Drafting for Dispute Resolution, by John M. Newman, SSRN (with hat tip to Louis J. Sirico, Jr., Director of Legal Writing, Villanova Univ. School of Law, Legal Skills Prof Blog)
Not all cases end in litigation and go to trial. At times, the best service counsel can give to clients is an out-of-court resolution. Careful drafting of an agreement between the parties includes numerous considerations to protect your client and to assure acceptance by everyone involved. Definitely worth a bookmark. -CCE
This is a brief guide to drafting for dispute resolution. Topics covered include mandatory-arbitration provisions, class waivers, choice of law, choice of venue, exculpatory and liquidated-damages clauses, fee and cost allocations, and more. . . .
This guide seeks to concisely identify and explore, from a transactional perspective, the relevant questions, considerations, and law relating to these powerful tools. It also provides illustrative examples of well-drafted provisions, often drawn from real-world legal instruments. . . .
The Delicate Art of Confronting Offensive Speech, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Whether you are negotiating a settlement, trying to calm a stressed-out client, or talking about the recent election season, this is good advice. -CCE
Avoid Beginning Sentences with “The court held that . . . .” by Louis J. Sirico, Jr., Law Skills Prof Blog (with hat tip to William P. Statsky)
Busted! I use this phrase all the time. Here’s a way to take your legal writing to another level. -CCE
A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)
This is a gem. It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE
Using Narrative in Transactional Documents, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016).
Here is the introduction: A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent’s belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story.
Advice on Writing to Persuade the Court, by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)
In her article, Standing in the Judge’s Shoes: Exploring Techniques to Help Legal Writers More Fully Address the Needs of Their Audience, Sherri Lee Keene argues that lawyers writing as advocates need to place themselves in the shoes of the judges whom they seek to persuade. Of course, this is not new advice. What is helpful here is her advice on how to do it.
Drafting the Summary of Argument, by Louis J. Sirico, Jr., Legal Skills Prof Blog
Although not all courts require a “Summary of the Argument” in major briefs, you might consider adding one nonetheless. It is the heart of your brief. It concisely sums up your argument – no fluff allowed.
Some busy judges will read your Table of Contents, Table of Authorities, the Summary of the Argument, and nothing else. It is why the Summary of the Argument is at the beginning of a brief, and why it should to get right to the point and stay there.
This is a particularly interesting article on writing by Judith Fischer, and well worth your time regardless of your brief writing skills. -CCE
[B]ecause the summary of the argument appears near the beginning of a brief, it allows the legal advocate to take advantage of both framing and priming to begin to convince the Court. Thus, it’s a mistake for an advocate to treat the section as an afterthought. . . .
The Employment Contract Between Bilbo Baggins and the Dwarves, by Louis J. Sirico, Jr., Legal Skills Blog
Louis J. Sirico, Jr., posted this interesting observation about employment contract law. If you have not read the book or seen the movie, The Hobbit, by J.R.R. Tolkien, this example is going to sound a bit odd.
Before Bilbo Baggins is hired by dwarves to join a quest to conquer a dragon and take back a mountain full of gold, he must sign an unique employment contract. In the book, Mr. Tolkien wrote a fifty-three word employment contract. It is easy to read and understand.
In the movie, the director wanted something more dramatic. The writer took on the challenge and looked to real contracts including his own. The result is a doozy. -CCE
“On Editing,” by Louis J. Sirico, Jr., Legal Skills Prof Blog (with hat tip to William P. Statsky)
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.
A Reader’s Guide to Pre-Modern Procedure, by Louis J. Sirico, Jr., Legal Skills Prof Blog
In this short article, David Noll explains procedural terms with which students often are unfamiliar. These terms predate the Federal Rules of Civil Procedure, which most Civil Procedure classes seem to pass over.
These terms, like ‘demurrer’ and ‘nonsuit,’ may pop up not only in old court cases that students may study, but also in state court procedural rules. . . .
Federal Appellate Judges Want To Shorten The Length of Briefs, Lawyers Object, by Professor James B. Levy, Legal Skills Prof Blog
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). . . .
Excellent Legal Writing Articles by George Gopen, by Louis J. Sirico, Jr., Legal Skills Prof Blog
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.
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.
Advice on Email Etiquette, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills, Legal Skills Prof Blog
If you are looking for a short article for your students on email etiquette, you might consider “Email Netiquette for Lawyers,” republished in “Senior Lawyer” by the New York State Bar Association (here). Judge Gerald Lebowitz offers sensible and sound advice that should help the reader use email effectively and avoid pitfalls.
Examples: Translating Legalese into Plain English, by Louis J. Sirico, Jr., Legal Skills Prof, Legal Skills Prof Blog (with hat tip to William P. Statsky!)
Having problems rewriting legalese into understandable plain English? Use these excellent examples from Joseph Kimble, one of the legal writing giants, posted by another great legal writing expert, Louis J. Sirico, Jr. – CCE