19 Tuesday Jun 2018
Posted in Acronyms, Appellate Law, Benchslap, Humor, Intellectual Property, Judges, Legal Ethics, Legal Writing, Oral Argument, Patent Law, Proofreading
≈ Comments Off on Six Judges Let The Benchslaps Fly.
Six Benchslaps to Brighten Your Day, by Lisa Needham, Lawyerist.com
https://lawyerist.com/six-benchslaps-will-brighten-day/
As Ms. Needham describes it, “[f]or the unfamiliar, benchslap originally referred to one judge snarking at another, but now refers to any time a member of the bench crushes an attorney with wit, rage, or both.” It is also an excellent example of what not to do. -CCE
08 Tuesday Aug 2017
Posted in Bad Legal Writing, Benchslap, Brief Writing, Editing, Footnotes, Judges, Legal Writing, Motions, Plain Language, Proofreading, Readability
≈ Comments Off on What Will Ignoring the Court Rules Get You? A Big Fat Benchslap.
Florida Judge Tosses Improperly Spaced Court Filing, by George Khoury, Esq., Strategist, The Findlaw Law Firm Business Blog (with hat tip to William P. Statsky)
Mr. Khoury says that “[h]ell hath no fury like a Florida judge who receives an improperly formatted brief.” You better believe it. Why on earth would you ignore the format requirements in your court’s local rules? Folks, this just isn’t that hard.
The author of this motion for summary judgment thought the court would either ignore or not notice that the motion and supporting brief were spaced 1-1/2 lines rather than double-spaced. And who’s going to notice longer-than-usual footnotes? Really? Any judge or clerk whose job it is to read, read, and then read some more every dad-gum day.
Seriously, do you want to plow through heavy footnotes? Hands? Didn’t think so. Neither does your judge. Why risk alienating the person you are trying to convince? The stakes are too high to cling to a style of writing that sets you up to lose before anyone reads your motion or brief.
There are other, and much more effective ways, to trim a motion and brief. Editing is the key.
A quick search of this blog will give you tons of editing tips. I promise that you can get your point across with fewer words. It is not the number of words you use that count; it is what words you choose and how you say it. -CCE
06 Monday Mar 2017
Posted in Legal Writing, Proofreading, Punctuation
≈ Comments Off on Punctuation – The Devil Indeed Is In the Details.
Legal Writing is Precise Writing, by Suzanne E. Rowe©2007, Oregon State Bar Bulletin — NOVEMBER 2007
https://www.osbar.org/publications/bulletin/07nov/legalwriter.html
A colleague appeared in my office with a pressing question about hyphens. He was writing an article about people who own small businesses. But he was concerned that a punctuation mistake might make the article about small people, instead of small businesses. That concern (and perhaps a touch of procrastination) propelled him to my office. Was he writing about small business owners or small-business owners?
Legal writing is precise writing. Sometimes the missing hyphen, misplaced word or extra comma can change the meaning of a sentence. In quotations, lack of precision can hurt your reputation (or just make you look sloppy). The devil’s in the details.
28 Saturday Nov 2015
Posted in Bad Legal Writing, Grammar, Legal Writing, Persuasive Writing, Plain Language, Proofreading, Readability
≈ Comments Off on Plain Language = Good Writing.
The Pros Know: Plain Language Is Just Good Writing, by Mark Cooney, 94 Mich. B.J. 54 (Sept. 2015) (with hat tip to William P. Statsky!)
http://www.michbar.org/file/barjournal/article/documents/pdf4article2701.pdf
Is plain language foreign to ‘real’ writers? To the pros, I mean? Would professional writers, editors, and literary agents outside our field scoff at the plain style that this column has long endorsed? Would plain English draw ridicule in those quarters? Too childish? Dumbed down? Illiterate? And would readers of literate magazines, technical journals, or fiction balk at the simplicity, the directness?
This is an easy one: no—on all counts. . . .
16 Friday Oct 2015
Posted in Bad Legal Writing, Editing, Grammar, Legal Writing, Legalese, Plain Language, Proofreading, Punctuation, Readability
≈ Comments Off on Plain Language Examples – Before and After.
Before-and-After Comparisons, PlainLanguge.gov
http://www.plainlanguage.gov/examples/before_after/index.cfm
There are a number of superior – and free – websites available to anyone who wants to improve his legal writing skills. PlainLaguage.gov is one of them.
I doubt that anyone wants to write poorly. Often, just showing before-and-after examples improve writing skills. One of the most efficient ways I have found when teaching legal writing is to take a bad writing example, identify why it is ineffective or just plain silly, and suggest different ways to fix it.
Here are examples of government regulations, manuals, handbooks, reports, and other publications that show “before and after” examples that use plain language to improve a sentence, paragraph, or document. -CCE
11 Saturday Jul 2015
Tags
Commas, Municipal Ordinance, Punctuation, Sarah Larimer, The Washington Post, William P. Statsky
Ohio Appeals Court Ruling Is A Victory For Punctuation, Sanity, by Sarah Larimer, The Washington Post (with hat tip to William P. Statsky)
Punctuation nerds, rejoice! For all of us who care deeply about really good legal writing, grammar, and punctuation, today we are vindicated! Thank you, Judge Robert A. Hendrickson, of the Twelfth District Court of Appeals in Ohio. -CCE
Look, I know you’re all busy, but let’s just take a minute today and celebrate Judge Robert A. Hendrickson and the 12th District Court of Appeals in Ohio.
These defenders of punctuation.
These champions of copy editors everywhere.
That one court that totally called out a village ordinance for its comma-related failings.
(I know!!!)
22 Sunday Mar 2015
Posted in Editing, Legal Writing, Proofreading, Punctuation
≈ Comments Off on Ross Guberman’s Eight Comma Commandments.
Avoid the Most Common Comma Crimes Committed by Counsel: Eight Commandments, by Ross Guberman, Legal Writing Pro
http://www.legalwritingpro.com/articles/H76-comma-crimes.php
From the loftiest law firms to the grandest judicial chambers, I see the same comma errors time and time again. In the name of consistency, and perhaps even sanity, consider committing to these Eight Comma Commandments. . . .
15 Sunday Mar 2015
Posted in Appellate Law, Appellate Writing, Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Plain Language, Proofreading, Readability
≈ Comments Off on Are Shorter Appellate Briefs Better? Appellate Judges Seem To Think So.
Tags
Appellate Brief Writing, Appellate Judges, James B. Levy, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., The Wall Street Journal Law Blog
Federal Appellate Judges Want To Shorten The Length of Briefs, Lawyers Object, by Professor James B. Levy, Legal Skills Prof Blog
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). . . .
19 Thursday Feb 2015
Posted in Editing, Legal Writing, Plain Language, Proofreading, Readability, Spell Checking
≈ Comments Off on How “Readable” Is Your Writing?
Check Your Language Level, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2015/02/check-your-language-level.html
Dr. Brada-Bahm makes a good point. Our job is to be understood, regardless of the method of communication. There is, however, an easy way to check your document’s readability statistics if you use Microsoft Word.
To set readability statistics for in Word, click on “Options,” then “Proofing.” Scroll down to “When correcting spelling and grammar in Word.” Check the box for “Show readability statistics.” Afterwards, when you run a spell check on any Word document, it will show the readability statistics for your document. -CCE
The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about ‘reading level analysis‘ as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the ‘readability-score‘ site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click ‘calculate score’ and you instantly get a ‘reading ease’ number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at. . . .
31 Saturday Jan 2015
Posted in Editing, Legal Analysis, Legal Dictionaries, Legal Writing, Primary Law, Proofreading, References, Research, Spell Checking
≈ Comments Off on William P. Statsky’s Legal Thesaurus/Dictionary.
Tags
Common Law, Justice Marian P. Opala, Legal Dictionary, Legal Reference, Legal Terminology, Legal Thesaurus, Oklahoma Supreme Court, Statsky’s Legal Thesaurus/Dictionary, William P. Statsky
Recently, I saw a Dictionary of Legal Terms advertised on Amazon. I am sure there are many excellent dictionaries, including Black’s, that are useful. I have for many years now relied on Statsky’s Legal Thesaurus/Dictionary, which was a gift from a former boss.
At one time, I worked for Justice Marian P. Opala at the Oklahoma Supreme Court. Justice Opala was simply brilliant – I can think of no other description. He was precise in his choice of words, and worked diligently to craft his formal opinions for the Court. He was absolute stickler for legal writing perfection in every way imaginable, and he abhorred legalese.
One of my tasks was to proofread and make editing suggestions for his draft opinions. I found Statsky’s book to be invaluable. In one instance, I used it to find an alternate clause to edit an old common law phrase.
When Justice Opala asked how I had come up with the suggestion, I sweated bullets and expected to be chastised for my choice. Instead, he explained that he wanted to know how I had been able to come up with an alternative that did not change the legal meaning of his original phrase. He was impressed. I was relieved.
It would have been wonderful if I could have truthfully said that I came up with it completely on my own. Instead, I shared how I had found it in Statsky’s book.
Over time, Justice Opala got the notion that the book belonged to him. When I left his chambers for another position, Justice Opala protested when I packed it with my other belongings. I had to show him the flyleaf where my former boss had written a message to me to assure Justice Opala that it was indeed my book, and not his.
I can think of no greater endorsement than Justice Opala’s opinion. I take the book with me to legal writing seminars as a recommended addition to anyone’s reference library. And I keep a copy at the house and at the office. If you are looking for such a resource, I can endorse it without hesitation. -CCE
26 Monday Jan 2015
Posted in Apple, Apps, Editing, iPhones, Legal Technology, Legal Writing, Plain Language, Proofreading, Readability
≈ Comments Off on iWrite Legal – Free iPhone App For Legal Writers.
Tags
iPhone App, Kathleen Vinson, Law Sites Blog, Legal Writing, Legal Writing App, Legal Writing Tips, Robert Ambrogi, Writing Checklist
Can An iPhone App Improve Your Legal Writing?, by Robert Ambrogi, Law Sites Blog
http://www.lawsitesblog.com/2013/03/can-an-iphone-app-improve-your-legal-writing.html
Can an iPhone app improve your legal writing? Kathleen Vinson thinks so. A professor of legal writing at Suffolk University Law School in Boston, Vinson has developed iWrite Legal, a free iPhone app designed to help legal writers improve their writing skills.
The app consists of three sections — Legal Writing Tips, Legal Writing Checklist and Additional Resources — all aimed at providing advice and guidance on writing, editing and proofreading a legal document.
The first section, Legal Writing Tips, is simply that — a collection of tips, no doubt gleaned from Vinson’s own experience teaching legal writing. Each tip occupies its own screen, with a heading such as ‘Finding the Time to Write,’ ‘Be Consistent’ and ‘One Point at a Time,’ followed by a paragraph that elaborates on the point. For example, under the heading, ‘Writing Efficiently,’ the app offers this tip:
Do you feel that it is taking a long time to draft a document? Good writing takes time but often what slows writers down is trying to edit while you write. Don’t edit/revise while you write or stop to think of the perfect word. Write quickly and then once you have completed a draft, edit slowly. If you have to, cover the screen while you type so you can fight the urge to edit while you write.
The second part of the app consists of four legal writing checklists. They cover the initial stages of writing, revising, editing and proofreading. For example, the checklist for the initial stages of writing lists items such as, ‘What is the purpose of the document?’, ‘What relief do you want from the court?’ and ‘Why is your client entitled to this relief?’ As you satisfy yourself that you have covered each element, touch that element in the app to check it off.
The final component of the app, Additional Resources, simply provides links to the Suffolk Law Legal Practice Skills program’s Twitter feed, YouTube video and Legal Writing Tips podcasts.
So will this app make you a better writer? . . . .
25 Sunday Jan 2015
Posted in Editing, Legal Writing, Proofreading, Spell Checking
≈ Comments Off on Trouble With Typos? Ten Tips To Help Get Rid of Them.
10 Tips to Banish Typos, by Mignon Fogarty, Grammar Girl Blog
Funny Typos
Typos can seem funny after the fact. A couple of years ago I told you about someone who accidentally recommended a friend as a ‘fat and accurate typist’ instead of a ‘fast and accurate typist’ and another person who wrote to tell a friend he had written an excellent report and instead called it an ‘excrement report.’
Costly Typos
Some typos are more than embarrassing; they’re costly. Contracts, for example, are not good places for typos. A Canadian utility company became famous for the ‘million dollar comma‘ lawsuit when they had to pay another company more than $2 million because of a misplaced comma.
Old Typos
Typos aren’t a new problem either. There are a few old editions of the King James Bible that have typos. A 1612 edition known as the ‘Printers Bible’ reads ‘Printers have persecuted me without a cause’ instead of ‘Princes have persecuted me without a cause,’ and another one from 1635 is called the ‘Sinner’s Bible’ because it reads ‘Thou shalt commit adultery’ instead of ‘Thou shalt not commit adultery.’ Whoops.
When you want to avoid embarrassing yourself, incurring costly lawsuits, and leading believers astray, here are 10 tips to help.
- Have someone else read your work. The best way to find typos is to have someone else read your work. They don’t know what you meant to say, and their fresh eyes will almost always catch things you missed. Since that’s not always possible, here are some other solutions.
- When you’re writing on your computer, use the auto-correct feature.I also call this the ‘know thyself’ trick. For example, I always type ‘pateint’ instead of ‘patient.’ Always. But with the auto-correct feature in my word-processing software, I can tell the computer that every time I type ‘pateint’ it should insert ‘patient.’ Problem solved!
The best way to find typos is to have someone else read your work.
- Run your work through your computer’s spell-checking tool. It’s amazing how many people don’t do this. Don’t think the computer is infallible though. The first choice it gives you may not be the right one, and spell-checkers often think correct possessives such as children’s and someone else’s are wrong. The computer can highlight things you should check yourself, but it isn’t perfect.
- Print your work.Always proofread a printed version of your work. Many people find that if they try to proofread on a computer monitor, they miss more errors than when reading a printed copy of their work.
- Give yourself some time.If possible, let your work sit for a while before you proofread it. If you are able to clear your mind and approach the writing from a fresh perspective, then your brain is more able to focus on the actual words, rather than seeing the words you think you wrote.
- Read your work aloud.This forces you to read each word individually. I write a script for each Grammar Girl podcast, and when I read it to record the show, I almost always find an error I missed when proofreading it other ways. A long time ago, a listener told me that he felt uncomfortable reading his writing aloud at work, so he does it while pretending to talk on the phone so people don’t know what he’s doing.
- Force yourself to view each word.If you don’t want to read aloud, you can force yourself to consider each word by using the tip of a pencil or pen to physically touch each word. You can also force yourself to focus on smaller sections of the document by putting a ruler under each line of text as you are reading or by cutting out a small rectangular window on an index card and sliding it over your copy as you read.
[[AdMiddle]8. Read your work backward, starting with the last sentence and working your way in reverse order to the beginning. Supposedly, this works better than reading through from the beginning because your brain knows what you meant to write, so you tend to skip over spelling mistakes when you’re reading forward.
Philip Corbet recently reviewed some of his favorite proofreading tips in his New York Times column ‘After Deadline,’ and I picked up a couple of new ideas there.
- Separate proofreading tasks.Read the article through once to just check the spelling, and then read it through again to just check the punctuation. By separating tasks, you’ll be able to focus better on each one.
(He also showed an example of a sentence that looked like a revision gone awry–as though the writer had rewritten the sentence but forgotten to remove remnants of the earlier version–and that really struck a chord with me. Almost every time I post a terrible typo to Twitter or Facebook, it’s because I was repeatedly editing the post to make it shorter and didn’t see that something got left in from an earlier version. So the advice is to be especially careful when you’re revising things at the last second.)
- Print your work in a different font with different margins.Bryan Garner, the author of Garner’s Modern American Usage, posted this tip to his Twitter feed: ‘When you’re sick of editing your own work, you should print it in a different font with different margins. It works!’ I’m going to try that one on my next book.
If you want to raise a happy dog who loves to play and cuddle–but still comes when called and doesn’t chew up your favorite shoes–you need Jolanta Benal’s The Dog Trainer’s Complete Guide to a Happy, Well-Behaved Pet: http://bit.ly/upuIhO
Distractions
VIDEO: ‘The Impotence of Proofreading‘ by Taylor Mali.
21 Sunday Dec 2014
Posted in Editing, Legal Writing, Proofreading, Readability
≈ Comments Off on How Are Your Punctuation Skills?
Tags
ABA Journal, Editing, Jack McNeill, Legal Writing, Pace Law Library Blog, Punctuation, William P. Statsky
Improve Your Writing Skills. How Would You Punctuate these Paragraphs?, by Jack McNeill, Pace Law Library Blog (with hat tip to William P. Statsky!)
Bill Statsky ran across this jewel, and was kind enough to send it along. Regardless of how well we think we write, there is room for improvement for many of us, myself included. Exercises such as this help to hone our skills. -CCE
From the ABA Journal we have this challenge. Two paragraphs are proposed. They include no punctuation. How would you punctuate them? Proper punctuation improves the clarity and flow of your writing. Try your skills. Later in the article the paragraphs are shown professionally edited. If you did not do well against the professional, think about how the professional approached the paragraphs and what you might do to use those skills to improve your own writing. The article is here: How are your punctuation skills? Try this comparison exercise to find out.
27 Thursday Nov 2014
Posted in 9th Circuit Court of Appeals, 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
≈ Comments Off on Appellate Legal Writing – This Is How You Do It.
Tags
A Writ In Time, Appellate Writing, Bridging the Gap Seminar, Chief Judge Alex Kozinski, Free CLE Materials and Forms, Legal Writing, Louisiana Civil Appeals Blog, Moot Court, Raymond P. Ward, the (new) legal writer blog
Free La. Appellate CLE Materials, by Raymond P. Ward, Louisiana Civil Appeals Blog
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:
- My written materials
- A PDF copy of my PowerPoint presentation
- My article A Writ in Time, 51 La. B.J. 338 (Feb.–Mar. 2004)
- Two entertaining and informative articles by Chief Judge Alex Kozinski of the U.S. Ninth Circuit:
- In Praise of Moot Court—Not!, in which Judge Kozinski discusses the differences between law-school moot-court competitions and real-world appellate practice
- The Wrong Stuff, in which Judge Kozinski offers tips to help you lose your next appeal
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:
15 Saturday Nov 2014
Posted in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language, Proofreading, Quotations, Readability
≈ Comments Off on Whatever Can Be Misunderstood, Will Be.
Tags
Albert Einstein, Legal Writing, Legalese, Paul Luvera, Plain Language, Plaintiff Trial Lawyer Tips Blog
This Should Be Every Trial Lawyer’s Mantra, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog
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
05 Sunday Oct 2014
Posted in Briefing Cases, Citations, Editing, Legal Analysis, Legal Argument, Legal Writing, Proofreading, Public Domain Citations, Readability, Spell Checking, The Bluebook
≈ Comments Off on Garner’s Ten Legal Writing Tips.
Tags
ABA Journal, Bryan Garner, Computer Legal Research, Editing, Legal Analysis, Legal Citations, Legal Writing, Proofreading
Ten Tips for Legal Writing, by Judith D. Fischer, Legal Writing Prof Blog
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.’
27 Saturday Sep 2014
Posted in Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Fonts, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Legalese, Proofreading, Psychology, Readability
≈ Comments Off on Appellate Judge Explains How To Lose An Appeal – Works Every Time!
Tags
Appellate Brief Writing, Appellate Record Citations, Bad Legal Writing, Hon. Alex Kozinski, Legal Writing, The Montana Lawyer
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.
http://notabug.com/kozinski/loseappeal
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. . . .
03 Wednesday Sep 2014
Posted in Editing, Legal Argument, Legal Writing, Proofreading, Readability
≈ Comments Off on Show, Don’t Tell, When You Use The Right Word.
Legal Writing: Word Choice, by Jason Steed, Legal Solutions Blog
http://blog.legalsolutions.thomsonreuters.com/practice-of-law/legal-writing-word-choice/
Every good lawyer knows that persuasion begins with framing the issue, and framing the issue begins with effective word choice. But many lawyers don’t realize, or occasionally forget, just how effective good word choice can be—or worse, they misunderstand what it means to make effective word choices. They think, for example, that labeling an act as “extremely egregious” will help the court to understand just how terrible the act was. But every good writer knows that good writing means showing, not telling—and adverbs and adjectives are all about telling.
In other words, adverbs and adjectives are not a sign of good persuasive writing. If you find yourself using adverbs or adjectives to get your point across, then you’re probably making bad word choices. Why? Because adverbs modify verbs, and adjectives modify nouns—and if your verbs and nouns need modifying, then they probably aren’t the best verbs and nouns you could be using.
So how effective can simple nouns and verbs be? . . . .
22 Tuesday Jul 2014
Posted in Appellate Writing, Legal Writing, Proofreading
≈ Comments Off on It Could Happen To Anyone – But Justice Scalia Isn’t Just Anyone.
Would You Like Salt on That Crow?, by Tiffany Johnson, Good Legal Writing
http://goodlegalwriting.com/2014/07/22/would-you-like-salt-on-that-crow/
So, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents. . . .
12 Saturday Jul 2014
Posted in Citations, Editing, Legal Writing, Proofreading, Readability, Spell Checking, Style Manuals
≈ Comments Off on More Yummy Candy for Writers.
Tags
Grammar and Punctuation, Proofreading, Style Manual, The University of Wisconsin-Madison, UW Madison Writer’s Handbook
UW Madison Writer’s Handbook, The Writing Center @ The University of Wisconsin-Madison
http://writing.wisc.edu/Handbook/index.html
For all writers, I strongly recommend a review of all the sections under “Grammar and Punctuation,” but especially: “Subject-Verb Agreement,” “How to Proofread,” “Twelve Common Errors: An Editing Checklist,” and “Clear, Concise Sentences.”
If you are a legal writer, please note that this style manual’s rules on citations are not in sync with The Bluebook, ALWD, or court rules. -CCE
04 Friday Jul 2014
Posted in Editing, Fonts, Legal Writing, Proofreading, Quotations, Readability, Style Manuals
≈ Comments Off on Style Manuals for the CIA and NSA SIGNIT and More.
Tags
beSpacific Blog., CIA, Grammar and Punctuation, NSA SIGNIT, Sabrina I. Pacifici, Style Manuals, Writing
CIA Style Manual Available Online, by Sabrina I. Pacifici, beSpacific Blog
If you are not familiar with Ms. Pacifici, I encourage you to check out her blog. She is an extraordinary researcher. These materials are interesting enough on their own, but you will see that the links take you to the FOIA Resources at The National Security Archive. The Government Attic Blog is also worth a good, long look. -CCE
Via governmentattic.org:
‘National Security Counselors law firm has obtained a copy of the CIA Directorate of Intelligence Style Manual, Eighth Edition, 2011. It is entitled Style Manual & Writers Guide for Intelligence Publications. The CIA Guide is not alone. Each of the members of the Intelligence Community IC have one or more Style Manuals to conform the reports and documents of that agency to a consistent writing style and usage. This is highly important to achieving clear and unambiguous communications of such matters.
Here is another example: the NSA SIGINT Style Guide
The National Security Counselors web site publishes a large number of interesting documents released under FOIA, or under litigation arising from FOIA requests.’
01 Tuesday Jul 2014
Posted in Bad Legal Writing, Legal Writing, Legalese, Plain Language, Proofreading, Readability
≈ Comments Off on Classic Writing Tips From C.S. Lewis.
Tags
C.S. Lewis, Editing, Ethos3, Grammar and Punctuation, Legal Writing, Plain Language, Readability, Scott Schwertly
5 Writing Tips by C.S. Lewis, the Purveyor of Childhood, by Scott Schwertly, the Founder and CEO of Ethos3
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.
01 Tuesday Jul 2014
Posted in Bad Legal Writing, Editing, Legal Writing, Legalese, Plain Language, Proofreading, Readability
≈ Comments Off on George Orwell’s “Politics and the English Language”
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Bad Legal Writing, Editing, George Orwell, Grammar and Punctuation, Legal Writing, Legalese, Plain Language, Politics and the English Language, Proofreading
Politics and the English Language, George Orwell’s Library
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.
28 Saturday Jun 2014
Posted in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Microsoft Office, Plain Language, Proofreading, Word
≈ Comments Off on Checked Your Readability Score Lately?
Tags
Above the Law (blog), Bad Legal Writing, Editing, Legal Writing, Mark Herrmann, Microsoft Word, Readabilty Score, Steve Dykstra
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. . . .
22 Sunday Jun 2014
Posted in Editing, Legal Writing, Proofreading, Readability
≈ Comments Off on Controlling Crowded Sentences. Shorter Is Not Always Better?
Tags
Controlling Crowded Sentences, Editing, George Gopen, Judith D. Fischer, Legal Writing Prof, Legal Writing Prof Blog
Controlling Crowded Sentences, by Judith D. Fischer, Legal Writing Prof, Legal Writing Prof Blog
In his recent article Controlling Crowded Sentences, rhetorician George Gopen shows how to make Gopen the most of stress positions. He starts with a sample thirty-six word sentence and then revises it six different ways. Some revisions are a bit longer than the original, but Gopen emphasizes that ‘I do not hold with those who advise ‘to make it better, make it shorter.’ Each revision has a different purpose: one places a person in a subordinate role, and another builds empathy for her. The article appeared in the spring 2014 issue of Litigation.
