Tag Archives: Lawyerist Blog

Does Legalese Have A Legitimate Purpose?

13 Saturday Feb 2016

Posted by in Legal Writing, Legalese, Persuasive Writing, Plain Language, Readability

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Lawyers, Stop Writing (and Saying) These Things Immediately, by Brendan Kenny, Lawyerist Blog© 2007–2016

http://bit.ly/1PJPILK

Many lawyers are tired of hearing about legalese, and many still haven’t embraced plain language in their own legal writing and speaking. This post won’t try to change their minds. If Bryan Garner’s life work can’t convince lawyers, how can I?

But there is another issue often lost in the plain-language wars: where did all these legalese words come from? The perception on both sides seems to be these words and phrases once served a purpose, but don’t anymore. But what if we discovered that they never served any purpose? . . . .

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Preparing Your Oral Argument – This is How You Do It.

27 Sunday Dec 2015

Posted by in Appellate Law, Oral Argument

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 How to Prepare for Oral Argument, by Sam Glover, Lawyerist Blog

https://lawyerist.com/40693/how-to-prepare-for-oral-argument/

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally talented presenter, you can still improve. The important thing is to get away from your outline and use a more ‘modular’ approach to oral argument.

Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.

That’s because oral argument is so much more dynamic than an outline — even if you have a ‘cold’ bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs. . . .

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How To Research Opposing Counsel, Judges, and Juries.

21 Saturday Nov 2015

Posted by in Internet, Law Journals, Legal Databases, Legal Directories, Legal Directory, LexisNexis, References, Research, TLO for Legal Professionals

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Internet Tools for Researching Opposing Counsel, Judges, and Juries, by Anna Massoglia, Lawyerist Blog

https://lawyerist.com/92442/internet-tools-for-researching-opposing-counsel-judges-and-juries/

Knowing the ins and outs of how other courtroom players think is a key ingredient in successful litigation. Here’s how to do it. . . .

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The Worst Legal Writing Ever?

19 Monday Oct 2015

Posted by in Bad Legal Writing, Legal Writing, Legalese

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We Created the Worst Piece of Legal Writing Possible, by Sam Glover, Lisa Needham, and Sam Harden, Lawyerist Blog (with hat tip to Raymond Ward!)

https://lawyerist.com/91373/we-created-the-worst-piece-of-legal-writing-possible/#disqus_thread

I have to admit that it’s a good effort at legalese, but is it the worst legal writing you have ever read? Does it deserve a place in the Legal Writing Hall of Shame? You be the judge! -CCE

Legalese is awful. To prove it, we forced three lawyers (Sam Glover, Lisa Needham, and Sam Harden) to combine their skills to write the worst piece of legal writing imaginable. Here’s what they came up with:

Clarity in Legal Writing: Unattainable Goal or Necessary Component of Effective Advocacy?

The issue of clearness and conciseness in writing and preparing legal documents, e.g. court filings, pleadings, and motions and all other possible legal and ancillary documents is often a topic of discussion among judges and legal scholars. . . .

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4 Writing Tips For Persuasive Briefs.

29 Tuesday Sep 2015

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

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

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

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

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

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

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

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

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

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

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Your Electronic Communications and Record Keeping Requirements.

21 Monday Sep 2015

Posted by in Ethics Opinions, Law Firm Web Sites, Law Office Management, Legal Blogs, Legal Ethics, Legal Technology, Rules of Professional Responsibility, Technology, Technology

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Deleting Your Website Can Come Back to Bite You in the Assets, by Anna Massoglia, Lawyerist Blog

http://tinyurl.com/nzda7hh

Chances are, you are all too aware that record-keeping is a tedious but necessary evil in the legal profession. There’s also a good chance that you have a website. According to the 2014 ABA Technology Survey Report, 84% of law firms do.

Record-keeping requirements include more than just client files and financial transactions. Many state rules also apply to other electronic communications — including websites.

It is not true that something released to the internet is ‘out there’ forever — especially when it comes to those attempting to comply with record-keeping requirements. . . .

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Casetext and Law Genius – Alternatives to Westlaw and Lexis?

27 Monday Apr 2015

Posted by in Casetext, Law Genius, LexisNexis, Research, Westlaw

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Casetext and Law Genius: Wikipedia for Law? by Sam Harden, Lawyerist Blog

https://lawyerist.com/81229/casetext-law-genius-wikipedia-law/?utm_source=lawyerist-sidebar

Once hidden behind the paywalls of Westlaw and Lexis Nexis, the law is quickly becoming open source. Court decisions have always been part of the public record, at least in theory, but accessing those decisions has always been difficult for both lawyers and non-lawyers alike. The internet has been slow in getting around to making court decisions publicly searchable and understandable.

Recently, two online communities have attempted to make the law more user-friendly by letting lawyers and members of the public add comments, explanations, and cross-references. Both communities are worth exploring if you are a solo or small practitioner. . . .

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Want To Take Better Depositions? Follow The Basics.

03 Wednesday Dec 2014

Posted by in Depositions, Discovery

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Six Steps to Better Depositions, by Evan Schaeffer, Lawyerist Blog

https://lawyerist.com/78538/six-steps-better-depositions/

Evan Shaeffer is one of my favorites. The art of taking a deposition is one of his specialities. -CCE

My first depositions were often frightening experiences. Like most new lawyers, I plunged ahead and tried to do my best, but I rarely felt at ease.

As my discomfort gave way to confidence, I developed techniques I began to use at every deposition. What follow are guidelines, not hard-and-fast rules. But I consider these techniques so useful I continue to use them today. . . .

Is Email Between You And Your Client Safe? No, And This Is Why.

01 Monday Dec 2014

Posted by in Android Phones, Apple, Blackberry Phones, Clouds, Confidentiality, Emails, Encryption, iPad, iPhones, Legal Ethics, Legal Technology, Malpractice, PC Computers, Technology

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How to Encrypt Attorney-Client Communications, by Lisa Needham, Lawyerist Blog (with hat tip to Allen Mihecoby, CLAS, RP!)

http://tinyurl.com/kfrpqz3

If you have decided you need to get serious about client data protection, you will need to consider encrypting both your data and your communications. We have previously covered how to encrypt your data and will focus here on how to encrypt your email communication.

What Is Encryption?

Simply by using the Internet, you are probably using some sort of encryption scheme during some activities, whether you know it or not.

Encryption is simply the act of turning your data into unreadable gibberish. If your data is intercepted or hacked, the thief now has nothing but a pile of garbage.

End-to-end encryption is a must for transferring sensitive data across the internet. In end-to-end encryption, your data is encrypted while it travels towards your intended location and the same encryption occurs on the reverse trip. Your bank (hopefully) uses end-to-end encryption. Your practice management software (hopefully) uses end-to-end encryption if it stores and syncs data remotely. This sort of encryption is done for you without any effort on your part, as it is just a standard feature of the infrastructure you are using to bank or update client data or similar activities.

Why Do You Need to Care?

A few years ago, the ABA issued a formal ethics opinion stating that if there is a significant risk that a third party might gain access to the email, attorneys have to warn clients about that risk.

This poses a problem, because unlike your bank and practice management software, email is usually unencrypted. This is true whether you are using a desktop client or a web-based email like GMail. . . .

Do You Ever CC Clients On Emails? Here’s Why You Shouldn’t.

28 Friday Nov 2014

Posted by in Confidentiality, Emails, Law Office Management, Legal Ethics, Legal Technology, Malpractice, Office Procedures, Rules of Professional Responsibility

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Don’t CC Clients on Emails, by Sam Glover, Lawyerist Blog

http://tinyurl.com/mrm3ucz

This one seems like a no-brainer, but I suspect many lawyers and paralegals alike have not realized the danger in this practice. -CCE

As a general rule, you should not CC your clients on emails.

First, because it gives every other recipient a chance to communicate directly with your client. In fact, it looks like an invitation to do so. Opposing counsel should know better, but even they might use Reply All accidentally, accidentally-on-purpose, or maybe even intending — albeit misguidedly — to be helpful.

In the case of recipients who are not bound by the rules of professional responsibility, you can hardly be surprised if they take the inclusion of your client’s email address as an invitation to keep them in the conversation or communicate with them directly. And remember that the recipient might forward your email, giving anyone not already included the chance to do so. This could be harmless if your email is related to a friendly business transaction. It could also be disastrous.

Don’t forget that clients can make mistakes, too. Even if you BCC your client to avoid the above problems, it could be your client who uses Reply All.

Second, part of your job is to counsel your client, which is difficult to do without providing at least a sentence or two of summary or context or explanation. If all you do is CC your client on every email (or forward every email with little more than “FYI”), you are missing a chance to do your job.

The better practice is usually to wait until the end of the discussion (or at least a decision point), so you can bring your client up to speed with a brief summary, some context, your analysis, the options you need to discuss, etc. Go ahead and include all the back-and-forth if you like, but don’t just hand it off. It is safe to assume given the fact of your representation that your client wants you to use your legal acumen to help them understand what is going on.

So don’t CC your client. There are certainly some exceptions to this ‘rule,’ or times when it doesn’t really matter. But at a minimum you should think twice before adding your client to the CC or BCC field of an email you are about to send.

When Working Freelance, Get An Agreement In Writing.

30 Thursday Oct 2014

Posted by in Confidentiality, Conflict of Interest, Legal Ethics, Malpractice

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Get It In Writing: Freelance Attorney Work Agreement, by Emerald Gratz, Lawyerist Blog

http://tinyurl.com/ntjd2gk

A quick word to paralegals who consider freelance work. Please remember that only lawyers can give legal advice. Except for specific circumstances provided by state or federal statutes, a non-lawyer cannot appear in court on behalf of someone else. If you work freelance, please review and follow the ethical requirements for our profession when working freelance. –CCE

The question of whether the work of a freelance attorney requires a written agreement seems obvious at first glance — “get it in writing” is the golden rule, after all. In practice it is not always that simple. There may be situations, depending on the client, project, or timetable, where getting a written freelance work agreement is not possible or necessary. If a hiring attorney is looking for last-minute emergency assistance, there may not be time to negotiate an agreement. Or the hiring attorney and freelance attorney may have an existing relationship and are comfortable working without a formal agreement.

In these situations, it still benefits both sides to set forth basic project terms in an email, at least. Ultimately, the freelance attorney is responsible for defining the business relationship and running his or her own freelance law practice. . . .

Yes, It Is Okay To Use The Em Dash.

23 Thursday Oct 2014

Posted by in Legal Writing, Punctuation

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The Enigmatic Em Dash, by Matthew Salzwedel, Lawyerist Blog

(This column is adapted from an article originally published in the Minnesota Lawyer on July 1, 2013.)

http://tinyurl.com/q9lkjfc

Knowing how to punctuate properly is essential to good legal writing. Besides the semicolon, though, lawyers probably misunderstand—and as a result misuse—the em dash more than any other punctuation mark. That’s because it’s possible for a lawyer to write for an entire career without ever having to use it.

But lawyers who consciously avoid using the em dash forsake an important legal-writing tool. They’re like carpenters who choose to work with rudimentary tools instead of precision instruments. The job gets done; but the result is hardly refined. . . .

Is It Legal Malpractice If You Are Technologically Incompetent?

01 Friday Aug 2014

Posted by in Law Office Management, Legal Ethics, Legal Technology, Malpractice, Social Media, Technology, Technology, Technology, Trial Tips and Techniques, Using Social Media

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://tinyurl.com/lo9fs45

Do you have a smart phone but only know how to make a telephone call? Do you think of a cloud as some white puffy thing in the sky that looks like a ducky? Do you have a computer on your desk but never turn it on? Is the password to your computer actually “password”? Then this article is for you. Technology is here, and it is not going away. Resistance if futile. -CCE

Technological incompetence used to be merely a competitive disadvantage. Now, it is a potential ethics violation — or even legal malpractice.

During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)

This approach reflected the general attitude of the legal profession in the mid-to-late 1990s. Technology was grudgingly accepted, but not required. Lawyers at big firms had online research accounts and solos went to the law library to use the books. Nobody thought anything was wrong with this, although online research did give big firms a competitive edge.

In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone — lawyers included — uses Google to find everything else. In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.

Ethics rules follow practice

The ethics rulemakers have taken note of this evolution, and the rules have grown to require technological competence.

Lawyers cannot ignore technology

The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Emphasis added.)

As Nicole Black, Director of Business Development at MyCase, puts it, ‘I think it’s pretty clear that […] lawyers can no longer turn a blind eye to technological advancements and their effect on the practice of law.’ . . .

How To Recognize A Bad Client The Easy Way.

20 Sunday Jul 2014

Posted by in Law Office Management, Management, Marketing

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The Bad Clients You Don’t Take Will Be the Best Money You Never Made, by Randall Ryder, Lawyerist Blog

http://lawyerist.com/75147/bad-clients/

Wouldn’t it be nice if every client who called to retain a lawyer were completely honest and forthright during that first meeting or telephone call? Have you ever been burned by believing your client and finding out the hard way that the facts are not what you’ve been told? You ask all the right questions. They seem to give all the right answers. Perhaps you do not see had bad it was until you have spent time and money on the case. Here are some warning signs that will help you avoid bad clients. -CCE

Not all clients are created equal. Great clients will enhance your legal skills, your reputation, and your bottom line. Bad clients can make you question your skills, destroy your reputation, and result in the worst money you have ever made.

Once you have a better understanding of how bad clients can wreck your practice, you will get better at spotting them and avoiding them. And it will be the best money you never made. . . .

Lawyer Explains How TrialPad 4.0 Made Trial Presentation A Piece of Cake.

12 Saturday Jul 2014

Posted by in Adobe Acrobat, Apple, Apps, Graphics, iPad, Legal Technology, Mac, Presentations, Technology, Trial Tips and Techniques

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TrialPad 4.0: Trial Presentation Made Easy, by Todd Hendrickson, Lawyerist Blog

http://lawyerist.com/74651/trialpad-trial-presentation/

I recently put TrialPad 4.0 through its paces during  a two-week trial — but not from the start. As in the past, I felt to overwhelmed to add figure out a new app to my trial prep to-do list.

So I started trial using Acrobat to display documents. I am very comfortable with Acrobat, and I knew I would not have to wonder about how to find a particular feature or function in the middle of trial.

After all, like most paperless lawyers, I use Acrobat on a daily basis. But by day two of what I knew would be a two-week trial, I was frustrated with the limitations of Acrobat, particularly the inability to do a call-out on the fly. This was hampering my ability to really emphasize key pieces of evidence.

A heavenly light should have descended.

I had a copy of TrialPad from Ian O’Flaherty, who developed it. Ian was kind enough to provide me with a code to download TrialPad at no cost. This is probably why I felt no need to use it, since I wasn’t invested in it. But now I had to get up and running overnight if I wanted to use something better than Acrobat during my trial. And I did get up and running overnight. I went back to my hotel room, loaded up the documents I knew I would be working with the next day, ran through the process of presenting and annotating, and then set back to prepare for the next day of trial.

With more than a little trepidation, I hooked my iPad up to my projector the next day at trial.

A heavenly light should have descended. I’m not kidding, TrialPad was nearly magical. To say that ease of use is built in is a vast understatement. . . .

Sixty-One Legal Apps for iPhone and iPad.

21 Saturday Jun 2014

Posted by in Apple, Apps, Cell Phones, iPad, iPhones, Legal Technology, Mac

≈ 1 Comment

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Every Legal App for iPhone and iPad, by Lawyerist Blog

http://tinyurl.com/o2fsuxf

Sixty-one legal apps for iPhone and iPad! Maybe not every legal app out there, but definitely worth a look. Some are free; some are not. Please also check out the comments at the end of the Lawyerist post – more apps are mentioned there. -CCE

iOS apps for lawyers abound, whether for case management, billing, or trial preparation. This page has every legal app for iOS that we could find in the App Store.

There are just a few exceptions. This does not include apps that have not been updated since 2011 and have few or no reviews in the App Store. Apps that are simply mobile versions of a legal publication aren’t here, either, since the app doesn’t do anything over and above the website. Finally, the App Store is full of applications that simply repackage freely available content, such as the Federal Rules of Civil Procedure. Unless an app added some significant extras (such as the ability to annotate or cross reference) to that type of content, it’s not here.

The table below is searchable, and you can sort by each column. Use the comments to let us know if we missed an app, and look for an Android app catalog in the near future. . . .

 

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. . . .

Deposition Objections – What’s Proper and What’s Not.

24 Saturday May 2014

Posted by in Depositions, Discovery, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Primer on Electronic Medical Records.

18 Tuesday Feb 2014

Posted by in Electronic Records, Health Law

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Electronic Medical Records: A Primer, by Todd Hendrickson, Lawyerist Blog

http://lawyerist.com/electronic-medical-records-a-primer/

I’ve litigated personal injury cases for nearly 25 years and I’ve read literally millions of pages of medical records. The advent of electronic medical records (EMRs, also known as EHRs for Electronic Health Records) was touted as the answer to many litigators complaints: Handwritten records were often incomplete, confusing and illegible. And while a printout is (usually) legible, EMRs bring with them a host of other problems and considerations. If you deal with medical records in your practice, there are some things you should know.

Is Failing to Keep Abreast of Latest Technology Tantamount to a Possible Ethical Violation?

03 Tuesday Dec 2013

Posted by in Legal Ethics, Technology, Trial Tips and Techniques

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Luddite Lawyers Are Ethical Violations Waiting To Happen, by Megan Zavieh, Lawyerist Blog

http://lawyerist.com/luddite-lawyers-ethical-violations-waiting-happen/

 The ABA made it abundantly clear that lawyers must keep up with technology when it amended comment 8 to Model Rule 1.1 on competence. Comment 8 now reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)