Monthly Archives: October 2016

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

30 Sunday Oct 2016

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

30 Sunday Oct 2016

Posted by in Legal Dictionaries, 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.

24 Monday Oct 2016

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

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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.

20 Thursday Oct 2016

Posted by in Brief Writing, Judges, Legal Writing

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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.

16 Sunday Oct 2016

Posted by in Discovery, E-Discovery, Preservation

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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.

11 Tuesday Oct 2016

Posted by in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum

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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!

09 Sunday Oct 2016

Posted by in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Persuasive Writing

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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”?

06 Thursday Oct 2016

Posted by in Grammar, Legal Writing, Persuasive Writing

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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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A Punctuation Guide for Everyone.

05 Wednesday Oct 2016

Posted by in Legal Writing, Punctuation

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The Punctuation Guide, by Jordan Penn, J.D.

http://www.thepunctuationguide.com/index.html

I am impressed. Mr. Penn, after exhaustive research, created this unique punctuation guide. This is a keeper. -CCE

What Does “Shall” Really Mean?

05 Wednesday Oct 2016

Posted by in Contract Law, Legal Analysis, Legal Writing

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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