Category Archives: Legalese

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:

Whatever Can Be Misunderstood, Will Be.

15 Saturday Nov 2014

Posted by in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language, Proofreading, Quotations, Readability

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This Should Be Every Trial Lawyer’s Mantra, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://tinyurl.com/myfv5oo

One of my favorite quotations! Mr. Luvera hit the nail on the head, not only for trial presentations, but for any type of writing regardless of your profession. Some people think that their writing should be complex, with lots of Latin, jargon, and legalese. Technical writers often use complicated terms and words understood (barely) by people who work in their industry, but no one else.

Most readers skim or skip the long, single-space block quotations often found in legal briefs. Wouldn’t you? Imagine having to slog through poorly written briefs day after day? Or imagine that you are a juror who must decipher poorly written jury instructions. If what you say is that important, why risk losing the reader even for a moment?

Just like Murphy’s Law, in writing, whatever can be misunderstood, will be. What is the point of writing anything if you are not easily understood? No, you are not “dumbing down” your writing or treating the reader like a child. You are communicating and facilitating your goal — to be understood. -CCE

enstein

Collection of Judges’ Best Advice On Legal Writing.

08 Saturday Nov 2014

Posted by in 5th Circuit Court of Appeals, Appellate Law, Appellate Writing, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Editing, Legal Argument, Legal Writing, Legalese, Oregon Supreme Court, Plain Language, Readability, Texas Supreme Court, United States Supreme Court, Wisconsin Supreme Court

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Judges on Effective Writing: The Importance of Plain Language, by Bryan A. Garner, Vol 84 Mich. B. J. 44 (February 2005)

http://tinyurl.com/kk6trum

Each quote here is a pearl of wisdom – classical and timeless. Look no further to find the heart and soul of effective legal writing. Click on the hyperlink to find the footnotes for each quotation. -CCE

I trust that, after more than 20 years, some of the Plain Language columns are worth reprinting. This one appeared in March 1994. As I noted then, the survey that Mr. Garner mentions in his introduction is the same one that we first did in Michigan, with very similar results. See the October 1987 and May 1990 columns. The judges are identified by their judicial positions when they make their remarks. —JK (Joseph Kimble)

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.

The results of that survey surprised many Texas litigators—and many changed the form of their court papers. But many more have persisted in the old, legalistic style—perhaps out of a fondness akin to what some people feel for the language of the King James Version of the Bible. Judge Lynn Hughes of Houston speaks directly to those litigators: ‘Anyone who thinks Comes now the Plaintiff is anything like the King James Version has no sense of poetry.’

Literary tastes may differ, of course, but it’s worth knowing what judges say—and have been saying for a long time—about the language we lawyers use. Following are some choice quotations I’ve recently collected. —Bryan A. Garner

Judicial Diagnoses

‘Lawyers spend a great deal of their time shoveling smoke.’ Hon. Oliver Wendell Holmes1, U.S. Supreme Court

‘[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long since disappeared from normal English discourse.’ Hon. Antonin Scalia2 , U.S. Supreme Court

‘The reason legal writing has gotten to such a low point is that we have had very bad teachers—judges who wrote years ago and wrote badly. We learned bad habits from them and their opinions in law school.’
Hon. William Bablitch3, Supreme Court of Wisconsin

Stick to the Mother Tongue

‘[The advocate] will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like a spear and the simple figure that lights the understanding. He will never drive the judge to his dictionary. He will rejoice in the strength of the mother tongue as found in the King James version of the Bible, and in the power of the terse and flashing phrase of a Kipling or a Churchill.’  Hon. Robert H. Jackson4, U.S. Supreme Court

‘[A]void as much as possible stilted legal language, the thereins, thereofs, whereinbefores, hereinafters, and what-have-yous. Use English wherever you can to express the idea as well and as concisely as in law or Latin. A healthy respect for the robust Anglo-Saxon appeals more than does the Latin, whether or not it is Anglicized. The home-grown product in this case is better than the imported, not to say smuggled, one.’ Hon. Wiley B. Rutledge5, U.S. Supreme Court

‘Write so that you’re understood. English is a hard language to learn, but it’s an easy language to communicate in. There’s no reason to put Latin in your brief.’ Hon. Craig T. Enoch6, Fifth Court of Appeals, Dallas

‘Don’t use legalese. It causes you to put your contentions in stale ways.’ Hon. Thomas Gibbs Gee7, U.S. Court of Appeals for the Fifth Circuit, 1974-91

‘Legalese is an impediment to clear, logical thinking.’ Hon. F. Lee Duggan8, First Court of Appeals, Houston

‘It’s easier for a judge when you’re using common usage. Judges are only human, after all.’ Hon. Carolyn Wright9, Family District Court, Dallas

Simplify, Simplify!

‘For a hundred years, good lawyers have been writing without all the garbage and in a simple, direct style.’ Hon. Lynn N. Hughes10. U.S. District Court, Houston

‘A lawyer should write the brief at a level a 12th grader could understand. That’s a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court.’ Hon. William Bablitch11, Supreme Court of Wisconsin

‘When a judge finds a brief which sets up from twelve to twenty or thirty issues or ‘points’ or ‘assignments of error,’ he begins to look for the two or three, perhaps the one, of controlling force. Somebody has got lost in the underbrush and the judge has to get him—or the other fellow—out. That kind of brief may be labeled the ‘obfuscating’ type. It is distinctly not the kind to use if the attorney wishes calm, temperate, dispassionate reason to emanate from the cloister. I strongly advise against use of this type of brief, consciously or unconsciously. Though this fault has been called over-analysis, it is really a type of under-analysis.’ Hon. Wiley B. Rutledge12, U.S. Supreme Court

‘The key is to make the brief easy for the judge to follow.’ Hon. Lloyd Doggett13, Supreme Court of Texas

Cut the Verbiage

‘You want your brief to be as readable as possible . . . . If I pick up a brief of 49 and a half pages, it has a little less credibility than one that succinctly argues its points in 25 pages . . . . There’s nothing better to read than a well-written brief from a really good lawyer.’ Hon. Jerry E. Smith14, U.S. Court of Appeals for the Fifth Circuit

‘Eye fatigue and irritability set in well before page 50.’ Hon. Patricia M. Wald15, U.S. Court of Appeals for the D.C. Circuit

‘A brief should manifest conviction . . . . [That] is virtually impossible . . . if it contains an excessive number of quotations or is larded with numerous citations to the authorities. Short quotations sometimes clinch a point, but long ones fail in that objective.’ Hon. George Rossman16. Supreme Court of Oregon

‘Start in the very first sentence with the problem in this case. Put it right up front. Start early. Don’t bury it under a lot of verbiage and preliminaries.’ Hon. Nathan L. Hecht17, Supreme Court of Texas

Does Style Matter?

‘Style must be regarded as one of the principal tools of the judiciary and it thus deserves detailed attention and repeated emphasis.’ Hon. Griffin B. Bell18, U.S. Court of Appeals for the Fifth Circuit

‘Lawyers are excused from the necessity of interesting their readers, and all too often—let’s face the evidence—they take advantage of this enviable exemption.’ Hon. Jerome Frank19, U.S. Court of Appeals for the Second Circuit

‘Is good writing rewarded? I used to think it doesn’t matter much, in comparison with legal authority, justice, and the like. Now I know better: Good writing is rewarded so automatically that you don’t even think about it.’ Hon. Murry Cohen20, Fourteenth Court of Appeals, Houston

Bryan A. Garner (bagarner@att.net), president of Dallas-based LawProse, Inc. (www.lawprose.org), is the author of many books on writing, including Legal Writing in Plain English (2001) and The Elements of Legal Style (2d ed. 2002). He is also editor in chief of all current editions of Black’s Law Dictionary. He teaches at Southern Methodist University School of Law.

Does The Law Really Require Legalese?

16 Thursday Oct 2014

Posted by in Legal Writing, Legalese, Plain Language

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You Think the Law Requires Legalese?, by Joseph Kimble, Legal Writing Editor Blog

http://legalwritingeditor.com/2013/10/21/think-law-requires-legalese/

A classic. -CCE

There’s a sign that, in some configuration, appears on every gas pump in Michigan, although most drivers probably don’t even notice it anymore. You can see one in the photo to the right.

Let’s put aside the all-capitals, which are notoriously hard to read. And never mind that the first and second items aren’t exactly parallel. (‘Stop engine. Don’t smoke.’) The trouble — linguistically, stylistically, semantically — shows up in the third item.

Look at that little sentence. We get an explicit subject, A person, which really throws off the parallelism. The lawyer’s shall — now corrupted and ambiguous from misuse — does not belong even in statutes or regulations, let alone on a gas pump. Remain in attendance? Oh, please. The first of is unnecessary. And for the big comedic finish, we’re seemingly told that the nozzle must be able to see the person.

The fix isn’t hard: ‘You must stay outside your vehicle and be able to see the nozzle.’ Or for parallelism with the first two items: ‘Stay outside your vehicle, and make sure you can see the nozzle.’

Now, are people likely to misunderstand the pump version? No. Is this the worst public writing on the planet? Obviously not. But by tracing this mundane example to its source, anyone who cares about clarity in legal and official documents can learn a set of critical lessons. . . .

 

Corporate Memo Writing Guide.

11 Saturday Oct 2014

Posted by in Bad Legal Writing, Corporate Memorandums, Editing, Legal Writing, Legalese, Readability

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The Complete Guide To Writing Corporate Memos, by Vickie Elmer, Quartz Blog

http://qz.com/153401/complete-guide-to-writing-corporate-memos/

A recent all-staff internal memo from two senior Yahoo executives addressed its readers as ‘pilgrim,’ then ‘sailor,’ and mentioned ‘T-Rex,’ ‘The Itsy-Bitsy Pterodactyl,’ the ‘hippocampian wagons’ and ‘Ayn Randian Objectivism’ all in one paragraph.

That widely ridiculed email served as a reminder that internal memos matter as much as any marketing brochure or press release—especially given how likely they are these days to leak online. ‘What we write in memo form is going to become our business persona,’ says Sandra Lamb, author of How to Write It.

That persona could be someone who speaks in jargon and ‘stilted business-school gobbledygook’—as Microsoft CEO Steve Ballmer did in a memo announcing leadership changes. It could be brutally matter-of-fact, as former Nokia CEO Stephen Elop was in a wake-up call to staff. Or it could be funny and enduringly honest, as Groupon CEO Andrew Mason was when he announced his resignation. Here are some tips to ensure that your memo is clear, effective, and memorable—for the right reasons. . . .

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. . . .

“Comes Now” — The Most Common Legalese Words Ever?

30 Saturday Aug 2014

Posted by in Bad Legal Writing, Legal Writing, Legalese

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Comes Now?, by Michael M. Simpson, The Grammar Snob Blog

http://grammar-ttlms.blogspot.com/2007/07/comes-now.html

“Comes Now” is probably one of the most common legalese phrases, and often used in pleadings, motions, briefs — almost any legal document except contracts. (If Comes Now shows up often in contracts, please don’t tell me. Let me keep some of my happy place illusions.) If you have a legalese phrase used more frequently than “Comes Now,” please share!

As I have said before, there is no statute, case law, regulation, constitution, or any other legal requirement to use legalese. I’ve looked. If you disagree, please point me to that legal authority. I have been looking for it a long time. I’ve been told by a lawyer that they use it because it just sounds “more legal.” Judge for yourself. -CCE

As always, because I have a real job I don’t get to post to my blog as much as I like. I’ve been editing a post on dangling modifiers, since there are only 52,138 other internet pages explaining why dangling modifiers are bad, but I haven’t finished mine, which will be the pinnacle of dangling modifier criticism, I suppose. (Again, for those of you who haven’t the foggiest idea what a dangling modifier is, surely there’s a NASCAR race stored in your Tivo ready to watch.) Instead, I’ve got a blog for my fellow attorneys, many of whom file pleadings in court containing the phrase ‘Comes now.’ As in:

‘Comes now Plaintiff, John Doe, and complains of Defendant, David Evildoer, and pray the Court grant him judgment, and for cause of action would show the following.’

A question. You’re sitting on your favorite barstool at the local watering hole, taking the edge off a rough day in the salt mine with your favorite poison (for me, a tall draft of Harp or Warsteiner, or on a Friday, a shot of Maker’s Mark with a sidecar of ice) and your best friend walks in to join you. Do you exclaim ‘Comes now Drew, and sits next to mine self to drink beer’? Okay, if you answered this question ‘yes,’ an exciting career in writing boring pleadings awaits you. If you answered ‘no,’ then I understand why you hate legalese. . . .

 

10 Top Law-Related TED Videos.

20 Sunday Jul 2014

Posted by in Bad Legal Writing, Computer Forensics, Computer Fraud and Abuse Act, Computer Virus, Copyright, Criminal Law, Cybersecurity, Digital Millenium Copyright Act, Discovery, Encryption, Evidence, Finance and Banking Law, Fraud, Google, Government, Identity Theft, Intellectual Property, Law Office Management, Legal Technology, Legal Writing, Legalese, Malware, Management, Patent Law, PC Computers, Plain Language, Presentations, Search Engines, Trial Tips and Techniques, Trojans, Video

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Top 10 Legal TED Talks, by Tim Baran, Legal Productivity Blog

http://www.legalproductivity.com/op-ed/top-10-legal-ted-talks/

Have you heard of TED? It began in 1984 as a conference and now covers a wide range of topics in more than 100 languages.  Think of it as a massive brain trust that shares great ideas and information.

Each of the law-related TED talks listed in this article are worthwhile on their own: (1) four ways to fix a broken legal system; (2) eliminate legalese by using plain English; (3) how to beat a patent troll; (4) how the Internet will change government; (5) laws that choke creativity; (6) copyright law; (7) why eyewitnesses get it wrong; (8) how technology could make crime worse; (9) the Internet and anonymity online; and (10) how great leaders inspire. -CCE

Classic Writing Tips From C.S. Lewis.

01 Tuesday Jul 2014

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

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5 Writing Tips by C.S. Lewis, the Purveyor of Childhood, by Scott Schwertly, the Founder and CEO of Ethos3

http://tinyurl.com/qzawhfs

It’s pretty likely that C.S. Lewis brought you a little bit of happiness when you were a child. As author of the ‘Chronicles of Naria’ series, C.S. Lewis created one of the most beloved children series of all time. As a result, he got loads of fan mail from his biggest fans: children. And being the nice purveyor of childhood glee that he was, he managed to respond to many of the letters, including one from Joan Lancaster, in which he included several tips on writing. Let’s see what we can learn about presentations from his poignant advice.

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn’t mean anything else.

This is great advice for the presenter as our job is disseminate information as clearly and simply as possible. In order to do so, use language that tells the audience what they need to know in the simplest way possible. Say what you want to say as simply as possible. Don’t overcomplicate your language for no reason.

2. Always prefer the plain direct word to the long, vague one. Don’t implement promises, but keep them.

This goes hand in hand with Lewis’s previous nugget of advice. Use plain, direct language in your presentation. You won’t sound smarter by using a ten-dollar word when a five-dollar word will do. Rather, you might come across as pretentious. Don’t alienate your audience with obscure language. Be as direct as possible.

3. Never use abstract nouns when concrete ones will do. If you mean ‘More people died’ don’t say ‘Mortality rose.’

Mr. Lewis is adamant about the importance of clear, direct language, isn’t he? Minimize abstraction as much as possible with the language you use. Be as clear and concrete as possible.

4. In writing. Don’t use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was ‘terrible,’ describe it so that we’ll be terrified. Don’t say it was ‘delightful’; make us say ‘delightfu’ when we’ve read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, ‘Please will you do my job for me.’

This may be the best bit of Lewis’s advice, as it’s basically a snarky version of ‘show, don’t tell.’ Engage your audience by using vivid language that describes a situation instead of simply telling the audience how it made you feel using a range of blasé adjectives. Remember Jerry Weissman’s advice: Don’t make the audience think. Describe situations so clearly and in such a compelling nature that the audience won’t have any question as to what happened or how it made you feel.

5. Don’t use words too big for the subject. Don’t say ‘infinitely’ when you mean ‘very’; otherwise you’ll have no word left when you want to talk about something really infinite.

Lewis’s last piece of advice again addresses the need to use clear, precise language. Don’t exaggerate in your description of something as that would be an easy way to mislead your audience. Above all, if we are to follow Lewis’s advice in our presentations, use language that is as direct and to-the-point as possible. Your presentation will be much more accessible and well-received if you eliminate abstract, unclear language altogether.

George Orwell’s “Politics and the English Language”

01 Tuesday Jul 2014

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

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Politics and the English Language, George Orwell’s Library

http://tinyurl.com/nsagx

Orwell’s 1946 essay, “Politics and the English Language” is a classic. Mr. Orwell actually had six, not five, excellent rules for effective writing. Follow these rules, and you cannot go wrong. -CCE

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than saying anything outright barbarous.

 

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. . . .

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

Do You Write Like A Tool? Here’s One Way To Find Out.

04 Wednesday Jun 2014

Posted by in Bad Legal Writing, Legal Writing, Legalese

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Small Firms, Big Lawyers: 20 Ways to Write Like a Tool, by Jay Shepherd, Above The Law Blog

http://tinyurl.com/6zxgxy8

Ever see Fight Club? Yeah, me neither. The 1999 Brad Pitt movie was more of a cult film than a commercial success, although it did make back its costs. But the movie did have a line that became something of a meme, and was once recognized by Premiere magazine as the 27th greatest line in movie history (which seems dubious, but whatever):

The first rule of Fight Club is you do not talk about Fight Club.

If only lawyers had the same rule.

You see, being a lawyer is like being a member of an elite club. OK, maybe not as elite as we like to think; there are more than a million members in the US. But elite enough. And the problem is, too many of us are dying to show off to others that we’re members of law club. And one of the ways we do it is by trying to sound like a lawyer when we speak, and especially when we write. This is a problem because sounding like a lawyer is the same as sounding like a tool.

I’ve come up with 20 lawyerisms that do nothing to advance the message you’re trying to send, but instead show that you’re a member of law club. And that you sound like a tool.

How many of the 20 do you use? . . .

Plain Language Jury Instructions.

31 Saturday May 2014

Posted by in Jury Instructions, Legal Writing, Legalese, Plain Language

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Plain Language and Jury Instructions, PlainLanguage.gov

http://www.plainlanguage.gov/examples/before_after/jury.cfm

Most jury instructions — long winded collections of complex sentences, arcane definitions and Talmudic distinctions — are all but impenetrable to lay people. So bad are some jury instructions that Court TV Anchor and former Prosecutor Nancy Grace reports having seen jurors turn to one another while listening to instructions and mouth the question, ‘What are they saying?’

Echoing such observations was a recent description in The National Law Journal of a judge who told jurors that a murder conviction required ‘malice aforethought.’ Unfortunately though, the jury interpreted this instruction to mean that the murder had to be committed with a mallet.

Many studies support anecdotal criticism of legalese jury instructions. For example:

• Forty percent of capital jurors wrongly believed that their jury instructions required them to accompany a conviction with a death sentence, according to a study by the Northeastern University’s Capital Jury Project.

• More than fifty percent of jurors defined ‘preponderance of the evidence’ as a ‘slow and careful pondering of the evidence,’ according to a study of Washington DC jurors. The same study found that more than 50 percent of jurors could not define ‘speculate,’ and about 25 percent did not know the meaning of ‘burden of proof,’ ‘impeach’ or ‘admissible evidence.’ . . .

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

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

Benchslap Open Season on Acronyms.

30 Wednesday Apr 2014

Posted by in Acronyms, Appellate Law, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Legal Writing, Legalese, Readability

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Alphabet Attack, by Ross Guberman’s Legal Writing Blog

http://legalwritingpro.com/blog/alphabet-attack/

It wouldn’t be spring in America without some federal judges publicly criticizing attorneys in a genre now known as ‘benchslap.’

The offended court this time: the D.C. Circuit. The court’s target: acronyms in briefs filed in a complex telecom dispute. The benchslap: “’It is ordered . . . that the parties submit new briefs that eliminate uncommon acronyms used in their previously filed final briefs.’ The court even cited its own practice handbook for good measure: ‘[i]n briefs the use of acronyms other that those that are widely known should be avoided.’ . . .

Making Sense When Writing For Non-Lawyers – It’s Not That Hard.

27 Sunday Apr 2014

Posted by in Bad Legal Writing, Legal Writing, Legalese, Readability

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Why Are The Lawyers Pestering Us? Communicating About Law And Compliance, by Mark Herrmann, Above The Law Blog (with hat tip to Raymond Ward, the [new] legal writer blog)

http://tinyurl.com/mu8vg7g

At a law firm, law matters. Law is the center of the institution’s universe, and it’s all everyone is thinking about.

It’s the other functions that don’t matter: ‘Another email from IT? Telling me about interfaces and gigabytes? Why don’t those clowns leave me alone?’

‘Another email from finance hectoring me about time sheets? Don’t those morons know I’m busy?’

At corporations, law (and compliance) is an ‘other function.’ The businesses are concentrating on their businesses, and law and compliance — along with human resources, information technology, and finance — are, at best, a means to an end. If you mirror the other ‘shared services’ and send incomprehensible communications to the businesses, the businesses will soon realize that you’re just one of the pests, meant to be ignored.

Inevitably, if a business person accidentally steps over some legal line, you’ll hear that the business guy had no clue that the line existed: ‘Yeah, yeah. Now that you’re telling me about it, I understand that we have that rule. But how was I to know? The rule is buried on the fourth page of some impenetrable policy hidden somewhere in our computer system. I spend my time selling; I can’t waste time trying to make sense of your legalese.’

If you don’t sympathize with that guy, then you’ve been a lawyer for too long. His criticism is not just an excuse for having violated the rules; his criticism may well be the truth. How can you change that reality? . . . .

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. . . .

Add This Writing Tool To Your Arsenal.

30 Sunday Mar 2014

Posted by in Legal Writing, Legalese, Proofreading, Readability

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The Gunning Fog Index, by Elizabeth Bezant, Writing to Inspire Blog

http://www.writing-information-and-tips.com/fog-index.html

If you want to increase the readability of everything you write, consider using the Gunning Fog Index – more commonly known as the Fog Index. It is the copywriter’s favorite statistics measurement. The idea behind the Fog Index is to show you the education level your reader must hypothetically have to understand what the document says.

I am not asking you to “dumb it down.”  But, remember that the goal in any legal writing project is to be understood, regardless of the complexity of the subject. If you are struggle with writing shorter sentence and paragraphs or simply making your writing more readable, this tool will help.

If you teach legal writing or any kind of writing course, encourage your students to use the Fog Index. It can be used by those who seek to improve their writing skills to a more sophisticated level. It can help anyone clarify their writing and write more concisely. But, most importantly, it gives you a way to determine whether what makes sense to you will make sense to anyone else.

Even though lawyers and judges have a high degree of education, when writing about complex issues, it helps to keep your document as simple and clear as possible.  The goal is to keep your Fog Index from ten to fifteen. Major publications, such as the New York Times and Times Magazine, have a Fog Index of eleven to twelve. If your document is meant for a wide audience, go for a Fog Index of less than twelve. If you are writing a document that you want to be universally understood, your target is a Fog Index of less than eight. For example, the Bible’s Fog Index is six.

See also http://gunning-fog-index.com/.

For more readability tests, see http://juicystudio.com/services/readability.php. -CCE

Legalese And Other Words You Should Always Cut.

29 Saturday Mar 2014

Posted by in Legal Writing, Legalese

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Ax These Terms From Your Legal Writing, by Bryan A. Garner, Law News Now, ABA Journal

http://tinyurl.com/kaoqz2o

William Cullen Bryant, editor of the New York Evening Post from 1829 until 1878, created an ‘Index Expurgatorius’ for his newspaper. Certain words simply weren’t allowed in its pages.

Likewise, James Gordon Bennett Jr., owner of the New York Herald from 1867 to 1918, had his ‘Don’t List.’ For example, he wouldn’t allow his journalists to write executive session when they meant secret session.

Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a ‘Little Blacklist of Literary Faults,’ published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.

Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them. . . .

Litigator’s Self-Assessment Legal Writing Test.

24 Monday Feb 2014

Posted by in Bad Legal Writing, Brief Writing, Legal Writing, Legalese, Litigation, Trial Tips and Techniques

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Are You A Crappy Litigator? A Self-Assessment Test! by Mark Herrmann, Above The Law Blog (with hat tip to Raymond Ward at the (new) legal writer blog!)

http://abovethelaw.com/2014/02/are-you-a-crappy-litigator-a-self-assessment-test/

Not exactly the words I would choose to make the point, but I agree that the emphasis on short, clear sentences and paragraphs is more persuasive. -CCE

It’s so hard to judge yourself.

Deep in your soul you know that people who criticize you are idiots, and people who praise you are wise and sagacious.

How can you possibly tell if you’re any good at what you do?

I have the answer for you! I’ve created a litigators’ self-assessment test! Now you’ll know if you’re any good!

Here’s how it works: Take out the last brief you filed.

Do it. Now. You won’t learn anything if you don’t follow the rules. . . .

Sayeth or Saith? Actually, It’s Neither.

22 Saturday Feb 2014

Posted by in Affidavits, Bad Legal Writing, Legal Writing, Legalese

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LawProse Lesson #149: “Further Affiant Sayeth Naught,” by Bryan A. Garner, LawProse

http://www.lawprose.org/blog/?p=2506

Further affiant sayeth naught.

Many affidavits close with this classic legalese or some variation of it. Other than the obvious questions (‘What does it mean?’ and ‘Is it necessary?’), this phrase gives rise to two stylistic dilemmas.