ordered from any book store. It is an interesting discussion of presidential decisions or actions and the constitutional implications.

Here is just one example. If you grew up during the time of Watergate, you may find this particularly interesting. Like most people, I had always assumed that President Gerald Ford’s pardon of Richard Nixon gave Nixon a “get out of jail free” card. My guess is that this decision caused Ford the election to his first full term as President.

When the author interviewed Gerald Ford for the book, of course Nixon’s pardon came up. Ford said that he had asked a young lawyer, Denton Decker, to research all the nuances and possible issues that might occur if Ford were to pardon Nixon. The idea of pardoning Nixon was very unpopular. Ford wanted to know what possible precedent and repercussions a pardon might mean.

Decker finds Burdick v. United States, 236 U.S. 79 (1915). Burdick holds that, if one accepts a pardon, it is an admission of guilt.

Ford sent Decker to San Clemente to Nixon’s home to present the offer of a pardon to Nixon and Nixon’s lawyer. Decker gave Nixon a Miranda warning and told him that, if Nixon accepted a pardon, it would be an admission of guilt. Nixon at first didn’t want to accept the pardon because he understood what it meant. Another issue on the table at the same time was the creation of a presidential library for Nixon’s papers, which the author says Nixon badly wanted. After first resisting, Nixon decided to take the pardon.

When Ford pardoned Nixon, he thought he had given the public exactly what it wanted. Instead, it was seen as letting Nixon off, even though Nixon was obviously guilty. When interviewed by Mr. Gormley for this book, Ford was still frustrated that the public had never seemed to understand that, by accepting a pardon, Nixon admitted his guilt.

An interesting piece of history and a good read. -CCE

Tell Your Client’s Story With A Good Narrative.

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Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/26buQ9Y

Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).

Here is the introduction:  A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.

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Using Abbreviations and Definitions in Legal Writing.

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Don’t Use Definition-First Autonomous Definitions, by Ken Adams, Adams on Contract Drafting Blog

http://www.adamsdrafting.com/dont-use-definition-first-autonomous-definitions/

Ken Adams provides excellent examples of how to use an abbreviations and definitions. Use this for contracts, but keep in mind that it also works in pleadings, motions, discovery, etc.

When you use abbreviations and definitions for a person, a law, an event, or contract, it makes your writing tighter and more concise. It makes sense to abbreviate lengthy names, but take which definition you pick. While striving for a way to make your writing less wordy, don’t let the abbreviation or definition de-humanize your client or overly sanitize your client’s case. -CCE

Reference, Facts, News, Search Engines, Email, and More. Easy Peasy.

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Refdesk.com – Fact Checker for the Internet

http://www.refdesk.com/

Refdesk.com has been around a long time. If you have never seen it or used it, please give me the honor of making the introductions.

Go the home page: http://www.refdesk.com. There is a lot to absorb.  Take your time. Scroll down the page, and check it out.

Bothered by the ads popping up on the page? There is an easy fix. Support Refdesk. Contribute $25, and Refdesk is add free for a year. No, you don’t have to contribute $25. You don’t have to contribute at all. But, if you want to use Refdesk frequently, I encourage you to contribute something.

If you are like me, you do not want to keep scrolling to find what you want to see – you simply want to get there. Go to the top of the website, and look to the right. You will see three search tools: (1) Check Email; (2) Quick Links; and (3) Reference Desk.  Right away, you can see that this has potential as home page.

I want to look up grammar and punctuation rules. Go to Reference Desk, click the down arrow, and choose “Grammar/Style.” That’s a nice assortment of writing guides, but not exactly what I want. I’m looking for The Elements of Style. Click on More at the bottom of the page. There it is.

You have seen one small example of the information this site can give you. I leave it to you to seek out the rest.  -CCE

Posner Asks What is Obviously Wrong with the Federal Judiciary. Is This A Trick Question?

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What Is Obviously Wrong With The Federal Judiciary, Yet Eminently Curable, Part I, by Richard Posner, 188 19 GREEN BAG 2D 187 (with hat tip to William P. Statsky) (The Green Bag is Quarterly Legal Journal dedicating to good legal writing, supported in part by the George Mason University School of Law)

http://www.greenbag.org/v19n2/v19n2_articles_posner.pdf

If you’re looking for a good Bluebook bashing, here it is. -CCE

At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook; also for students at the Yale Law School who aspire to be selected for the staff of the Yale Law Journal – they must pass a five-hour exam on the Bluebook. Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material. Just by reading judicial opinions law students learn how to cite cases, statutes, books, and articles; they don’t need a citation treatise. In the office manual that I give my law clerks only two pages are devoted to citation format. [Footnotes omitted; emphasis added.]

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What’s It Like In Your Judge’s Shoes?

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Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/06/advice-on-writing-to-persuade-the-court.html

In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.

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“How To” Research Administrative Law.

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How many people like to research the Code of Federal Regulations? Hands? I thought so. You are not alone. Actually, it’s not as hard as it looks.

Here is a tutorial and some great posts by law librarians that de-mystify researching this area of law. -CCE

Administrative Law Research Tutorial, Georgetown Law Library

https://www.law.georgetown.edu/library/research/tutorials/admin/
Administrative Law Research Guide, Georgetown Law Library

http://guides.ll.georgetown.edu/adminlaw

Administrative and Regulatory Law Research Guide, Harvard Law School Library (last updated by Claire DeMarco)

http://guides.library.harvard.edu/administrative

Administrative Law, Library School of Law, Loyola University of Chicago

http://lawlibguides.luc.edu/content.php?pid=128348&sid=1101470

Administrative Law Guide: Introduction, C|M|LAW Library

http://guides.law.csuohio.edu/adminlaw

Federal Administrative Law, Duke Law, Goodson Law Library

https://law.duke.edu/lib/researchguides/fedadminlaw/

The Proper Use and Interpretation of “Shall” and “Will.”

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The Legal Writer – The Problem with Shall, by Elizabeth Ruiz Frost, Oregon State Bar Bulletin (February/March)

https://www.osbar.org/publications/bulletin/12febmar/legalwriter.html

When we draft legal documents for our clients, we aim to articulate who can do what and when. Those rights and obligations are established through words of authority. But in legal writing, inconsistent use and interpretation of some words of authority can create ambiguity in our documents.

The word shall can be particularly troublesome. Drafters often use shall in place of other words like does, will, should, might or may. If we use shall sometimes to connote a mandatory term, at other times to connote a discretionary term, and once in a while to connote a future event, how can a reader accurately determine our intent? When a word of authority is used inconsistently, courts are left to determine the word’s meaning. To avoid squabbles over ambiguous terms, think through each word of authority that you write and use these words consistently.

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Using the Wayback Machine To Authenticate Evidence.

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Wayback Machine Builds Reputation with Judiciary, by CMLaw Library Blog (with hat tip to William P. Statsky)

http://cmlawlibraryblog.classcaster.net/2016/05/12/wayback-machine-builds-reputation-with-judiciary/

What is the Wayback Machine? It’s been around since 2001. It is a mega-archive of websites. If you are a serious researcher, it is worth your time to learn how to use it. It is more than just a trip down nostalgia lane. You can easily find blog posts, articles, and videos that will give you an in-depth explanation on the Wayback Machine’s creation and what it does.

I like this post because it is the first illustration I’ve seen in which someone used the Wayback Machine as persuasive evidence in court. Thanks, Bill! -CCE

An April 2016 decision from the District of Kansas has given judicial notice to information contained in screenshots from the Wayback Machine. The Internet Archive’s Wayback Machine preserves images of websites as they appeared at particular points in time. In the case at hand, Marten Transport, Ltd. v. PlattForm Advertising Inc., (D. Kan., Case No. 14-2464-JWL, 4/29/16), Marten sued PlattForm for infringement, alleging that PlattForm had continued to display Marten’s logo on PlattForm’s website after the two had stopped doing business together.

The court determined that testimony from an employee of the Internet Archive concerning the screenshots showing PlattForm’s website at the time in question was enough to meet the standards in Federal Rules of EvidenceRule 901.

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How To Use “That” and “Which,” And Why You Should Care.

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Using That and Which Correctly, Better Writing Skills, Writing Resources From Scribe Consulting

http://www.betterwritingskills.com/tip-w022.html

An easy-to-understand example of the difference between “that” and “which” and why, in legal and business writing, it is important to use each correctly.  It also provides an excellent example of how grammar and punctuation mistakes can dramatically change the meaning of your document. -CCE

For more writing tips on common grammar errors, go to http://www.betterwritingskills.com/writing-tips.html.

Russ Guberman’s Six Editing Tips.

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No Thanks: Six More Words and Phrases to Avoid, by Russ Guberman

http://legalwritingpro.com/blog/no-thanks-six-more-words-and-phrases-to-avoid/#comment-91

Small wording changes can liven up your style by speeding up and punching up your prose.

Let’s match wits with some of the world’s best judicial writers below. Or is that ‘with certain of the world’s most illustrious judicial draftspersons infra’?

The Rules of Engagement: If a word or phrase is bolded in the first part of each set, the big guns didn’t write it. For each of those bolded terms, think of a lighter or shorter replacement before you peek below.

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Just Really Good Legal Writing.

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How To Write Good Legal Stuff, by Eugene Volokh and J. Alexander Tanford, Maurer School of Law© 2001, 2009

http://law.indiana.edu/instruction/tanford/web/reference/how2writegood.pdf

This is a guide to good legal writing. Good writing consists of avoiding common clunkers and using simpler replacements. The replacements aren’t always perfect synonyms but 90% of the time they’re better than the original. Warning: Some changes also require grammatical twiddling of other parts of the sentence. This is not a guide to proper high English usage. We don’t give two hoots whether you dangle participles, split infinitives or end sentences with prepositions. We care that you can write clearly.

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Say Goodbye to THOMAS.

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Time to Turn off THOMAS: July 5, 2016, by Andrew Weber, In Custodia Legis, Law Librarians of Congress

http://blogs.loc.gov/law/2016/04/time-to-turn-off-thomas-july-5-2016/?loclr=ealln

THOMAS appeared online on January 5, 1995: http://www.loc.gov/today/pr/1995/95-002.html?loclr=bloglaw

THOMAS will be retired on July 5, 2016, and replaced by Congress.gov, which was always the intent when Congress.gov came online in September, 2012.  Congress.gov was designed to replace THOMAS, and it has features that THOMAS did not, and never could, have.

You can find all posts at www.researchingparalegal.com about the additions and improvements made to Congress.gov since its inception here:

https://researchingparalegal.com//?s=congress.gov&search=Go.

Please take a NEW long look at Congress.gov here: https://www.congress.gov/.  There is much, much more to see.  -CCE

Another Use For A Special Needs Trust.

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Using a Special Needs Trust in the Settlement of a Product Liability Lawsuit, by Thomas M. DeMicco (NY Metro) and Phil Quaranta (NY Metro), Product Liability Advocate Blog

http://bit.ly/1UUiLT3

Product liability cases frequently involve severe and even catastrophic injuries.  As a result, product liability defense counsel and insurance adjusters must be familiar with the prospects for use of a special needs trust as a potential tool in the settlement of severe injury cases. Special needs trusts are frequently proposed as a component of the settlement of severe injury cases.

The purposes of the special needs trust are to allow a severely injured plaintiff to continue to receive social security benefits and to be protected from lien holders.

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Judges Quote Yoda.

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Galactic Disputes: Judges Channel the Wisdom of Star Wars, by Anna Massoglia, Lawyerist.com©

http://bit.ly/23Dyp5K

Making legal jargon understandable to the general masses is a big job. Some more creative judges think outside of the box to get their point across through pop culture references. With all of the hype surrounding Star Wars: The Force Awakens,  it should come as no surprise that Star Wars references are seeping into judicial opinions.

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Yep – Just A Paralegal.

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“Just” a Paralegal? by Christopher Beck, California Bar Journal (May 2016)(with hat tip to William P. Statsky)

http://calbarjournal.com/May2016/Opinion/ChristopherBeckCYLA.aspx

[I] remember something very intelligent and profound that my professor said during this first day: ‘One day you’ll be out in the world working at a law office, big or small, government or private. And on that first day you will have absolutely no idea what you are doing. To make it worse, no other associate will help you. The best advice I can give you is this: Be nice to the paralegals. They know more than you think, often as much as the lawyers, and they have been at the firm longer. If you want to survive, befriend them.’

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Another Legal Writing Honey Pot

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Transcripts of Bryan Garner’s Transcripts With Supreme Court Justices On Legal Writing And Advocacy, THE SCRIBES JOURNAL OF LEGAL WRITING©

http://legaltimes.typepad.com/files/garner-transcripts-1.pdf

If you had to pick just one edition of The Scribes Journal of Legal Writing, which would be an incredibly hard thing to do, this is certainly one I would strongly recommend. Bryan Garner’s interviews with Supreme Court Justices on legal writing! Does it get any better than this? If you are a legal writing aficionado, or even if you’re not, you’ll appreciate the wisdom here. -CCE  

Westlaw Poses Another Challenge To The Bluebook.

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Journal of Law: Periodical Laboratory of Legal Scholarship, Vol. 2, No. 3, pp. 483-486, 2012 , by Ross Davies, George Mason University School of Law; The Green Bag (with hat tip from William P. Statsky)

http://bit.ly/24tJ2uh

Lately The Bluebook has been under siege. It has survived the long ago challenge of the ALWD Citator.  It has a new challenger, Malamud’s public source Indigo Book. Now it faces another quandary. Will it adjust or is it on its way to becoming obsolete? -CCE

 Excerpt from Abstract: 

[W]estlaw and its competitors cannot afford to conform to the Bluebook’s system when it conflicts with the requirements of their databases for, among other things, unique and recognizable abbreviations of the names of publications. And given a choice between following Bluebook form and following Westlaw form, readers and publishers are likely to follow Westlaw because that is where readers are doing more of their reading and publishers’ products are getting read.

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New Jersey Lawyers Use Paralegal to Spy on Facebook and Cross the Ethical Line.

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NJ Lawyers Get Sanctioned for Facebook Spying, by Jonathan R. Tung, Esq., Strategist, The FindLaw Law Firm Business Blog (with hat tip to William P. Statsky)

http://bit.ly/1X0X44k

When news came out that two New Jersey defense attorneys had spied on a plaintiff through Facebook, there was obvious buzz within the legal community over bright-line rules and attorney ethics. Just what qualifies as an ‘unauthorized’ communication? Lawyers should always take steps to tread carefully in these ‘novel ethical issues.’ First impression or not, you don’t want to end up being the poster child.

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Will The Indigo Book Become The Accepted Legal Citator And Replace The Bluebook?

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Update on the Baby Bluebook, by Barco 2.0 : Law Library Reference, University of Pittsburg School of Law (with hat tip to William P. Statsky!)

http://bit.ly/1SqRYJk

Carl Malamud has introduced the Harvard Law Review Association to The Indigo Book, An Open and Compatible Implementation of A Uniform System of Citation.

For years, I have used The Bluebook as my bible for legal citation. During the years I taught Bluebook citations, I saw The Bluebook come out with new editions many, many times. It was frustrating when the new edition changed the rule about whether you used a comma after a signal or some other arbitrary change. Not only frustrating, but hard to explain the reason for the revision to students.

There have been several major events that gave The Bluebook a genuine reasons to come out with a new edition. States, like Oklahoma, adopted a “public domain” citations. The Internet became a legal research tool. Still, there were times it seemed that The Bluebook’s interpretation was unnecessarily complicated.

The ALWD Citation Manual was created to improve legal citation standards. It was also updated periodically when needed. Until now, The Bluebook and the ALWD Citation Manual were the mainstream acceptable go to” sources for legal citation.

The Bluebook began receiving more criticism for its new editions. Were the changes necessary or a way to create more revenue for the publishers? Hard to say for many but not for Carl Malamud. It will be interesting to see how The Indigo Book is received by legal educators and legal professionals. -CCE

Who Needs Apple’s Help To Unlock Their iPhone?

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Feds (Once Again) Gain Access to iPhone Without Apple’s Help, by David Murphy, PC Mag.com

http://www.pcmag.com/news/343970/feds-once-again-gain-access-to-iphone-without-apples-help

Stop us if you’ve heard this one. Federal prosecutors no longer need Apple’s assistance in unlocking an iPhone in a Brooklyn drug case, as investigators have found a way to do so themselves. It’s the second major case recently where the government has attempted to demand Apple’s help but, before a judge granted the government’s request, the Justice Department managed to unlock the iPhone in question. . . .

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