Category Archives: Legal Argument

What Judges Want.

16 Saturday Sep 2017

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

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

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

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

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The Basics of Legal Writing for Legal Professionals.

04 Sunday Jun 2017

Posted by in Editing, Grammar, Legal Argument, Legal Writing, Plain Language, Readability

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The Writing Process for New Lawyers: Getting it Written and Right, by Gerald Lebovits, The Legal Writer, 89 N.Y. St. B.J. 80 (May 2017) (with hat tip to William P. Statsky)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2967050

Although this article is about the basics of legal writing, even seasoned legal writers will find it useful and instructive. Regardless of how well we think we write, we can always improve.

This article puts an emphasis on focusing on the purpose of your document, organizing your thoughts, considering your reader, researching, and editing. In short, all the basics you need to write well. -CCE

Legal Writing Myths

11 Saturday Feb 2017

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

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Legal-Writing Myths, by the Hon. Gerald Lebovits, Plain English Subcommittee Column, 50 Mich. B.J. (February 2017)©2017

https://researchingparalegal.wordpress.com/?p=4848&preview=true

 

Are longer briefs more persuasive? Is it a legal writing faux pas to start a sentence with “and”? Do judges care if you follow Bluebook citation format? Judge Lebovits has some thoughts on these and other legal writing myths to share, some of which may surprise you. -CCE

Plain English Legal Writing – Proof Positive That It Works.

12 Monday Dec 2016

Posted by in Bad Legal Writing, Editing, Judges, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language, Readability

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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

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Honey Pot on Appellate Brief Writing.

19 Saturday Nov 2016

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

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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

Dump This Common Legal Writing Phrase!

09 Sunday Oct 2016

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

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Avoid Beginning Sentences with “The court held that . . . .” by Louis J. Sirico, Jr., Law Skills Prof Blog (with hat tip to William P. Statsky)

http://bit.ly/2d5b89q

Busted! I use this phrase all the time. Here’s a way to take your legal writing to another level. -CCE

Bad Brief!

28 Thursday Jul 2016

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

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Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, by Sarah E. Ricks, Rutgers School of Law – Camden, and Jane L. Istvan, City of Philadelphia Law Department, 38 U. Tol. L. Rev. 1113, SSRN

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996907

Excellent paper on the repeated mistakes judges and their staff see in briefs.

In a busy law practice, we may not always have the luxury of researching and editing as thoroughly as we may like when writing a brief. We are so familiar with our case that we often forget the perspective of our reader. Imagine sitting all day in trial immersed in one area of law, and then switching gears afterwards to read and absorb a brief in a completely different type of law.

This paper reminds us how to write persuasively for the court, even when under pressure to meet deadlines. -CCE

Tell Your Client’s Story With A Good Narrative.

19 Sunday Jun 2016

Posted by in Contract Law, Legal Argument, Legal Writing, Persuasive Writing

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Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://bit.ly/26buQ9Y

Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).

Here is the introduction:  A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.

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Posner Asks What is Obviously Wrong with the Federal Judiciary. Is This A Trick Question?

09 Thursday Jun 2016

Posted by in Appellate Judges, Appellate Law, Citations, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, The Bluebook

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What Is Obviously Wrong With The Federal Judiciary, Yet Eminently Curable, Part I, by Richard Posner, 188 19 GREEN BAG 2D 187 (with hat tip to William P. Statsky) (The Green Bag is Quarterly Legal Journal dedicating to good legal writing, supported in part by the George Mason University School of Law)

http://www.greenbag.org/v19n2/v19n2_articles_posner.pdf

If you’re looking for a good Bluebook bashing, here it is. -CCE

At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook; also for students at the Yale Law School who aspire to be selected for the staff of the Yale Law Journal – they must pass a five-hour exam on the Bluebook. Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material. Just by reading judicial opinions law students learn how to cite cases, statutes, books, and articles; they don’t need a citation treatise. In the office manual that I give my law clerks only two pages are devoted to citation format. [Footnotes omitted; emphasis added.]

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What’s It Like In Your Judge’s Shoes?

03 Friday Jun 2016

Posted by in Brief Writing, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Readability

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Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/06/advice-on-writing-to-persuade-the-court.html

In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.

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Another Legal Writing Honey Pot

08 Sunday May 2016

Posted by in Appellate Writing, Legal Argument, Legal Writing, Legalese, Persuasive Writing, Plain Language

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Transcripts of Bryan Garner’s Transcripts With Supreme Court Justices On Legal Writing And Advocacy, THE SCRIBES JOURNAL OF LEGAL WRITING©

http://legaltimes.typepad.com/files/garner-transcripts-1.pdf

If you had to pick just one edition of The Scribes Journal of Legal Writing, which would be an incredibly hard thing to do, this is certainly one I would strongly recommend. Bryan Garner’s interviews with Supreme Court Justices on legal writing! Does it get any better than this? If you are a legal writing aficionado, or even if you’re not, you’ll appreciate the wisdom here. -CCE  

Brief Writing – The Summary of the Argument.

13 Sunday Mar 2016

Posted by in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Persuasive Writing, Summary of the Argument

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Drafting the Summary of Argument, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://lawprofessors.typepad.com/legal_skills/2016/03/drafting-the-summary-of-argument.html

Although not all courts require a “Summary of the Argument” in major briefs, you might consider adding one nonetheless. It is the heart of your brief. It concisely sums up your argument – no fluff allowed.

Some busy judges will read your Table of Contents, Table of Authorities, the Summary of the Argument, and nothing else. It is why the Summary of the Argument is at the beginning of a brief, and why it should to get right to the point and stay there.

This is a particularly interesting article on writing by Judith Fischer, and well worth your time regardless of your brief writing skills. -CCE

[B]ecause the summary of the argument appears near the beginning of a brief, it allows the legal advocate to take advantage of both framing and priming to begin to convince the Court. Thus, it’s a mistake for an advocate to treat the section as an afterthought. . . .

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4 Writing Tips For Persuasive Briefs.

29 Tuesday Sep 2015

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

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4 Edits I’ve Never Made, by Mark Herrmann, Lawyerists Blog (with hat tip to Raymond Ward!)

http://abovethelaw.com/2015/09/4-edits-i-have-never-made/

I have revised an awful lot of briefs in my life.

I clerked for a year; worked as a litigation associate at a small firm for five years; worked first as an associate (for three years) and then as a litigation partner (for 17 years) at one of the world’s largest firms; and have now served as the head of litigation at a Fortune 250 firm for the last five years.

I repeat: I have revised an awful lot of briefs in my life.

There’s been a world of variety in the substance of briefs that I’ve revised. Labor law, First Amendment cases, commercial disputes, product liability cases, tax spats, securities fraud, insurance and reinsurance matters, IP cases; you name it.

But there’s been almost no variety in the revisions that I’ve made to briefs.

As I’ve ranted before, I’ve spent my decades generally making all the same changes to draft briefs.

So I’m not going to list here the usual edits that briefs need. I’m going to do the opposite: What edits have I never made to a brief over the course of three decades practicing law? . . . .

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Supreme Court Writing Analysis – Whose Briefs Win and Why.

22 Saturday Aug 2015

Posted by in Appellate Law, Appellate Writing, Brief Writing, Editing, Grammar, Legal Analysis, Legal Argument, Legal Writing, Persuasive Writing, Readability, United States Supreme Court

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Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence, by Alan Feldman, University of Southern California, Political Science, SSRN.com (Date posted: August 18, 2015 ; Last revised: August 21, 2015)

http://tinyurl.com/q48ywgq

This paper is a detailed analysis of what type of legal writing and briefs from 1946 through 2013 have been the most influential  with the United States Supreme Court and the lawyers who write them. Interestingly, lawyers who write short sentences in the active voice and who use fewer words than the majority of brief writers are the most successful. It is a fascinating read, and strongly recommended. -CCE

Use “The Streisand Effect” To Hit The Perfect Legal Writing Chord.

15 Saturday Aug 2015

Posted by in Civil Rights, First Amendment, Legal Argument, Legal Writing, Persuasive Writing

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Peabody Energy Tries To Strike Song Lyrics From Complaint: Welcome To The Streisand Effect, by Elie Mystal, Breaking Energy Blog (with hat tip to Raymond Ward!)

http://tinyurl.com/ozm4j5l

Kudos to the lawyers who came up with this legal writing strategy. A couple sued Peabody Energy and alleged a civil rights violation. The police arrested the couple for holding up a banner during Peabody’s shareholder’s meeting.

The Complaint filed against Peabody Energy included lyrics to a song called “Paradise,” by John Prine. Who knows how the plaintiff’s counsel found it. The lyrics are a perfect choice.

The song is about coal mining exploitation by a company. You guessed it – the company’s name is Peabody. The lyrics about the big, bad coal company abusing the rights of common people strike the right chord.

Peabody’s reaction was understandable, but a costly mistake. Peabody filed a Motion to Strike. Strike what? The song lyrics – in a lawsuit about freedom of speech. To be kind, perhaps Peabody’s counsel did not think that one through.

The plaintiff’s response is classic and brilliant legal writing strategy. -CCE

Ever Wanted To Know How To Write Like Chief Justice John Roberts?

21 Tuesday Jul 2015

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

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Five Ways to Write Like John Roberts, by Ross Guberman, Legal writing tips for attorneys and judges

http://legalwritingpro.com/blog/five-ways-to-write-like-john-roberts/#comment-56

What I really like about this post is how it about using “show, don’t tell.” It is one of the most under-used persuasive writing tools, which I do not understand. When used correctly, you can hit it out of the park. -CCE

When Chief Justice John Roberts was a lawyer, he once wrote that determining the ‘best’ available technology for controlling air pollution is like asking people to pick the ‘best’ car: . . . .

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Premises Considered – Legalese Or The Way It Should Be Done?

04 Saturday Jul 2015

Posted by in Legal Argument, Plain Language, Readability

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Wherefore Premises Considered? by Wayne Scheiss, Legal Writing Net Blog

http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005/03/wherefore-premises-considered

 

When I worked as a legal secretary, I typed the archaic phrase “premises considered” so many times in pleadings, orders, brief, and all types of legal documents. No one ever explained what it meant, but the author was certainly upset if it was omitted. The reason for insisting that this phrase be added? It made the document sound more legal.

They were so used to seeing this phrase, although they did not know its meaning, that it simply did not look right without it. This is reason given by most followers of legalese. They cannot explain what it means – it just looks wrong without it. Is that really a sufficient reason to include it? -CCE

Is it okay to eliminate phrases like WHEREFORE PREMISES CONSIDERED and other such verbiage from the prayer in a complaint? And what is the proper substitute?

Yes, it is okay to eliminate these words. In fact, I highly recommend it. . . .

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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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Excellent Editing Tips From Jonathan Van Patton.

09 Saturday May 2015

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

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“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2015/05/on-editing.html

 

Excellent article on editing! Editing is no easy task. You have to practice to do it well.

This article focuses on editing, but also on persuasive writing. Anyone interested in writing a winning brief, motion, or opening and closing argument will like this one. -CCE

An excellent treatise on editing and writing is Jonathan Van Patten’s article “On Editing,” 60 South Dakota Law Review 1 (2015). Employing an extremely clear writing style, he states and explains his propositions on good writing. I plan to distribute the article to the editors of my school’s law reviews.

You can access the article here.

Legislative Drafting And Plain English – They Are Not Mutually Exclusive.

22 Sunday Mar 2015

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

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A Classic Example Of Bad Writing, by Judge Mark P. Painter, Judging Strictly By Merit

http://www.judgepainter.org/legalwriter55

In my last column I gave kudos to the U.S. Supreme Court and its rules committee for rewriting the Federal Rules of Civil Procedure in plain language. But the fight goes on. Legislative drafting continues to be particularly egregious. . . .

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Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!

19 Thursday Mar 2015

Posted by in Civil Procedure, Legal Analysis, Legal Argument, Legal Writing, Motions

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Judicial Plagiarism, by Tiffany Johnson, Esq., Good Legal Writing Blog

http://goodlegalwriting.com/2015/03/08/judicial-plagiarism/#more-497

Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick to your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Well, hold your horses, cowboy. A recent case from Tennessee illustrates the possible dangers that may lie ahead up in them there hills. . . .

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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). . . .

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, Recent Links and Articles, 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.

Using Legal Citations to Persuade the Reader.

01 Sunday Mar 2015

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

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The Art of Persuasion Through Legal Citations, by Susan W. Fox and Wendy S. Loquasto, 84 Fla. B. J. 40 (2010).

http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/A8B63DC72FCE7882852576F10068ECD6

Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority,1 but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations.

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it — as the case requires to advance your client’s position — is in large part dependent upon credible citations and sound reasoning based upon the citations. . . .

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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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