Author Archives: Celia C. Elwell, RP

“No Passion in the World is Equal to the Passion to Alter Someone Else’s Draft.” H.G. Wells

20 Wednesday Dec 2017

Posted by in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Persuasive Writing, Plain Language, Punctuation, Readability

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We are the Products of Editing, Douglas E. Abrams, Precedent, Vol. 2, No. 2, pp. 12-14, Spring 2008; University of Missouri School of Law Legal Studies Research Paper No. 2008-18.

Available at SSRN: https://ssrn.com/abstract=1138300 

How many of us take the time to proof and edit what we write? I suspect that most, if not all, good legal writers do it. No, I’m not talking about simply running a review of your grammar, style, and punctuation in Microsoft Word. I mean really reading, proofing, and editing what you write.

When you write for the court, what is your goal? To be understood? Of course. To persuade? Absolutely. To do that, you must keep your reader’s attention. Long sentences that take up an entire paragraph, legalese, and unnecessary words are boring – period. Why would anyone want to read a quote takes up an entire page?

Persuasive legal writing is an art. It takes work, and that means editing and polishing until your writing is clear, concise, and logically flows from one point to the next. Your goal, as I’ve mentioned before, is that, by the time your judge finishes reading your brief or other document, that judge is subconsciously nodding in agreement.

As someone who has seen a state supreme court judge literally throw a party’s brief across the room because it was so badly written, I promise that judges will not waste time reading legal gibberish. If a judge finds one side‘s brief difficult to read, how much frustration does it take to put it down and pick up the other side’s well-written brief to get the facts of the case and legal argument? Folks, it doesn’t take much.

Don’t take my word for it. Mr. Abrams’ article does an excellent job. -CCE

South Carolina Legal Blogs – The Cream of the Crop.

13 Wednesday Dec 2017

Posted by in Appellate Law, Criminal Law, Elder Law, Family Law, Litigation, Personal Injury, Probate and Trusts, Research, South Carolina Supreme Court, State Law, Tax Law

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Most Popular South Carolina Blawgs, Blawg Search, Justia

https://blawgsearch.justia.com/blogs/countries/united-states/south-carolina

For my paralegal friends in South Carolina, here’s the top legal blogs in South Carolina sorted by popularity. There’s a little bit of everything here, and several caught my eye. It will take a while to digest it all. I recommend bookmarking this site, and visiting it often. -CCE

Bryan Garner Shows Us How to Start a Sentence.

10 Sunday Dec 2017

Posted by in Editing, Grammar, Legal Writing, Persuasive Writing

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How To Start A Sentence: Consider All Your Alternatives, And Sprinkle In Some Conjunctions, Too, by Bryan A. Garner, Bryan Garner on Words, ABA Journal 

http://www.abajournal.com/magazine/article/how_to_start_a_sentence

Bryan Garner is one of the recognized experts on legal writing. This post isn’t about just how to start a sentence. It shows you why the last sentence in a paragraph is the most important, and how to use the first sentence to set it up.

Check out the second paragraph of the post. Look at the example of how to show, not tell.  Don’t worry about whether you understand his use of words, such as “adverbial elements.” Pay attention to his examples. He will show you what works, and what doesn’t.

Were you taught, as I was, never to use a conjunction to start a sentence? In the latter part of this post, Mr. Garner illustrates how using conjunctions to start sentences is an excellent writing tool. And I agree with him. -CCE

Style Guide for the United States Supreme Court.

06 Wednesday Dec 2017

Posted by in Appellate Law, Appellate Writing, Citations, Citations to the Record, Court Rules, Courts, E-Briefs, E-Filing, Federal District Court Rules, Legal Writing, Local Rules, State Appellate Courts, Style Manuals

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The U.S. Supreme Court’s Style Guide, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/2jnq60t

When I was starting out in my paralegal career, I created cheat sheets for filing motions and briefs in state and federal district courts. The rules, especially for federal circuit court briefs, are complex and require checking multiple sections, local rules, e-filing rules, and your judge’s personal court rules (if any exist). I found these cheat sheets were the most popular handouts at my legal writing courses and paralegal seminars, and included them in the Appendix of Practical Legal Writing for Legal Assistants.

Regardless of where you are in your paralegal career, I recommend creating a similar cheat sheet for yourself. Updating your cheat sheet when the rules change force you to examine every addition or revision. Keeping your cheat sheet current will reinforce the rules in your mind, and will help you stay on top of your game.

When it came to analyzing rules for the U.S. Supreme Court, I passed. I left it to the professionals who format and print these briefs for a living. Now, at last, the U.S. Supreme Court’s Style Guide is available for all. -CCE

eDiscovery Day Has Arrived.

01 Friday Dec 2017

Posted by in Admissibility, Discovery, Document Coding, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902

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Everlaw Guest Post: When Has a Producing Party Completed Document Review? by Josh Gilliland, Bow Tie Law

http://bit.ly/2i7KNMX

On November 24, 2017, I posted a reminder of this federal evidence rule change that became effective today, December 1st, or as Josh calls it, “eDiscovery Day.”  Josh Gilliland’s post and webpage covers the changes in more depth, and are worth a bookmark for future reference. Don’t overlook the tweets on the right-hand side of the page.  -CCE

The Largest Free Online Law Library On The Internet.

26 Sunday Nov 2017

Posted by in Library of Congress, Research

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Guide to Law Online, Library of Congress

https://www.loc.gov/law/help/guide.php

The title speaks for itself. The Law Library for the Library of Congress is the world’s biggest free law library. It has international law, federal law, and law for every state in the country.

If you are new to legal research and not quite sure how to start, click on Robert Brammer’s An Index to In Custodia Legis Legal Research Guides. (http://blogs.loc.gov/law/category/research-guide-2/) This is a honey pot of beginner guides for locating free case law on the Internet, constitutional law, consumer protection law, contracts, social security disability, employment/labor law, legal ethics, discovery, evidence, patent law, real estate, small claims, legal writing, and much, much more.

Because there is so much information here, I suggest that you go to the main site and just start browsing. Get acquainted with its structure and note what interests you most. This Guide to Law Online worth a bookmark, regardless of your legal research expertise. -CCE

 

December 1, 2017 Amendments to the Federal Rules of Evidence on Hearsay and E-Discovery Authentication.

24 Friday Nov 2017

Posted by in Admissibility, Authentication, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902

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Federal Rules of Evidence Amendments for 2018, Federal Rule of Evidence (2017 Edition)

https://www.rulesofevidence.org/federal-rules-of-evidence-amendments-for-2018/

The links no longer work in my January 22, 2017 post on the amendments to the Federal Rules of Evidence. The amendments are effective December 1, 2017. This link is reliable and worth a bookmark. This website includes the rules, highlights the amendments, and the Committee Notes. -CCE

2016 Federal Sentencing Guidelines

23 Thursday Nov 2017

Posted by in Criminal Law, Federal Law, Federal Sentencing, Research

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2016 Sentencing Guidelines, United States Sentencing Commission

https://www.ussc.gov/guidelines

This Sentencing Guideline became effective November 1, 2016. Because there have been no new amendments to the Guidelines, these guidelines are still effective as of November 1, 2017.

This website provides more than just the federal sentencing guidelines. There are also sections on Research, Policymaking, Education, and “By Topic.” If you wish, you can subscribe to receive updates from the website by email. -CCE

What To Do When You Know the Jury Will Play With the Evidence.

21 Tuesday Nov 2017

Posted by in Evidence, Exhibits, Jury Persuasion, Trial Tips and Techniques

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Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2zXlFCX

Jurors, for the most part, take their job seriously. They want to do the right thing and do a good job. Regardless of whether you parade a cadre of expert witnesses in front of them, if your case hinges on how something works, the jury will want to try it out for themselves.

When you display a key piece of evidence in the courtroom throughout the trial, anticipate that the jurors will want to experiment with it when they adjourn to jury room. Dr. Broda-Bahm explains how to use the jurors’ natural curiosity to your advantage. -CCE

“Google It!” Cut Your Research Time and Improve Your Results With These Google Search Secrets.

29 Sunday Oct 2017

Posted by in Google, References, Research

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How to Master Google Search Secrets, by FreewareFiles.com©2017

http://bit.ly/2iK8RJ2

Google and its brand are synonymous with a search for information using the Internet. But are we using it to its full potential? Probably not.

There is much more you can do with Google rather than simply typing general or specific terms and clicking “search.” This post provides tools, hacks, search secrets, and advanced search secrets too easy to ignore. Use them to speed up your search results, and make yourself a Google master. -CCE

Why Automatic Deletion of Spam Email Causing Failure to File a Timely Appeal Is Not Excusable Neglect.

30 Saturday Sep 2017

Posted by in Calendar/Docketing, Emails, Law Office Management, Legal Ethics, Legal Technology, Office Procedures, Technology

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(With hat tip to William P. Statsky)

My home email software has a spam folder where unwanted emails go to die – eventually. I must deliberately choose to send an email to the spam folder. Then, I must decide whether let it remain in perpetual limbo as spam, block it, or delete it.

Imagine the number of emails routinely sent and received by most law firms.  My computer’s email setup would not be practical.  But, when it comes to email configuration, there are good choices and bad ones. A Florida law firm rejected recommended safeguards to snag spam and allow someone, other than the computer, to decide whether to delete the email. That decision, along with others, turned out to be a bad call.

Here are the facts. The trial court’s court clerk served an order by email on the parties. The order awarded a significant amount of attorney fees to the appellee. The appellant claimed it did not receive the emailed order, which is why it failed timely to file an appeal. What happened? The firm’s email system automatically deleted the court clerk’s email and attached order as spam.

The appellant appealed and asked the court to vacate the original order and reenter the order to allow the appellant to appeal. Its email deletion error was “excusable neglect.” Not so said that trial court, and the Florida’s First District Court of Appeal affirmed.

The appellate court gave several specific reasons for rejecting the appellant’s argument.  First, the review of the court clerk’s email logs confirmed that the email with the court’s order was served and received by the law firm’s server. Second, the law firm’s email configuration made it impossible to determine whether the firm’s server received the email. Third, the law firm’s former IT specialist’s advice against this configuration flaw was deliberately rejected by the law firm because its alternative cost more money.

The trial court concluded the law firm made a conscious decision to use a defective email configuration merely to save money, which was not “excusable neglect.”

Another nail in the coffin was testimony by the appellee’s attorney. His firm assigned a paralegal to check the court’s website every three weeks to safeguard that his firm would not miss any orders or deadlines.  The court held that the appellant had a duty to check the court’s electronic docket.

What’s the moral here? Lawyers must configure their computer systems to prevent this costly error. And they must employ a “meaningful procedure” to prevent the series of events that caused this fatal error.

I rather liked the idea of the paralegal assigned to check the court’s online file. In this instance, the paralegal checked it every three weeks. I would modify this depending on the notice time required by your court’s rules.

I recommend reading the entire opinion for its analysis on “excusable neglect.” You can find the opinion here: http://bit.ly/2xI3gGB. -CCE

Identity Theft is Real and Scary. So What Are You Going To Do About It?

21 Thursday Sep 2017

Posted by in Consumer Financial Protection Bureau, Consumer Law, Consumer Privacy, Identity Theft

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Security Tip (ST05-019) – Preventing and Responding to Identity Theft, United States Computer-Readiness Team (with hat tip to Sabrina I. Pacifici, BeSpacific Blog) t.(Original release date: September 17, 2008 | Last revised: January 31, 2017)

https://www.us-cert.gov/ncas/tips/ST05-019

I would love to stick my head in the sand, and pretend that identity theft does not exist. It is a foolish reaction to a real threat, especially after the recent Equifax hack.

Some people think that, if they do not use the Internet to pay their bills or make purchases, they are safe. I wish that were true; it isn’t. Hackers are more sophisticated, which means we should take additional precautions.

This security tip will help, and there is another link to an earlier tip that is likewise helpful. I encourage you to research further and take whatever precautions you deem necessary. -CCE

What Judges Want.

16 Saturday Sep 2017

Posted by in Bad Legal Writing, Legal Argument, Legal Writing, Persuasive Writing, Readability

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Judges Speak Out Behind Closed Doors: How Your Briefs Might Bug Them, and How You Can Make Them Smile Instead, by Ross Guberman, Legal Writing Pro (with hat tip to William P. Statsky)

https://www.legalwritingpro.com/blog/judges-speak-out/

Ross Guberman is one of my favorite legal writing experts. Mr. Guberman conducted an anonymous and broad survey of judges’ likes and dislikes on legal writing. If you are serious about winning, then you care whether your judge not only reads and understands what you write, but also likes it. -CCE

The New Standard for Password Protection.

08 Friday Sep 2017

Posted by in Cybersecurity, Legal Technology, Passwords

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Best Practices for Passwords Updated After Original Author Regrets His Advice, by Nick Statt, The Verge

http://bit.ly/2ujlSyz

Did you ever use the word “password” as your password or work for someone who did? Maybe you added “1” at the end to make it more difficult to crack? Before we knew about the dangers of Internet hacking, we often used the same password for everything.

Now most of us use intricate passwords with upper and lowercase letters, numbers, and symbols, and never use the same password twice. Why? Because people like Bill Burr told us that was the best way to stay secure on the Internet.

Unfortunately, using irregular capitalization, numbers, and special characters, made our passwords easier to predict. We made it worse. We got lazy.  When we changed our passwords, often we would replace only a character or two at the most. This made our passwords easier to crack, and did little or nothing to make them more secure.

Now Mr. Burr encourages us to ignore his earlier advice, even though some of these complex passwords have stood the test of time. Unless you use a password generator, the advice now is to use random phrases that have no apparent connection. Happily, they are easier to remember and harder to crack at the same time. -CCE

Managing Distractions.

06 Wednesday Sep 2017

Posted by in Law Office Management, Office Procedures, Time Management

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How to Manage Interruptions and Distractions at Work, by Nicola Leach, Alliance Work Partners

https://www.awpnow.com/main/2016/07/07/manage-distractions-at-work

I admit that one of the things I like about working as a paralegal is that I never know exactly what will happen every day. I may have a mental list of target goals I want to accomplish that day. I may even get to start on at least one. But, emails, telephone calls, co-workers, demands of your clients, and unexpected and last-minute assignments often interrupt my work day. It’s what I call a normal day at the office.

I rely on checklists and our office software to keep me apprised of upcoming deadlines and when an average project has turned into a critical one. Prioritizing what comes first can be a challenge. But the biggest challenge I face is interruptions and distractions that eat away at my productivity.

If you have your own office, you can shut your door. If office drama occurs, heading back to your assigned work area and focusing on anything but the uproar is always the best policy.

But, remember that this door swings both ways. If you have no door to shut or share space with someone else, you must remember that you are not alone. Whenever you talk on the phone, mumble to yourself (I often talk to my computer as if it will pay attention to my demands), or make unnecessary noise, YOU have become the distraction.

Checklists work best for me to be prioritize my work load and make sure that nothing falls through the cracks. Your case management software might have built-in checklists you can use. If not, write your own. What works for me may not work for you. Regardless of your method, be faithful and turn it into a habit rather than a chore. -CCE

An Analysis of the Unauthorized Practice of Law.

04 Monday Sep 2017

Posted by in Legal Analysis, Legal Writing, Litigation, Unauthorized Practice of Law, Wrongful Death

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Wrongful Death Case Filed for Late Spouse Not Null and Void as Unauthorized Practice, by Mike Frisch, Legal Profession Prof (with hat tip to William P. Statsky)

http://bit.ly/2xK44uo

A man’s wife dies in a hospital due to complications after surgery. He sues the hospital and other defendant in a wrongful death lawsuit. You can represent yourself in court without a lawyer, but can you represent someone else without a lawyer? No, you can’t. It’s called the unauthorized practice of law. So, how did he do it? -CCE

Using Intensifiers Is A Very Bad Horrible Writing Habit.

19 Saturday Aug 2017

Posted by in Grammar, Legal Writing

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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.

08 Tuesday Aug 2017

Posted by in Bad Legal Writing, Benchslap, Brief Writing, Editing, Footnotes, Judges, Legal Writing, Motions, Plain Language, Proofreading, Readability

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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.

31 Monday Jul 2017

Posted by in Law Reviews, Legal Writing, Research

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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.

29 Saturday Jul 2017

Posted by in Jury Persuasion, Trial Tips and Techniques

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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!

03 Monday Jul 2017

Posted by in Humor

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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.

29 Thursday Jun 2017

Posted by in Authentication, Daubert Motion, Evidence, Litigation, Product Liability

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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.

Continue reading →

Updated Research Guide from Sabrina Pacifici.

18 Sunday Jun 2017

Posted by in Research

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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.

13 Tuesday Jun 2017

Posted by in Editing, Legal Writing, Persuasive Writing, Plain Language, Readability

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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!

05 Monday Jun 2017

Posted by in Bad Legal Writing, Benchslap, Judges, Legal Writing

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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