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.
- Eliminate any unnecessary word.
- Remember that subject and verbs go together.
- Use short sentences.
- Delete all legalese. Yes, all of it. No excuses.
- You can always delete “in order.” Try it – it will not change the meaning in your sentence. These are an example of filler words that just take up space.
- Stop using phrases such as “brief of the plaintiff.” Write “plaintiff’s brief” instead.
- Never, never, never use long block quotations.
- Quote from a court opinion only when the court says it better than you can.
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
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
The Writing Process for New Lawyers: Getting it Written and Right, by Gerald Lebovits, The Legal Writer, 89 N.Y. St. B.J. 80 (May 2017) (with hat tip to William P. Statsky)
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
Contrasting Introductions in Kolbe v. Hogan, by Megan E. Boyd, Lady (Legal) Writer Blog
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 . . . .
Legal Writing is Precise Writing, by Suzanne E. Rowe©2007, Oregon State Bar Bulletin — NOVEMBER 2007
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.
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
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)
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
Legal-Writing Myths, by the Hon. Gerald Lebovits, Plain English Subcommittee Column, 50 Mich. B.J. (February 2017)©2017
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
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.
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
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
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. . . .
Make it shorter … and shorter …, by Tiffany Johnson, Good Legal Writing Blog
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)!
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.
Curiouser and Curiouser Excuses for Legal Jargon, by Chadwick C. Busk & Michael Braem, 95 Plain Language, Mich. B.J. 30 (2016)
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?
While most legal writing scholars favor plain language and elimination of legalese and Latin words and phrases, there are some well-recognized – and often used – Latin legal terms of art. Some examples include stare decisis, per curiam, certiorari, res ipsa loquitur, ad hoc, mens rea, et alia, in rem, in personam, inter vivos, nolo contendere , and prima facie.
If you intend to take one of the national paralegal exams for certification or registration or if you are a paralegal student, there are Latin terms of art you should know. -CCE
Duhaime’s Latin Dictionary
Latin Phrases and Expressions, BusinessBall.com http://www.businessballs.com/latin-terms-phrases.htm
Legal Terminology Definitions http://www.pegc.us/_LAW_/latin_legal_defs.pdf
Latin Legal Phrases http://latin.topword.net/?Legal
CN-Fact Sheet 9, Carter Newell Lawyers©2015 http://bit.ly/2eoQrqg
How to Ruin Your Briefs – Or The Screwtape Lawyers, by Austin J. Hakes, 50 Mich. B. J. (Aug. 2016)
The author has a well-known new client with an unusual request – write the worst briefs possible. The author offers eight rules to as guidelines to fulfill his client’s wish. This will be interesting! And, because it comes from the Michigan Bar Journal’s Plain English Committee, you know it’s going to be good. -CCE
That’s right— he wants us to write terrible briefs. This surprised me too at first, but then he explained his new litigation strategy: suspecting that it might be more effective to ruin judicial minds than to manipulate them in his favor, he wants to use terrible writing to drive appellate judges totally insane. Writing a bad brief is easy enough, but writing a truly disastrous one—one capable of inducing madness—is a task requiring deliberate effort and careful study. Our greatest challenge may be a lack of helpful reference materials, for although there are several good books on the art of writing well, the craft of writing badly has been suppressed and maligned for far too long. In the hope of invigorating the persecuted art of infuriating prose, I offer this letter. It’s a meager beginning, but if you follow these eight rules to the best of your ability, your writing should be sufficiently misguided and maddening to serve our client well.
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
Avoid Beginning Sentences with “The court held that . . . .” by Louis J. Sirico, Jr., Law Skills Prof Blog (with hat tip to William P. Statsky)
Busted! I use this phrase all the time. Here’s a way to take your legal writing to another level. -CCE
Do Not Use “and/or” in Legal Writing, by Ted Tjaden, Slaw Canada’s online legal writing magazine
If there was any question in my mind about whether using “and/or” is good legal writing, it is resolved. After reading Mr. Tjaden’s post, supported by detailed, exhaustive research, you too may become a believer. -CCE
I remain surprised at the number of intelligent, articulate, and well-read legal professionals who still use ‘and/or’ in legal writing.
I am therefore creating this post to document a fairly complete list of authorities that support what I think is the better (if not obvious) view: never use ‘and/or’ in legal writing (or any writing). And yes, I said ‘never.’
Shall Means “Must.” Unless it Means “Should.” Mark E. Wojcik, Professor of Law, John Marshall Law School (Chicago), Legal Writing Prof Blog
In the legal writing world of contracts, legislation, and case law, legal writers debate about the meaning of the word “shall.” Many legal writing scholars have argued that “shall” means “must” without exception, and that is what I was taught in paralegal school. Professor Wojcik makes a convincing argument for dropping the ambiguous “shall” in favor of words that leave no question about what they mean. -CCE
Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™
So simple, but so persuasive. It is especially useful in oral argument, which is the topic of this post from Dr. Broda-Bahm. -CCE
[W]hen litigators are looking for a way to paint a bit of style and rhetorical effectiveness into their oral arguments, openings, or closings, the rule of three ought to be one of the first items in your tool box. Focusing on — you guessed it — three reasons, this post will explain why.
Bryan Garner Says: Put Your Citations in Footnotes, by Rich Cassidy, On Lawyering Blog
After posting on one judge’s opinion of against citations in footnotes, for the sake of balance, here is Bryan Garner’s opinion against putting them anywhere else but footnotes.
When it comes to writing briefs, let the court rules dictate which method you use. If a court or judge goes to the trouble to address such details, there is a reason. Ignore the court’s preference at your own risk! -CCE
[I]n the February 2014 issue of the ABA Journal, and in the corresponding ABA Journal Law News “Bryan Garner on Words” column, “Textual Citations Make Legal Writing Onerous, for Lawyers and Nonlawyers Alike,” Garner promotes a suggestion for writing briefs and memoranda. . . . The suggestion is simple: Instead of including bibliographical material — the numerical citation used to find a case or legal authority — in the text of a legal document, Garner suggests publishing this material in a footnote.