A $10 Million Punctuation Mistake.


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Take That, AP Style! Court of Law Rules The Oxford Comma Necessary, by Kelly Gurnett, The Write Life (republished here with permission)


Which of these two sentences look right to you?

I need a pen, my notes, and a legal pad.

I need a pen, my notes and a legal pad.

The first sentence includes the Oxford comma, sometimes called the “serial comma.” If you do not already use it, you may ask why bother? It is about clarity versus ambiguity. In this case, the Oxford comma made all the difference.

“In this class action lawsuit, drivers for Oakhurst Dairy sued the company over its failure to grant them overtime pay. According to Maine law, workers are entitled to 1.5 times their normal pay for any hours worked over 40 per week. However, there are exemptions to this rule. Specifically, companies don’t need to pay overtime for the following activities:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

Agricultural produce;

Meat and fish product; and

Perishable foods

Note the end of the opening line, where there is no comma before the ’or.’”

The employer argued the employees did not qualify for overtime because “packing for shipment” and “distribution” were two different things. The employees argued that, without the comma before the “or,” they should be paid for both. The court agreed with the employees. The language determining overtime pay was ambiguous because of the missing comma.

“Without that comma, as the judge maintained, this distinction was not clearcut:

Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

How much did this missing comma cost the employer? Approximately $10 million. Proper punctuation matters, especially in legal writing.

Feeling the need for a punctuation refresher? Try this website: http://www.thepunctuationguide.com/comma.html


What’s the Clue to Whom Did What, Where, and Why?


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Give A Clue (A Linguist Whodunit), by Mark Cooney, 97 Mich. B. J. 60-62 (June 2017) 

“This piece first appeared in Professor Cooney’s book, Sketches on Legal Style, published by Carolina Academic Press.”


In this tongue-in-cheek parody of Hasbro’s classic board game, Clue©, Professor Cooney delightfully explains the importance of using the active voice rather than the passive.

The basic tenet of good legal writing is to put the subject and verb together, place modifiers next to what they modify, and use the active voice. The passive voice causes confusion rather than clarity because it fails to communicate the writer’s intention. There is only one valid use of the passive voice – when the actor is unknown or unimportant.

Enjoy! -CCE

The ABA’s Web 100.


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Web 100 Amici, ABA Journal, American Bar Association

Every year for the last decade, the ABA has solicited votes for nominations for the favorite law-related blog. Those chosen based on your nominations become the Web 100 for that year. Over the years, it’s expanded to include other law-related technology, and added its own Blawg Hall of Fame. It’s definitely worth a look to rediscover old favorites and others goodies you might have missed.

It’s that time of year again. Nominate your favorite law-related blog, podcast, social media feed, app, or interactive feature for recognition in this year of the ABA’s Web 100. You will find the nomination form at the link below. -CCE


Lexis Advance Gets Touchy Feely. Let the Marketing Begin.


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LexisNexis launches Lexis Analytics, by Joe Hodnicki, Law Librarian Blog


Yesterday, LexisNexis launched Lexis Analytics. From the press release:

“The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.”

Interestingly, Thomson Reuter launched Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, on the same day as the Lexis Advance launch. Joe Hodnicki believes that Westlaw Edge is more powerful and stiff competition to Lexis Advance. Those of you who use these products, what do you think? -CCE



Are You Happy with LexisNexis’ Ethics, Marketing, and Lexis Advance? AALL Isn’t.


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Tying Controversy: AALL Statement on July 2 Meeting with Lexis Representatives, by Joe Hodnicki, Law Librarian Blog


If you have not noticed, there is a growing controversy with LexisNexis’ ethics and marketing practices. This affects all law schools, paralegal educators, and law firms that subscribe to LexisNexis. For a bit of the back story, see LexisNexis’ Next-Generation Solution Means End of Lexis.com at http://www.lawsitesblog.com/2016/12/last-rites-lexis-com-lexisnexis-sets-date-shutdown.html. Here is more to the point from Joe Hodnicki, who has been closely following the dialogue between LexisNexis and the AALL: https://llb2.com/2018/06/15/early-coverage-of-aall-lexisnexis-anticompetitive-tying-controversy/.

Heads’ up, LexisNexis subscribers. – CCE

A Guide to E-Discovery Terms.


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The Big List of E-Discovery Terms Every Paralegal Should Know, by Jenny Tucker, My Paralegal Place (reprinted with author’s permission)


I have paralegal friends who have had special training and received credentials for their knowledge of e-discovery. I also have paralegal friends who rarely run across the same kind of challenge. If these terms are common to you, I tip my hat. If not, I hope this helps. Thanks, Jenny, for sharing. -CCE

The Capitol Steps – Today!



The Capitol Steps


Every year, The Capitol Steps perform a 4th of July show. If you are not familiar with The Capitol Steps, it’s political musical satire. This tradition is shared by similar groups around the country in law schools and bar associations, such as the Bar & Grill Singers in Austin: https://www.singers.com/group/Bar-Grill-Singers/ (my personal favorite, “Appointed Forever“).  It’s well written, well performed, and hilarious.

Regardless of your political persuasion, you’ll enjoy it! Happy Fourth of July! -CCE



The True Test of Good Legal Writing.


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Free at Last from Obscurity: Achieving Clarity, by Hon. Gerald Lebovits, 97 Mich. B. J. 6, 38 (May 2017)


I love the Plain Language Committee of the Michigan Bar Association. Every one of its articles in the Michigan Bar Journal is a legal writing gem. In this article, Judge Lebovits explains why this is your goal and how to do it:

[T]he hallmark of good legal writing is that an intelligent layperson will understand it on the first read.

Six Judges Let The Benchslaps Fly.


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Six Benchslaps to Brighten Your Day, by Lisa Needham, Lawyerist.com


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

The Common Flaw With Legal Database Providers.


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The Algorithm as a Human Artifact: Implications for Legal {Re}Search, by Joe Hodnicki, Law Librarian Blog


Susan Nevelow Mart is a law professor at the University of Colorado’s Law School. Her article has earned significant attention and recognition, and for good reason.

Most lawyers and paralegals learn legal research using Westlaw and Lexis, with an emphasis on using headnotes to research relevant law. Because humans write the headnotes and the search algorithms, there is a considerable variation in the results in our legal research.

[W]hen comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database.

Hardly any overlap? Imagine how this affects cases argued by the parties and decided by the courts. But, there’s more. The percentage of relevant sources differs for all providers.

One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Professor Mart reminds us that thorough legal research has always involved redundancy. We already know that different search terms give us new results to investigate. She recommends using multiple resources with multiple searches, and calls for more accountability by legal database providers.

We cannot change what the legal database providers have already done. We do have control over the thoroughness of our research and our search strategies. -CCE

Law Professor Antonio Gidi’s New Legal Writing Book.


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Legal Writing Style, by Antonio Gidi (West 2018), at SSRN.


Antonio Gidi, law professor at Syracuse University College of Law, recently updated Weihofen’s Legal Writing Style. Professor Gidi is a strong proponent of  concise and persuasive legal writing. A preview of the book is available at the SSRN link above; just click on “Download This Paper.” Plenty for the novice legal writer and good tips for those looking to sharpen their legal writing skills. -CCE

Full or Left Justification?


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Are You Justified?, from Legible, A blog from Legalwriting.net by Wayne Schiess


Do you prefer full or left justification? In the legal writing community, this is a serious debate. It ranks up there with whether citations belong in the text or in a footnote, but not quite as serious as whether you follow the rule of one or two spaces after a period.

The point is whether your choice makes your writing easier to read and understand, which is, after all, the legal writing holy grail. -CCE

Announcement: Comment Requested to Restyle the Federal Rules of Bankruptcy Procedure.



Invitation for Comment to Restyle the Federal Rules of Bankruptcy Procedure, United States Courts 


Over the last several years, many of the federal rules have undergone a process known as restyling, designed to make them simpler, more understandable and easier to read and use. With the exception of the rules in Part 8, which were recently revised, the Rules of Bankruptcy Procedure have not been restyled, partially in deference to their close linkage to provisions of the Bankruptcy Code.

The Advisory Committee on Bankruptcy Rules is now considering whether to recommend that the Bankruptcy Rules undergo the restyling process and is soliciting input from the public. With the assistance of the Federal Judicial Center, the Advisory Committee’s Restyling Subcommittee has created a short survey seeking opinions and comments on the benefits and drawbacks of restyling.

If you or your organization would like to provide feedback, please complete the survey (link is external) by June 15, 2018. We encourage you to contribute your views.

The survey results will be reviewed by the Restyling Subcommittee and given careful consideration as it decides what recommendation to make to the Advisory Committee.

Sandra Ikuta, Chair, Advisory Committee on Rules of Bankruptcy Procedure

Dennis Dow, Chair, Bankruptcy Rules Restyling Subcommittee, Chair-Designate, Advisory Committee on Rules of Bankruptcy Procedure

Why The Jury Blamed The Injured Plaintiff.


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Understanding Why Jurors Want To Blame The Injured Plaintiff, by Paul Luvera, Plaintiff Trial Lawyer Tips


There are times when it simply does not make sense that the jury did not sympathize with the plaintiff. Yes, there can be legal reasons for the outcome, but there are certain psychological motives as well. This post does an excellent job of identifying and explaining them. -CCE

Federal Judge’s E-Admissibility Chart.


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Handy Chart on E-Admissibility, posted by Craig Ball, Ball In Your Court (with hat tip to U.S. District Court Judge Paul Grimm)


In my opinion, Craig Ball, his seminars, and his blog, are at the top of my list of “go to” sources anything related to e-discovery. Written by U.S. District Court Judge Paul Grimm, this chart is e-discovery gold. Highly recommend a bookmark! -CCE

I received a fine gift this morning from U.S. District Judge Paul Grimm, and with the authors’ permission, I’m sharing it with you.  It’s a splendid chart on admissibility of electronic evidence that any trial lawyer will want when going to Court.  For younger readers, I will explain what “going to Court” means in a future post.

Continue reading

United States Sentencing Commission Unanimously Adopts 2018 Guideline Amendments.



NEWS RELEASE: USSC Unanimously Adopts 2018 Guideline Amendments


To access the new amendments, click here: https://bit.ly/2JLNGj6. -CCE


If You Want To Know How To Do Something, Ask A Paralegal.


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How the legal profession under utilizes paralegals: exclusive interview with Deborah Hampton of Chemours, by Adam Houldsworth, World Trademark Review (hat tip to William P. Statsky)


I met Deborah Hampton years ago, and was impressed then by her intelligence, poise, kindness, and professionalism. I am even more impressed now. -CCE

State-by-State Recording Laws from the Reporter’s Committee for Freedom of the Press.


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State-by-State Reporter’s Guide – Tape Recording Laws At a Glance, Reporter’s Committee for Freedom of the Press


Do you ever record a telephone conversation without telling the person at the other end of the line? It happens quite frequently. But, is it legal? Do you need the other person’s consent? Can it be used as evidence in court? Could you get arrested if you let someone else listen to it? What about hidden cameras?

These statutes were last updated in 2012. When you find your state and the relevant statute, verify that the law has not been changed since 2012. I would take it one more step, and check to see whether there is any pending legislation that might change the law. -CCE

Check Your Facebook Data and Settings.


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How to Download Your Facebook Data, by Roman Loyola, Senior Editor, PCWorld


How can I download a copy of my Facebook data? posted by Facebook Help


Do you use Facebook personally or as a marketing tool? Unless you have lived under a rock, you have heard about the Facebook/Cambridge Analytica scandal. If not, just Google it. You will find plenty of recent posts. It will make you think twice about taking all those personality tests you find frequently on Facebook.

This is not the only Facebook glitch, if glitch is the proper word. Hacked lately? By that I mean, has someone sent posts to your “friends” pretending to be you?

Hopefully, you have checked your safety settings. That will help, but the type of data you share online may negate your efforts.

Hopefully, you do not share that you plan to attend an event (a feature Facebook provides), photos of your vacation while you are on vacation, or post that you are – at that very moment – at a specific location away from home.

Hopefully, you do not post photographs of your children with your child wearing a school t-shirt or jersey, the front of your house with the house number, or a photo with your vehicle’s tag number in the background.

You get the idea. If you want to use Facebook, whether for personal or business use, Facebook – and others – I suspect you already know they know more about you than you realize.

It will not hurt to look at your Facebook data and re-check your Safety Settings at https://bit.ly/1j7xk0x. I recommend another Google search (yes, search engines, news media, and other social media are tracking you, too) to find more ways to update your Facebook settings. Please look at the date of whatever you find. You want the newest version. The newer, the better. -CCE

Historical Supreme Court Cases Now Free Online.


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Historical Supreme Court cases now online thanks to Library of Congress (and Hein & Co.), by Joe Hodnicki, Law Librarian Blog


According to the press release, ‘More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.’ You can access the collection here.”

Find Bills and Amendments and Who Sponsored Them.


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How to Locate the Bills and Amendments a Member of Congress has Sponsored or Cosponsored in Congress.gov, by Robert Brammer, In Custodia Legis, Law Librarians of Congress


This looks handy. -CCE

One of the questions we are frequently asked is how to locate a bill or amendment that a member of Congress has sponsored or cosponsored. There are a few ways to do this on Congress.gov.

  1. Visit a member profile page

Locate a member you are interested in and open their member profile page. Next, you can use the filters on the left-hand side of the screen to narrow down your results. For example, if you are only interested in legislation that the member sponsored or cosponsored in the 115th Congress, under “Congress”, click on “115”. You can also use the filters in combination with one another to further narrow down your results.

If you are looking at a member profile page for a current member of Congress, note that you can click “get alerts” at the top, left-hand side of the screen to sign up to receive an email each time that member sponsors or cosponsors legislation.

Continue reading

Witness Preparation – The Classics.


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Witness: Top 10 Posts, by Dr. Ken Broda-Bahm, Persuasive Litigator


Have you ever prepared witnesses or clients for a deposition or trial? If you have, then you know these rules or techniques are the classics. Tried and true. If you haven’t, here is some of the best advice you will ever get. This is a “must bookmark.” -CCE

USSC Has A New App for 2016 Sentencing Guidelines.


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United States Sentencing Commission Launches A New Guideline App


The new App gives you access to:

  1. 2016 Guidelines Manual;
  2. Statutory Index Search;
  3. Sentencing Tables;
  4. Appendix – Amendments;
  5. Guideline Range;
  6. Drug Quantity; and
  7. Drug Equivalent.

It also includes Frequently Used Tables and the Archive. -CCE


Federal Research Honey Pot.


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Comparing Methods of Statutory Interpretation Used By The Lower Federal Courts and The Supreme Court, by Joe Hodnicki, Law Librarian Blog


Joe Hodnicki calls this article “recommended,” which means we just found a honey pot for those who research federal case law and statutory interpretation. -CCE

“Here’s the abstract for Aaron-Andrew P. Bruhl’s very interesting Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court, Duke Law Journal, Forthcoming:

‘This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions while other tools are much more prevalent in the lower courts. Another finding, based on a study of forty years of cases, is that all federal courts have shifted toward more textualist tools in recent decades but that the shift was less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation.’ . . .” Continue reading

Paralegal Checklist for Trial.


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What Does A Paralegal Do At Trial: Six Things Your War Room Must Have, by Christina Roberts, CP, Digital Paralegal Services (with permission from author and website)


This excellent post highlights important steps to prepare for trial. This is especially helpful when your trial is out of town.

I like the emphasis on the trial notebook. Your lead counsel may specify something similar. Regardless, it is your job to make sure they have whatever works for them. Still, this trial notebook is ideal, and is an excellent model to follow.

Some quick words about using technology in the courtroom. Visit the courtroom ahead of time. Write down the location of all electrical outlets. Take a lot of duct tape. Use duct tape to secure all wires and cords.

Ask the judge’s staff whether the judge has a preference or pet peeves. Perhaps the judge has local rules for technology in the courtroom?

If you got to trial often, you likely have your own stories of technology attempts that didn’t work. That could be a post all by itself. Mainly, my best advice to you is that, whatever can go wrong, will go wrong. Anticipate it, and be ready with a back-up plan. -CCE