Tag Archives: ABA Journal

Bryan Garner Shows Us How to Start a Sentence.

10 Sunday Dec 2017

Posted by in Editing, Grammar, Legal Writing, Persuasive Writing

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How To Start A Sentence: Consider All Your Alternatives, And Sprinkle In Some Conjunctions, Too, by Bryan A. Garner, Bryan Garner on Words, ABA Journal 

http://www.abajournal.com/magazine/article/how_to_start_a_sentence

Bryan Garner is one of the recognized experts on legal writing. This post isn’t about just how to start a sentence. It shows you why the last sentence in a paragraph is the most important, and how to use the first sentence to set it up.

Check out the second paragraph of the post. Look at the example of how to show, not tell.  Don’t worry about whether you understand his use of words, such as “adverbial elements.” Pay attention to his examples. He will show you what works, and what doesn’t.

Were you taught, as I was, never to use a conjunction to start a sentence? In the latter part of this post, Mr. Garner illustrates how using conjunctions to start sentences is an excellent writing tool. And I agree with him. -CCE

Do You Use the Cloud for Document Storage or Production? Read This First.

28 Tuesday Feb 2017

Posted by in Attorney Work Product, Attorney-Client Privilege, Clouds, Confidentiality, Discovery, Dropbox, Emails, Encryption, Evidence, Insurance Defense, Legal Ethics, Legal Technology, Litigation, Passwords, Privilege and Confidentiality, Requests for Production, Sanctions, Subpoena Duces Tecum

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Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©

http://bit.ly/2mxwEcF

Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.

The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.

He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.

The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.

After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE

Why We Need The Bluebook® Even When It Makes Us Nuts.

12 Saturday Sep 2015

Posted by in Citations, Legal Writing, The Bluebook

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The Bluebook® gives us a uniform way to cite to legal authorities. Imagine the breadth of legal writing without a common and reliable citation form to research and locate cases and other sources of law.

Theoretically, each new edition should include citation format to new sources for legal writing, such as the Internet. Unfortunately, every new edition to The Bluebook® does not limit itself to finding new sources of legal opinions and other types of legal writing. Invariably, the editors “tweak” minutiae.

I taught The Bluebook® for many years in legal writing classes and seminars. As the years went by, I began to dread each new edition and the necessary memorization of every new rule that changed already perfectly acceptable and logical citation format. The editors’ propensity to make minor changes to established citation formats made many question the editors’ reasons for their numerous revisions.

Bryan Garner expressed similar issues with The Bluebook®, which he shared in this article from the ABA Journal: “The Bluebook’s 20th edition prompts many musings from Bryan Garner’ at http://tinyurl.com/qbysgbk. Mr. Garner refers to the many minor revisions as ‘nettlesome changes,’ and does an excellent job of explaining why. -CCE

Is The Bluebook Protected By Copyright?

31 Sunday May 2015

Posted by in Citations, Copyright, Intellectual Property, Legal Writing, Public Domain, The Bluebook

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Legal Minds Differ On Whether The Bluebook Is Subject To Copyright Protection, by Leslie A. Gordon, ABA Journal

http://tinyurl.com/o228qkc

Controversy is probably not the first thing that comes to mind when you think of The Bluebook, but the bible of legal citation is at the center of an increasingly nasty dispute over whether it is subject to copyright protection.

Open-source advocates are contending that the style and citation manual is an essential piece of legal infrastructure and can’t be preserved as private property under copyright law. The book’s publishers say otherwise. . . .

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Abandon Weak Points To Bolster Your Stronger Legal Arguments.

13 Wednesday May 2015

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

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First Impressions Endure, Even In Brief Writing, by Bryan A. Garner, ABA Journal

http://www.abajournal.com/magazine/article/first_impressions_endure_even_in_brief_writing

We have a long history of judges saying that (1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader. Even so, briefs in most courts are astonishingly ill-proofread, they are rarely tight, and lawyers seldom confine themselves to two or three points. There’s a disconnect between what judges say they want and what lawyers give them. Curious.

There’s also a tendency to disbelieve things that can’t be scientifically proved. Hence I’ve heard lawyers say they don’t care so much about what judges say they find persuasive in written arguments. Those judges might not actually know what motivates them, the skeptical lawyers say. They want proof.

So let’s take the three points mentioned at the outset and see whether, when it comes to judging, there’s any scientific evidence to back up the anecdotal evidence that good writing enhances persuasion. We’ll use the findings of Nobel laureate Daniel Kahneman, the Princeton psychologist and economist who wrote a superb book: Thinking, Fast and Slow. What he says is most illuminating. . . .

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A Novel Approach To Circuit Court’s Word Limit Rule. If Only It Had Worked!

22 Wednesday Apr 2015

Posted by in Abbreviations, Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Initialisms, Legal Writing, Readability

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Squished-Together Words Don’t Count As One, Federal Circuit Says; Appeal Is Tossed, by Debra Cassen Weiss, ABA Journal (with hat tip to William P. Statsky!)

http://tinyurl.com/kqmddjt

A litigant that squeezed multiple words together and resorted to abbreviations didn’t satisfy word limits in its briefs and won’t be able to pursue its appeal, according to the U.S. Court of Appeals for the Federal Circuit.

The appeals court tossed the patent appeal by Pi-Net International in an April 20 order (PDF). How Appealing links to the opinion and a story by Law360 (sub. req.), which dubbed the creative wording ‘a trick straight out of high school English class.’ . . .

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On appeal, JPMorgan objected to Pi-Net’s first brief, saying it attempted to evade the 14,000 word limit by deleting spaces between various words and squeezing them together, according to the Federal Circuit. The Federal Circuit offered an example: One case citation consists of 14 words, but Pi-Net squeezed them together to make them into one word. . . .

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The ABA’s List of the Top 25 Legal Movies.

17 Friday Apr 2015

Posted by in Closing Argument, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses

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The 25 Greatest Legal Movies, by Richard Brust, ABA Journal

http://www.abajournal.com/magazine/article/the_25_greatest_legal_movies

There is a unique group of movies that show the best — and worst — traits and practices by the legal profession. We all have our favorites. Check out the ABA’s list. Are your top choices there? If not, please leave a comment, and share your favorite. -CCE 

What would Hollywood do without lawyers? In a town built on copyrights and cosmetic surgery, lawyers have done far more than pen the small print in studio contracts or post bail for hollow-eyed stars on the way to and from rehab. From the incisive Henry Drummond and the droll Mr. Lincoln to the callow Danny Kaffee and the regal Atticus Finch, lawyers have provided some of Hollywood’s most memorable cinematic heroes and some of its most honorable and thoughtful films.

Earlier this year, the ABA Journal asked 12 prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. We’ve collated their various nominees to produce our jury’s top picks.

Together these films represent 31 Oscar wins and another 85 nominations as befits the best work of some of the greatest actors, writers and directors of their time.

So quiet, please. A rap of the gavel, a pull of the curtain, and ‘Hear ye! Hear ye!’ for the 25 greatest law films ever made. . . .

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Too Many Acronyms = Alphabet Soup.

16 Thursday Apr 2015

Posted by in Abbreviations, Acronyms, Bad Legal Writing, Brief Writing, Court Rules, Courts, Initialisms, Legal Writing, Local Rules, Spell Checking

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Check Your Briefs For Acronym Overuse, DC Circuit Clerk Tells Lawyers In Campaign Finance Case, by Debra Cassen Weiss, ABA Journal

http://tinyurl.com/mff4sqx

Acronyms continue to bedevil the U.S. Court of Appeals for the D.C. Circuit.

Parties before the court are advised in circuit rules to avoid little-known acronyms; lawyers who didn’t heed the advice were called out in a 2012 opinion. Now the clerk’s office is doing its part to police the briefs. . . .

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Lawyer Sanctioned For Throwing Paralegal Under The Bus To Explain Mistake To Court.

24 Tuesday Mar 2015

Posted by in Attorney Discipline, Lawyer Supervision, Legal Ethics, Paralegals/Legal Assistants, Rules of Professional Responsibility, Supervising Support Staff

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Judge Sees ‘Self-Congratulatory Blather’ In Biglaw Brief; Paralegals Blamed For Error, by Debra Cassens Weiss, ABA Journal (with hat tip to William Statsky!)

http://tinyurl.com/na9l6gy

A Florida bankruptcy judge overseeing a fight between investors in a shuttered fashion mall made no secret of his dissatisfaction with a Duane Morris pleading during a sanctions hearing on Friday.

U.S. Bankruptcy Judge John Olson said the law firm appeared to be throwing a paralegal ‘under the bus’ when it blamed her for a mistaken court filing, and its sanctions brief was lacking the proper tone, the Daily Business Review (sub. req.) reports.

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How Are Your Punctuation Skills?

21 Sunday Dec 2014

Posted by in Editing, Legal Writing, Proofreading, Readability

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Improve Your Writing Skills. How Would You Punctuate these Paragraphs?, by Jack McNeill, Pace Law Library Blog (with hat tip to William P. Statsky!)

http://tinyurl.com/ovqs4qr

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.

Garner’s Ten Legal Writing Tips.

05 Sunday Oct 2014

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

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

http://tinyurl.com/pwlxeyt

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

 

Jim Calloway And The ABA TECHSHOW.

05 Saturday Apr 2014

Posted by in Law Office Management, Legal Blogs, Legal Technology, Management, Marketing, Technology, Time Management, Using Social Media

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ABA TECHSHOW 2014 – Interview with The TECHSHOW Chair, by Jim Calloway, Jim Calloway’s Law Practice Tips Blog

http://tinyurl.com/khy3wwj

If you are interested in legal technology and law office management and you don’t know about Jim, it’s time to get acquainted. Jim Calloway is the Director of the Management Assistance Program of the Oklahoma Bar Association.  He is a nationally recognized expert, and the recognition is well deserved. Among other things, he produces, with Sharon Nelson, The Digital Edge: Lawyers and Technology, a monthly podcast. You will also find his articles on the ABA’s and Oklahoma Bar Association’s websites.

In this post, he shares an interview with Techshow Chair, Natalie R. Kelly, 60 Sites in 60 Minutes lineup, the ABA Journal article on the program, and 60 sites list. Really good stuff. -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. . . .

The Legal Writing Debate on Footnotes Continues.

08 Saturday Feb 2014

Posted by in 5th Circuit Court of Appeals, Appellate Law, Brief Writing, Citations, Court Rules, Footnotes, Legal Writing

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The Never Ending Debate Over Citational Footnotes, by Raymond Ward, the (new) legal writer

http://tinyurl.com/lh3t2co

Mr. Ward gives us a brief overview in these two paragraphs. In the remainder of his post, Mr. Ward expands on his variations for citations in footnotes and the preferences of Fifth Circuit judges  I mean no disrespect to Mr. Garner, but if Mr. Ward gives advice on legal writing, I pay attention. -CCE

Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.

Fast-forward 13 years. Bryan Garner writes an article for the ABA Journal recommending the use of footnotes for legal citations—a position he’s held since I took my first Garner seminar in 1998. His fellow Texans Rich Phillips and Jason Steed write blog posts begging to differ. Different decade, pretty much the same debate.

Use Footnotes for Legal Citations?

07 Friday Feb 2014

Posted by in Brief Writing, Citations, Footnotes, Legal Writing

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Garner Argues For Footnotes In Judicial Opinions, by Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/jwd8rpg

Count me as one who disagrees with putting citations in footnotes. Mr. Garner has advocated this position for some time, and he has won some converts.

When I am reading a brief or opinion, I want to look at the citation at the time I am reading the argument. The strength of the authority will influence how persuaded I will be by the argument. Because persuading the reader is basically what legal writing is all about, I do not want my reader to lose focus or be distracted in any way. For me, having to move my eyes down to a footnote to find the authority used for an argument would tedious and irritating. I am afraid that I will never agree with Mr. Garner on this point. -CCE

In his February ABA Journal column, Bryan Garner continues his long-running campaign for footnotes in judicial opinions. He argues that citations in the text make legal writing cumbersome. And he points out that while they might have been practical in the days of the typewriter, now “we can easily sweep those interruptions out of the way.”

Garner admits that not everyone agrees with him; so far, only a minority of judges has adopted his proposal. . . .