Monthly Archives: May 2016

“How To” Research Administrative Law.

30 Monday May 2016

Posted by in Administrative Law, Federal Law, Law Libraries, Library of Congress, Research

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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.”

26 Thursday May 2016

Posted by in Contract Law, Corporate Law, Grammar, Legal Analysis, Legal Writing

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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.

24 Tuesday May 2016

Posted by in Evidence, Intellectual Property, Research, Rule 901, Wayback Machine

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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 Evidence, Rule 901.

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

22 Sunday May 2016

Posted by in Contract Law, Corporate Law, Grammar, Legal Writing, Punctuation, Readability

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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.

22 Sunday May 2016

Posted by in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language

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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.

21 Saturday May 2016

Posted by in Bad Legal Writing, Editing, Grammar, Legal Writing, Legalese, Persuasive Writing, Punctuation, Readability

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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.

15 Sunday May 2016

Posted by in Congress.gov, Government, Research, 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.

14 Saturday May 2016

Posted by in Litigation, Personal Injury, Probate and Trusts, Product Liability, Special Needs Trust, Trusts

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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.

12 Thursday May 2016

Posted by in Appellate Law, Appellate Writing, Legal Writing

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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.

10 Tuesday May 2016

Posted by in Law Office Management, Management, Paralegals/Legal Assistants

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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

08 Sunday May 2016

Posted by in Appellate Writing, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language

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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.

01 Sunday May 2016

Posted by in ALWD, Citations, Legal Writing, Public Domain Citations, Research, The Bluebook, Uniform Electronic Legal Material Act, Westlaw

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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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