18 Wednesday Jan 2017
Posted in Abbreviations, Editing, Grammar, Initialisms, Legal Writing, Numbers, Punctuation, Style Manuals
≈ Comments Off on New and Updated GPO Style Manual.
GPO Style Manual: new edition, Barco 3.0: Law Library Reference
The Government Publishing Office has published a thorough and updated Style Manual, which includes rules for punctuation, grammar, abbreviations, and computer terms, among other things. You will find “New Features and Enhancements” at https://www.govinfo.gov/features/release-notes/govinfo-beta-launch.
14 Saturday Jan 2017
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production
≈ Comments Off on E-Discovery and the Law of Diminishing Returns.
Citing “Diminishing Returns,” Court Declines To Compel Additional Discovery, Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016), Electric Discovery Law, K&L Gates
When it comes to e-discovery, how much is too much? When do you or opposing counsel reach the point where the costs outweigh the value? The 2015 amendment to the Federal Rules of Civil Procedure did much to provide more guidance on e-discovery. Rule 26 is the focus of this post.
E-discovery normally means that you and your client have spent hours and lots of money on the case. If you cannot decide when enough is enough and neither the client nor the attorney are willing to stop the bleeding, the court may do it for you. Actually, the court has a duty to stop e-discovery when it becomes redundant and the cost outweighs the value of the return. -CCE
10 Tuesday Jan 2017
Posted in Appellate Law, Appellate Writing, Bad Legal Writing, Brief Writing, Legal Writing
≈ Comments Off on How Long Is Too Long For An Appellate Brief?
Posner criticizes ‘verbosity’ in appeals briefs in decision upholding closed voir dire, by Debra Cassens Weiss, Appellate Practice, ABA Journal.com (with hat tip to William P. Statsky)
Judge Richard Posner is a well-known 7th Circuit jurist, legal writing scholar, and prolific author. Knowing this, it is puzzling why the appellate briefs for both sides were over 200 pages each. Yes, Judge Posner had something to say about it. -CCE
07 Saturday Jan 2017
Posted in Juror Questionnaires, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Voir Dire and The Internet – The Litigator’s Way of Getting To Know You.
Tags
Dennis Elias, Dr. Ken Broda-Brahm, Internet, Jury Selection, Litigation Strategies Inc., Social media, Voir Dire
Getting Up Close and Personal: Using Social Media in Jury Selection, by Dennis Elias, Litigation Strategy, Inc.
Are you more candid online than in person? Apparently, it’s true, which makes the Internet and social media a boon to litigators. Here’s why, how, and where to draw the ethical line before you go too far. -CCE
03 Tuesday Jan 2017
Posted in Editing, Grammar, Legal Writing, Persuasive Writing, Readability
≈ Comments Off on Make Legal Writing Resolutions for 2017.
3 Easy-to-Keep Legal-Writing Resolutions for 2017, by Lisa Solomon, Now Counsel Network Blog©
Made your New Year’s resolution yet? Going for the usual? This year I will lose weight, go to the gym, and swear off fried food and chocolate? No way. Giving up chocolate would take a serious toll on my mental health.
So may I recommend honing your legal writing skills as alternative? I promise there’s no gym fees, and you can eat all the chocolate you want. -CCE
28 Wednesday Dec 2016
Posted in Humor
≈ Comments Off on It’s New Years’ Eve. Time Again for The Capitol Steps!
Tags
It is that time again. The Capitol Steps New Year’s Eve broadcast is coming to a radio station near you. Find the time and radio station at their website: http://www.capsteps.com/radio/.
The Capitol Steps do two free broadcasts each year: New Year’s Eve and the Fourth of July. If you are not familiar with this group, check it out: http://www.capsteps.com/about/. Enjoy! -CCE
25 Sunday Dec 2016
Posted in Contract Law, Dispute Resolution, Legal Writing, Settlement
≈ Comments Off on “How To” On Drafting Dispute Resolution Agreements.
Tags
Dispute Resolution, John M. Newman, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., Settlement Agreements, SSRN
Drafting for Dispute Resolution, by John M. Newman, SSRN (with hat tip to Louis J. Sirico, Jr., Director of Legal Writing, Villanova Univ. School of Law, Legal Skills Prof Blog)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867692
Not all cases end in litigation and go to trial. At times, the best service counsel can give to clients is an out-of-court resolution. Careful drafting of an agreement between the parties includes numerous considerations to protect your client and to assure acceptance by everyone involved. Definitely worth a bookmark. -CCE
This is a brief guide to drafting for dispute resolution. Topics covered include mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more. . . .
This guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools. It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. . . .
21 Wednesday Dec 2016
Posted in FastCase, LexisNexis, Westlaw
≈ Comments Off on LexisNexis’ Next-Generation Solution Means End of Lexis.com.
Tags
It’s Last Rites for Lexis.com, As LexisNexis Sets Date for Shutdown, by Robert Ambrogi, LawSites Blog
http://www.lawsitesblog.com/2016/12/last-rites-lexis-com-lexisnexis-sets-date-shutdown.html
“Prepare last rites for Lexis.com. The legacy legal research service will be leaving this world at the end of 2017.
This week, LexisNexis began notifying Lexis.com customers that it will be shutting down the service over the next 12 months and moving them to the newer Lexis Advance research platform.”
12 Monday Dec 2016
Posted in Bad Legal Writing, Editing, Judges, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language, Readability
≈ Comments Off on Plain English Legal Writing – Proof Positive That It Works.
The Proof is in the Reading, Plain Language Works Best, by Joseph Kimble, 52 Mich. B J. (Oct. 2016)
http://www.michbar.org/file/barjournal/article/documents/pdf4article2972.pdf
Joseph Kimble has long been recognized as one of the top legal writing scholars. In this Plain English column of the Michigan Bar Journal (every Bar Journal should have one!), Professor Kimble offers evidence once again that readers, including judges, prefer plain language and why. -CCE
To help round out this plain-English theme issue of the Bar Journal, I offer the evidence of four studies. These four are among 50 that I collect and summarize in my book Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. Of the 50 studies, 18 involved different kinds of legal documents—lawsuit papers, judicial opinions, statutes, regulations, jury instructions, court forms and notices, and contracts. And they included readers of all sorts—judges, lawyers, administrators, and the general public. The evidence is overwhelming: readers strongly prefer plain language to legalese, understand it better and faster, are more likely to comply with it, and are more likely to read it to begin with. —JK
08 Thursday Dec 2016
Posted in Editing, Legal Writing, Legalese, Readability
≈ Comments Off on Legal Writing – Why Shorter is Better.
Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog
https://goodlegalwriting.com/2011/02/11/make-it-shorter-and-shorter/
Regardless of whether, in your own opinion, you are a good writer, we can always improve. Here is an opportunity to polish your skills, take note of some bad habits, and hone your editing technique. -CCE
Here’s a good exercise to promote plain writing and dense writing. The object is to force you to purge your writing of any words that don’t work their butts off on your behalf. Take the following sentence and reduce it to as few words as humanly possible, without changing the meaning of the sentence. Shortest re-write wins a prize (respect)!
04 Sunday Dec 2016
Posted in Appellate Writing, Contract Law, Legal Writing
≈ Comments Off on Contract Interpretation and Ambiguity.
Judicial Disagreement Over Contract Ambiguity: When Are Things OBVIOUS? By Stacey Lantagne, ContractsProf Blog
We’ve been talking about contract interpretation in my Contracts class lately and I’m always struck by how many cases involve a lower court ruling of ambiguity and then an appellate court reversal of that ruling, because it always strikes me as such a funny thing. The very definition of ambiguity would seem to be ‘multiple people disagreeing on the meaning of the word,’ but the appellate court decisions in those cases necessarily have to dismiss the reasonableness of the lower court’s understanding of the meaning in order to assert that the meaning is SO OBVIOUS.
29 Tuesday Nov 2016
Posted in Juror Questionnaires, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Picking A Jury? Read This First.
Tags
Dr. Ken Broda-Brahm, Juror Bias, Juror Questionnaires, Jury Selection, Persuasive Litigator, Voir Dire
Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires, by Dr. Ken Broda-Brahm, Persuasive Litigator
Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.
You have little time to sort this out. It is time to become an expert in human psychology. –CCE
If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.
25 Friday Nov 2016
Posted in Appellate Judges, Benchslap, Judges
≈ Comments Off on Appellate Court Benchslaps Trial Judge – Ouch.
Appeals Panel Rips Judge Over One-Minute Decision, by Joe Patrice, Above The Law Blog
http://abovethelaw.com/2016/10/appeals-panel-rips-judge-over-one-minute-decision/
The only thing more stinging than a satisfying benchslap is the cool, crisp bite of a sly insult. The understated quip can often accomplish so much more than the breathless broadside. For example, an opinion reversing the court below that signs off with, ‘next time, we assume you’ll do your job,’ boasts more devastating heft than anything Justice Scalia served up. It’s just so cold.
25 Friday Nov 2016
Posted in Emails, Law Office Management, Legal Technology, Technology
≈ Comments Off on Email Spam or Have I Got A Deal For You!
The Holidays Bring More Email Threats, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog
http://www.lawpracticetipsblog.com/2016/11/holidays-bring-email-threats.html
I may be the luckiest person in the world. I receive emails almost daily from people I do not know who want to give me money. I’ve won the lottery or I’m offered a fantastic job as a “mystery shopper.” And, boy, do I win a lot of stuff! Of course, none of this is true.
On the flip side, the tone may be more menacing. Emails from banks and credit cards saying they need me to respond to address a delinquent account or that someone has used my account. I do not have accounts with these folks.
Even with my firewall and my attempts to avoid viruses, Trojan horses, and other attacks on my computer, bogus emails and spam walk right in. I block these emails, mark them as “junk,” and they still come. I suspect many of you get the same things.
Make no mistake. You and I are targets. -CCE
19 Saturday Nov 2016
Posted in Appellate Writing, Legal Analysis, Legal Argument, Legal Writing, Readability
≈ Comments Off on Honey Pot on Appellate Brief Writing.
The Ten Commandments of Brief Writing, by Keith Lee, Associate’s Mind Blog
http://associatesmind.com/2016/11/17/ten-commandments-brief-writing/
Do not miss this one! Keith Lee gives some excellent advice, and provides a honey pot link to Justice Maria Rivera’s “The Ten Commandments of Brief Writing.” Appellate judges pull no punches when it comes to what works and what doesn’t in appellate briefs. -CCE
13 Sunday Nov 2016
Posted in Mediation, Negotiation Skills, Settlement
≈ Comments Off on What To Say and How to Say It When We All Can’t Get Along.
The Delicate Art of Confronting Offensive Speech, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Whether you are negotiating a settlement, trying to calm a stressed-out client, or talking about the recent election season, this is good advice. -CCE
09 Wednesday Nov 2016
Posted in Consumer Contracts, Consumer Law, Contract Defenses, Contract Law
≈ Comments Off on What Defenses Are Possible If Someone Wants Out of An Auto Lease Contract?
Auto Leases and Contract Defenses, by Nancy Kim, ContractsProf Blog
The New York Times ran this article today about car leases and how difficult it is to get out of them. The article discusses one auto lessee who found that she had a medical condition that prevented her from driving. When she tried to get out of her lease with Ford, she was told that there was no way that she could escape her obligations unless she joined the military or died.
Which brings me to contract defenses . . . .
07 Monday Nov 2016
Posted in Law Libraries, Research
≈ Comments Off on Law Library Analytics and the 2016 Election.
LII and the Election, Legal Information Institute, Cornell University Law School
LLI has shared a sense of what has interested us during this election cycle through its analytics at its legal research website. -CCE
Given all this, you might predict that statutes related to immigration, Social Security, and other issues that generate heated discussion during election season might also appear in the list, but they don’t. Perhaps that’s because they generate heated discussion all the time. But it may be that, during the most bitter election campaign in decades, substance matters less than criminalizing the behavior of your opponent.
06 Sunday Nov 2016
Posted in Cybersecurity, Legal Technology
≈ Comments Off on Hacks and Cyberware Are Becoming More Commonplace Than Ever. Do You Know How to Safeguard Your Firm And Home Computer?
Seven Rules to Stay Safe Online in a Scary Digital Age, by Larry Port, Legal Productivity
If your nerves haven’t been rattled by the October 21st DNS attacks, they should have been. The hysterical tenor of the US election drowns everything out, but this news was a real doozy. Many sites, including Twitter, Spotify, and AirBnB were inaccessible due to one of the largest denial of service attack ever.
* * *
So given the state of a possible escalating cyberwar, how is an attorney to stay safe? Start by making sure you understand and live by these basic security rules . . . .
30 Sunday Oct 2016
Posted in Bad Legal Writing, Legal Writing, Legalese, Plain Language, Terms of art
≈ Comments Off on The Plain Language Argument Against Using Latin Legal Terms of Art.
Tags
Chadwick C. Busk, Latin, Legal Terms of Art, Legal Writing, Michael Braem, Michigan Bar Journal, Plain Language
Curiouser and Curiouser Excuses for Legal Jargon, by Chadwick C. Busk & Michael Braem, 95 Plain Language, Mich. B.J. 30 (2016)
Click to access 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?
30 Sunday Oct 2016
Posted in Legal Dictionaries, Terms of art
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
24 Monday Oct 2016
Posted in Bad Legal Writing, Brief Writing, Legal Writing, Legalese, Plain Language
≈ Comments Off on Another “How To” Really, Really Write Bad Briefs.
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.
20 Thursday Oct 2016
Posted in Brief Writing, Judges, Legal Writing
Judges Want Briefs to Be Shorter but Lawyers Push Back, by James B. Levy, Legal Skills Prof Blog
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
16 Sunday Oct 2016
Posted in Discovery, E-Discovery, Preservation
≈ Comments Off on The Difference Between a Preservation Letter and Presentation Notice.
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.
11 Tuesday Oct 2016
Posted in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum
≈ Comments Off on For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.
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
The Researching Paralegal 
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