Using Intensifiers Is A Very Bad Horrible Writing Habit.

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Avoid Intensifiers in Your Writing, by Louis J. Sirocco, Jr., Legal Skills Prof Blog

http://bit.ly/2x1Ay34

This is a legal writing lesson I know and have taught, but I am guilty of this bad writing habit all the same. It reminds me never to be complacent about word choice.  -CCE

What Will Ignoring the Court Rules Get You? A Big Fat Benchslap.

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Florida Judge Tosses Improperly Spaced Court Filing, by George Khoury, Esq., Strategist, The Findlaw Law Firm Business Blog  (with hat tip to William P. Statsky)

http://bit.ly/2uP9FyB

Mr. Khoury says that “[h]ell hath no fury like a Florida judge who receives an improperly formatted brief.” You better believe it. Why on earth would you ignore the format requirements in your court’s local rules? Folks, this just isn’t that hard.

The author of this motion for summary judgment thought the court would either ignore or not notice that the motion and supporting brief were spaced 1-1/2 lines rather than double-spaced. And who’s going to notice longer-than-usual footnotes? Really? Any judge or clerk whose job it is to read, read, and then read some more every dad-gum day.

Seriously, do you want to plow through heavy footnotes? Hands? Didn’t think so. Neither does your judge. Why risk alienating the person you are trying to convince? The stakes are too high to cling to a style of writing that sets you up to lose before anyone reads your motion or brief.

There are other, and much more effective ways, to trim a motion and brief. Editing is the key.

  1. Eliminate any unnecessary word.
  2. Remember that subject and verbs go together.
  3. Use short sentences.
  4. Delete all legalese. Yes, all of it. No excuses.
  5. You can always delete “in order.” Try it – it will not change the meaning in your sentence. These are an example of filler words that just take up space.
  6. Stop using phrases such as “brief of the plaintiff.” Write “plaintiff’s brief” instead.
  7. Never, never, never use long block quotations.
  8. Quote from a court opinion only when the court says it better than you can.

A quick search of this blog will give you tons of editing tips. I promise that you can get your point across with fewer words. It is not the number of words you use that count; it is what words you choose and how you say it. -CCE

Updated Annual Guide to Law Review Submissions.

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The Latest Update to Rostron’s and Levit’s Annual Guide to Law Review Submissions, by James B. Levy, Legal Skills Blog

http://bit.ly/2uP9FyB

Thinking about submitting an article to a law review or journal? If so, you need to read this. It will give you everything you need to know about which publication is accepting submissions, required procedures and formats, and more. -CCE

You Never Know What A Jury Is Going To Do.

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Consider What Drives Resistance to Your Message, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://www.persuasivelitigator.com/2017/07/consider-what-will-drive-resistance-to-your-message.html

When clients ask whether their case will win at jury trial, the standard answer is that we never know what a jury is going to do.

There are times during trial when it may become obvious the jury is bored or highly engaged. Even then, do you know which way the jury will flop? Well, sometimes. Voir dire has given you some insight, as well as your own research. With the country presently divided, you may think people are easily pigeon-holed.

You’re feeling confident about your opening argument.  You may even think you have the jury eating out of your hand. But do you? Really?

Knowing your case well is a two-edged sword. You may believe that the story of your client’s case is so convincing – so right – that it is hard to imagine the jury will not see it just as you do.  Are you prepared to address a jury’s resistance to your client’s case?  Here are some excellent insights on what makes a jury tick. Please note more posts on this subject at the bottom of Dr. Broda-Brahm’s post. -CCE

The Capitol Steps’ Annual Fourth of July Performance!

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The Capitol Steps On the Air

http://www.capsteps.com/radio/

Every year, the Capitol Steps perform on the 4th of July. Perhaps your law school or bar association has a similar group, such as Bar None, sponsored by the Dallas Bar Association and Dallas Bar Foundation (http://www.barnoneshow.com/) and the Bar and Grill Singers from the Austin Young Lawyers Association with the Austin Bar Association (http://www.austinbar.org/young-lawyers/projects/bar-grill/). The Capitol Steps annual Fourth of July broadcast times and radio stations are listed, or you can download their performance using iTunes. -CCE

 

Daubert Analysis in Recent Federal Circuit Court Cases.

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Daubert In Product Liability Cases: Mid-2017 Update, by Max Kennerly, Litigation & Trial

http://bit.ly/2s7ZL96

An excellent analysis of Daubert in 4 product liability cases from the federal circuit courts. -CCE

Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.

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Updated Research Guide from Sabrina Pacifici.

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Competitive Intelligence – A Selective Resource Guide – Updated June 2017, by Sabrina I. Pacifici, LLRX.com

https://www.llrx.com/archives/subject/competitive-intelligence-resource-guide/

Sabrina Pacifici is, and has been, a prolific and reliable legal research resource for as long as I can remember. The quality of her work is without question. Here, she has given us a gift of a large compilation of excellent research sources, updated this month, and a “must bookmark.” I highly recommend her. -CCE

 

Former FBI Director Comey Acknowledged As Legal Writing Star.

Why Does Comey Get an “A” in Legal Writing for His Written Testimony? by Megan E. Boyd, Lady (Legal) Writer Blog

http://ladylegalwriter.blogspot.com/2017/06/why-does-comey-get-a-in-legal-writing.html

Guest post writer, Kirsten Davis, J.D., Ph.D., and Megan Boyd, the author of the Lady (Legal) Writer Blog, know great legal writing when they see it. Last Thursday, when appearing before the Intelligence Committee, Idaho Senator James Risch described former FBI Director James Comey’s written testimony as “clear,” “concise,” and “as good as it gets.”  You don’t hear that every day. So, what made Comey’s writing deserve such high praise? Enjoy this lesson on excellent legal writing. -CCE

Legal Writing Benchslaps – Big Ouch!

How Poorly Drafted Pleadings and Bad Writing Can Hurt Your Client and You, Online Writing Center, Writing Tools, PennState Law

http://bit.ly/2rrqfEr

There are some basic rules of legal writing that are fatal to ignore. This post illustrates some of the most common errors that cost the author dearly. When the court goes to the trouble to benchslap the lawyer’s writing, take the court’s criticism to heart and avoid making the same writing mistakes.

This post also has a bonus. Look at the bar on the left to find legal writing exercises and answers. -CCE

The Basics of Legal Writing for Legal Professionals.

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The Writing Process for New Lawyers: Getting it Written and Right, by Gerald Lebovits, The Legal Writer, 89 N.Y. St. B.J. 80 (May 2017) (with hat tip to William P. Statsky)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2967050

Although this article is about the basics of legal writing, even seasoned legal writers will find it useful and instructive. Regardless of how well we think we write, we can always improve.

This article puts an emphasis on focusing on the purpose of your document, organizing your thoughts, considering your reader, researching, and editing. In short, all the basics you need to write well. -CCE

Law Firm Email Encryption – Are You Ethically Compliant?

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ABA Issues New Ethics Opinion on Encryption of Attorney-Client Email, Jim Calloway’s Law Practice Tips Blog

http://bit.ly/2qy8J2a

Does your state have an ethics opinion about encryption of your firm’s email? Do you use encryption? Do you use a secure cloud based platform? If you are not sure, don’t you think you should check?

Most law firms frequently use email over fax and regular mail to communicate with their clients, their expert witnesses, and opposing counsel. What is your obligation to ensure confidentiality of your firm’s email, and are you meeting it?

The ABA’s ethics opinion is instructive, as well as the Texas ethics legal opinion referred to by Mr. Calloway at the end of his post. -CCE

Why Are Nursing Homes Often Understaffed?

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How Do Understaffed Nursing Homes Affect Patients, posted on behalf of D’Amico & Pettinicchi, LLC (April 28, 2017)

http://bit.ly/2pWhPEr

This is a subject I’ve witnessed myself when taking care of a family member in a nursing home, so I admit my personal bias. While it may not be true for all nursing homes. I was told by nursing home staff that it is more often true that nursing home residents receive better care when family are frequent visitors and are paying close attention to the care. Unfortunately, not all nursing home residents have family advocates who are committed to their quality of care provided by nursing homes.

Understaffing is only one of the usual chronic problems in most nursing homes, which is the topic of this post. -CCE

Need to Discover Insurance Coverage? Try This.

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Interrogatories Asking for Insurance Coverage Information, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2phvhiP

When your discovery rules allow the plaintiff to get the defendant’s insurance coverage, never miss the opportunity to get all the details you can. Here are some excellent examples of interrogatories and strategy. -CCE

Trial Witnesses And Depositions Transcripts.

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Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2piUoBR

Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE

See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.

A Benchslap By Judge Gorsuch. And It’s A Really Good One, Too.

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Benchslap Of The Day: No More Mr. Nice Guy, by David Lat, Above The Law Blog

http://abovethelaw.com/2015/03/benchslap-of-the-day-no-more-mr-nice-guy/

It’s Monday, which makes it a good day for a good old-fashioned benchslap!

Our Judge for today’s benchslap is none other than newly appointed Justice Neil Gorsuch of the United States Supreme Court, back when he was at the United States District Court for the Tenth Circuit. Judge Gorsuch’s opinion is an excellent lesson on the basic elements of a successful appeal. An immigration lawyer ignored the Court’s local rules. A serious mistake, and a thorough benchslap. -CCE

Litigation Tip – Balancing Emotion and Logic.

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Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2oVw6P5

Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE

 

Use Plain English Rather Than Medical Jargon.

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Plain English Helps Explain Medical Issues Clearly, A Case Study, by Dr. Oscar Linares, David Daly, and Gertrude Daly, 36 Mich. B J. (Jan. 2017)

http://www.michbar.org/file/barjournal/article/documents/pdf4article3039.pdf

Professionals, like doctors, often speak using medical jargon. Other doctors understand it, but not necessarily everyone else. This is true for anyone who uses technical language specific to their work. But in a legal matter, communication is critical. A good reason to use plain English, isn’t it? -CCE

Obtaining, Organizing, and Analyzing Medical Records.

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Tips for Unlocking Medical Records That Will Make a Paralegal’s Job Easier, by Karen Clark, MS, RN; Patricia Iyer, RN, MSN, LNCC; Barbara Levin, BSN, RN, ONC, LNCC; and Mary Ann Shea, JD, BS, RN, Paralegal Today (Originally appeared in print as “Unlocking Medical Records” July/August 2004)

http://paralegaltoday.com/issue_archive/features/feature2_ja04.htm

“How to” on obtaining, organizing, and analyzing medical records, complete with chart for tracking them. -CCE

Excellent Example of Appellate Court’s Use of Persuasive Legal Writing Tools.

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Contrasting Introductions in Kolbe v. Hogan, by Megan E. Boyd, Lady (Legal) Writer Blog

http://ladylegalwriter.blogspot.com/2017/03/contrasting-introductions-in-kolbe-v.html

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

Not this majority opinion. It starts with a literal bang . . . .

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2017 United States Sentencing Commission Website.

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United States Sentencing Commission

http://www.ussc.gov/

This federal government website has a honey pot of information. It has six categories. Here are some highlights you will find under each category:

1. About (includes Mission Statement and online seminar titled ‘An Insider Look at the United States Sentencing Commission’);

2. Guidelines (the 2016 Guidelines Manual, Sentencing Table, and Organizational Guidelines, including the most recent primers on various areas of criminal law);

3. Policymaking (Rules of Practice and Procedure);

4. Education (Guideline Training Materials);

5. By Topic; and

6. Research (Public Access to Commission Data and Documents List Of all Publications, 2016 Sourcebook, Quick Facts, and Data Reports).

The information you will find here is current and up to date. You can be sure that you are researching the most recent and updated guidelines, primers, sentencing table, policy, and laws. -CCE

State and Federal Cyber Bullying Laws.

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Bullying Laws Across America, Cyber Bullying Research Center
http://cyberbullying.org/bullying-laws

(Please also note “Recent Updates” under the “Resources” button.)

Cyberbullying Laws, The Huffington Post©2017 http://www.huffingtonpost.com/news/cyberbullying-laws/

Bullying and Cyber Bullying Laws, Megan Meier Foundation
http://www.meganmeierfoundation.org/laws.html

Is Cyber Bullying Illegal? A Breakdown by State, TeenSafe®
https://www.teensafe.com/blog/cyberbullying-illegal-breakdown-state/

Cyberbullying + Laws, Charges & Statute of Limitations, FederalCharges.com
https://www.federalcharges.com/cyberbullying-laws-charges/

Storytelling Trial Lawyer’s Honey Pot.

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The Key Elements of a Good Narrative – at Trial or Anywhere Else, by Tony Klapper, The Litigation Consulting Report, A2L Consulting

http://www.a2lc.com/blog/the-key-elements-of-a-good-narrative-at-trial-or-anywhere-else

Every good trial lawyer is a storyteller. Good storytelling is the same as a good book or movie with a great plot and dialogue. It’s that kind of storytelling that wins trials.

Mr. Klapper has written a wonderful post. At its end, you’ll find a honey pot of links with posts that are a variation on this theme. Sweet. -CCE

Will Your Standard Boilerplate Discovery Objections Cut the Mustard in Federal Court?

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Don’t Risk Waiving All Objections to Discovery Responses, by Daniel M. Braude, Wilson Elser, Product Liability Advocate

http://bit.ly/2mQTYon

Remember the changes made to the Federal Rules of Civil Procedure in December, 2015? Mr. Braude strongly urges us to update our discovery form files. He has a convincing reason. -CCE

A Federal Discovery Rule Quiz.

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Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have to Disclose Before Trial? by Max Kennerly, Esq., Litigation and Trial, The Law Blog of Plaintiff’s Attorney Max Kennerly

http://bit.ly/2mvxvg1

Under Rule 26 of the Federal Rules of Civil Procedure, who is a “non-retained expert witness” and when does that witness need to provide a thorough report rather than a summary report?  And what would you expect a judge to say if you do not disclose a non-retained expert witness? As always, it depends. -CCE

Punctuation – The Devil Indeed Is In the Details.

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Legal Writing is Precise Writing, by Suzanne E. Rowe©2007, Oregon State Bar Bulletin — NOVEMBER 2007

https://www.osbar.org/publications/bulletin/07nov/legalwriter.html

A colleague appeared in my office with a pressing question about hyphens. He was writing an article about people who own small businesses. But he was concerned that a punctuation mistake might make the article about small people, instead of small businesses. That concern (and perhaps a touch of procrastination) propelled him to my office. Was he writing about small business owners or small-business owners?

Legal writing is precise writing. Sometimes the missing hyphen, misplaced word or extra comma can change the meaning of a sentence. In quotations, lack of precision can hurt your reputation (or just make you look sloppy). The devil’s in the details.

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