Category Archives: Brief Writing

Abandon Weak Points To Bolster Your Stronger Legal Arguments.

13 Wednesday May 2015

Posted by in Brief Writing, Editing, Legal Argument, Legal Writing

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First Impressions Endure, Even In Brief Writing, by Bryan A. Garner, ABA Journal

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

We have a long history of judges saying that (1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader. Even so, briefs in most courts are astonishingly ill-proofread, they are rarely tight, and lawyers seldom confine themselves to two or three points. There’s a disconnect between what judges say they want and what lawyers give them. Curious.

There’s also a tendency to disbelieve things that can’t be scientifically proved. Hence I’ve heard lawyers say they don’t care so much about what judges say they find persuasive in written arguments. Those judges might not actually know what motivates them, the skeptical lawyers say. They want proof.

So let’s take the three points mentioned at the outset and see whether, when it comes to judging, there’s any scientific evidence to back up the anecdotal evidence that good writing enhances persuasion. We’ll use the findings of Nobel laureate Daniel Kahneman, the Princeton psychologist and economist who wrote a superb book: Thinking, Fast and Slow. What he says is most illuminating. . . .

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A Novel Approach To Circuit Court’s Word Limit Rule. If Only It Had Worked!

22 Wednesday Apr 2015

Posted by in Abbreviations, Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Initialisms, Legal Writing, Readability

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Squished-Together Words Don’t Count As One, Federal Circuit Says; Appeal Is Tossed, by Debra Cassen Weiss, ABA Journal (with hat tip to William P. Statsky!)

http://tinyurl.com/kqmddjt

A litigant that squeezed multiple words together and resorted to abbreviations didn’t satisfy word limits in its briefs and won’t be able to pursue its appeal, according to the U.S. Court of Appeals for the Federal Circuit.

The appeals court tossed the patent appeal by Pi-Net International in an April 20 order (PDF). How Appealing links to the opinion and a story by Law360 (sub. req.), which dubbed the creative wording ‘a trick straight out of high school English class.’ . . .

*           *           *

On appeal, JPMorgan objected to Pi-Net’s first brief, saying it attempted to evade the 14,000 word limit by deleting spaces between various words and squeezing them together, according to the Federal Circuit. The Federal Circuit offered an example: One case citation consists of 14 words, but Pi-Net squeezed them together to make them into one word. . . .

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Too Many Acronyms = Alphabet Soup.

16 Thursday Apr 2015

Posted by in Abbreviations, Acronyms, Bad Legal Writing, Brief Writing, Court Rules, Courts, Initialisms, Legal Writing, Local Rules, Spell Checking

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Check Your Briefs For Acronym Overuse, DC Circuit Clerk Tells Lawyers In Campaign Finance Case, by Debra Cassen Weiss, ABA Journal

http://tinyurl.com/mff4sqx

Acronyms continue to bedevil the U.S. Court of Appeals for the D.C. Circuit.

Parties before the court are advised in circuit rules to avoid little-known acronyms; lawyers who didn’t heed the advice were called out in a 2012 opinion. Now the clerk’s office is doing its part to police the briefs. . . .

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Avoid These Mistakes When Writing Your Brief’s Statement of The Facts.

25 Wednesday Mar 2015

Posted by in Brief Writing, Legal Writing, Statement of Facts

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Your Statement of Facts Matter, by Kirby Griffis, Brief Right!

http://briefright.com/facts-matter/

When lawyers get started writing a brief, they often seem to get themselves warmed up by explaining to the court what the brief is about. Or so they think. These early sections, which might be called ‘Procedural Background,’ ‘Background of the Motion,’ or something related, are a good place to look for this common briefing error.

It starts with a blitz of irrelevant dates, which may be further muddied by a seeming lack of certainty about those same dates. Here’s an example: ‘Plaintiff filed her Complaint on or about June 5, 2011.’ Why would you ever say this to the court? . . . .

Are Shorter Appellate Briefs Better? Appellate Judges Seem To Think So.

15 Sunday Mar 2015

Posted by in Appellate Law, Appellate Writing, Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Plain Language, Proofreading, Readability

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Federal Appellate Judges Want To Shorten The Length of Briefs, Lawyers Object, by Professor James B. Levy, Legal Skills Prof Blog

http://tinyurl.com/m3s85z2

If an appeal is extremely complex, would a reduction in the size of a brief compromise the ability of a party to win an appeal to a federal appellate court? Apparently, appellate judges do not think so.

Before making up your mind, please read Professor Sirico’s posts, also included by Professor Levy in his original post. It may not be a question of length, but experience. What do you think? -CCE

The Wall Street Journal Law Blog has posted this story about the reaction by many appellate attorneys to a proposal that would reduce the word count on federal appellate briefs under the federal rules of appellate practice from 14,000 to 12,500. (Interestingly, my co-blogger Professor Sirico reported last month on a new study (and here) that supports the lawyers’ objections to the proposed rule change insofar as the study found that longer briefs filed by appellants ‘strongly’ correlates with success on appeal. However, the authors of the study cautioned against inferring that it is word count, rather than the complexity of the underlying issues which may require more thorough explanations, that explains the correlation). . . .

10th Circuit Tips and Resources For New Attorneys and Infrequent Attorney Filers.

12 Thursday Mar 2015

Posted by in Appellate Writing, Brief Writing, U.S. Courts of Appeal

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Filing Your Appeal – For New and Infrequent Attorney Filers, The United States Court of Appeals for the Tenth Circuit

https://www.ca10.uscourts.gov/clerk/filing-your-appeal/atty

Introduction

If this is your first time in this court, welcome. If it has been a while since you filed a brief with us, welcome back. Practicing in a federal appeals court is different from practicing in a trial court, state or federal, and there are even notable differences from state appellate work. With this in mind, there are a number of resources available to assist you.

As an initial matter, if you intend to practice in this court, you can count on referring frequently to the Federal Rules of Appellate Procedure, and especially our local Tenth Circuit Rules. Our Practitioner’s Guide is also a good source of information.

If you can’t find the answer to a question in the rules or if you have a special concern about an appeal, do not hesitate to call the clerk’s office at 303-844-3157. We have real people answering the phone and a well-trained staff who can assist you.

The following sections provide general information you may find useful. However, this information is no substitute for a careful review of the federal and our local rules. . . .

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A Valuable Cache of Legal Writing Articles by George Gopen.

08 Sunday Mar 2015

Posted by in Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Readability, Style Manuals

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Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/psygoox

There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE

George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.

I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.

What A Judge Needs To Give You What You Want.

27 Friday Feb 2015

Posted by in Brief Writing, Judges, Legal Analysis, Legal Argument, Legal Writing, Motions, Plain Language, Readability, Statement of Facts, Summary of the Argument

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Effective Legal Writing: One Judge’s Perspective, by Retired Judge Wayne Alley, originally published in the Oklahoma Bar Journal, Feb. 14, 2015– Vol. 86, No. 5.

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Alley.aspx

This is one of the best articles I have read on how to write to win your case. Judge Alley tells you exactly what a judge wants to read in your brief. So put yourself in the judge’s shoes, and imagine that you’re reading yet another brief at the end of a long day at the end of an extremely long week.

Here you will find what a judge needs to give you what you want. -CCE

What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. . . .

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You’ve Written The Brief. Now What About The Conclusion?

07 Saturday Feb 2015

Posted by in Brief Writing, Editing, Legal Argument, Legal Writing, Plain Language

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No more copying and pasting. Draft a strong conclusion. by Rebecca Phalen Blog

http://www.rebeccaphalen.com/draft-strong-conclusion/

You finally finished drafting the argument section of your brief; you are mentally spent. So for the conclusion you copy and paste: ‘For the foregoing reasons, Defendant asks this Court to grant its motion.’ Yes, it feels a little anticlimactic and abrupt, but at least the brief is done. Perhaps you think that judges aren’t paying attention by the end anyway.

But the next time you are tempted to end your brief this way, consider that Bryan Garner, in Legal Writing in Plain English, called this type of conclusion ‘a formulaic cop-out that says nothing.’ Yikes.

Writing a strong conclusion that actually says something can be hard work. But here are some tips to get you started on ending strongly: . . . .

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In Legal Writing, Why Less Really Is More. Really, Really.

13 Saturday Dec 2014

Posted by in Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Jury Instructions, Legal Argument, Legal Writing, Readability, Statement of Facts, Summary of the Argument

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Less is more. Really. by Raymond Ward, the (new) legal writer blog

http://tinyurl.com/l94vnyd

If you really have the goods, modesty is more effective than piling it on. Mark Herrmann explains this principle.

Appellate Legal Writing – This Is How You Do It.

27 Thursday Nov 2014

Posted by in Appellate Law, Appellate Writing, Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Propositions and Headings, Readability, Statement of Facts, Summary of the Argument, Table of Authorities

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Free La. Appellate CLE Materials, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/mg88sy7

Here’s something you don’t see everyday – a top-notch lawyer generously sharing everything juicy in his CLE presentation.  I am a long-time follower of Mr. Ward’s blogs. I strongly recommend this blog, as well as his other blog, the [new] legal writer blog at http://raymondpward.typepad.com/newlegalwriter/. 

Notice how the propositions further the appellate brief’s argument to the court. They are not simply “The Court Should Grant Summary Judgment to Plaintiff” or something equally bland.  Likewise, the propositions are not more than one sentence.

The Statement of the Case is less than one page. The writer doesn’t bog the Court down with unnecessary facts. You can look, but you will not find even a whiff of legalese.

Please pay attention when you read the materials and each sample document (thank you for including them!). Notice that no words are wasted. There is a reason why.

Notice the word choice, the size of the sentences and paragraphs, and the crafting of the propositions and subheadings. The persuasive argument is easy to follow. The writer keeps the reader’s attention – an absolute must for anything you write.

Do you aspire to be a good writer? Write like this. -CCE

This morning [October 28, 2014], I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s ‘Bridging the Gap’ seminar, a program for newly minted lawyers who passed the February 2014 bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:

For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF:

Writing the Opening Of A Brief – The Right Way.

21 Friday Nov 2014

Posted by in Appellate Writing, Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Litigation, Readability

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Open A Brief With Substance, Not Bluster, by Kenneth F. Oettle, Newsroom Publications, Sills Cummis & Gross, P.C.

http://tinyurl.com/l7jk5a8

Ken Oettle is one of my favorite legal writers. In my opinion, his book, Making Your Point!, should be on the reference shelf of every serious legal writer. Yes, it’s that good. There are many excellent legal writers. Ken is one of the best.

To comply with copyright, no excerpts can be published. You will still find the entire article at the link from Sills Cummis & Gross, P.C. -CCE

Improve Your Brief With The Curse of Knowledge Test.

14 Friday Nov 2014

Posted by in Appellate Writing, Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Readability

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The Curse Of Knowledge: The Root Of Incomprehensible Writing, by Raymond P. Ward, the [new] legal writer blog

http://tinyurl.com/kjpzl9a

Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientist Steven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon ‘the curse of knowledge.’

So what is the cure for this affliction? Herrmann recommends empathy for the reader. ‘Put yourself in the reader’s state of ignorance,’ he counsels, “and write for that audience.’ Pinker suggests testing your draft on people who don’t already know what you’re trying to tell them:

A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.

 

 

Amicus Briefs From A Texas Supreme Court Judge’s Perspective.

30 Thursday Oct 2014

Posted by in Amicus Briefs, Appellate Law, Appellate Writing, Brief Writing, Legal Writing

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Texas Supreme Court Justice Don Willett’s Thoughts on Amicus Briefs, by Chad Ruback, Appellate Lawyer Blog

http://tinyurl.com/m2mg7un

This afternoon, Texas Supreme Court Justice Don Willett and Austin lawyer Don Cruse spoke at a continuing legal education seminar.  Among other things, they addressed amicus briefs filed in the Supreme Court.

The court requests a response to the petition for review in about 33% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request a response, Mr. Cruse determined that the court requests a response about 85% of the time.  While only 2% of cases have amicus briefs filed prior to the time that the court decides whether to request a response, it seems that those petitions are disproportionately successful in getting a response requested.

The court requests briefs on the merits (a/k/a full briefing) in about 20% of cases.  However, when an amicus brief has been filed prior to the time that the court decides whether to request briefs on the merits, Mr. Cruse determined that the court requests briefs on the merits about 82% of the time.  While only 7% of cases have amicus briefs filed prior to the time that the court decides whether to request briefs on the merits, it seems that those petitions are disproportionately successful in getting briefs on the merits requested.

Consistent with this data, Justice Willett indicated that he enjoys reading amicus briefs and that it is advisable for a petitioner to have supporting amicus briefs filed early in the proceeding (e.g., before the court has decided to whether to request a response or at least before the court has decided whether to request briefs on the merits).

Appellate Judge Explains How To Lose An Appeal – Works Every Time!

27 Saturday Sep 2014

Posted by in Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Fonts, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Legalese, Proofreading, Psychology, Readability

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The Wrong Stuff: How You Too Can…Lose Your Appeal, by Hon. Alex Kozinski, 1992 BYU L. Rev. 325, The Montana Lawyer, 23 Mont. Law 5 (Oct. 1997)

Webmaster’s note: This was originally presented as a lecture at Brigham Young University, J. Reuben Clark School of Law on January 21, 1992. It was later recycled as The Wrong Stuff, 1992 BYU L. Rev. 325. The lecture was repeated during the 1997 Montana State Bar Annual Meeting, and again recycled in the Montana Lawyer as How You Too… Can Lose Your Appeal (and you thought Judge Kozinski didn’t care about the environment!).

The BYU L. Rev. edition is available as a PDF scan. What follows is the Montana Lawyer edition.

[former link is broken – see new link below]

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1748&context=lawreview

 

When George Bousliman called a few months ago and invited me to come, I said, ‘What could I possibly talk about that would be of interest to members of the State Bar of Montana?’ He said, ‘The truth is, we don’t really care what you say; what we really want is a cover boy for The Montana Lawyer.’

Well, I have my pride. I want to be loved for my intellect, not just my face. So, I decided to talk on a totally irrelevant topic that I know a little something about: How to lose an appeal.

* * *

First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. So if the rules give you 50 *6 pages, ask for 75, 90, 125–the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.

But don’t just rely on the length of your brief to telegraph that you haven’t got much of a case. No. Try to come up with something that will annoy the judges, make it difficult for them to read what you have written and make them mistrust whatever they can read. Here are a few suggestions: Bind your brief so that it falls apart when the judge gets about half way through it. Or you could try a little trick recently used by a major law firm: Assemble your brief so that every other page reads upside down. This is likely to induce motion sickness and it’s always a fine idea to have the judge associate your argument with nausea. Also–this is a biggie–make sure your photocopier is low on toner or take a key and scratch the glass so it will put annoying lines on every page.

Best of all, cheat on the page limit. . . .

Arrogant Legal Writing Gives Texas A Horrible, Terrible Very Bad Day.

26 Saturday Jul 2014

Posted by in Appellate Law, Appellate Writing, Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, U.S. District Court for the District of Columbia, U.S. District Courts, Voting Rights Act

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Bad Attitude Costs Texas in Fee Dispute, by Kevin Underhill, Lowering the Bar Blog

http://www.loweringthebar.net/2014/06/bad-attitude-costs-texas.html

 Hey, I get it—sometimes when you win and you think the other side’s position was bogus, it’s hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

In the U.S., normally each side has to pay its own fees, but some statutes say the ‘prevailing party’ is entitled to recover fees from the loser. But exactly who ‘prevails’ in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas’s plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)

Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal ‘preclearance’ for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court’s order.

One day before the new plans became law, the U.S. Supreme Court held in Shelby County that all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.

Okay, so who ‘prevailed’ in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn’t even bother to file responses. Or, rather, it did file something but it couldn’t bring itself to call the document a ‘response.’ It filed this three-page thing it called an ‘Advisory,’ saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an ‘affront’ and a ‘nullity’), and the case never should have been brought. That’s wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn’t bother to say much of anything else.

As the judge’s decision made clear, this was a Bad Idea. . . .

Senior Judge Shares Tip To Avoid “Lousy Brief Writing.”

22 Tuesday Jul 2014

Posted by in Abbreviations, Acronyms, Appellate Law, Bad Legal Writing, Brief Writing, District of Columbia Circuit Court of Appeals, Initialisms, Legal Writing, Readability, Style Manuals

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Don’t Let Your Brief Be DOA, by Raymond Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/k8urt5j

Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!] . . . .

Some Of The Common Mistakes Made In Appeals.

04 Friday Jul 2014

Posted by in Appellate Law, Appellate Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing

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Appeal in Error: Common Mistakes Made in Appeals, by Scott P. Stolley of Thompson & Knight LLP, Findlaw.com

http://tinyurl.com/knotqwo

Some lawyers prefer trial litigation. Some prefer appellate law. For those who enjoy litigation, need to appeal, but don’t want to do it themselves, hire an appellate lawyer. There are appellate specialists out there who know the in’s and out’s of appellate procedure.

Lawyers who specialize in appellate law often have experience working for the justices or former justices of that court. It gives them an unique insight into the personalities and proclivities of that court. Sometimes that is a useful thing. – CCE

After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal. The following is a discussion of common mistakes that such litigants regularly make. . . .

String Citations – Good or Bad Legal Writing Tool?

29 Sunday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Citations, Legal Analysis, Legal Argument, Legal Writing, String Citations

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String Theory, by Kirby Griffis, BriefRight Blog

http://briefright.com/string-theory

String citations – a good writing tool or a bad idea? Lengthy string citations, like long single-spaced block quotations, are never a good idea. Readers tend to skim or skip a big block of text.

A good rule of thumb is to never cite more than four cases in a string. Start the string with a signal. Use a parenthetical — an abbreviated summary of the case in parentheses at the end of the citation. Keep your parenthetical no longer than two lines. Anything longer defeats the purpose of using string citations. -CCE

Your summary judgment brief contains eleven distinct legal propositions, including the standard to be applied in ruling on summary judgment. You have researched each, and have found multiple cases. You have read them and highlighted them and they are sitting on your desk in eleven stacks. You have even sorted each stack, moving the most persuasive authorities (because they are from your state and circuit, or are more recent, or are from higher courts) to the front.

Now what?

Many lawyers will just list every one of the cases in a string cite. This, they think, shows the judge the weight of the authority behind your legal claims. The judge will see nine cases listed and think ‘Wow, I guess they win that point.’

It is not so. String cites are a bad idea, for multiple reasons. . . .

Checked Your Readability Score Lately?

28 Saturday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Microsoft Office, Plain Language, Proofreading, Word

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Expose Your Weakness — Now! by Mark Herrmann, Above the Law Blog

http://abovethelaw.com/2014/06/expose-your-weakness-now/

Think you can write? Do these four things.

First, pull out the last brief that you wrote.

Not that one — that’s the final version, edited by guys who could write. We’re looking for your work, untouched by others. Find the unedited draft that you first circulated. (If you don’t have a draft brief handy, that’s okay. Find the last long email that you sent to someone who matters — to the partner, the client, the general counsel, or the CEO.)

Second, click through this link, which will tell you how to enable Microsoft Word’s ‘readability’ feature on your computer. Enable that feature.

Third, let the readability feature score your work.

Finally, take a handkerchief and wipe the spit out of your eye. (I bet you didn’t realize that a computer could spit in your eye.)

You didn’t notice the spit? Here it comes: Compare your readability score to the average readability score for the works of bestselling authors.

I didn’t even know about Microsoft’s readability feature until I published a column on legal writing last month. I argued in favor of using short sentences and the active voice. A reader — Steve Dykstra, who’s a legal recruiter and budding novelist in Toronto — promptly sent me an enlightening email. Steve also subjected my work — my column on legal writing — to Microsoft Word’s readability test. Steve then told me how my column compared to the work of bestselling authors. . . .

Brief Writing: The Table of Contents and Table of Authorities.

28 Saturday Jun 2014

Posted by in Brief Writing, Legal Writing, Table of Authorities

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Finishing Your Brief By Crafting The Table Of Contents And Table Of Authorities, by Celia C. Elwell, RP (Originally appeared in print in Legal Assistant Today as “Finishing Your Brief,” November/December 2003), Paralegal Today

http://tinyurl.com/72vcuuq

Sometimes, especially in law, it’s the little things that make all the difference. The cover page, Table of Contents and Table of Authorities are used for major briefs, such as briefs in support of dispositive or trial motions. Sometimes they are mandatory; other times they can be used to enhance a brief and make it easier for the court to read and understand. Regardless, all three of these tools are excellent methods for enhancing any lengthy or complex brief filed with the court, and paralegals should make sure they are familiar with all these tools. . . .

Judge Posner Critique on Structuring Statutory-Interpretation Books.

28 Saturday Jun 2014

Posted by in Brief Writing, Case Briefs, Legal Analysis, Legal Argument, Legal Writing, Legislative History, Statutory Interpretation

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Judge Posner on Statutory Interpretation: This Is How We Do It, by David Lat, Above The Law Blog

http://tinyurl.com/nba842o

[J]udge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put ‘at’ Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled ’How I Interpret Statutes and the Constitution,’ Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

Yes, readers. There will be benchslaps….

If You Want To Lose The Case, Just Write Like This.

15 Sunday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Citations, IRAC, Legal Analysis, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Propositions and Headings, Quotations, Readability

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How To Lose Your Case, by Eric Voight, Lawyerist Blog

http://lawyerist.com/73849/how-to-lose-your-case/

Legal writers do this more than they realize, sometimes out of haste and short deadlines. These are common — and fixable — bad writing mistakes. -CCE

In litigation, you have to persuade judges that your client’s position is correct, but don’t forget about the gatekeepers. Your motions and briefs will probably be reviewed by a law clerk before it reaches the judge’s desk. Clerks for federal judges say they have reviewed many motions and briefs where it appeared that the attorneys didn’t care whether their clients prevailed.

I didn’t realize that attorneys would prefer to lose, not win, their case. But if your goal is losing, this article is for you. Be sure to incorporate these ideas from my law clerk friends into your motions and briefs — if you want to lose your case. . . .

Writing For The Court – It’s Not All About Content.

15 Sunday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Readability

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TrialRight Again, by Kirby Griffis, BriefRight

http://briefright.com/trialright-again/

Picture yourself as the judge or the judge’s law clerk. You read briefs and other documents all day. Most are boilerplate language. When someone does have an original thought, the writer ruins it with redundancies and poor grammar and punctuation. 

Imagine the Court’s relief when someone writes a brief that makes a concise legal point supported by correctly formatted citations. This is a short article, but it makes a strong argument for clear writing. -CCE

Last week, I wrote about how some of the principles of briefwriting apply just as strongly to trial practice. There’s another important principle that applies strongly to each. I learned it years ago from an excellent trial lawyer: everything is evidence.

In court, the jurors start to evaluate who in the courtroom they can trust and believe from the moment they first walk through the door, from before voir dire to after closing argument. Their scrutiny is not limited to the content of your formal speeches and witness examinations: it extends to your demeanor as you sit at counsel table, how much you object and when, whether you fumble with exhibits, whether you arrive to court each day in a limo, and everything else that they can see. You must think about all of these things.
Similarly, in your legal briefs, the judge is not just paying attention to content. She is also influenced by how long the brief is, its formatting, its clarity, and many other factors as well. . . .

Best Brief Writing Checklist.

08 Sunday Jun 2014

Posted by in Bad Legal Writing, Brief Writing, Citations, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Quotations, Readability, Spell Checking, Statement of Facts, Summary of the Argument

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“Briefly Speaking,” Brief Writing – Best Practices, Washington State Court of Appeals, Division I, CLE

 http://tinyurl.com/lsrzxjy

This is the essence of writing a persuasive and winning brief. Each section is important. Ignore the guidance here at your peril.

The icing on the cake is the advice from the Hon. Patricia M. Wald, Judge of the United States Court of Appeals for the D.C. Circuit, taken from her article, “19 Tips from 19 Years on the Appellate Bench,” The Journal of Appellate Practice and Process, Vol. 1, No. 1 (Winter 1999).  She is right – this is your opportunity to tell your client’s story. Short and to the point is always more persuasive than long-winded recitations of fact and case law.

Make this your brief writing checklist. -CCE