02 Thursday Jan 2020
Tips to Immediately Improve Your Writing Skills, by Adam Lamparello, Appellate Advocacy Blog
An excellent list of key skills to improve your legal writing regardless of your proficiency level. This is one of the best legal writing checklists I have seen. Definitely worth a bookmark. -CCE
19 Friday Oct 2018
Posted in Hyperbole, Legal Argument, Legal Writing, Recent Links and Articles
Avoid Hyperbole, by Dr. Ken Broda-Bahm, Persuasive Litigator™
https://www.persuasivelitigator.com/2016/12/avoid-hyperbole.html
What is hyperbole anyway? Here’s a quick example. How would you respond as opposing counsel to a statement that there are “countless obvious examples” of the opposing party’s errors? Perhaps, something like, “Oh really?” “Countless and obvious, you say? How interesting that you did not name anything specific. We did what any reasonable company would do in a similar situation.” And, then you must explain what you meant all over again – if you get the opportunity.
Simply put, hyperbole is deliberate exaggeration. Although often misguidedly used for emphasis, rhetoric, or even sarcasm, you invite an attack to prove your statement. At best, you may have illustrated that the other side’s behavior is outlandish. At worst, you have lost credibility with the court because you are unable to back up your statement with hard facts. Never imply a promise that you cannot deliver.
This is a good time to remember that your writing is more persuasive when you show, don’t tell. If the opposing party has behaved beyond the pale, telling the court or the jury what happened (who did what to whom and why) will be more persuasive than rhetorical outrage.
You will find in legal blogs on the use of hyperbole. This post is one of my favorites. As always, there is the bonus of hyperlinks to posts on similar subjects at the bottom of the page. -CCE
25 Saturday Aug 2018
Posted in Legal Writing, Punctuation
≈ Comments Off on A $10 Million Punctuation Mistake.
Take That, AP Style! Court of Law Rules The Oxford Comma Necessary, by Kelly Gurnett, The Write Life (republished here with permission)
https://thewritelife.com/is-the-oxford-comma-necessary/
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
-CCE
03 Friday Aug 2018
Posted in Bad Legal Writing, Grammar, Legal Writing, Persuasive Writing, Plain Language
≈ Comments Off on What’s the Clue to Whom Did What, Where, and Why?
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.”
https://www.michbar.org/file/barjournal/article/documents/pdf4article3146.pdf
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
30 Saturday Jun 2018
Posted in Legal Writing, Persuasive Writing, Plain Language, Readability
≈ Comments Off on The True Test of Good Legal Writing.
Free at Last from Obscurity: Achieving Clarity, by Hon. Gerald Lebovits, 97 Mich. B. J. 6, 38 (May 2017)
https://www.michbar.org/file/barjournal/article/documents/pdf4article3120.pdf
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.
01 Tuesday May 2018
Posted in Legal Writing, Readability, Style Manuals
≈ Comments Off on Full or Left Justification?
Are You Justified?, from Legible, A blog from Legalwriting.net by Wayne Schiess
http://sites.utexas.edu/legalwriting/2013/01/17/are-you-justified/
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
20 Wednesday Dec 2017
Posted in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Persuasive Writing, Plain Language, Punctuation, Readability
≈ Comments Off on “No Passion in the World is Equal to the Passion to Alter Someone Else’s Draft.” H.G. Wells
Tags
Douglas E. Abrams, Editing, Legal Writing, Missouri Bar Journal, SSRN, University of Missouri School of Law
We are the Products of Editing, Douglas E. Abrams, Precedent, Vol. 2, No. 2, pp. 12-14, Spring 2008; University of Missouri School of Law Legal Studies Research Paper No. 2008-18.
Available at SSRN: https://ssrn.com/abstract=1138300
How many of us take the time to proof and edit what we write? I suspect that most, if not all, good legal writers do it. No, I’m not talking about simply running a review of your grammar, style, and punctuation in Microsoft Word. I mean really reading, proofing, and editing what you write.
When you write for the court, what is your goal? To be understood? Of course. To persuade? Absolutely. To do that, you must keep your reader’s attention. Long sentences that take up an entire paragraph, legalese, and unnecessary words are boring – period. Why would anyone want to read a quote takes up an entire page?
Persuasive legal writing is an art. It takes work, and that means editing and polishing until your writing is clear, concise, and logically flows from one point to the next. Your goal, as I’ve mentioned before, is that, by the time your judge finishes reading your brief or other document, that judge is subconsciously nodding in agreement.
As someone who has seen a state supreme court judge literally throw a party’s brief across the room because it was so badly written, I promise that judges will not waste time reading legal gibberish. If a judge finds one side‘s brief difficult to read, how much frustration does it take to put it down and pick up the other side’s well-written brief to get the facts of the case and legal argument? Folks, it doesn’t take much.
Don’t take my word for it. Mr. Abrams’ article does an excellent job. -CCE
10 Sunday Dec 2017
Posted in Editing, Grammar, Legal Writing, Persuasive Writing
≈ Comments Off on Bryan Garner Shows Us How to Start a Sentence.
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
16 Saturday Sep 2017
Posted in Bad Legal Writing, Legal Argument, Legal Writing, Persuasive Writing, Readability
≈ Comments Off on What Judges Want.
Judges Speak Out Behind Closed Doors: How Your Briefs Might Bug Them, and How You Can Make Them Smile Instead, by Ross Guberman, Legal Writing Pro (with hat tip to William P. Statsky)
https://www.legalwritingpro.com/blog/judges-speak-out/
Ross Guberman is one of my favorite legal writing experts. Mr. Guberman conducted an anonymous and broad survey of judges’ likes and dislikes on legal writing. If you are serious about winning, then you care whether your judge not only reads and understands what you write, but also likes it. -CCE
19 Saturday Aug 2017
Posted in Grammar, Legal Writing
≈ Comments Off on Using Intensifiers Is A Very Bad Horrible Writing Habit.
Avoid Intensifiers in Your Writing, by Louis J. Sirocco, Jr., Legal Skills Prof Blog
This is a legal writing lesson I know and have taught, but I am guilty of this bad writing habit all the same. It reminds me never to be complacent about word choice. -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
31 Monday Jul 2017
Posted in Law Reviews, Legal Writing, Research
≈ Comments Off on Updated Annual Guide to Law Review Submissions.
Tags
James B. Levy, Law Journals, Law Reviews, Legal Skills Blog, Legal Writing, Professor Allen Rostron, Professor Nancy Levit, SSRN
The Latest Update to Rostron’s and Levit’s Annual Guide to Law Review Submissions, by James B. Levy, Legal Skills Blog
Thinking about submitting an article to a law review or journal? If so, you need to read this. It will give you everything you need to know about which publication is accepting submissions, required procedures and formats, and more. -CCE
04 Sunday Jun 2017
Posted in Editing, Grammar, Legal Argument, Legal Writing, Plain Language, Readability
≈ Comments Off on The Basics of Legal Writing for Legal Professionals.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2967050
Although this article is about the basics of legal writing, even seasoned legal writers will find it useful and instructive. Regardless of how well we think we write, we can always improve.
This article puts an emphasis on focusing on the purpose of your document, organizing your thoughts, considering your reader, researching, and editing. In short, all the basics you need to write well. -CCE
04 Tuesday Apr 2017
Posted in 4th Circuit Court of Appeals, Appellate Law, Civil Rights, Legal Analysis, Legal Writing, Persuasive Writing, Second Amendment
≈ Comments Off on Excellent Example of Appellate Court’s Use of Persuasive Legal Writing Tools.
Contrasting Introductions in Kolbe v. Hogan, by Megan E. Boyd, Lady (Legal) Writer Blog
http://ladylegalwriter.blogspot.com/2017/03/contrasting-introductions-in-kolbe-v.html
The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.
This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.
Not this majority opinion. It starts with a literal bang . . . .
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.
02 Thursday Mar 2017
Posted in Brief Writing, Legal Writing, Persuasive Writing, Propositions and Headings
≈ Comments Off on Tips on Writing Persuasive Propositions.
Tags
©Now Counsel Network, Briefs, Legal Writing, Lisa Solomon, Persuasive Legal Writing, Propositions, William P. Statsky
How to Write Effective Argument Headings, by Lisa Solomon, NOW Counsel Network (with hat tip to William P. Statsky!)
Ms. Solomon calls them argument or point headings. I call them propositions. Regardless, their importance as a persuasive writing tool in any brief should never been overlooked.
A proposition or heading is a succinct statement that states the question or issue to be discussed and answered in your brief. If done correctly, the reader – your judge – should follow the logical flow of your brief’s argument by simply reading the propositions and sub-propositions.
A proposition that is a positive statement is more persuasive than a question. Even better, your proposition should state positively what the court ought to do and why. X should happen because of Y or, because of Y, X should happen. Regardless of the format you use, a proposition that says why the court should rule as you want is always more persuasive. -CCE
20 Monday Feb 2017
Posted in Bad Legal Writing, Contract Law, Legal Writing, Plain Language
≈ Comments Off on Why We Need Clear Legal Writing in Contracts.
Sesquipedalianism and an Expatiation Upon Its Antithetical Impact on Interpersonal Communications: Big Words and Why They’re Bad, by Sherry Altshuler, Aird & Berlis, LLP (with hat tip to Louis J. Sirico, Jr., Legal Skills Prof Blog)
http://www.airdberlis.com/Templates/Blog/Entry.aspx?Page=71&ID=11120
This post on using plain English does what good legal writing should. Rather than telling you that big or complicated words are a sure way to lose your reader, it shows you with a wonderful example. I love “show, don’t tell.” It also provides an excellent list of good legal writing tips. This one is worth a bookmark. -CCE
11 Saturday Feb 2017
Posted in Brief Writing, Citations, Editing, Legal Argument, Legal Writing, Persuasive Writing, Plain Language
≈ Comments Off on Legal Writing Myths
Legal-Writing Myths, by the Hon. Gerald Lebovits, Plain English Subcommittee Column, 50 Mich. B.J. (February 2017)©2017
https://researchingparalegal.wordpress.com/?p=4848&preview=true
Are longer briefs more persuasive? Is it a legal writing faux pas to start a sentence with “and”? Do judges care if you follow Bluebook citation format? Judge Lebovits has some thoughts on these and other legal writing myths to share, some of which may surprise you. -CCE
18 Wednesday Jan 2017
Posted in Abbreviations, Editing, Grammar, Initialisms, Legal Writing, Numbers, Punctuation, Style Manuals
≈ Comments Off on New and Updated GPO Style Manual.
GPO Style Manual: new edition, Barco 3.0: Law Library Reference
The Government Publishing Office has published a thorough and updated Style Manual, which includes rules for punctuation, grammar, abbreviations, and computer terms, among other things. You will find “New Features and Enhancements” at https://www.govinfo.gov/features/release-notes/govinfo-beta-launch.
10 Tuesday Jan 2017
Posted in 7th Circuit Court of Appeals, Appellate Law, Appellate Writing, Bad Legal Writing, Brief Writing, Legal Writing
≈ Comments Off on How Long Is Too Long For An Appellate Brief?
Posner criticizes ‘verbosity’ in appeals briefs in decision upholding closed voir dire, by Debra Cassens Weiss, Appellate Practice, ABA Journal.com (with hat tip to William P. Statsky)
Judge Richard Posner is a well-known 7th Circuit jurist, legal writing scholar, and prolific author. Knowing this, it is puzzling why the appellate briefs for both sides were over 200 pages each. Yes, Judge Posner had something to say about it. -CCE
03 Tuesday Jan 2017
Posted in Editing, Grammar, Legal Writing, Persuasive Writing, Readability
≈ Comments Off on Make Legal Writing Resolutions for 2017.
3 Easy-to-Keep Legal-Writing Resolutions for 2017, by Lisa Solomon, Now Counsel Network Blog©
Made your New Year’s resolution yet? Going for the usual? This year I will lose weight, go to the gym, and swear off fried food and chocolate? No way. Giving up chocolate would take a serious toll on my mental health.
So may I recommend honing your legal writing skills as alternative? I promise there’s no gym fees, and you can eat all the chocolate you want. -CCE
25 Sunday Dec 2016
Posted in Contract Law, Dispute Resolution, Legal Writing, Settlement
≈ Comments Off on “How To” On Drafting Dispute Resolution Agreements.
Tags
Dispute Resolution, John M. Newman, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., Settlement Agreements, SSRN
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)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867692
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. . . .
08 Thursday Dec 2016
Posted in Editing, Legal Writing, Legalese, Readability
≈ Comments Off on Legal Writing – Why Shorter is Better.
Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog
https://goodlegalwriting.com/2011/02/11/make-it-shorter-and-shorter/
Regardless of whether, in your own opinion, you are a good writer, we can always improve. Here is an opportunity to polish your skills, take note of some bad habits, and hone your editing technique. -CCE
Here’s a good exercise to promote plain writing and dense writing. The object is to force you to purge your writing of any words that don’t work their butts off on your behalf. Take the following sentence and reduce it to as few words as humanly possible, without changing the meaning of the sentence. Shortest re-write wins a prize (respect)!
04 Sunday Dec 2016
Posted in Appellate Writing, Contract Law, Legal Writing
≈ Comments Off on Contract Interpretation and Ambiguity.
Judicial Disagreement Over Contract Ambiguity: When Are Things OBVIOUS? By Stacey Lantagne, ContractsProf Blog
We’ve been talking about contract interpretation in my Contracts class lately and I’m always struck by how many cases involve a lower court ruling of ambiguity and then an appellate court reversal of that ruling, because it always strikes me as such a funny thing. The very definition of ambiguity would seem to be ‘multiple people disagreeing on the meaning of the word,’ but the appellate court decisions in those cases necessarily have to dismiss the reasonableness of the lower court’s understanding of the meaning in order to assert that the meaning is SO OBVIOUS.
30 Sunday Oct 2016
Posted in Bad Legal Writing, Legal Writing, Legalese, Plain Language, Terms of art
≈ Comments Off on The Plain Language Argument Against Using Latin Legal Terms of Art.
Tags
Chadwick C. Busk, Latin, Legal Terms of Art, Legal Writing, Michael Braem, Michigan Bar Journal, Plain Language
Curiouser and Curiouser Excuses for Legal Jargon, by Chadwick C. Busk & Michael Braem, 95 Plain Language, Mich. B.J. 30 (2016)
http://www.michbar.org/file/barjournal/article/documents/pdf4article2967.pdf
Earlier today, I posted about the use of Latin for legal terms of art, although legal writing scholars usually advise against using them. This article addresses that very subject. -CCE
I don’t know the meaning of half those long words, and I don’t believe you do either.” —Eaglet, Alice in Wonderland (1865), Chapter III
“Some lawyers and academicians attempt to justify legal jargon and “traditional” legal writing—legal writing that’s ‘wordy, unclear, pompous, dull1’ and even “wretched.’2 But legal jargon in contracts burdens all those who must deal with it: the parties to the agreement who try to understand it, lawyers who mistakenly think they must use it, and judges who have to interpret it. Legal jargon often creates ambiguity, and ambiguity invites litigation. Many legalisms have been fodder for courts to puzzle over, including herein, therein, hereby, and thereof; shall; and/or; and best efforts.
However, some academicians, most recently Professor Lori Johnson of the UNLV William S. Boyd School of Law, have modernized old excuses for legal jargon and concocted new ones. Can these arguments withstand a reasoned analysis, or are they merely fanciful declarations from Wonderland?
