Category Archives: Legal Analysis

Garner’s Ten Legal Writing Tips.

05 Sunday Oct 2014

Posted by in Briefing Cases, Citations, Editing, Legal Analysis, Legal Argument, Legal Writing, Proofreading, Public Domain Citations, Readability, Spell Checking, The Bluebook

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Ten Tips for Legal Writing, by Judith D. Fischer, Legal Writing Prof Blog

http://tinyurl.com/pwlxeyt

Bryan Garner’s latest article in in the ABA Journal is titled Ten Tips for Better Legal Writing. Some Garner of his tips are especially appropriate for law students, who could appropriately paste ‘Don’t rely exclusively on computer research’ on the wall by their work space. That would serve as a reminder that unfocused computer searches are like a box of chocolates–you never know what you’re going to get.  Garner also advises legal writers to be neither too tentative nor too cocksure in their conclusions, both of which are hazards for beginning law students. And Garner’s tenth tip would improve the professionalism of many a student paper: ‘Proofread one more time than you think necessary.’

 

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. . . .

2013 Judicial Writing Manual: A Pocket Guide For Judges.

19 Tuesday Aug 2014

Posted by in Appellate Writing, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing

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Judicial Writing Manual: A Pocket Guide for Judges (Second Edition), Federal Judicial Center 2013 (with huge hat tip to William P. Statsky!)

http://www.fjc.gov/public/pdf.nsf/lookup/judicial-writing-manual-2d-fjc-2013.pdf/$file/judicial-writing-manual-2d-fjc-2013.pdf

Yesterday I posted a link to the First Edition of the Judicial Writing Manual. Twenty years after the First Edition, the Federal Judicial Center published this Second Edition. The goal of the Second Edition, like the First, is summed up in its Forward below. -CCE

Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition sought to teach are particularly important for judges’ writing. But the elements of good writing are remarkably constant, and we think that you will find the principles explained so thoughtfully in the first edition no less applicable today.

Jeremy D. Fogel, Director, Federal Judicial Center

 

Federal Judges Writing Manual.

17 Sunday Aug 2014

Posted by in Federal Judges, Judges, Jury Instructions, Legal Analysis, Legal Writing, Statutory Interpretation, Style Manuals, Trial Tips and Techniques

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Judicial Writing Manual, Federal Judicial Center

http://tinyurl.com/k5x898o

This Writing Manual is obviously written specifically for federal judges. Twenty-four experienced jurists were interviewed to write the Manual.  Its board of editors are judges, law professors, and legal writers. Although written for federal judges, it provides insight for any legal writer, especially those who practice in federal court. The Manual is available in print or you can download it as a .pdf document.

This is more. Look at the left-hand side of the page, and click on “Recent Materials“: http://tinyurl.com/odjltbl. From there, it just gets better. At this link you will find papers on specific areas of law. One that caught my eye is Meghan Dunn’s “Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.”  It is available only online.

Even if you do not practice in federal court, this is definitely worth a look. -CCE

Fine Tune Legal Interpretation and Analysis of Precedent and Stare Decisis.

10 Sunday Aug 2014

Posted by in Legal Analysis, Legal Writing

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The Rule of Law and the Perils of Precedent, by Randy J. Kozel, Michigan Law Review

http://tinyurl.com/jvqd3y3

Introduction

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over time.[1]

Notwithstanding pervasive disagreement over the application of stare decisis to particular disputes, the doctrine is well established in American jurisprudence.[2] Indeed, the Supreme Court has gone so far as to describe stare decisis as indispensable to the rule of law.[3] But as Jeremy Waldron skillfully reminds us, justifying the doctrine requires more than platitudes.[4] Even a proposition as fundamental and seemingly intuitive as the ability of stare decisis to promote the rule of law conceals a considerable amount of analytical nuance. Professor Waldron concentrates on developing what we might think of as the rule-of-law case for precedent. Central to his project is the recognition that rule-of-law benefits arise at several distinct points along the path from initial ruling to subsequent application. The touchstone is the principle of ‘generality,’ pursuant to which individual jurists subjugate their personal beliefs to the vision of a unified court working across space and time to fashion generally applicable norms.[5]

In this Essay, I wish to build on Professor Waldron’s thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive fidelity to flawed precedents would be cause for concern.[6] That rule-of-law ambivalence, I will suggest, should be brought to bear in calibrating the strength of deference that judicial precedents receive. . . .

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. . . .

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. . . .

How To Brief A Case.

28 Saturday Jun 2014

Posted by in Briefing Cases, Legal Analysis, Legal Writing

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How To Brief A Case, created by Christopher Pyle, 1982 and revised by Prof. Katherine Killoran, Feb. 1999, Lloyd Sealy Library, John Jay College of Criminal Justice

http://www.lib.jjay.cuny.edu/research/brief.html

A nice breakdown on how to brief a case (not to be confused with writing a legal brief for the court) for paralegal and law students. I would add “judgment” at the end of the steps – the decision made by the court (e.g., affirmed, reversed and remanded, etc.).  If you are interested in legal writing and have never learned how to brief a case, I recommend it. It will help you learn how to identify the key facts of the case and how the court applied those facts to the law to reach its ruling. -CCE

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. . . .

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

8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by in Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

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Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pk2vzlt

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .

Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

26 Monday May 2014

Posted by in Appellate Judges, Appellate Law, Judges, Legal Analysis, Legal Dictionaries, Legal Writing, Legislative History, References, United States Supreme Court

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Look It Up! Or Not…, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/04/14/look-it-up-or-not/

I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like ‘prevent,’ ‘delay’ and ‘report.’ Over the years, justices have looked up both perfectly ordinary words (‘now,’ ‘also,’ ‘any,’ ‘if’) and ones you might think they would know better than the next guy (‘attorney,’ ‘common law’).

All of this is, lexicographers say, sort of strange. . . .

How To Remove “The Fluff” In Legal Writing.

25 Sunday May 2014

Posted by in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Motions

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A Standard Motion Revised, by Judge Lynn N. Hughes, Plain Language, Michigan Bar Journal (May 2014)

http://www.michbar.org/journal/pdf/pdf4article2367.pdf

Judge Hughes eliminates unnecessary words, what he calls “the fluff.” In a simple, direct example, Judge Hughes clearly marks which words are meaningless, useless fillers.

You see this language used every day by lawyers and legal professionals. It is common as dirt. Some writers insist that archaic legalese is “required,” although there is no court rule, case law, or statute to support that opinion. It is not a “legal term of art.”

The point of legal writing is to persuade the reader – the court. Why do we add “the fluff”? Beats me. -CCE

Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

20 Tuesday May 2014

Posted by in Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Court Rules, Courts, Federal District Court Rules, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, Statement of Facts, Trial Tips and Techniques

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Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/najqatd

In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:

Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’

Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’  Then he can read the facts in context.

Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’

Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .

Legal Analysis & Writing Links.

05 Monday May 2014

Posted by in Acronyms, ALWD, Bad Legal Writing, Citations, Internet, Legal Analysis, Legal Directory, Legal Writing, Legalese, Quotations, References, Research, The Bluebook

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Legal Analysis and Writing, Grammar & Writing Resources, Lewis & Clark Law School

http://bit.ly/1kFtlHk

A nice assortment of writing resources.  -CCE

Why Isn’t The Judge Listening?

16 Wednesday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques

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Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/n3hovpy

The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him.  And if there were a jury in the room, the problem would be even worse.

What went wrong?  . . . .

Appellate Judges Give Advice On Winning An Appeal.

06 Sunday Apr 2014

Posted by in 5th Circuit Court of Appeals, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Citations, Judges, Legal Analysis, Legal Argument, Legal Writing, Proofreading, Texas Supreme Court

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Appellate Judges Tell Dallas Lawyers How to Handle an Appeal, By Chad M. Ruback, Appellate Lawyer

http://tinyurl.com/ousooh9

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges.  Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area.  After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals.  Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth.  Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas.  After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. . . .

Judges Prefer “Plain Language.” If This Is True, Then Why Don’t We Use It?

01 Tuesday Apr 2014

Posted by in Appellate Judges, Citations, Federal Judges, Footnotes, Judges, Legal Analysis, Legal Argument, Legal Writing, Legalese, Texas Supreme Court

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 Judges on Effective Writing: The Importance of Plain Language, by Bryan Garner, Michigan Bar Journal Plain Language Committee

http://tinyurl.com/qf8fhsf

 (‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. We seek to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain-English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all. . . .

A Recommendation for Legal Writing Experts.

01 Tuesday Apr 2014

Posted by in ALWD, Brief Writing, Citations, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Parentheses, Spell Checking, The Bluebook

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The Redbook (3d ed.), by Raymond Ward, the (new) legal writer blog

http://tinyurl.com/nlqx3zy

If Raymond Ward says it, you can take it to the bank. I have followed his legal writing blog for years. Look for sound advice on superb legal writing. -CCE

Today I attended a triple-feature CLE by Bryan Garner: Advanced Legal Writing & Editing, The Redbook, and Making Your Case. To see whether Bryan’s spring tour will visit your city, click here to see the schedule. What I want to talk about this evening is what I learned in the Redbook portion of the seminar.

For years, I have had the first edition of the Redbook on my office bookshelf. For those unfamiliar with this book, it’s a style manual for legal writers. If you have a question about the right word, right punctuation, or right way to do something in legal writing, this book endeavors to answer your question. I’ve found it a useful reference for answering questions that arisen when writing a brief or editing another’s brief.

First, this preface: I am not one who immediately buys the next edition of whatever if the current edition remains serviceable. I use so-called outdated versions of the Bluebook and ALWD Citation Manual, because they still answer any question I have ever had about how to cite something. So since the first edition of the Redbook has served me well, I did not rush out to buy the second or third editions.

Having said that, here is my point: if you don’t have the third edition, get it. . . .

Key Elements of Great Legal Writing.

21 Friday Mar 2014

Posted by in Appellate Judges, Brief Writing, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing

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The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman Blog (with hat tip to Raymond Ward, the (new) legal writer blog!)

http://tinyurl.com/ov446wn

This post hits on all of the key elements of great, not just good, legal writing. It is rarely explained better than this. Pay attention . . . . -CCE

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a “great” opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a “great” opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say “yes” on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be “great” for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . . 

Law Student Invents App To Write Case Briefs.

16 Sunday Mar 2014

Posted by in Apps, Case Briefs, Headnotes, iPad, IRAC, Legal Analysis, Legal Technology, Legal Writing

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‘BriefCase’ App Automates Creation of Case Briefs, by Robert Ambrogi, Robert Ambrogi’s LawSites Blog

http://perma.cc/YXN4-HN3W

 

It will be interesting to see legal writing professors’ take on this. Please note that this App only works on iPads. -CCE

A third-year student at The University of Michigan Law School has created an iPad app, BriefCase, that automates the creation of case briefs.

The student, David Lutz, found it cumbersome to have to print out PDFs of cases, annotate them, and then type all the annotated information into a brief. The app lets you do all that on an iPad. (There are no iPhone or Android versions.) . . . .

Using Logical Groupings In Legal Writing.

16 Sunday Mar 2014

Posted by in Legal Analysis, Legal Writing

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In Legal Writing, Dross Disappears and Points Emerge as Groupings Improve, by Kenneth F. Oettle, New Jersey Law Journal

http://perma.cc/PRC7-2629

Kenneth Oettle is on my list of top legal writers. His legal writing book, “Making Your Point: A Practical Guide to Persuasive Legal Writing” is well worth the price. -CCE

Legal writing is all about groupings — sets and subsets, and categories. These are the building blocks of logic. Accurate sets and subsets (accurate categories) increase the efficiency with which information is delivered, and the process of shaping sets and subsets forces a writer to confirm that the message is on point. Regrettably, the kind of precise grouping that typically takes place late in the editing process (e.g., rearranging items in sentences and short paragraphs) is sometimes skipped in the rush to get product out the door. . . .

Former Appellate Law Clerk Emphasizes Brief Writing Skills.

19 Wednesday Feb 2014

Posted by in Alabama Supreme Court, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Judges, Legal Analysis, Legal Writing, Statement of Facts

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The Most Important Thing I Learned on the Inside of the Alabama Supreme Court, by Mike Skotnicki, Briefly Writing Blog

http://tinyurl.com/mhq8a3m

An excellent post well worth reading. This short excerpt reminds us why quality legal writing is so critical in appellate advocacy. -CCE

[T]o win an appellate matter you must make your brief come alive, hold the reader’s attention, influence the reader to view your client favorably, and help guide the court to the result you want. With the paucity of oral argument, the appellate brief is very likely your only opportunity to present to the court the passion you hold for your client’s cause and that passion, though controlled, should be palpable. Your brief must be more like a compelling novel, telling a story of conflict, than the dry and lifeless tome that is most often submitted on appeal. If your brief is the one that the appellate judge or staff member goes back to again and again in preference to that of the opposing party as the matter is being considered, the chances of your client winning will climb immeasurably.  Sometimes having the “best” case or fact in your favor is enough for your client to win, but most appeals simply aren’t that easy. . . .