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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Tag Archives: Legal Writing

Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

26 Monday May 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Appellate Law, Judges, Legal Analysis, Legal Dictionaries, Legal Writing, Legislative History, References, United States Supreme Court

≈ Comments Off on Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

Tags

Adam Liptak, Good Legal Writing, Legal Dictionaries, Legal Writing, Legislative History, New York Times, Statutes, Tiffany Johnson, U.S. Supreme Court

Look It Up! Or Not…, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/04/14/look-it-up-or-not/

I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like ‘prevent,’ ‘delay’ and ‘report.’ Over the years, justices have looked up both perfectly ordinary words (‘now,’ ‘also,’ ‘any,’ ‘if’) and ones you might think they would know better than the next guy (‘attorney,’ ‘common law’).

All of this is, lexicographers say, sort of strange. . . .

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What The Heck Does “SS” In An Affidavit Mean Anyway?

25 Sunday May 2014

Posted by Celia C. Elwell, RP in Affidavits, Legal Writing, Notary Jurat

≈ Comments Off on What The Heck Does “SS” In An Affidavit Mean Anyway?

Tags

Legal Writing, Michigan Bar Journal, Plain Language, SS, Thomas Selden Edgerton

After Seven Centuries, The True Meaning of SS, by Thomas Selden Edgerton, Plain Language, Michigan Bar Journal (February 2014)

http://www.michbar.org/journal/pdf/pdf4article2333.pdf

I always wondered what that “SS” meant. -CCE

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How To Remove “The Fluff” In Legal Writing.

25 Sunday May 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Motions

≈ Comments Off on How To Remove “The Fluff” In Legal Writing.

Tags

Brief Writing, Judge Lynn N. Hughes, Legal Writing, Legalese, Michigan Bar Journal, Plain Language

A Standard Motion Revised, by Judge Lynn N. Hughes, Plain Language, Michigan Bar Journal (May 2014)

http://www.michbar.org/journal/pdf/pdf4article2367.pdf

Judge Hughes eliminates unnecessary words, what he calls “the fluff.” In a simple, direct example, Judge Hughes clearly marks which words are meaningless, useless fillers.

You see this language used every day by lawyers and legal professionals. It is common as dirt. Some writers insist that archaic legalese is “required,” although there is no court rule, case law, or statute to support that opinion. It is not a “legal term of art.”

The point of legal writing is to persuade the reader – the court. Why do we add “the fluff”? Beats me. -CCE

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Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

20 Tuesday May 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Court Rules, Courts, Federal District Court Rules, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, Statement of Facts, Trial Tips and Techniques

≈ Comments Off on Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

Tags

Brief Writing, Bryan Garner, Chief Judge Sandra Lynch, Judge Frank Easterbrook, Judge Pierre Leval, Judge Stephen Reinhardt, Jurisdiction, Legal Writing, Legal Writing Prof Blog, Oral Argument, Scribes Journal of Legal Writing

Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/najqatd

In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:

Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’

Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’  Then he can read the facts in context.

Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’

Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .

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Legal Analysis & Writing Links.

05 Monday May 2014

Posted by Celia C. Elwell, RP in Acronyms, ALWD, Bad Legal Writing, Citations, Internet, Legal Analysis, Legal Directory, Legal Writing, Legalese, Quotations, References, Research, The Bluebook

≈ Comments Off on Legal Analysis & Writing Links.

Tags

ALWD Citation Manual, Grammar, Legal Analysis, Legal Citation, Legal Writing, Lewis & Clark Law School, Punctuation, The Bluebook, Writing Resources

Legal Analysis and Writing, Grammar & Writing Resources, Lewis & Clark Law School

http://bit.ly/1kFtlHk

A nice assortment of writing resources.  -CCE

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Benchslap Open Season on Acronyms.

30 Wednesday Apr 2014

Posted by Celia C. Elwell, RP in Acronyms, Appellate Law, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Legal Writing, Legalese, Readability

≈ Comments Off on Benchslap Open Season on Acronyms.

Tags

Acronyms, Benchslap, Brief Writing, Chief Judge Alex Kozinski, D.C. Circuit Judge Kavanagh, D.C. Circuit Judge Silberman, Legal Writing, Legalese, Mark Hermann, Ross Guberman

Alphabet Attack, by Ross Guberman’s Legal Writing Blog

http://legalwritingpro.com/blog/alphabet-attack/

It wouldn’t be spring in America without some federal judges publicly criticizing attorneys in a genre now known as ‘benchslap.’

The offended court this time: the D.C. Circuit. The court’s target: acronyms in briefs filed in a complex telecom dispute. The benchslap: “’It is ordered . . . that the parties submit new briefs that eliminate uncommon acronyms used in their previously filed final briefs.’ The court even cited its own practice handbook for good measure: ‘[i]n briefs the use of acronyms other that those that are widely known should be avoided.’ . . .

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More on Link Rot.

27 Sunday Apr 2014

Posted by Celia C. Elwell, RP in Appellate Law, Legal Technology, Link Rot, United States Supreme Court

≈ Comments Off on More on Link Rot.

Tags

All Tech Considered, Citations, Legal Writing, Link Rot, NPR, Perma CC, U.S. Supreme Court, URL

Stopping Link Rot: Aiming to End A Virtual Epidemic, by NPR Staff, All Tech Considered, NPR

http://n.pr/QTrCGp

I have mentioned perma.cc and the problem of link rot before. It is a good solution but not quite perfected. When I have used it here on this blog, it is not always reliable, which is disappointing for something that shows such promise. Hopefully all the kinks will be worked out soon. -CCE

Just about anyone who’s gone online has encountered the message: ‘Error 404’ or page ‘Not Found.’ It’s what you see when a link is broken or dead — when the resource is no longer available.

It happens all across the Internet, on blogs, news websites, even links cited in decisions by the Supreme Court. It’s called link rot, and it spreads over time as more pages die.

These are natural deaths; links die when the server where the page first lived has closed for business, or a filter is blocking access. It’s annoying on sites like Buzzfeed and Gawker, but it’s worse when links go rotten on judicial decisions or works of scholarship.

Jonathan Zittrain, professor of law and computer science at Harvard University, says that’s a serious problem.

‘It’s extraordinarily bad for the long-term maintenance of the information we need, say, to understand the law,’ says Zittrain, who helped create Perma.cc, a service to help judges, authors and scholars preserve links indefinitely. . . .

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Making Sense When Writing For Non-Lawyers – It’s Not That Hard.

27 Sunday Apr 2014

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

≈ Comments Off on Making Sense When Writing For Non-Lawyers – It’s Not That Hard.

Tags

Above the Law (blog), Bad Writing, Compliance, Legal Writing, Mark Herrmann, Non-Lawyers

Why Are The Lawyers Pestering Us? Communicating About Law And Compliance, by Mark Herrmann, Above The Law Blog (with hat tip to Raymond Ward, the [new] legal writer blog)

http://tinyurl.com/mu8vg7g

At a law firm, law matters. Law is the center of the institution’s universe, and it’s all everyone is thinking about.

It’s the other functions that don’t matter: ‘Another email from IT? Telling me about interfaces and gigabytes? Why don’t those clowns leave me alone?’

‘Another email from finance hectoring me about time sheets? Don’t those morons know I’m busy?’

At corporations, law (and compliance) is an ‘other function.’ The businesses are concentrating on their businesses, and law and compliance — along with human resources, information technology, and finance — are, at best, a means to an end. If you mirror the other ‘shared services’ and send incomprehensible communications to the businesses, the businesses will soon realize that you’re just one of the pests, meant to be ignored.

Inevitably, if a business person accidentally steps over some legal line, you’ll hear that the business guy had no clue that the line existed: ‘Yeah, yeah. Now that you’re telling me about it, I understand that we have that rule. But how was I to know? The rule is buried on the fourth page of some impenetrable policy hidden somewhere in our computer system. I spend my time selling; I can’t waste time trying to make sense of your legalese.’

If you don’t sympathize with that guy, then you’ve been a lawyer for too long. His criticism is not just an excuse for having violated the rules; his criticism may well be the truth. How can you change that reality? . . . .

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Clear Legal Writing.

13 Sunday Apr 2014

Posted by Celia C. Elwell, RP in Legal Writing

≈ Comments Off on Clear Legal Writing.

Tags

Ellis & Winters LLP, Legal Writing, Stephen D. Feldman, Strunk & White

Clear Writing Through Purposeful Sentences, by Stephen D. Feldman, Ellis & Winters, LLP

http://www.elliswinters.com/updates/feldman_clear_writing_14

Clear writing makes winning more likely.  Why?

Consider our courts’ workloads.  A federal district court judge, on average, annually handles over five hundred filings.[1]

The federal appellate courts annually receive more than 50,000 appeals.[2]  State courts experience the same pressures.[3]

These docket pressures, however, do not diminish the role of briefs.  If anything, it is enhanced.  Judges—even when they hear oral arguments—regularly make their rulings based on the briefs.[4]  A winning brief, then, must convey to the reader the key points for victory—and do so in one reading. . . .

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Appellate Judges Give Advice On Winning An Appeal.

06 Sunday Apr 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Citations, Judges, Legal Analysis, Legal Argument, Legal Writing, Proofreading, Texas Supreme Court

≈ Comments Off on Appellate Judges Give Advice On Winning An Appeal.

Tags

Appellate Briefs, Appellate Judges, Appellate Law, Chad M. Ruback, Dallas Bar Association Judiciary Committee, Fifth Circuit Court of Appeals, Legal Analysis, Legal Writing, Texas, Texas Supreme Court

Appellate Judges Tell Dallas Lawyers How to Handle an Appeal, By Chad M. Ruback, Appellate Lawyer

http://tinyurl.com/ousooh9

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges.  Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area.  After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals.  Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth.  Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas.  After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. . . .

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Judges Prefer “Plain Language.” If This Is True, Then Why Don’t We Use It?

01 Tuesday Apr 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Citations, Federal Judges, Footnotes, Judges, Legal Analysis, Legal Argument, Legal Writing, Legalese, Texas Supreme Court

≈ Comments Off on Judges Prefer “Plain Language.” If This Is True, Then Why Don’t We Use It?

Tags

Bryan Garner, Clarence Darrow, Joseph Kimble, Legal Writing, Michigan Bar Journal, Oliver Wendell Holmes, Plain English Submittee, Plain Language, Texas Plain Language Committee

 Judges on Effective Writing: The Importance of Plain Language, by Bryan Garner, Michigan Bar Journal Plain Language Committee

http://tinyurl.com/qf8fhsf

 (‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. We seek to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain-English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all. . . .

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A Recommendation for Legal Writing Experts.

01 Tuesday Apr 2014

Posted by Celia C. Elwell, RP in ALWD, Brief Writing, Citations, Footnotes, Legal Analysis, Legal Argument, Legal Writing, Parentheses, Spell Checking, The Bluebook

≈ Comments Off on A Recommendation for Legal Writing Experts.

Tags

Advanced Legal Writing & Editing, Bryan Garner, Legal Writing, Making Your Case, Raymond Ward, the (new) legal writer, The ALWD Citation Manual, The Bluebook, The Redbook

The Redbook (3d ed.), by Raymond Ward, the (new) legal writer blog

http://tinyurl.com/nlqx3zy

If Raymond Ward says it, you can take it to the bank. I have followed his legal writing blog for years. Look for sound advice on superb legal writing. -CCE

Today I attended a triple-feature CLE by Bryan Garner: Advanced Legal Writing & Editing, The Redbook, and Making Your Case. To see whether Bryan’s spring tour will visit your city, click here to see the schedule. What I want to talk about this evening is what I learned in the Redbook portion of the seminar.

For years, I have had the first edition of the Redbook on my office bookshelf. For those unfamiliar with this book, it’s a style manual for legal writers. If you have a question about the right word, right punctuation, or right way to do something in legal writing, this book endeavors to answer your question. I’ve found it a useful reference for answering questions that arisen when writing a brief or editing another’s brief.

First, this preface: I am not one who immediately buys the next edition of whatever if the current edition remains serviceable. I use so-called outdated versions of the Bluebook and ALWD Citation Manual, because they still answer any question I have ever had about how to cite something. So since the first edition of the Redbook has served me well, I did not rush out to buy the second or third editions.

Having said that, here is my point: if you don’t have the third edition, get it. . . .

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Add This Writing Tool To Your Arsenal.

30 Sunday Mar 2014

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

≈ Comments Off on Add This Writing Tool To Your Arsenal.

Tags

Elizabeth Bezant, Legal Writing, Readability, The Fog Index, The Gunning Fog Index, Writing to Inspire

The Gunning Fog Index, by Elizabeth Bezant, Writing to Inspire Blog

http://www.writing-information-and-tips.com/fog-index.html

If you want to increase the readability of everything you write, consider using the Gunning Fog Index – more commonly known as the Fog Index. It is the copywriter’s favorite statistics measurement. The idea behind the Fog Index is to show you the education level your reader must hypothetically have to understand what the document says.

I am not asking you to “dumb it down.”  But, remember that the goal in any legal writing project is to be understood, regardless of the complexity of the subject. If you are struggle with writing shorter sentence and paragraphs or simply making your writing more readable, this tool will help.

If you teach legal writing or any kind of writing course, encourage your students to use the Fog Index. It can be used by those who seek to improve their writing skills to a more sophisticated level. It can help anyone clarify their writing and write more concisely. But, most importantly, it gives you a way to determine whether what makes sense to you will make sense to anyone else.

Even though lawyers and judges have a high degree of education, when writing about complex issues, it helps to keep your document as simple and clear as possible.  The goal is to keep your Fog Index from ten to fifteen. Major publications, such as the New York Times and Times Magazine, have a Fog Index of eleven to twelve. If your document is meant for a wide audience, go for a Fog Index of less than twelve. If you are writing a document that you want to be universally understood, your target is a Fog Index of less than eight. For example, the Bible’s Fog Index is six.

See also http://gunning-fog-index.com/.

For more readability tests, see http://juicystudio.com/services/readability.php. -CCE

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Good Legal Writing – Why You Don’t Need Names In Paretheseses.

29 Saturday Mar 2014

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

≈ Comments Off on Good Legal Writing – Why You Don’t Need Names In Paretheseses.

Tags

Briefly Writing Blog, Legal Writing, Mike Skotnicki, Parentheses

Judges Catch On Quick. You Don’t Need Names in Parentheses, by Mike Skotnicki,Briefly Writing Blog

http://tinyurl.com/l5xkagk

[O]ne of the mistakes I see from good lawyers is that they overuse the technique of placing an abbreviation of a case name, party name, or other references to things in quotes inside parentheses. . . . .

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Legalese And Other Words You Should Always Cut.

29 Saturday Mar 2014

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

≈ 1 Comment

Tags

ABA Journal, Ambrose Bierce, Bryan A. Garner, editor of the New York Evening Post, Faults, Index Expurgatorius, James Gordon Bennett Jr., Law News Now, Legal Writing, Legalese, Little Blacklist of Literary, New York Evening Post, William Cullen Bryant

Ax These Terms From Your Legal Writing, by Bryan A. Garner, Law News Now, ABA Journal

http://tinyurl.com/kaoqz2o

William Cullen Bryant, editor of the New York Evening Post from 1829 until 1878, created an ‘Index Expurgatorius’ for his newspaper. Certain words simply weren’t allowed in its pages.

Likewise, James Gordon Bennett Jr., owner of the New York Herald from 1867 to 1918, had his ‘Don’t List.’ For example, he wouldn’t allow his journalists to write executive session when they meant secret session.

Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a ‘Little Blacklist of Literary Faults,’ published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.

Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them. . . .

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Key Elements of Great Legal Writing.

21 Friday Mar 2014

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

≈ Comments Off on Key Elements of Great Legal Writing.

Tags

Grammar, Judges, Legal Opinions, Legal Writing, Punctuation, Raymond Ward, Ross Guberman, Ross Guberman Blog

The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman Blog (with hat tip to Raymond Ward, the (new) legal writer blog!)

http://tinyurl.com/ov446wn

This post hits on all of the key elements of great, not just good, legal writing. It is rarely explained better than this. Pay attention . . . . -CCE

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. . . . 

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Law Student Invents App To Write Case Briefs.

16 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Apps, Case Briefs, Headnotes, iPad, IRAC, Legal Analysis, Legal Technology, Legal Writing

≈ Comments Off on Law Student Invents App To Write Case Briefs.

Tags

Case Analysis, Case Briefs, David Lutz, Legal Writing, Robert Ambrogi, Robert Ambrogi’s LawSites, The University of Michigan Law School

‘BriefCase’ App Automates Creation of Case Briefs, by Robert Ambrogi, Robert Ambrogi’s LawSites Blog

http://perma.cc/YXN4-HN3W

 

It will be interesting to see legal writing professors’ take on this. Please note that this App only works on iPads. -CCE

A third-year student at The University of Michigan Law School has created an iPad app, BriefCase, that automates the creation of case briefs.

The student, David Lutz, found it cumbersome to have to print out PDFs of cases, annotate them, and then type all the annotated information into a brief. The app lets you do all that on an iPad. (There are no iPhone or Android versions.) . . . .

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Using Logical Groupings In Legal Writing.

16 Sunday Mar 2014

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

≈ Comments Off on Using Logical Groupings In Legal Writing.

Tags

Kenneth F. Oettle, Legal Writing, New Jersey Law Journal

In Legal Writing, Dross Disappears and Points Emerge as Groupings Improve, by Kenneth F. Oettle, New Jersey Law Journal

http://perma.cc/PRC7-2629

Kenneth Oettle is on my list of top legal writers. His legal writing book, “Making Your Point: A Practical Guide to Persuasive Legal Writing” is well worth the price. -CCE

Legal writing is all about groupings — sets and subsets, and categories. These are the building blocks of logic. Accurate sets and subsets (accurate categories) increase the efficiency with which information is delivered, and the process of shaping sets and subsets forces a writer to confirm that the message is on point. Regrettably, the kind of precise grouping that typically takes place late in the editing process (e.g., rearranging items in sentences and short paragraphs) is sometimes skipped in the rush to get product out the door. . . .

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Former Appellate Law Clerk Emphasizes Brief Writing Skills.

19 Wednesday Feb 2014

Posted by Celia C. Elwell, RP in Alabama Supreme Court, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Judges, Legal Analysis, Legal Writing, Statement of Facts

≈ Comments Off on Former Appellate Law Clerk Emphasizes Brief Writing Skills.

Tags

Alabama Supreme Court, Appellate Judges, Brief Writing, Briefly Writing Blog, Chief Justice Sonny Hornsby, Justice Terry Butts, Legal Writing, Mike Skotnicki

The Most Important Thing I Learned on the Inside of the Alabama Supreme Court, by Mike Skotnicki, Briefly Writing Blog

http://tinyurl.com/mhq8a3m

An excellent post well worth reading. This short excerpt reminds us why quality legal writing is so critical in appellate advocacy. -CCE

[T]o win an appellate matter you must make your brief come alive, hold the reader’s attention, influence the reader to view your client favorably, and help guide the court to the result you want. With the paucity of oral argument, the appellate brief is very likely your only opportunity to present to the court the passion you hold for your client’s cause and that passion, though controlled, should be palpable. Your brief must be more like a compelling novel, telling a story of conflict, than the dry and lifeless tome that is most often submitted on appeal. If your brief is the one that the appellate judge or staff member goes back to again and again in preference to that of the opposing party as the matter is being considered, the chances of your client winning will climb immeasurably.  Sometimes having the “best” case or fact in your favor is enough for your client to win, but most appeals simply aren’t that easy. . . .

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An Argument For Teaching Psychology In Legal Writing.

16 Sunday Feb 2014

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

≈ Comments Off on An Argument For Teaching Psychology In Legal Writing.

Tags

Lawrence M. Solan, Legal Skills Prof Blog, Legal Writing, Legal Writing Courses, Psychology, Social Science Research Notebook

Four Reasons to Teach Psychology to Legal Writing Students, by Lawrence M. Solan, Social Science Research Notebook (with hat tip to Legal Skills Prof Blog)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2391974

Abstract:

Over the past quarter century we have learned a great deal about psychological biases that are by-products of the strategies we use in everyday reasoning. This essay invites educators to introduce some basic facts about these biases to students in legal writing courses. By teaching students to understand the psychological phenomena that underlie some of the core strategies of good legal writing, legal writing instructors may help students to internalize more of what they learn in legal writing classes. This will make it more likely that they will be able to transfer the skills to tasks performed in their legal careers.

While a number of psychological biases are relevant to good legal writing, the essay describes four: the preference for simple writing; the confirmation bias (causing us to ignore evidence that contradicts positions we have taken); the correspondence bias (overemphasizing character and undervaluing context in explaining an individual’s conduct); and the bias blind spot (thinking we ourselves are less susceptible to these biases than are people in general). The essay suggests ways to introduce each of these psychological phenomena into the legal writing course in ways that should enhance the student’s sensitivity to these important issues, and not take up too much class time.

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Good Advice On How to Avoid Embarrassing Mistakes In An Appeal.

16 Sunday Feb 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, Appellate Law, Bad Legal Writing, Brief Writing, Case Law, Citations, Citations to the Record, Legal Analysis, Legal Writing, Mandatory Law, Primary Law, Proofreading, Research, Statement of Facts, Texas Supreme Court

≈ Comments Off on Good Advice On How to Avoid Embarrassing Mistakes In An Appeal.

Tags

Appellate Briefs, Appellate Law, Appellate Lawyer, Chad M. Ruback, Citations, Citations to the Record, Hyperbole, Justice Debra Lehrmann, Legal Writing, Proofreading, Statement of Facts, Texas Supreme Court

Common Mistakes Seen in Appellate Petitions and Briefs, by Chad M. Ruback, Appellate Lawyer

http://news.appeal.pro/appeals-to-texas-supreme-court/appellate-petitions-and-briefs/

Mr. Ruback served as a briefing attorney to the Fort Worth Court of Appeals. Here he shares the common mistakes that are normally seen in appellate writing. Because an appellate court never questions witnesses or hears evidence, the written documents submitted by the parties are all it has upon which to base its ruling. Sloppy and lengthy garbled arguments simply will not do. Mr. Ruback’s comments are worth noting.

I would like to add to Mr. Ruback’s list – neglecting to verify the accuracy of the appellate record while it remains in the jurisdiction of the trial court. It is a simple exercise to compare the record compiled by the trial court clerk using the Designation of Record and Counter-Designation of Record to make sure that the record is accurate.

This may seem a waste of time until the appellate record includes a deposition that was never admitted into evidence or a crucial piece of evidence is overlooked by the court clerk who assembled record for the appeal. No one is perfect; mistakes can happen.

Too often, counsel ignore this simple step. Personally, I would make sure the person you send to check the record put the trial exhibits together and/or was part of the trial team. Or to put it another way – how do you explain to a client that you couldl have avoided the appeal’s fatal flaw if you had checked the record before it was sent up on appeal? -CCE

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Legal Writing Faculty – It’s Okay To Sweat The Small Stuff.

16 Sunday Feb 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Citations, Education, Legal Writing, Legalese, Paralegals/Legal Assistants, The Bluebook

≈ Comments Off on Legal Writing Faculty – It’s Okay To Sweat The Small Stuff.

Tags

Above the Law (blog), Joe Patrice, Legal Assistants, Legal Writing, Legal Writing Course, Legal Writing Prof Blog, Local Rules, Louisa Heiny, NYU, Paralegals, S.J. Quinney College of Law, Santa Clara Law Professor Ray Bernstein, University of Utah, Yale

A Law Professor’s Detailed, Thoughtful, and Comprehensive ‘Local Rules’ for Class: A Response to “Above the Law,” Legal Writing Prof Blog (guest post from Louisa Heiny, Adjunct Professor of Law at the S.J. Quinney College of Law of the University of Utah, responding to recent post at Above The Law Blog)

http://lawprofessors.typepad.com/legalwriting/2014/02/atl.html

I used to teach Legal Writing and Legal Analysis to paralegals. Students had to work hard to earn a good grade in those classes. Some students appreciated the emphasis on grammar and punctuation, adhering strictly to court rules and the Bluebook, the eradication of legalese, and the insistence that details matter. Regrettably, not every student felt the same way, and missed the point. There was a reason why the bar was set high for my students. I wanted them to succeed once they were on the job.

If I learned anything from teaching, it was that the majority of students, when challenged, will work hard to meet high standards and expectations set for the class. If a teacher’s expectation are low, the work turned in will be mediocre at best. Both law and paralegal students face tough competition upon graduation. Quality matters more than ever.

It is nice to see that there are still legal writing faculty who set insist on quality. -CCE

I admit it: I read Above the Law. I read it every day. It’s even on my Facebook feed. It’s sometimes snarky, often witty, and has published some of the most ridiculously funny cease and desist letters I’ve ever seen. I use material from Above the Law in class to show students what not to do.

I’ll also admit that when I read the headline in Above the Law, ‘A Law Professor’s Detailed, Ridiculous, Condescending ‘Local Rules’ For Class,’ I panicked. There was a serious possibility that I was about to read my own syllabus. I’m an adjunct, so there was also a possibility that I was about to be fired.

After a moment’s relief that I was not the target of ATL’s ire, I read the article. Written by Joe Patrice, the post skewers the ‘local rules’ created by Santa Clara Law Professor Ray Bernstein for his legal writing class. While my own syllabus isn’t as detailed, Professor Bernstein has created a detailed, thoughtful, and comprehensive set of local rules designed to put students on notice of class requirements, as well as prepare them for the practice of law. . . .

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Is It Herein, Hereunder, Or Over Yonder?

10 Monday Feb 2014

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

≈ Comments Off on Is It Herein, Hereunder, Or Over Yonder?

Tags

Adams On Contracting Blog, Ambiguity, Bayerische Landesbank New York Branch v. Aladdin Capital Mgmt. LLC, Contract Law, Herein, Hereunder, Ken Adams, Legal Writing, Paul Hastings

“Herein” (And I Need A Label For This Kind Of Ambiguity), by Ken Adams, Adams on Contract Drafting Blog

http://tinyurl.com/lg9nuer

Ken Adams explains why to avoid “herein,” “hereunder,” and antecedent ambiguity when drafting contracts. -CCE

I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.)

Well, I have another treat for you. (Yes, I know, I’m too generous.)

The case is Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42 (2d Cir. 2012) (PDF here). (I learned about it from this Paul Hastings newsletter.)

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A Judge’s Biting Response to Bad Briefs.

08 Saturday Feb 2014

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

≈ 1 Comment

Tags

Bradshaw v. Unity Marine Corps, Briefs, Good Legal Writing, Judge Samuel B. Kent, Legal Analysis, Legal Writing, Tiffany Johnson

The Bench Strikes Back, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2013/01/10/the-bench-strikes-back/

A judge does not like the quality of writing and analysis in attorneys’ briefs and tells them so. It isn’t pretty. -CCE

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Forget Times New Roman! Courts Prefer More Readable, Professional Fonts.

08 Saturday Feb 2014

Posted by Celia C. Elwell, RP in Brief Writing, Fonts, Judges, Legal Writing

≈ Comments Off on Forget Times New Roman! Courts Prefer More Readable, Professional Fonts.

Tags

Appellate Briefs, Fonts, Jason Steed, Legal Solutions Blog, Legal Writing, Times New Roman

Legal Writing: Font Matters, by Jason Steed, Legal Solutions Blog

http://tinyurl.com/n5zv6z7

 I thought by now it was becoming common knowledge that lawyers should avoid using Times New Roman as the font for their legal documents. But I recently had a conversation with an experienced lawyer about font choices in appellate briefs, and this experienced lawyer was trying to tell me that font doesn’t matter. “Just leave it on Times New Roman,” the experienced lawyer said. “That’s what judges are used to; it’s what they expect. There’s no reason to shake it up.” And maybe this is true. Maybe judges, after seeing thousands of court filings, simply get “used to” and “expect” these briefs to look a certain way.

But that doesn’t mean that that’s how judges want things to be. In fact, there’s evidence to the contrary. . . .

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