Drafting for Dispute Resolution, by John M. Newman, SSRN (with hat tip to Louis J. Sirico, Jr., Director of Legal Writing, Villanova Univ. School of Law, Legal Skills Prof Blog)
Not all cases end in litigation and go to trial. At times, the best service counsel can give to clients is an out-of-court resolution. Careful drafting of an agreement between the parties includes numerous considerations to protect your client and to assure acceptance by everyone involved. Definitely worth a bookmark. -CCE
This is a brief guide to drafting for dispute resolution. Topics covered include mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more. . . .
This guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools. It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. . . .
The Delicate Art of Confronting Offensive Speech, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Whether you are negotiating a settlement, trying to calm a stressed-out client, or talking about the recent election season, this is good advice. -CCE
Judges Want Briefs to Be Shorter but Lawyers Push Back, by James B. Levy, Legal Skills Prof Blog
Often courts have local rules limiting the length of a brief. Have you ever wondered why? In everything you’ve ever heard or read about good legal writing, can you imagine a judge saying this?
“Yes, please, write a long, detailed brief. Use as many obscure legal authorities as possible. I have loads of time and plenty of staff to look up each one. Repeat your argument several times to make sure I know how important it is. Above all, make it as hard to read as possible.
I want lengthy quotations. Ideally, make them at least a page long, if not longer. One sentence paragraphs are the best! And by all means, pile on the legalese. Verbosity and obscure language is always appreciated.”
Of course not. They simply do not have the luxury of time to read huge briefs, especially if they are poorly written. I have said before that, while working for an Oklahoma Supreme Court Justice, I literally saw a bad brief go flying across the room. The Judge, in disgust, tossed it aside, and picked up the other side’s brief. Ouch! -CCE
A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)
This is a gem. It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE
Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).
Here is the introduction: A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.
Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)
In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.
Drafting the Summary of Argument, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Although not all courts require a “Summary of the Argument” in major briefs, you might consider adding one nonetheless. It is the heart of your brief. It concisely sums up your argument – no fluff allowed.
Some busy judges will read your Table of Contents, Table of Authorities, the Summary of the Argument, and nothing else. It is why the Summary of the Argument is at the beginning of a brief, and why it should to get right to the point and stay there.
This is a particularly interesting article on writing by Judith Fischer, and well worth your time regardless of your brief writing skills. -CCE
[B]ecause the summary of the argument appears near the beginning of a brief, it allows the legal advocate to take advantage of both framing and priming to begin to convince the Court. Thus, it’s a mistake for an advocate to treat the section as an afterthought. . . .
New Study Finds Taking Notes By Hand “Significantly Improves” Word Recall Compared To Typing, by James B. Levy, Legal Skills Prof Blog
In the old days before laptops and other digital devices were the norm, we took notes by hand. When I took notes rather than observing and listening in a hearing, meeting, or at trial, I thought it helped me to notice more details that stuck in my memory. I have not had the opportunity to use a laptop or other digital device to take notes. I cannot say whether handwriting or typing improve memory retention. But it is an interesting idea. -CCE
The study was conducted by a team that includes Professor Anne Mangen (U. Stavanger, Norway) who is one of the foremost researchers studying the effect of hardcopy versus screens on comprehension and retention of information. This new study is called Handwriting versus Keyboard Writing: Effect on Word Recall and is available at 7(2) Journal of Writing Research 227 (2015) and can also be accessed online here. . . .
Tech Tip Of The Day: Add A Two Minute Delay To Sending Emails, by James B. Levy, Legal Skills Prof Blog
This is a great tech tip from the Harvard Business Review blog that most of us should probably implement. It involves programming your email account to wait two minutes before each message is sent. It’s a great fail safe measure to prevent those emails we regret as soon as they’re sent and the typos (and omitted attachments) we don’t catch until it’s too late. . . .
FYI – A New User’s Guide To The 20th Edition Of The Bluebook Will Be Released Next Month, by James B. Levy, Legal Skills Prof Blog
The new 20th edition of the Bluebook is out now and thus West Academic Press plans to publish next month a new user’s guide to go along with it called Anthon’s The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation. . . .
“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)
Excellent article on editing! Editing is no easy task. You have to practice to do it well.
This article focuses on editing, but also on persuasive writing. Anyone interested in writing a winning brief, motion, or opening and closing argument will like this one. -CCE
An excellent treatise on editing and writing is Jonathan Van Patten’s article “On Editing,” 60 South Dakota Law Review 1 (2015). Employing an extremely clear writing style, he states and explains his propositions on good writing. I plan to distribute the article to the editors of my school’s law reviews.
You can access the article here.
A Reader’s Guide to Pre-Modern Procedure, by Louis J. Sirico, Jr., Legal Skills Prof Blog
In this short article, David Noll explains procedural terms with which students often are unfamiliar. These terms predate the Federal Rules of Civil Procedure, which most Civil Procedure classes seem to pass over.
These terms, like ‘demurrer’ and ‘nonsuit,’ may pop up not only in old court cases that students may study, but also in state court procedural rules. . . .
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). . . .
Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog
There are many really superb experts in legal writing. Mr. Sirico is one of them. Mr. Sirico has provided us with a link to not one, but all of Mr. Gopen’s legal writing articles published in Litigation since 2011 to date. Do not lose this, and save under “must read”! -CCE
George Gopen has been writing columns on legal writing for “Litigation,” the magazine of the ABA Section on Litigation. You can access them here.
I cannot speak too highly of George’s work. Years ago, I attended one of his workshops and discovered a new way to think about writing. I have passed the lessons down to my students, and now, even years after they graduate, they tell me how greatly those lessons transformed their writing and contributed to their success.
According to an empirical study by Christopher Trudeau, the answer is yes. I think his 2012 article deserves greater attention–The Public Speaks: An Empirical Study of Legal Communication, 14 The Scribes Journal of Legal Writing 121 (2012) (here).
In a carefully designed study, subjects compared passages written in plain English and similar passages that contained the failures that plain English attempts to eliminate. The study provides a good bit of valuable information. It also results in 10 practical pointers.
First, do not underestimate the importance of oral communication. Over half of all respondents preferred some type of oral communication to written communication.
Second, deliver written documents electronically even when you must send a hard copy.
Third, use clear, understandable written communication.
Fourth, do not assume that all readers will understand commonly used legal terms. Instead, define these terms if you must use them.
Fifth, avoid complicated terms and Latin words. They generally bothered or annoyed nearly seven out of ten clients.
Sixth, prefer the active voice. Respondents preferred it almost 70% of the time — and clients at a higher rate than non-clients.
Seventh, avoid multi-word prepositions like pursuant to and prior to and with regard to. They are among the worst aspects of legalese.
Eighth, remember that the more confusing the sentences become, the more likely that a reader will prefer plain language.
Ninth — and this needs to be proclaimed repeatedly, ceaselessly— the vast majority of clients and non-clients prefer plain language. For the choice-of-language questions, readers chose the plain-language version 80% of the time.
Finally, use plain language no matter what the reader’s educational level. Contrary to my original theory, as the level increased, so did the respondent’s preference for plain language.
Examples: Translating Legalese into Plain English, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills Prof Blog (with hat tip to William P. Statsky!)
Having problems rewriting legalese into understandable plain English? Use these excellent examples from Joseph Kimble, one of the legal writing giants, posted by another great legal writing expert, Louis J. Sirico, Jr. – CCE
The Legal Research Skills New Attorneys Need For Practice, by James B. Levy, Legal Skills Prof Blog
Knowing how to use book s is still one of them according to a new article by Professor Patrick Meyer, Director of the Law Library at Detroit Mercy School of Law. The article, called Law Firm Legal Research Requirements and the Legal Academy Beyond Carnegie, is available at 35 Whittier L. Rev. 419 (2014). From the introduction:
According to quantitative research conducted by Thomson West (now Thomson Reuters), new associate attorneys can expect to spend 45% of their time conducting research. Yet despite this high percentage, criticism of the research abilities of new associates persists. . . .
There have been a handful of important recent studies on practice skills that post-date the Carnegie Report, and they are reviewed in this article. All of these studies support a stronger emphasis on legal research training in law schools, and all but one either suggest, or directly call for, an integrated approach where some tasks are taught in both the online and print formats. All but one of these studies surveyed practicing attorneys. . . . All of these studies show that legal academia must devote more time to teaching legal research, and all but one support my conclusions: that attorneys still use books to conduct research, book usage occurs much more than most people think, and law schools need to teach both online and print-based research for some tasks.
New attorneys frequently lack basic knowledge of how to use research resources, yet this knowledge is the link between legal research and legal analysis. . . In short, law schools can do a better job at teaching legal research.
Part II of this article begins with a brief review of the history of legal research deficiencies in the law firm setting and progresses to a summary of several new studies on law firm research practices and abilities. . . . In Part III, I propose a three-part plan to remedy the lack of research acumen amongst new attorneys. First, law schools must assure that all students receive an appropriate amount of basic research instruction in the first year curriculum, to include some print-based research instruction. Second, Advanced Legal Research must be a required course. Finally, I would like to renew the call to include a research component on each state’s bar exam. [Emphasis added.]
Parentheticals are an excellent legal writing tool, especially in string citations. They can be used to reinforce a legal argument without a lengthy explanation, like this:
“All cases cited by Defendants are very different from this case. In all of them, the danger was plainly visible. See Transport Indemnity Co. v. Page, 406 P.2d 980 (Okla. 1965)(daytime accident); Haworth v. Mosher, 395 F.2d 566 (10th Cir. 1968)(dust storm on highway clearly visible by approaching motorists); Thur v. Dunkley, 474 P.2d 403 (Okla. 1970)(accident occurred during daylight with ample unobstructed vision from either direction).”
When used incorrectly, they frustrate the reader. In this three-part series, Nick Wagoner illustrates the best, and worst, ways to use parentheticals. –CCE
Guest blogger Nick Wagoner on “Common Parenthetical Pitfalls” [Part 1], by James B. Levy, Editor, Legal Skills Prof Blog
Tips For Writing Better Parentheticals – Part 2, by James B. Levy, Editor, Legal Skills Prof Blog
More On Writing Good Parentheticals From Our Guest Blogger Nick Wagoner [Part 3], by James B. Levy, Editor, Legal Skills Prof Blog
Four Reasons to Teach Psychology to Legal Writing Students, by Lawrence M. Solan, Social Science Research Notebook (with hat tip to Legal Skills Prof Blog)
Over the past quarter century we have learned a great deal about psychological biases that are by-products of the strategies we use in everyday reasoning. This essay invites educators to introduce some basic facts about these biases to students in legal writing courses. By teaching students to understand the psychological phenomena that underlie some of the core strategies of good legal writing, legal writing instructors may help students to internalize more of what they learn in legal writing classes. This will make it more likely that they will be able to transfer the skills to tasks performed in their legal careers.
While a number of psychological biases are relevant to good legal writing, the essay describes four: the preference for simple writing; the confirmation bias (causing us to ignore evidence that contradicts positions we have taken); the correspondence bias (overemphasizing character and undervaluing context in explaining an individual’s conduct); and the bias blind spot (thinking we ourselves are less susceptible to these biases than are people in general). The essay suggests ways to introduce each of these psychological phenomena into the legal writing course in ways that should enhance the student’s sensitivity to these important issues, and not take up too much class time.
Tips For Reading And Managing Courtroom Body Language, by Legal Skills Prof, Legal Skills Prof Blog
The most brilliant trial attorneys seem to have a natural instinct for reading people, knowing intuitively what a nod from a juror or glance from a judge implies. For the rest of us, there’s this handy cheat sheet that breaks down some of the most common body language exhibited in the courtroom. You can use it to modulate your own behavior, train your client, or gain additional insight into opposing counsel, judge and jury.