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~ Articles and Research for Legal Professionals

The Researching Paralegal

Tag Archives: Legal Writing

2013 Judicial Writing Manual: A Pocket Guide For Judges.

19 Tuesday Aug 2014

Posted by Celia C. Elwell, RP in Appellate Writing, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing

≈ Comments Off on 2013 Judicial Writing Manual: A Pocket Guide For Judges.

Tags

Appellate Writing, Federal Judges, Federal Judicial Center, Judicial Writing Manual: A Pocket Guide for Judges (Second Edition), Legal Writing

Judicial Writing Manual: A Pocket Guide for Judges (Second Edition), Federal Judicial Center 2013 (with huge hat tip to William P. Statsky!)

http://www.fjc.gov/public/pdf.nsf/lookup/judicial-writing-manual-2d-fjc-2013.pdf/$file/judicial-writing-manual-2d-fjc-2013.pdf

Yesterday I posted a link to the First Edition of the Judicial Writing Manual. Twenty years after the First Edition, the Federal Judicial Center published this Second Edition. The goal of the Second Edition, like the First, is summed up in its Forward below. -CCE

Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition sought to teach are particularly important for judges’ writing. But the elements of good writing are remarkably constant, and we think that you will find the principles explained so thoughtfully in the first edition no less applicable today.

Jeremy D. Fogel, Director, Federal Judicial Center

 

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Federal Judges Writing Manual.

17 Sunday Aug 2014

Posted by Celia C. Elwell, RP in Federal Judges, Judges, Jury Instructions, Legal Analysis, Legal Writing, Statutory Interpretation, Style Manuals, Trial Tips and Techniques

≈ Comments Off on Federal Judges Writing Manual.

Tags

Federal Judges, Federal Judicial Center, Judicial Writing Manual, Legal Writing, Style Manual, Trial Tips & Techniques

Judicial Writing Manual, Federal Judicial Center

http://tinyurl.com/k5x898o

This Writing Manual is obviously written specifically for federal judges. Twenty-four experienced jurists were interviewed to write the Manual.  Its board of editors are judges, law professors, and legal writers. Although written for federal judges, it provides insight for any legal writer, especially those who practice in federal court. The Manual is available in print or you can download it as a .pdf document.

This is more. Look at the left-hand side of the page, and click on “Recent Materials“: http://tinyurl.com/odjltbl. From there, it just gets better. At this link you will find papers on specific areas of law. One that caught my eye is Meghan Dunn’s “Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.”  It is available only online.

Even if you do not practice in federal court, this is definitely worth a look. -CCE

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Arrogant Legal Writing Gives Texas A Horrible, Terrible Very Bad Day.

26 Saturday Jul 2014

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, U.S. District Court for the District of Columbia, U.S. District Courts, Voting Rights Act

≈ Comments Off on Arrogant Legal Writing Gives Texas A Horrible, Terrible Very Bad Day.

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Attorney Fees, Bad Legal Writing, Judge Rosemary M. Collyer, Kevin Underhill, Legal Writing, Lowering the Bar Blog, Prevailing Party, Shelby County, State of Texas, Voting District, Voting Rights Act

Bad Attitude Costs Texas in Fee Dispute, by Kevin Underhill, Lowering the Bar Blog

http://www.loweringthebar.net/2014/06/bad-attitude-costs-texas.html

 Hey, I get it—sometimes when you win and you think the other side’s position was bogus, it’s hard not to get all smug and self-righteous.

But you really should try.

Not trying very hard—well, not trying at all—cost the State of Texas a lot of money on June 18, when a judge awarded other parties in a voting-rights case $1,096,770 in legal fees and costs, even though Texas had a decent argument that it was the prevailing party and so it should get paid. (McClatchy DC; thanks, Mark.)

In the U.S., normally each side has to pay its own fees, but some statutes say the ‘prevailing party’ is entitled to recover fees from the loser. But exactly who ‘prevails’ in a lawsuit is not always clear, and that was the case in this lawsuit, which involved Texas’s plans to redraw its voting districts. (Skip down three paragraphs or so if that could not sound more boring.)

Under the Voting Rights Act—Still here? Nerd. Under the Voting Rights Act, Texas was one of the states that had to get federal ‘preclearance’ for redistricting because of the history of discrimination there. Texas decided to sue for a declaration that its plans were okay, and the feds opposed. Other parties (Democrats, basically) intervened because they also wanted to oppose. Texas mostly lost in the district court, and it appealed. In the meantime, though, it came up with new plans that were more likely to comply with the court’s order.

One day before the new plans became law, the U.S. Supreme Court held in Shelby County that all this VRA preclearance stuff was unconstitutional—or had become unconstitutional at some point over the last 50 years, anyway, discrimination now being a thing of the past, you see. Told you so, said Texas, and moved to dismiss the still-pending case involving its first set of plans.

Okay, so who ‘prevailed’ in that mess? The Democratic groups said they did, because Texas lost the first ruling and changed its plans, just like they wanted it to, and they filed motions seeking over $1 million in fees. Texas did not agree.

It did not agree so much, in fact, that it didn’t even bother to file responses. Or, rather, it did file something but it couldn’t bring itself to call the document a ‘response.’ It filed this three-page thing it called an ‘Advisory,’ saying that not only did Shelby County mean Texas won, it meant Texas had essentially always been right because the law was unconstitutional all along (an ‘affront’ and a ‘nullity’), and the case never should have been brought. That’s wrong for a couple of reasons, I think, but Texas was so sure of itself that it didn’t bother to say much of anything else.

As the judge’s decision made clear, this was a Bad Idea. . . .

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Senior Judge Shares Tip To Avoid “Lousy Brief Writing.”

22 Tuesday Jul 2014

Posted by Celia C. Elwell, RP in Abbreviations, Acronyms, Appellate Law, Bad Legal Writing, Brief Writing, District of Columbia Circuit Court of Appeals, Initialisms, Legal Writing, Readability, Style Manuals

≈ Comments Off on Senior Judge Shares Tip To Avoid “Lousy Brief Writing.”

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Acronymns, Brief Writing, Bryan Garner, Garner’s Dictionary of Legal Usage, Initialisms, Legal Writing, Louisiana Appeals Blog, Raymond Ward, Senior Judge Laurence Silberman

Don’t Let Your Brief Be DOA, by Raymond Ward, Louisiana Civil Appeals Blog

http://tinyurl.com/k8urt5j

Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!] . . . .

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It Could Happen To Anyone – But Justice Scalia Isn’t Just Anyone.

22 Tuesday Jul 2014

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

≈ Comments Off on It Could Happen To Anyone – But Justice Scalia Isn’t Just Anyone.

Tags

Good Legal Writing, Justice Scalia, Legal Writing, Proofreading, Tiffany Johnson

Would You Like Salt on That Crow?, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/07/22/would-you-like-salt-on-that-crow/

So, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents. . . .

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Classic Writing Tips From C.S. Lewis.

01 Tuesday Jul 2014

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

≈ Comments Off on Classic Writing Tips From C.S. Lewis.

Tags

C.S. Lewis, Editing, Ethos3, Grammar and Punctuation, Legal Writing, Plain Language, Readability, Scott Schwertly

5 Writing Tips by C.S. Lewis, the Purveyor of Childhood, by Scott Schwertly, the Founder and CEO of Ethos3

http://tinyurl.com/qzawhfs

It’s pretty likely that C.S. Lewis brought you a little bit of happiness when you were a child. As author of the ‘Chronicles of Naria’ series, C.S. Lewis created one of the most beloved children series of all time. As a result, he got loads of fan mail from his biggest fans: children. And being the nice purveyor of childhood glee that he was, he managed to respond to many of the letters, including one from Joan Lancaster, in which he included several tips on writing. Let’s see what we can learn about presentations from his poignant advice.

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn’t mean anything else.

This is great advice for the presenter as our job is disseminate information as clearly and simply as possible. In order to do so, use language that tells the audience what they need to know in the simplest way possible. Say what you want to say as simply as possible. Don’t overcomplicate your language for no reason.

2. Always prefer the plain direct word to the long, vague one. Don’t implement promises, but keep them.

This goes hand in hand with Lewis’s previous nugget of advice. Use plain, direct language in your presentation. You won’t sound smarter by using a ten-dollar word when a five-dollar word will do. Rather, you might come across as pretentious. Don’t alienate your audience with obscure language. Be as direct as possible.

3. Never use abstract nouns when concrete ones will do. If you mean ‘More people died’ don’t say ‘Mortality rose.’

Mr. Lewis is adamant about the importance of clear, direct language, isn’t he? Minimize abstraction as much as possible with the language you use. Be as clear and concrete as possible.

4. In writing. Don’t use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was ‘terrible,’ describe it so that we’ll be terrified. Don’t say it was ‘delightful’; make us say ‘delightfu’ when we’ve read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, ‘Please will you do my job for me.’

This may be the best bit of Lewis’s advice, as it’s basically a snarky version of ‘show, don’t tell.’ Engage your audience by using vivid language that describes a situation instead of simply telling the audience how it made you feel using a range of blasé adjectives. Remember Jerry Weissman’s advice: Don’t make the audience think. Describe situations so clearly and in such a compelling nature that the audience won’t have any question as to what happened or how it made you feel.

5. Don’t use words too big for the subject. Don’t say ‘infinitely’ when you mean ‘very’; otherwise you’ll have no word left when you want to talk about something really infinite.

Lewis’s last piece of advice again addresses the need to use clear, precise language. Don’t exaggerate in your description of something as that would be an easy way to mislead your audience. Above all, if we are to follow Lewis’s advice in our presentations, use language that is as direct and to-the-point as possible. Your presentation will be much more accessible and well-received if you eliminate abstract, unclear language altogether.

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George Orwell’s “Politics and the English Language”

01 Tuesday Jul 2014

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

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Tags

Bad Legal Writing, Editing, George Orwell, Grammar and Punctuation, Legal Writing, Legalese, Plain Language, Politics and the English Language, Proofreading

Politics and the English Language, George Orwell’s Library

http://tinyurl.com/nsagx

Orwell’s 1946 essay, “Politics and the English Language” is a classic. Mr. Orwell actually had six, not five, excellent rules for effective writing. Follow these rules, and you cannot go wrong. -CCE

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than saying anything outright barbarous.

 

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String Citations – Good or Bad Legal Writing Tool?

29 Sunday Jun 2014

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

≈ Comments Off on String Citations – Good or Bad Legal Writing Tool?

Tags

Bad Legal Writing, Brief Writing, BriefRight Blog, Kirby Griffis, Legal Writing, String Citations

String Theory, by Kirby Griffis, BriefRight Blog

http://briefright.com/string-theory

String citations – a good writing tool or a bad idea? Lengthy string citations, like long single-spaced block quotations, are never a good idea. Readers tend to skim or skip a big block of text.

A good rule of thumb is to never cite more than four cases in a string. Start the string with a signal. Use a parenthetical — an abbreviated summary of the case in parentheses at the end of the citation. Keep your parenthetical no longer than two lines. Anything longer defeats the purpose of using string citations. -CCE

Your summary judgment brief contains eleven distinct legal propositions, including the standard to be applied in ruling on summary judgment. You have researched each, and have found multiple cases. You have read them and highlighted them and they are sitting on your desk in eleven stacks. You have even sorted each stack, moving the most persuasive authorities (because they are from your state and circuit, or are more recent, or are from higher courts) to the front.

Now what?

Many lawyers will just list every one of the cases in a string cite. This, they think, shows the judge the weight of the authority behind your legal claims. The judge will see nine cases listed and think ‘Wow, I guess they win that point.’

It is not so. String cites are a bad idea, for multiple reasons. . . .

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Checked Your Readability Score Lately?

28 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Editing, Legal Writing, Legalese, Microsoft Office, Plain Language, Proofreading, Word

≈ Comments Off on Checked Your Readability Score Lately?

Tags

Above the Law (blog), Bad Legal Writing, Editing, Legal Writing, Mark Herrmann, Microsoft Word, Readabilty Score, Steve Dykstra

Expose Your Weakness — Now! by Mark Herrmann, Above the Law Blog

http://abovethelaw.com/2014/06/expose-your-weakness-now/

Think you can write? Do these four things.

First, pull out the last brief that you wrote.

Not that one — that’s the final version, edited by guys who could write. We’re looking for your work, untouched by others. Find the unedited draft that you first circulated. (If you don’t have a draft brief handy, that’s okay. Find the last long email that you sent to someone who matters — to the partner, the client, the general counsel, or the CEO.)

Second, click through this link, which will tell you how to enable Microsoft Word’s ‘readability’ feature on your computer. Enable that feature.

Third, let the readability feature score your work.

Finally, take a handkerchief and wipe the spit out of your eye. (I bet you didn’t realize that a computer could spit in your eye.)

You didn’t notice the spit? Here it comes: Compare your readability score to the average readability score for the works of bestselling authors.

I didn’t even know about Microsoft’s readability feature until I published a column on legal writing last month. I argued in favor of using short sentences and the active voice. A reader — Steve Dykstra, who’s a legal recruiter and budding novelist in Toronto — promptly sent me an enlightening email. Steve also subjected my work — my column on legal writing — to Microsoft Word’s readability test. Steve then told me how my column compared to the work of bestselling authors. . . .

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Brief Writing: The Table of Contents and Table of Authorities.

28 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Brief Writing, Legal Writing, Table of Authorities

≈ Comments Off on Brief Writing: The Table of Contents and Table of Authorities.

Tags

Brief Writing, Celia C. Elwell, Legal Assistant Today, Legal Writing, Paralegal, Paralegal Today, Table of Authorities, Table of Contents

Finishing Your Brief By Crafting The Table Of Contents And Table Of Authorities, by Celia C. Elwell, RP (Originally appeared in print in Legal Assistant Today as “Finishing Your Brief,” November/December 2003), Paralegal Today

http://tinyurl.com/72vcuuq

Sometimes, especially in law, it’s the little things that make all the difference. The cover page, Table of Contents and Table of Authorities are used for major briefs, such as briefs in support of dispositive or trial motions. Sometimes they are mandatory; other times they can be used to enhance a brief and make it easier for the court to read and understand. Regardless, all three of these tools are excellent methods for enhancing any lengthy or complex brief filed with the court, and paralegals should make sure they are familiar with all these tools. . . .

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How To Brief A Case.

28 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Briefing Cases, Legal Analysis, Legal Writing

≈ Comments Off on How To Brief A Case.

Tags

Briefing Cases, Christopher Pyle, John College of Criminal Justice, Legal Analysis, Legal Writing

How To Brief A Case, created by Christopher Pyle, 1982 and revised by Prof. Katherine Killoran, Feb. 1999, Lloyd Sealy Library, John Jay College of Criminal Justice

http://www.lib.jjay.cuny.edu/research/brief.html

A nice breakdown on how to brief a case (not to be confused with writing a legal brief for the court) for paralegal and law students. I would add “judgment” at the end of the steps – the decision made by the court (e.g., affirmed, reversed and remanded, etc.).  If you are interested in legal writing and have never learned how to brief a case, I recommend it. It will help you learn how to identify the key facts of the case and how the court applied those facts to the law to reach its ruling. -CCE

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Judge Posner Critique on Structuring Statutory-Interpretation Books.

28 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Brief Writing, Case Briefs, Legal Analysis, Legal Argument, Legal Writing, Legislative History, Statutory Interpretation

≈ Comments Off on Judge Posner Critique on Structuring Statutory-Interpretation Books.

Tags

Above the Law (blog), Bryan Garner, David Lat, Judge Richard Posner, Justice Scalia, Legal Analysis, Legal Writing, Professor Amar, Statutory Interpretation

Judge Posner on Statutory Interpretation: This Is How We Do It, by David Lat, Above The Law Blog

http://tinyurl.com/nba842o

[J]udge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put ‘at’ Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled ’How I Interpret Statutes and the Constitution,’ Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

Yes, readers. There will be benchslaps….

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Bad Thinking = Bad Writing. Makes A Lot Of Sense.

22 Sunday Jun 2014

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

≈ Comments Off on Bad Thinking = Bad Writing. Makes A Lot Of Sense.

Tags

Chronicle of Higher Education, George Orwell, Law Students, Legal Writing, Rachel Toor, Scholarly Writing, Strunk and White

Bad Thinking Leads To Bad Writing, by Legal Writng Prof, Legal Writing Prof Blog

http://tinyurl.com/mr5g4x8

In a recent Chronicle of Higher Education article titled ‘Bad Writing and Bad Thinking,’ author Rachel Toor argues that some problems with students’ writing arise from their belief that they must write like others in their fields—even when that writing is clumsy. Instead, Toor says, students should follow George Orwell’s and Strunk and White’s advice about thinking and writing clearly. She adds, ‘Call me simple-minded, call me anti-intellectual, but I believe that most poor scholarly writing is a result of bad habits, of learning tricks of the academic trade as a way to try to fit in. And it’s a result of lazy thinking.’  Law students’ exposure turgid judicial opinions may explain some of the problems they face in learning legal writing.

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Changes and Trends in Paralegal Education.

21 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Education, Legal Technology, Legal Writing, Paralegals/Legal Assistants

≈ 1 Comment

Tags

AAfPE, Distance Learning, E-Discovery, Legal Technology, Legal Writing, Litigation Support, Paralegal, Paralegal educators, Paralegal Programs, Sally A. Kane, Technology Training

Take Your Seats, by Sally A. Kane, J.D., Paralegal Today

 http://paralegaltoday.com/issue_archive/features/feature1_jf09.htm

A changing economic climate, emerging technologies and a global legal market have transformed the legal industry. In response to evolving market demands, paralegal educators and law firm managers are adapting school programs, continuing legal education courses and training policies to better prepare today’s paralegals for success in the workforce and in their careers.

‘Paralegal roles are expanding,’ said Charles Volkert, Esq., executive director of Robert Half Legal, a national legal staffing service based in  Menlo Park, Calif. ‘Law firms look for multiple skill sets and a wide variety of experience as they expand globally.’

What skills sets are hot in today’s paralegal market? Paralegal educators, managers and recruiters across the country agree that a combination of strong technology, writing and communication skills, and hands-on experience will help paralegals excel in the workplace. Other hot trends in paralegal education and CLE include distance learning and a greater demand for certain paralegal specialties. . . .

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Handouts From The Writing Center.

18 Wednesday Jun 2014

Posted by Celia C. Elwell, RP in Citations, Footnotes, Legal Writing, Plagiarism, Plain Language, Proofreading, Quotations, Readability, Spell Checking

≈ Comments Off on Handouts From The Writing Center.

Tags

Grammar & Punctuation, Handouts, Legal Writing, The Writing Center, University of North Carolina at Chapel Hill, Writing, Writing Guide

Handouts, The Writing Center, The University of North Carolina at Chapel Hill

http://writingcenter.unc.edu/handouts/

Not necessarily for legal writers, but downright handy nonetheless. The folks who put this together are kind enough to share this valuable resource, and welcome your ideas and suggestions. At the bottom of the post’s page, you will find contact information for contributions. Please give back if you can as thanks for this thoughtful gift. -CCE

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Proofreaders’ Marks and More.

18 Wednesday Jun 2014

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

≈ Comments Off on Proofreaders’ Marks and More.

Tags

Legal Writing, Merriam-Webster, Proofreaders' Marks, Writing

Proofreaders’ Marks, by Merriam-Webster Online Chicago Manual of Style Online

http://www.chicagomanualofstyle.org/help-tools/proofreading-marks.html

Unfortunately, the former Merriam Webster Online link to this information no longer works. No worries. There are plenty of other places to find proofreading marks. These are commonly used when editing any type of document in a law office. If you are not familiar with them, I suggest that you print the list for easy reference.

Another excellent website that provides an abundant amount of information, including proofreading marks, grammar and punctuation, dictionaries, and other reference resources is RefDesk.com (https://www.refdesk.com).

If you decide that neither of these are your cup of tea, just search “proofreader marks” with your favorite search engine. -CCE

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If You Want To Lose The Case, Just Write Like This.

15 Sunday Jun 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Citations, IRAC, Legal Analysis, Legal Argument, Legal Writing, Legalese, Plain Language, Proofreading, Propositions and Headings, Quotations, Readability

≈ Comments Off on If You Want To Lose The Case, Just Write Like This.

Tags

Bad Legal Writing, Brief Writing, Eric Voight, Lawyerist Blog, Legal Writing

How To Lose Your Case, by Eric Voight, Lawyerist Blog

http://lawyerist.com/73849/how-to-lose-your-case/

Legal writers do this more than they realize, sometimes out of haste and short deadlines. These are common — and fixable — bad writing mistakes. -CCE

In litigation, you have to persuade judges that your client’s position is correct, but don’t forget about the gatekeepers. Your motions and briefs will probably be reviewed by a law clerk before it reaches the judge’s desk. Clerks for federal judges say they have reviewed many motions and briefs where it appeared that the attorneys didn’t care whether their clients prevailed.

I didn’t realize that attorneys would prefer to lose, not win, their case. But if your goal is losing, this article is for you. Be sure to incorporate these ideas from my law clerk friends into your motions and briefs — if you want to lose your case. . . .

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Writing For The Court – It’s Not All About Content.

15 Sunday Jun 2014

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

≈ Comments Off on Writing For The Court – It’s Not All About Content.

Tags

Brief Writing, BriefRight, Kirby Griffis, Legal Writing

TrialRight Again, by Kirby Griffis, BriefRight

http://briefright.com/trialright-again/

Picture yourself as the judge or the judge’s law clerk. You read briefs and other documents all day. Most are boilerplate language. When someone does have an original thought, the writer ruins it with redundancies and poor grammar and punctuation. 

Imagine the Court’s relief when someone writes a brief that makes a concise legal point supported by correctly formatted citations. This is a short article, but it makes a strong argument for clear writing. -CCE

Last week, I wrote about how some of the principles of briefwriting apply just as strongly to trial practice. There’s another important principle that applies strongly to each. I learned it years ago from an excellent trial lawyer: everything is evidence.

In court, the jurors start to evaluate who in the courtroom they can trust and believe from the moment they first walk through the door, from before voir dire to after closing argument. Their scrutiny is not limited to the content of your formal speeches and witness examinations: it extends to your demeanor as you sit at counsel table, how much you object and when, whether you fumble with exhibits, whether you arrive to court each day in a limo, and everything else that they can see. You must think about all of these things.
Similarly, in your legal briefs, the judge is not just paying attention to content. She is also influenced by how long the brief is, its formatting, its clarity, and many other factors as well. . . .

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Are Acronyms Effective or Alphabet Soup?

15 Sunday Jun 2014

Posted by Celia C. Elwell, RP in Acronyms, Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Writing, Making Objections, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire

≈ Comments Off on Are Acronyms Effective or Alphabet Soup?

Tags

Abbreviations, Acronyms, Dr. Ken Broda-Bahm, Jury Persuasion, Legal Writing, Persuasive Litigators Blog, Trial Tips & Techniques

DUA: Don’t Use Acronyms, by Dr. Ken Broda-Bahm, Persuasive Litigators Blog

http://tinyurl.com/p66tcgk

I’m monitoring a criminal trial this week, and at the end of opening statements, the judge looked at the jury and said, ‘Okay, both sides have been referring to ‘AUSAs’ — they know what that means and I know what that means, but I’m guessing that you don’t know that that means?” Head nods from the jury. ‘It means ‘Assistant U.S. Attorney,’ continued the judge, “so please fill that in wherever you hear it.” Good solution? Better than nothing. But it would have been best if both sides would have simply used the title instead of abbreviating it. The tiny amount of additional time it takes to say ‘Assistant U.S. Attorney’ rather than ‘USA’ is well worth it in terms of clarity and understanding.

But some attorneys, experts, and other witnesses continue to love the economy of the acronym. But particularly in spoken communication, and particularly in front of a jury, that economy comes at a cost: meaning lost in translation and increased cognitive workload even when it is translated. Practical persuaders before a lay audience are well advised to avoid acronyms almost entirely. Okay, I say almost entirely — there are some exceptions (and besides ‘Generally Avoid Acronyms’ would have been ‘GAA.’) The few acronyms that ought to still be used are those that have such widespread familiarity that they almost become words in their own right: USA, CNN, or ASAP. In all other cases where the acronyms don’t benefit from automatic translation, the litigator is best off choosing the full expression and not the acronym. This post takes a look at a few reasons, implications, and replacements for trial persuaders looking to lose the alphabet soup of acronyms. . . .

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Candy For Writers! Grammar Girl’s Editing Checklist.

14 Saturday Jun 2014

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

≈ 1 Comment

Tags

Editing, Grammar, Grammar Girl, Legal Writing, Mignon Fogary, Punctuation, Spellchecking, Writing

Grammar Girl’s Editing Checklist, Mignon Fogary, Grammar Girl Blog

http://tinyurl.com/qy3efup

At the end of a recent writing webcast, we distributed a Grammar Girl editing checklist that turned out to be so popular we decided to make it widely available. Print out the checklist and keep it on your desk as a handy reference to use when you’re editing.

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8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

≈ Comments Off on 8th Circuit Motions of Limine and Offers of Proof.

Tags

Eighth Circuit, Evidence, EvidenceProf Blog, Federal Rules of Evidence, Legal Writing, Motion in Limine, Offer of Proof, Rule 103

Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pk2vzlt

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .

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Do You Write Like A Tool? Here’s One Way To Find Out.

04 Wednesday Jun 2014

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

≈ Comments Off on Do You Write Like A Tool? Here’s One Way To Find Out.

Tags

Above the Law (blog), Bad Legal Writing, Jay Shepherd, Legal Writing, Legalese

Small Firms, Big Lawyers: 20 Ways to Write Like a Tool, by Jay Shepherd, Above The Law Blog

http://tinyurl.com/6zxgxy8

Ever see Fight Club? Yeah, me neither. The 1999 Brad Pitt movie was more of a cult film than a commercial success, although it did make back its costs. But the movie did have a line that became something of a meme, and was once recognized by Premiere magazine as the 27th greatest line in movie history (which seems dubious, but whatever):

The first rule of Fight Club is you do not talk about Fight Club.

If only lawyers had the same rule.

You see, being a lawyer is like being a member of an elite club. OK, maybe not as elite as we like to think; there are more than a million members in the US. But elite enough. And the problem is, too many of us are dying to show off to others that we’re members of law club. And one of the ways we do it is by trying to sound like a lawyer when we speak, and especially when we write. This is a problem because sounding like a lawyer is the same as sounding like a tool.

I’ve come up with 20 lawyerisms that do nothing to advance the message you’re trying to send, but instead show that you’re a member of law club. And that you sound like a tool.

How many of the 20 do you use? . . .

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The ITS Style Guide – Put This One In Your Legal Writing Toolbox.

02 Monday Jun 2014

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

≈ Comments Off on The ITS Style Guide – Put This One In Your Legal Writing Toolbox.

Tags

Grammar, ITS Style Guide, Legal Writing, Punctuation, The University of Texas at Austin, Writing, Writing Guide, Writing Style

ITS Style Guide, The University of Texas at Austin

http://www.utexas.edu/its/style/written/misused.php

Easy Peasy. Definitely worth a bookmark. -CCE

The ITS Style Guide is an online reference for the Information Technology Services (ITS) department at The University of Texas at Austin. It promotes consistency in ITS publications with a focus on technical communications. The Guide covers correct writing styles, word usage, capitalization, punctuation, and other issues that arise in written communications.

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The Secret Of How To Ask For What You Want.

31 Saturday May 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Argument, Legal Writing, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire

≈ Comments Off on The Secret Of How To Ask For What You Want.

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Closing Argument, Elliott Wilcox, Legal Writing, Opening Argument, Trial Theater Blog, Trial Tips & Techniques

Ask For What You Want, posted by Elliott Wilcox, Trial Theater Blog

http://tinyurl.com/kkrtqwo

Mr. Wilcox’s suggestions on how to verbally ask for what you want can also be translated into a persuasive legal writing technique. The logic works either way. -CCE

How many times a day do you ask judges, clients, or co-workers to do something or to give you something? During any given week, you probably make hundreds, perhaps even thousands, of requests. You ask your co-worker to work on a project, you ask your assistant to handle a client issue, you ask your kids to help with the dishes. . . . The number of requests that you make each week is staggering. But how many of those requests are actually granted? Have you ever had a problem with someone not doing not what you asked?

Why?  You’re a lawyer. Shouldn’t you be the master of persuasion who can get what you want, when you want it, and how you want it, every single time?

Unless your name is ‘Svengali the Master Manipulator,’ chances are that many of your requests are not being granted, or at least not being carried out exactly the way you’d like to see them handled.  But it’s not because your requests are falling on deaf ears.  In fact, your listeners are probably hearing exactly what you’re saying.  The problem is that you’re asking for the wrong thing. . . .

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Plain Language Jury Instructions.

31 Saturday May 2014

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

≈ Comments Off on Plain Language Jury Instructions.

Tags

Jury instructions, Legal Writing, Plain Language

Plain Language and Jury Instructions, PlainLanguage.gov

http://www.plainlanguage.gov/examples/before_after/jury.cfm

Most jury instructions — long winded collections of complex sentences, arcane definitions and Talmudic distinctions — are all but impenetrable to lay people. So bad are some jury instructions that Court TV Anchor and former Prosecutor Nancy Grace reports having seen jurors turn to one another while listening to instructions and mouth the question, ‘What are they saying?’

Echoing such observations was a recent description in The National Law Journal of a judge who told jurors that a murder conviction required ‘malice aforethought.’ Unfortunately though, the jury interpreted this instruction to mean that the murder had to be committed with a mallet.

Many studies support anecdotal criticism of legalese jury instructions. For example:

• Forty percent of capital jurors wrongly believed that their jury instructions required them to accompany a conviction with a death sentence, according to a study by the Northeastern University’s Capital Jury Project.

• More than fifty percent of jurors defined ‘preponderance of the evidence’ as a ‘slow and careful pondering of the evidence,’ according to a study of Washington DC jurors. The same study found that more than 50 percent of jurors could not define ‘speculate,’ and about 25 percent did not know the meaning of ‘burden of proof,’ ‘impeach’ or ‘admissible evidence.’ . . .

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