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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Tag Archives: Legal Writing

One Space Vs. Two Spaces At The End Of A Period.

13 Wednesday May 2015

Posted by Celia C. Elwell, RP in Legal Writing, Punctuation

≈ Comments Off on One Space Vs. Two Spaces At The End Of A Period.

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Grammar Girl Blog, Legal Writing, Mignon Fogarty, Punctuation

Two Spaces After a Period, by Mignon Fogarty, Grammar Girl Blog

http://www.quickanddirtytips.com/education/grammar/two-spaces-after-a-period

I learned to type on a typewriter. The rule was back then was to add 2 spaces after a period at the end of a sentence. When I first heard about the switch to 1 space rather than 2, I wondered why change?

The reason was clear. I was no longer using a typewriter, but a machine that automatically adjusts the spacing between characters and sentences. Makes sense to me. -CCE

Were you taught to put two spaces after a period at the end of a sentence? Many people were, but now most publications recommend using just one. Here’s the scoop.

If you learned to type on a typewriter, you’re going to hate what I say next: Do not put two spaces after a period. Don’t do it. Just use one.

I know. I was taught to use two spaces after a period in my high school typing class too, but you know what? It’s not that hard to break the habit. I haven’t been tempted to type two spaces for decades. It’s not like quitting smoking. I don’t find myself in nostalgic typewriting situations and suddenly get hit by an unexpected urge to type two spaces.

The modern and easy-to-follow style is to put one space after a period.

I’m not making this up to torment you. Typesetters write and beg me to tell people to only use one space. If you use two spaces, they have to delete them. Yes, it’s not that hard to do it with search-and-replace, but it’s not that hard to put dishes in the dishwasher either, and you don’t like doing that, do you?

If sympathy for typesetters doesn’t move you, I’m willing to bet you’re a rule follower. I don’t have a lot of to-heck-with-the-rules type of readers or listeners. And everyone who makes the rules today agrees: It’s a one-space world.

TheChicago Manual of Style, the US Government Printing Office Style Manual, ThePublication Manual of the American Psychological Association, and the AP Stylebook are just a few of the style guides that recommend one space after a period. . . .

Continue reading →

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Excellent Editing Tips From Jonathan Van Patton.

09 Saturday May 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Argument, Legal Writing, Readability

≈ Comments Off on Excellent Editing Tips From Jonathan Van Patton.

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Editing, Jonathan Van Patten, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., Persuasive Writing, South Dakota Law Review, William P. Statsky

“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2015/05/on-editing.html

 

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.

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Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.

02 Saturday May 2015

Posted by Celia C. Elwell, RP in Contract Law, Legal Writing, Numbers

≈ Comments Off on Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.

Tags

Adams on Contract Drafting, Contract Writing, Ken Adams, Legal Writing, Strunk and White, Writing Numbers

Revisiting Use of Words and Digits to Express Numbers, by Ken Adams, Adams on Contract Drafting

http://www.adamsdrafting.com/revisiting-use-of-words-and-digits-to-express-numbers/

Some legal writers advocate writing out a number and then adding digits in parentheses. In this post, Ken Adams argues against this practice. If anything, it makes what your writing more verbose and harder to read regardless of the type of document.

Most people do not argue with Strunk and White. Its 3rd edition says to spell out numbers under 100, and use digits for numbers 100 and above. The 4th edition, which came out in 2000, specifically admonishes against spelling out numbers, unless they are used in dialogue. -CCE

More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:

First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.

And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency. . . .

Continue reading →

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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 Celia C. Elwell, RP in Abbreviations, Appellate Writing, Bad Legal Writing, Brief Writing, Editing, Initialisms, Legal Writing, Readability

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

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ABA Journal, Abbreviations, Appellate Writing, Court Rules, Debra Cassen Weiss, Legal Writing

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.’ . . .

*           *           *

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. . . .

Continue reading →

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The Art of Well Written Judicial Opinions.

17 Friday Apr 2015

Posted by Celia C. Elwell, RP in Judges, Legal Analysis, Legal Writing, Legalese, Plain Language, Readability

≈ Comments Off on The Art of Well Written Judicial Opinions.

Tags

Judicial Opinions, Legal Analysis, Legal Writing, Legal Writing Pro Blog, Legalese, Ross Guberman, Trial Judges

The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman, Legal Writing Pro Blog

http://legalwritingpro.com/blog/the-seven-writing-strategies-of-highly-effective-trial-judges/

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a ‘great’ opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a ‘great’ opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say ‘yes’ on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be ‘great’ for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . .

Continue reading →

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Too Many Acronyms = Alphabet Soup.

16 Thursday Apr 2015

Posted by Celia C. Elwell, RP in Abbreviations, Acronyms, Bad Legal Writing, Brief Writing, Court Rules, Courts, Initialisms, Legal Writing, Local Rules, Spell Checking

≈ Comments Off on Too Many Acronyms = Alphabet Soup.

Tags

ABA Journal, Abbreviations, Acronyms, Brief Writing, Court Rules, Debra Cassen Weiss, Legal Writing

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. . . .

Continue reading →

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Legal Writing Tips from “Dear Scrivener.”

29 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Writing, Plain Language, Readability

≈ Comments Off on Legal Writing Tips from “Dear Scrivener.”

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Grammar & Punctuation, Judith D. Fischer, Legal Writing, Legal Writing Prof Blog, Scott Moise

A Potpourri Of Tips About Legal Writing, by Judith D. Fischer, Legal Writing Prof Blog

http://lawprofessors.typepad.com/legalwriting/2015/03/a-potpourri-of-tips-about-legal-writing.html

For a potpourri of tips about legal writing, see Dear Scrivener by Scott Moise in the March 2015 South Carolina Lawyer. . . .

Continue reading →

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Legislative Drafting And Plain English – They Are Not Mutually Exclusive.

22 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Editing, Legal Argument, Legal Writing, Legalese, Plain Language, Punctuation, Readability

≈ Comments Off on Legislative Drafting And Plain English – They Are Not Mutually Exclusive.

Tags

Judge Mark P. Painter, Judging Strictly By Merit, Legal Writing, Legalese, Plain English

A Classic Example Of Bad Writing, by Judge Mark P. Painter, Judging Strictly By Merit

http://www.judgepainter.org/legalwriter55

In my last column I gave kudos to the U.S. Supreme Court and its rules committee for rewriting the Federal Rules of Civil Procedure in plain language. But the fight goes on. Legislative drafting continues to be particularly egregious. . . .

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Ross Guberman’s Eight Comma Commandments.

22 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Editing, Legal Writing, Proofreading, Punctuation

≈ Comments Off on Ross Guberman’s Eight Comma Commandments.

Tags

Commas, Legal Writing, Legal Writing Pro, Punctuation, Ross Guberman

Avoid the Most Common Comma Crimes Committed by Counsel: Eight Commandments, by Ross Guberman, Legal Writing Pro

http://www.legalwritingpro.com/articles/H76-comma-crimes.php

From the loftiest law firms to the grandest judicial chambers, I see the same comma errors time and time again. In the name of consistency, and perhaps even sanity, consider committing to these Eight Comma Commandments. . . .

Continue reading →

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Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!

19 Thursday Mar 2015

Posted by Celia C. Elwell, RP in Civil Procedure, Legal Analysis, Legal Argument, Legal Writing, Motions

≈ Comments Off on Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!

Tags

Conclusions of Law, Drafting Orders, Findings of Fact, Good Legal Writing Blog, Legal Writing, Tiffany Johnson

Judicial Plagiarism, by Tiffany Johnson, Esq., Good Legal Writing Blog

http://goodlegalwriting.com/2015/03/08/judicial-plagiarism/#more-497

Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick to your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Well, hold your horses, cowboy. A recent case from Tennessee illustrates the possible dangers that may lie ahead up in them there hills. . . .

Continue reading →

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Are Shorter Appellate Briefs Better? Appellate Judges Seem To Think So.

15 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Plain Language, Proofreading, Readability

≈ Comments Off on Are Shorter Appellate Briefs Better? Appellate Judges Seem To Think So.

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Appellate Brief Writing, Appellate Judges, James B. Levy, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., The Wall Street Journal Law Blog

Federal Appellate Judges Want To Shorten The Length of Briefs, Lawyers Object, by Professor James B. Levy, Legal Skills Prof Blog

http://tinyurl.com/m3s85z2

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). . . .

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A Valuable Cache of Legal Writing Articles by George Gopen.

08 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Brief Writing, Editing, Legal Analysis, Legal Argument, Legal Writing, Readability, Style Manuals

≈ Comments Off on A Valuable Cache of Legal Writing Articles by George Gopen.

Tags

George Gopen, Legal Skills Prof Blog, Legal Writing, Litigation, Louis J. Sirico Jr.

Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/psygoox

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.

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We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.

04 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Legal Writing, Legalese, Plain Language

≈ Comments Off on We Have Proof! Clients Really Do Prefer Plain Language Over Legalese.

Tags

Christopher Trudeau, Legal Skills Prof Blog, Legal Writing, Legalese, Louis J. Sirico Jr., Plain English, The Scribes Journal of Legal Writing

Does Plain English Make a Difference to Clients?, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/mgf49tn

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.

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Using Legal Citations to Persuade the Reader.

01 Sunday Mar 2015

Posted by Celia C. Elwell, RP in Citations, Legal Analysis, Legal Argument, Legal Writing, String Citations

≈ Comments Off on Using Legal Citations to Persuade the Reader.

Tags

Florida Bar Journal, Legal Citations, Legal Writing, Persuasive Legal Writing, Susan W. Fox, Wendy S. Loquasto

The Art of Persuasion Through Legal Citations, by Susan W. Fox and Wendy S. Loquasto, 84 Fla. B. J. 40 (2010).

http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/A8B63DC72FCE7882852576F10068ECD6

Persuasive citation of legal authority is an essential part of legal writing. Proper citation involves knowing not only the basic form for citing cases, constitutions, statutes, rules, books, articles, and other legal authority,1 but also requires understanding the purposes and best practices for citing legal authority. The purpose of this article is to help you develop a more persuasive and effective citation style by discussing development of a citation plan, the hierarchy of authority, the role of courts and precedent; the use of pinpoint cites, parentheticals, and signals; and placement of citations.

The primary purposes of citation are support and attribution for the propositions advanced by the author. Proper citation further requires consideration of the source of the applicable law, whether the authority is binding or merely persuasive and the credibility attributable to the author or authority cited. In short, persuading a court to follow precedent, distinguish it, or overrule it — as the case requires to advance your client’s position — is in large part dependent upon credible citations and sound reasoning based upon the citations. . . .

Continue reading →

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Formatting for Persuasive Legal Writing Makes A Difference.

28 Saturday Feb 2015

Posted by Celia C. Elwell, RP in Citations, Court Rules, Courts, Legal Technology, Legal Writing, Local Rules, Readability, Style Manuals

≈ Comments Off on Formatting for Persuasive Legal Writing Makes A Difference.

Tags

Collin Walke, Legal Writing, Oklahoma Bar Journal, Persuasive Legal Writing, Writing Format

Paragraphs and Indentation Formatting for Persuasive Writing, by Collin Walke, Vol. 86 OBJ No. 5 (2014).

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Walke.aspx

Contrary to that pesky little voice in your head at this very moment, formatting is not a boring topic and is absolutely critical when writing a legal brief. Aside from the technical rule requirements for formatting briefs, which will be discussed in greater detail below, formatting is essential for persuasion. One of the best legal writers I have ever had the privilege of working with has a paperweight on his desk that reads: ‘Good writing is clear thinking made visible.’ Without good formatting, quality content will be lost in the mire of facts, law and argument.

The point of this article is to outline what good formatting looks like. First, the brief must be written in accordance with the formatting rules of your particular court. A brief for the district court of Oklahoma County will look different from a brief for the Western District of Oklahoma. Second, the format of the brief must be laid out so that it assists the reader in understanding your position. Finally, your format should match the needs of the particular brief. . . .

[Emphasis added.] Continue reading →

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What A Judge Needs To Give You What You Want.

27 Friday Feb 2015

Posted by Celia C. Elwell, RP in Brief Writing, Judges, Legal Analysis, Legal Argument, Legal Writing, Motions, Plain Language, Readability, Statement of Facts, Summary of the Argument

≈ Comments Off on What A Judge Needs To Give You What You Want.

Tags

Legal Writing, Oklahoma Bar Journal, Retired Judge Wayne Alley

Effective Legal Writing: One Judge’s Perspective, by Retired Judge Wayne Alley, originally published in the Oklahoma Bar Journal, Feb. 14, 2015– Vol. 86, No. 5.

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Alley.aspx

This is one of the best articles I have read on how to write to win your case. Judge Alley tells you exactly what a judge wants to read in your brief. So put yourself in the judge’s shoes, and imagine that you’re reading yet another brief at the end of a long day at the end of an extremely long week.

Here you will find what a judge needs to give you what you want. -CCE

What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. . . .

Continue reading →

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How “Readable” Is Your Writing?

19 Thursday Feb 2015

Posted by Celia C. Elwell, RP in Editing, Legal Writing, Plain Language, Proofreading, Readability, Spell Checking

≈ Comments Off on How “Readable” Is Your Writing?

Tags

Dr. Ken Broda-Bahm, Legal Writing, Persuasive Litigator, Readability

Check Your Language Level, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://www.persuasivelitigator.com/2015/02/check-your-language-level.html

Dr. Brada-Bahm makes a good point. Our job is to be understood, regardless of the method of communication. There is, however, an easy way to check your document’s readability statistics if you use Microsoft Word.  

To set readability statistics for in Word, click on “Options,” then “Proofing.” Scroll down to “When correcting spelling and grammar in Word.” Check the box for “Show readability statistics.” Afterwards, when you run a spell check on any Word document, it will show the readability statistics for your document. -CCE

The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about ‘reading level analysis‘ as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the ‘readability-score‘ site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click ‘calculate score’ and you instantly get a ‘reading ease’ number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at. . . .

Continue reading →

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10th Circuit Uses Sentence Diagramming To Decipher Federal Gun Statute.

19 Thursday Feb 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Writing, Readability, Statutory Interpretation

≈ Comments Off on 10th Circuit Uses Sentence Diagramming To Decipher Federal Gun Statute.

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10th Circuit Court of Appeals, Diagramming Sentences, Federal Statutes, Judith D. Fischer, Legal Writing, Legal Writing Skills Prof Blog

The Tenth Circuit Applies The Art of Sentence Diagramming, by Judith D. Fischer, Legal Writing Prof Blog (with hat tip to Brian Glassman!)

http://lawprofessors.typepad.com/legalwriting/2015/02/the-art-of-sentence-diagramming-helps-a-court.html

he Tenth Circuit recently interpreted a statute so confusing that the court decided to diagram some of its language. In United States v. Rentz, the court observed that ‘Few statutes have proven as enigmatic as 18 U.S.C. §24(c),’ which concerns crimes committed while using a firearm. Puzzling over what the statute’s modifiers mean, the court used the same device some of us learned in grade school—setting out a clear diagram of how words relate to one another grammatically. The court thus reached enough clarity to affirm the district court’s decision. Still, the court stated, ‘Even now plenty of hard questions [about the statute’s meaning] remain.’

My conclusions: 1) The art of diagramming sentences should be revived, and 2) Congress should focus more on clear drafting.

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“Know All Men By These Presents” — Who’s Getting All The Gifts?

17 Tuesday Feb 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Boilerplate Forms, Boilerplate Forms, Contract Law, Legal Writing, Legalese

≈ Comments Off on “Know All Men By These Presents” — Who’s Getting All The Gifts?

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Ken Adams, Legal Writing, Legalese, Raymond Ward, the (new) legal writer blog

Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog

http://raymondpward.typepad.com/newlegalwriter/2012/01/presents-thank-you-very-oh.html

Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.

Can I get a witnesseth?

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You’ve Written The Brief. Now What About The Conclusion?

07 Saturday Feb 2015

Posted by Celia C. Elwell, RP in Brief Writing, Editing, Legal Argument, Legal Writing, Plain Language

≈ Comments Off on You’ve Written The Brief. Now What About The Conclusion?

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Brief Writing, Bryan Garner, Conclusion, Legal Writing, Plain English, Rebecca Phalen

No more copying and pasting. Draft a strong conclusion. by Rebecca Phalen Blog

http://www.rebeccaphalen.com/draft-strong-conclusion/

You finally finished drafting the argument section of your brief; you are mentally spent. So for the conclusion you copy and paste: ‘For the foregoing reasons, Defendant asks this Court to grant its motion.’ Yes, it feels a little anticlimactic and abrupt, but at least the brief is done. Perhaps you think that judges aren’t paying attention by the end anyway.

But the next time you are tempted to end your brief this way, consider that Bryan Garner, in Legal Writing in Plain English, called this type of conclusion ‘a formulaic cop-out that says nothing.’ Yikes.

Writing a strong conclusion that actually says something can be hard work. But here are some tips to get you started on ending strongly: . . . .

Continue reading →

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Another Kimble Legal Writing Example – This Is How You Do It.

29 Thursday Jan 2015

Posted by Celia C. Elwell, RP in Editing, Legal Writing

≈ Comments Off on Another Kimble Legal Writing Example – This Is How You Do It.

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Joseph Kimble, Judith D. Fischer, Legal Writing, Legal Writing Prof Blog, Legalese, The Green Bag

Lawyers Are Poor Drafters, by Judith D. Fischer, Legal Writing Prof Blog

http://lawprofessors.typepad.com/legalwriting/2015/01/lawyers-are-poor-drafters.html

Most lawyers are poor drafters, writes Professor Joseph Kimble of Western Michigan University-Cooley Law School. In a recent article, Kimble identifies two key reasons for this: law schools have tended to neglect legal drafting, and lawyers often mimic the antiquated language in form books and poorly drafted statutes. To illustrate the problem, Kimble offers a court order prepared by lawyers and judges at a recent symposium. Displaying the order and his revised version side by side, he points out, among other things, that the original has 125 words more than the revision; the original includes several legalese phrases, such as pursuant to; and the original includes unnecessary cross-references. For his full analysis, see You Think Lawyers Are Good Drafters? in the autumn 2014 issue of The Green Bag.

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iWrite Legal – Free iPhone App For Legal Writers.

26 Monday Jan 2015

Posted by Celia C. Elwell, RP in Apple, Apps, Editing, iPhones, Legal Technology, Legal Writing, Plain Language, Proofreading, Readability

≈ Comments Off on iWrite Legal – Free iPhone App For Legal Writers.

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iPhone App, Kathleen Vinson, Law Sites Blog, Legal Writing, Legal Writing App, Legal Writing Tips, Robert Ambrogi, Writing Checklist

Can An iPhone App Improve Your Legal Writing?, by Robert Ambrogi, Law Sites Blog

http://www.lawsitesblog.com/2013/03/can-an-iphone-app-improve-your-legal-writing.html

Can an iPhone app improve your legal writing? Kathleen Vinson thinks so. A professor of legal writing at Suffolk University Law School in Boston, Vinson has developed iWrite Legal, a free iPhone app designed to help legal writers improve their writing skills.

The app consists of three sections — Legal Writing Tips, Legal Writing Checklist and Additional Resources — all aimed at providing advice and guidance on writing, editing and proofreading a legal document.

The first section, Legal Writing Tips, is simply that — a collection of tips, no doubt gleaned from Vinson’s own experience teaching legal writing. Each tip occupies its own screen, with a heading such as ‘Finding the Time to Write,’ ‘Be Consistent’ and ‘One Point at a Time,’ followed by a paragraph that elaborates on the point. For example, under the heading, ‘Writing Efficiently,’ the app offers this tip:

Do you feel that it is taking a long time to draft a document? Good writing takes time but often what slows writers down is trying to edit while you write. Don’t edit/revise while you write or stop to think of the perfect word. Write quickly and then once you have completed a draft, edit slowly. If you have to, cover the screen while you type so you can fight the urge to edit while you write.

The second part of the app consists of four legal writing checklists. They cover the initial stages of writing, revising, editing and proofreading. For example, the checklist for the initial stages of writing lists items such as, ‘What is the purpose of the document?’, ‘What relief do you want from the court?’ and ‘Why is your client entitled to this relief?’ As you satisfy yourself that you have covered each element, touch that element in the app to check it off.

The final component of the app, Additional Resources, simply provides links to the Suffolk Law Legal Practice Skills program’s Twitter feed, YouTube video and Legal Writing Tips podcasts.

So will this app make you a better writer? . . . .

Continue reading →

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Trouble With Typos? Ten Tips To Help Get Rid of Them.

25 Sunday Jan 2015

Posted by Celia C. Elwell, RP in Editing, Legal Writing, Proofreading, Spell Checking

≈ Comments Off on Trouble With Typos? Ten Tips To Help Get Rid of Them.

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Grammar Girl Blog, Legal Writing, Mignon Fogarty, Proofreading, Typos, Writing Errors

10 Tips to Banish Typos, by Mignon Fogarty, Grammar Girl Blog

 http://tinyurl.com/kavzl5t

Funny Typos

Typos can seem funny after the fact. A couple of years ago I told you about someone who accidentally recommended a friend as a ‘fat and accurate typist’ instead of a ‘fast and accurate typist’ and another person who wrote to tell a friend he had written an excellent report and instead called it an ‘excrement report.’

Costly Typos

Some typos are more than embarrassing; they’re costly. Contracts, for example, are not good places for typos. A Canadian utility company became famous for the ‘million dollar comma‘ lawsuit when they had to pay another company more than $2 million because of a misplaced comma.

Old Typos

Typos aren’t a new problem either. There are a few old editions of the King James Bible that have typos. A 1612 edition known as the ‘Printers Bible’ reads ‘Printers have persecuted me without a cause’ instead of ‘Princes have persecuted me without a cause,’ and another one from 1635 is called the ‘Sinner’s Bible’ because it reads ‘Thou shalt commit adultery’ instead of ‘Thou shalt not commit adultery.’ Whoops.

When you want to avoid embarrassing yourself, incurring costly lawsuits, and leading believers astray, here are 10 tips to help.

  1. Have someone else read your work. The best way to find typos is to have someone else read your work. They don’t know what you meant to say, and their fresh eyes will almost always catch things you missed. Since that’s not always possible, here are some other solutions.
  2. When you’re writing on your computer, use the auto-correct feature.I also call this the ‘know thyself’ trick. For example, I always type ‘pateint’ instead of ‘patient.’ Always. But with the auto-correct feature in my word-processing software, I can tell the computer that every time I type ‘pateint’ it should insert ‘patient.’ Problem solved!

The best way to find typos is to have someone else read your work.

  1. Run your work through your computer’s spell-checking tool. It’s amazing how many people don’t do this. Don’t think the computer is infallible though. The first choice it gives you may not be the right one, and spell-checkers often think correct possessives such as children’s and someone else’s are wrong. The computer can highlight things you should check yourself, but it isn’t perfect.
  2. Print your work.Always proofread a printed version of your work. Many people find that if they try to proofread on a computer monitor, they miss more errors than when reading a printed copy of their work.
  3. Give yourself some time.If possible, let your work sit for a while before you proofread it. If you are able to clear your mind and approach the writing from a fresh perspective, then your brain is more able to focus on the actual words, rather than seeing the words you think you wrote.
  4. Read your work aloud.This forces you to read each word individually. I write a script for each Grammar Girl podcast, and when I read it to record the show, I almost always find an error I missed when proofreading it other ways. A long time ago, a listener told me that he felt uncomfortable reading his writing aloud at work, so he does it while pretending to talk on the phone so people don’t know what he’s doing.
  5. Force yourself to view each word.If you don’t want to read aloud, you can force yourself to consider each word by using the tip of a pencil or pen to physically touch each word. You can also force yourself to focus on smaller sections of the document by putting a ruler under each line of text as you are reading or by cutting out a small rectangular window on an index card and sliding it over your copy as you read.

[[AdMiddle]8. Read your work backward, starting with the last sentence and working your way in reverse order to the beginning. Supposedly, this works better than reading through from the beginning because your brain knows what you meant to write, so you tend to skip over spelling mistakes when you’re reading forward.

Philip Corbet recently reviewed some of his favorite proofreading tips in his New York Times column ‘After Deadline,’ and I picked up a couple of new ideas there.

  1. Separate proofreading tasks.Read the article through once to just check the spelling, and then read it through again to just check the punctuation. By separating tasks, you’ll be able to focus better on each one.

(He also showed an example of a sentence that looked like a revision gone awry–as though the writer had rewritten the sentence but forgotten to remove remnants of the earlier version–and that really struck a chord with me. Almost every time I post a terrible typo to Twitter or Facebook, it’s because I was repeatedly editing the post to make it shorter and didn’t see that something got left in from an earlier version. So the advice is to be especially careful when you’re revising things at the last second.)

  1. Print your work in a different font with different margins.Bryan Garner, the author of Garner’s Modern American Usage, posted this tip to his Twitter feed: ‘When you’re sick of editing your own work, you should print it in a different font with different margins. It works!’ I’m going to try that one on my next book.

If you want to raise a happy dog who loves to play and cuddle–but still comes when called and doesn’t chew up your favorite shoes–you need Jolanta Benal’s The Dog Trainer’s Complete Guide to a Happy, Well-Behaved Pet: http://bit.ly/upuIhO

Distractions

VIDEO: ‘The Impotence of Proofreading‘ by Taylor Mali.

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Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Discovery, Editing, Interrogatories, Legal Writing, Legalese, Plain Language, Readability, Requests for Admissions, Requests for Production

≈ Comments Off on Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

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Discovery, Discovery Disputes, Discovery Responses, Legal Writing, Oklahoma Bar Journal, U.S. Magistrate Paul J. Cleary

Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)

http://tinyurl.com/mjfawqa

Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma.  He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. 

It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE

“What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967).

There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.

The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .

Continue reading →

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The Right Way to Assemble Attachments To Appellate Supervisory Writs.

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Legal Writing, Louisiana Supreme Court, Readability

≈ Comments Off on The Right Way to Assemble Attachments To Appellate Supervisory Writs.

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Appellate Law, Appellate Procedure, Appellate Writs, Legal Writing, Louisiana Civil Appeals, Raymond P. Ward

Practical Tip For Assembling A Writ Application, by Raymond P. Ward, Louisiana Civil Appeals

http://tinyurl.com/o2or5jy

Today [January 14. 2015] I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.

Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).

There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.

Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.

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