Tips

Writing Tips

Scribes Board Member Ann Taylor Schwing spends countless hours and energy writing the Scribes Tips. Thank you, Ann!

January 01, 2020

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March 23, 2018

Writing Tip No. 127: And/Or

 It is surely surprising to many that use of "and/or" is now condemned with vigor and vehemence. E.g., Do Not Use "and/or" in Legal Writing at http://www.slaw.ca/2011/07/27/grammar-legal-writing/ (collecting many critics). Brief searching reveals thousands of judicial decisions using "and/or" without the walls of the courthouse tumbling down.
 

The Texas Supreme Court explained in In re United Scaffolding, Inc., 377 S.W.3d 685, 689-90 (Tex. 2012):
 

Here, the trial court's four articulated reasons, including "in the interest of justice and fairness," are all preceded or followed by "and/or." Many courts and critics have denounced the use of "and/or" in legal writing.... In this order, the use of "and/or" leaves open the possibility that "in the interest of justice and fairness" is the sole rationale. [But] that is never an independently sufficient reason for granting a new trial ...."
 

See also Robbins, "And/Or" and the Proper Use of Legal Language, ___ Md. L. Rev. ___ (2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928061.
 

Consider carefully whether "and/or" creates the potential for confusion or error as you intend to use it. If not, use it comfortably knowing that thousands of judges and lawyers have done so before. But find an alternate way to express the thought if there is a risk that the meaning of the sentence will be harmed.

March 09, 2018

Writing Tip No. 126: Respect

The parties and the court should all exhibit respect in their writing, whether in an opposition to the fifth motion for continuance or in the decision on the merits. Respect fosters respect in response in many cases. Even if responding respect is not forthcoming, those who take the high road are likely to receive respect from other parties, the court, and the appellate court.

 

Judges and attorneys who become law clerks learn first hand of the numbers of troubled individuals who sue in propria persona seeking impossible relief, often from defendants that are strangers. Lack of respect can trigger attacks of rage and injury or death to the judge, staff, counsel, or parties. Even if this extreme result does not ensue routinely, it can and does happen.

 

Laugh if you wish in the privacy of your car or home dining room, but train yourself to exhibit respect in your public deeds, spoken words, and especially written words for everyone involved in the legal process.

February 23, 2018

Writing Tip No. 125: Opinions in Verse

Although they are not in great number, especially in publication, court decisions written in rhyme or verse are sprinkled in court reporters and court files. E.g., United States v. Syufy Enterprises, 903 F.2d 659, 661-63 (9th Cir. 1990) (Kozinski, J.); United States v. Batson, 782 F.2d 1307, 1309 (5th Cir. 1986); Anderson Greenwood & Co. v. NLRB, 604 F.2d 322 (5th Cir. 1979); In re Love, 61 B.R. 558 (S.D. Fla. 1986); Mackensworth v. American Trading Transp. Co., 367 F. Supp. 373 (E.D. Pa. 1973); Nelson v. State, 465 N.E.2d 1391, 1391 (Ind. 1984); Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App. 1983); Wheat v. Fraker, 107 Ga. App. 318, 130 S.E.2d 251 (1963); Columbus v. Becher, 180 N.E.2d 836 (Ohio 1962); Van Kleeck v. Ramer, 156 P. 1108, 1115 (Colo. 1916) (Scott, J., dissenting). Even less common are briefs in verse.

 

There are good reasons. A lawsuit is vitally important to at least one party, and use of verse is almost always an indication the author lacked respect for the court, its decision, and the parties. In Porreco v. Porreco, 811 A.2d 566, 572 (Pa. 2002), Chief Judge Zappala concurred, expressing "grave concern that the filing of an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania."

February 09, 2018

Writing Tip No. 124: Preferred Expressions

The Federal Register has published Writing Resources For Federal Agencies prepared by the National Archives. Among other things, the resources include a list of "preferred expressions" or terms that are preferable to other terms. 

 

Some of these make sense while others raise questions. See for yourself: https://www.archives.gov/federal-register/write/legal-docs/appendix-b-1.html. 

 

 

accorded

adequate number of

afford an opportunity

afforded

all of the

approximately

attains the age of

at the time

attempt [as a verb]

by means of

calculate

category

cease

commence

complete [as a verb]

conceal

given

enough

allow, let

given

all the

about

become ... years old

when

try

by

compute

kind, class, group

stop

begin, start

finish

hide

January 12, 2018

Writing Tip No. 123: Funny Cide Ventures v. Miami Herald Publishing Co.

For an interesting and amusing commentary on judicial opinion writing, see Funny Cide Ventures v. Miami Herald Publishing Co., 955 So. 2d 1241 (Fla. 2007).

January 12, 2018

Writing Tip No. 122: Avoiding Ambiguity

Courts will not strain to find ambiguity in a document, but ambiguity is present in many documents. Ambiguity exists, for example, when there is duplicity, indistinctness, or uncertainty in the meaning of the language, when a contract term could suggest more than one meaning when viewed objectively by a reasonable knowledgeable person, and when the parties' expressions of mutual ascent lack clarity. Seeck v. Geico General Ins. Co., 212 S.W.3d 129, 132 (Mo. 2007); Eternity Global Master Fund v. Morgam Guaranty Trust Co., 375 F.3d 168, 177-78 (2d Cir. 2004); Mark V, Inc. v. Mellekas, 114 N.M. 778, 845 P.2d 1232, 1235 (1993).

 

Ways to avoid ambiguities include:

  • Proofread, proofread, proofread, especially if you could be seen as the drafter of the document. Air Lines Pilots Ass'n v. Shuttle, Inc., 55 F. Supp. 2d 47, 48 (D.D.C. 1999).

  • Proofread again after waiting a day or more.

  • Have a particularly careful writer proofread. Lipscomb v. State Board of Higher Education, 305 Or. 472, 753 P.2d 939, 948 n.14 (1988).

  • Check the punctuation to ensure that it does not add confusion.

  • Run computer searches on the critical terms in the document, including the abbreviated names of the parties to locate confusing variations and mistakes.

December 29, 2017

Writing Tip No. 121: Start with the Judge's Jury Instructions

Before drafting jury instructions, start with the judge's instructions, if any, that the court clerk or other staff may provide. Ask if these exist, either at the pretrial conference (if any) or at another opportunity in advance of trial. The judge's set of instructions will provide you with the tone and format that the judge prefers and eliminate the need to draft instructions on the topics the judge covers unless there is a strong reason to argue for revision of the judge's set.

 

Fill in all the gaps in the judge's instructions with the explanatory matter and statements of the law that are appropriate. The final set needs to be understandable and complete. One jury error that is often repeated is looking up words in the dictionary, so include appropriate definitions of words the jury may find difficult. Jury instructions address real life experiences, so they should be written in the words ordinary people use to the extent possible. Except in the most extraordinary circumstances, jurors want to do their best. Give them that chance.

December 15, 2017

Writing Tip No. 120: [Sic]

The term "[sic]" is a term used with quotations or excerpts, meaning "that's really what appears in the original." By definition, a quote must be accurate, so "[sic]" is arguably unnecessary. Nevertheless, the quoted passage may contain an error or oddity that would cause the reader to question the accuracy. When "[sic]" appears after the error or oddity, the term reassures the reader that the author has accurately shown the original text.

 

Alternatively, an author may avoid use of "[sic]" and explain corrections to quoted material in text for footnotes. E.g., Rogers v. Detroit Police Dep't, 595 F. Supp. 2d 757, 761 n.2, 765 n.5 (E.D. Mich. 2009) (language is quoted as written by plaintiff and standard upper and lower cases used instead of all capitals). Use of "[sic]" can be considered rude or insulting depending on the context.

 

Some grammarians and authors paraphrase the passage to avoid using "[sic]," simply correct the error silently or correct the error in brackets. All of these options may be appropriate. Be absolutely certain that there is an error, however, or your action may redound to your detriment.

December 01, 2017

Writing Tip No. 119: Et Alia

The phrase "et alia" is a Latin phrase meaning "and the rest" or "and others." Technically, there are three terms: "et alii" for the masculine plural), "et aliae" for the feminine plural or "et alia" for the neuter plural. Using the familiar abbreviation "et al." saves possible errors. 

 

The phrase is used primarily for other persons rather than items or concepts. Thus, five authors can be reduced to one or two and followed by "et al." to reduce the size of the citation.

 

The rules governing use of "et cetera" also apply to "et alia."

November 17, 2017

Writing Tip No. 118: Et Cetera

"Et cetera" or its abbreviation "etc." means "and others, especially others of the same sort." Never add a period after "et" as this Latin word for "and" is not an abbreviation. "And et cetera" is redundant and should never be used.

"Et cetera" is also redundant in lists introduced by "e.g.," or "including." Do not list all the items in question and then use "etc.," which represents that you know of additional items that could be listed. E.g., Fleming v. U-Haul Co., 541 S.E.2d 75, 76 (Ga. 2000). 

 

Avoid using both "et cetera" and "etc." in the same document. Select the one you wish to use and use it exclusively (aside from quotations).

November 03, 2017

Writing Tip No. 117: Avoiding Ambiguity

Some words carry ambiguity with them. One example is "fortuitous" which means occurring by accident or happenstance but often carries the further sense of happening through lucky event. Stating that Harold died fortuitously thus raises questions about his death, how warmly or coldly he was perceived, and the impact of his death on others.

 

A great many words have multiple meanings. The word break is said to have 78 meanings, and cut 70 meanings. The words cleardrawgivehold, and set are said each to have 45 meanings. The number of meanings per word drop off and the words increase, but the following words are said each to have 10 meanings:

 

allow, alternate, apply, around, badly, bat, bay, belt, bid, blaze, blind, boom, border, bounce, brand, bust, canvass, cat, character, clap, clutch, combine, common, compact, company, complete, concord, content, continue, cradle, crank, curve, day, depression, digest, dim, distribute, divine, drink, dump, edge, edward, empty, engage, explode, expose, exposure, extract, factor, far, fine, flood, fox, function, general, gentle, grace, grand, grip, gross, grow, gum, hammer, heart, hole, idle, inactive, indifferent, inside, interest, introduce, james, king, knot, labor, lean, left, lie, little, living, lodge, lose, lost, love, maintain, make out, mantle, moderate, nail, narrow, pace, paddle, panel, passage, pattern, peg, perch, plant, plunge, poke, pot, practice, program, projection, purge, put, put on, put out, race, radiate, rally, rap, ray, regard, regenerate, representation, romance, runner, scene, school, scrape, screw, share, sheet, single, sit, skim, slice, slide, slug, smell, smith, smoke, softness, space, spat, special, speed, spell, spill, spiral, spur, stage, stake, steady, stem, sting, stream, strong, submit, suit, sure, surface, tag, tongue, tramp, translate, tread, treat, try, under, undercut, vote, water, waver, weight, west, wish, yoke, zero

 

See http://muse.dillfrog.com/lists/ambiguous. Many of these terms are simple at first glance, requiring considerable thought to identify 10 meanings. When ambiguity matters, however, these multiple meanings can often create significant ambiguities.

October 20, 2017

Writing Tip No. 116: New Judge, Lots to Learn

So your big case has been assigned to a judge you haven't encountered before.  What steps can you take to ensure that your documents please the court?  An initial step may be to talk with attorneys in your firm and attorneys you trust to find out about the judge-schooling, hobbies, attitudes relating to writing and speaking.  "Google" the judge to see what turns up, remembering that presence of information on the Internet is no guarantee of truth.

 

Take an early or late lunch to sit in the judge's courtroom several times.  How sensitive is the judge to the use of words?  Are there ways of speaking that annoy the judge?  For example, some people use "by the same token" often in speech while others react negatively or dismissively to the phrase.  Does the judge object when an attorney uses the passive?  Are there topics that seem to interest the judge or to set the judge off?  Does the judge criticize attorneys for behavior or writing that you can avoid?

 

Thoughtful observation of a judge for several hours may well reveal significant information in how the judge thinks and analyzes information.

October 26, 2017

Writing Tip No. 115: Burden of Proof

At least consider discussing the burden of proof in every brief.  If the burden is in your favor, it's a rare case in which you would not make that point with appropriate citations.  If the burden is against you, the decision may be more difficult depending on the clarity of the law, the judge's attitude, the nature of issue, and other factors. 

 

The burden of proof is a duty placed on a civil or criminal litigant to prove or disprove a disputed fact.  Depending on the applicable law and the circumstances, the burden of proof may be changed from the usual burden so that it is heavier, lighter or placed on a different litigant.  For example, the allegation or proof that one litigant owed a fiduciary duty to the other relating to the subject matter of the litigation may shift the burden to the fiduciary in some states.  Allegations of sex discrimination may affect the burden.  Variations exist between states and between states and the federal law, so the substance of this issue needs research for each jurisdiction.  Nevertheless, the issue is one that demands consideration in every litigation document.

September 22, 2017

Writing Tip No. 114:  Starting to Write

A quote perhaps most often attributed to Mary Heaton Vorse states: "The art of writing is the art of applying the seat of the pants to the seat of the chair."  So it is.  If you don't start, you will never finish.

 

What do you need to write what you want to write?  A cup of tea, your notes on relevant statutes, the phone on mute, your office door closed, a warmer jacket-whatever it is, get it done before you try to start.  All of these things are distractions that consume part of your mind.  Turn off the radio and TV and all similar distractions.  If you are writing for a client and charging time by the hour, the client is entitled to have all your attention focused on the client's issue. 

 

The most important thing you need is an understanding of the substance you intend to convey.  Start often with the statement of facts; learn the facts as you write.  If you don't understand your subject, you cannot write successfully about it.  On the other hand, you need not understand every aspect.  Collateral subjects-burden of proof, admissibility of evidence, timeliness, sometimes even jurisdiction, boilerplate clauses, and others-can be written first, interspersed with the main subject, or written last.  Someone having trouble getting started on the main subject can often start with one or more collateral subjects and create time for background thinking on the main issues.

 

If all else fails, make a list: all the possible causes of action, all the defenses, all the reasons the deal can or can't be structured a particular way, all the safeguards your client needs (liens, personal guarantees, letter of credit, and so on).  Even if you are not ready to address the main subject, there should be something on the list that you can tackle.  

September 08, 2017

Writing Tip No. 113: Where to Find More Tips

There are many writing tips on the Internet, often worth review for ideas or direction.  Naturally, some tips are intended to guide the author of the next best-selling novel or are otherwise less applicable to our work, but others are jewels of insight.  Even the less applicable tips usually have something to offer, such as improvement in the passion of your writing when passion is proper.

 

Have confidence in yourself.  Not all tips are good or good for you. 

August 25, 2017

Writing Tip No. 112:  Who Else is Your Audience? The Press

The press may be an audience for your court filings.  If prominent individuals or situations are involved, the press may follow the litigation with interest as a source of stories.  Writing when the press may be reading requires extra care.  Provide factual background even if irrelevant to the lawsuit if the background reveals your client to be honorable.  Assume the reporters may not know technical legal terms and requirements; provide brief but clear explanations.  Newspaper reports may provide another way to reach out to the opposing party directly or through friends who read the reports.  Inaccuracies make it easier to dismiss the reports.

August 11, 2017

Writing Tip No. 111:  Who Else is Your Audience? The Opposition

There are other audiences besides the court and clerks.  Opposing counsel is obvious.  Often the briefing is served on opposing counsel but aimed specifically at the opposing party. There are cases in which the opposing party may not be getting all the relevant information about the court proceedings from the opposing attorney.  The briefing may present an opportunity to convey your view of the facts and authorities.  In this situation, spend extra time with definitions and explanations so the opposing party can follow even without a law degree.

July 11, 2017

Writing Tip No. 109:  Active Voice

The National Archives, publisher of the Federal Register, speaks to the improvement of legal writing in the U.S.  https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html  One point of special attention is use of the active voice.

 

1. Write in the active voice. The active voice eliminates confusion by forcing you to name the actor in a sentence. This construction makes clear to the reader who is to perform the duty.

The passive voice makes sentences longer and roundabout. Who is responsible is much less obvious. Passive verbs have a form of the verb to be plus the past participle of a main verb.

 

am  is  are  was  were  be  been 

plus

a main verb usually ending in "en" or "ed".

 

Examples of passive verbs: was received,  is being considered, has been selected.

 

The passive voice reverses the natural, active order of English sentences. In the following passive example the receiver of the action comes before the actor.

 

Passive: The regulation [receiver] was written [verb] by the drafter [actor].

Active: The drafter [actor] wrote [verb] the regulation [receiver].

 

Passive constructions are confusing when used in regulations. Active sentences must have actors, but passive ones are complete without them.

 

The material will be delivered. By whom?

The start date is to be decided. By whom?

The figures must be approved. By whom?

 

Putting the actor before the verb forces you to be clear about responsibility.

 

The messenger will deliver the material.

The contractor will decide the start date.

The administrator must approve the figures.

 

The passive voice is appropriate when the actor is unknown, unimportant, or obvious. This does not usually apply in regulatory text. 

 

Small items are often stolen.

The applications have been mailed.

June 27, 2017

Writing Tip No. 108:  Who Is Your Audience?  The Court

When writing a brief, the court and law clerks are the obvious audience. The briefing needs to be clear, easy to read and understand, and well supported by relevant facts and authorities, both supported by accurate and sufficient citations. Provide maps or diagrams to assist in understanding, especially if you needed to locate a map or draw the diagram to make sense of the relationships. If possible, offer a map or diagram to which your opponent has stipulated so there is no fight over admissibility.  The stipulation may appear through your opponent's endorsement of the map or diagram or in response to a request for stipulation.  Judicial notice may also be available.  

 

To reach the right desks in the courthouse, the briefing needs to include accurate case names and numbers properly placed on the documents, and the papers need to be timely filed.  Before relying on a deposition, always check whether a deponent has corrected the deposition and that all are informed of the corrections.

 

The importance of identifying your audience in legal writing is revealed by the number of hits on a search for "legal writing for your audience" and similar searches.

June 13, 2017

Writing Tip No. 107:  Short, Clear Sentences

The National Archives, which publishes the Federal Register, speaks to the improvement of legal writing in the U.S.  https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html  One point we could all take to heart is the importance of short sentences to clear writing.

 

Write short sentences. Readable sentences are simple, active, affirmative, and declarative.

The more a sentence deviates from this structure, the harder the sentence is to understand.

Long, run-on sentences are a basic weakness in legal documents.

Legal documents often contain conditions which result in complex sentences with many clauses.

The more complex the sentence, the greater the possibility for difficulty in determining the intended meaning of the sentence.

 

Solutions

State one thing and only one thing in each sentence.

Divide long sentences into two or three short sentences.

Remove all unnecessary words. Strive for a simple sentence with a subject and verb. Eliminate unnecessary modifiers.

If only one or two simple conditions must be met before a rule applies, state the conditions first and then state the rule.

If two or more complex conditions must be met before a rule applies, state the rule first and then state the conditions.

If several conditions or subordinate provisions must be met before a rule applies, use a list.

May 30, 2017

Writing Tip No. 106: Idiom Quizzes

May 16, 2017

Writing Tip No. 105: Who is Your Audience?

Don't start a writing project without a clear understanding of your intended audience.  Knowing your audience enables you to select words and concepts with confidence.  The more sophisticated the audience, the less the writing will need to focus on basic explanations and definitions.  A writer may do well to offer two documents, one for those new to a subject and the other for more sophisticated individuals.  Alternatively, definitions and explanations may be placed in footnotes or at the end to avoid offending the sophisticated reader.

 

There may be more than one audience in a single communication.  A settlement offer may target opposing counsel who has the case on a contingency with one message and target the actual plaintiff or defendant with a different message.  Briefs may have one message for the judge and another for the opposing litigant.

May 02, 2017

Writing Tip No. 104: Plain-Language Exercises

Exercises and quizzes for plain-language teachers and students are readily available on the Internet and are helpful in developing good writing habits or eliminating bad ones.  Some have been developed by the federal government, others by the states.  These may be found with a search for "plain language."

 

Plain language does not mean dull or dumb-down language.  It means clear writing that is readily understood; writing that avoids use of the passive and correctly uses parts of speech that are often misused.  At first glance, some may say that they learned these rules in junior high, but the sad truth is that many first saw these rules in junior high but did not actually learn them.

April 18, 2017

Writing Tip No. 103: Draft on the Computer or by Hand?

In years past, many attorneys hand wrote or dictated their work and followed with revisions typed and retyped by secretaries until the document was satisfactory or there was no more time. Whether happily or kicking and screaming, attorneys now often or always draft and revise their work on their computers. A secretary might not see the document until shortly before it must be filed.

 

There is no right answer for everyone on whether to hand write, dictate, or draft on the computer.  What approach is easier on the mind and the body? What approach leads more quickly to a satisfactory or fabulous final product? How can one develop and more easily incorporate new ideas and new research? Does life require separation from the computer during the drafting process (whether on long commutes or travel)?  Is the computer empowering, or is it annoying or frustrating? 

 

See dailywritingtips.com/pen-or-keyboard-how-do-you-write/

April 04, 2017

Writing Tip No. 102: Plain Writing Act of 2010 

Since October 13, 2011, the Plain Writing Act of 2010 has required federal agencies to use plain language in new documents that

  • are necessary to obtain any federal government benefit or service or to file taxes,

  • provide information about federal government benefits or services, or

  • explain to the public how to comply with requirements that the federal government administers or enforces.

 

Federal Plain Language Guidelines at www.plainlanguage.gov/howto/guidelines provide guidance on writing effective letters, drafting legal documents, and using of plain language in other ways.  A variety of tips and references to helpful guides are available.

The Act does not apply to regulations, but Executive Orders impose plain language requirements on regulations by some agencies.  The Office of Management and Budget has a Best Practices Guide for regulations, formerly at www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-07.pdf, and now at http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/disclosure_principles.pdf. At the time of this writing, this site is unavailable but it is referenced at https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2011/m11-05.pdf with preliminary guidance for the Plain Writing Act of 2010. 

March 21, 2017

Writing Tip No. 101: Idioms

Idioms add sugar and spice to daily speech and casual writing.  Idioms may be used to great effect in formal legal writing, but care is required to ensure that the reader understands what the writer intended.  Although some idioms are nationwide, many have different localized meanings in different parts of the country.  That fact indicates that a writer should take extra care in using idioms in material to be read by individuals who are not native speakers or are now distant from their original homes. See www.theatlantic.com/international/archive/.

 

You can find a vast array of information on idioms simply by searching the Internet for idiom.  There are lists of idioms with meanings, lists of idioms in specific subject areas like food, schools, driving, sports, and the like, quizzes on the use of idioms, idioms in other languages, misused idioms, and so on.

March 07, 2017

Writing Tip No. 100: Power Words

A first draft may focus primarily on collecting the ideas into a semblance of order. Later drafts need to refine the statements into a compelling message.  This goal is achieved in part through the fundamental importance of the subject, the organization of the points, and the use of power words.  We all know that some words and phrases grab our attention and move us while other words are vague, mushy, and lacking in strength.

 

Power words have clarity and strength; they trigger emotion and often curiosity.  Power words may convey newness or urgency.  One profession's power words will differ from those of other professions, and even in the law, a personal injury lawyer will use a different list than a health care lawyer or bond lawyer.  Each individual will hone the list, selecting words that suit the individual's personality and practice.

 

smartblogger.com/power-words/

thepersuasionrevolution.com/380-high-emotion-persuasive-words/

sumome.com/stories/power-words

blog.bufferapp.com/words-and-phrases-that-convert-ultimate-list

February 21, 2017

Writing Tip No. 99: Repetition

Repetition can be good or bad, depending on the circumstances.  Repeating the same word over and over without active thought is almost always bad.  Filler words like reallyveryjust, and many others serve no purpose in formal writing, so their repetition is especially inappropriate.  Use the Find tool to locate filler words and eliminate all or substantially all of them.  See generally christinavasilevski.com/2014/11/crutch-words-weaken-writing/www.autocrit.com/editing/support/unnecessary-filler-words/.

 

Other kinds of repetition may carry the theme forward, emphasize the main point, and keep the reader focused.  These forms can be a valuable writing tool, but it can be hard to judge accurately precisely when some repetition has become too much.  On the many forms of repetition, see www.literarydevices.com/repetition/.  See generally http://writingcenter.unc.edu/handouts/word-choice/http://thejohnfox.com/repetition-examples/

February 07, 2017

Writing Tip No. 98: Weak Words

Words can be weak and ineffectual as easily as they can be powerful.  With effort, you can eradicate the weak words you now use and make your writing more robust. 

 

One frequent example appears in the phrase the judge said.  When judges speak and it matters what they say, they rule, order, enjoin, mandate, direct, compel, or otherwise declare with the power of their office.  A judge may say something walking back to chambers after lunch.  You want to convey that the judge spoke as a judge, making a decision of importance.  If the judge rules for the other side, then refer to what the judge said, but never when referring to a ruling in your favor unless honesty compels it.

  • Internet searches for weak wordweak language

January 24, 2017

Writing Tip No. 97: Leave the Venom at Home

In 2003, Bankruptcy Judge Terrence L. Michael wrote Ten Tips for Effective Brief Writing. His Tip Number 9 states:

Leave the venom at home. I have yet to meet a judge who enjoys reading a brief filled with hostility toward and/or personal attacks upon the other side. Whether you like (or get along well with) your opposition has little to do with the merits of a particular case. The most effective attack you can make is to persuade (there's that word again) me that the other side is wrong. Remember, if you win, they lose. Isn't that enough? Words like these: 

 

ridiculous 

scurrilous 

ludicrous 

preposterous 

blatant

self-serving (come on, all evidence and argument is self-serving) 

nonsensical 

 

do not help you. Don't use them.

 

Ten Tips for Effective Brief Writingwww.oknb.uscourts.gov/pdf.

 

This tip appears in other opinions, articles, and books.  Its advice is often stated but not often enough followed.  Nothing is gained by ugly interaction with opposing counsel.

January 10, 2017

Writing Tip No. 96: Why Is It Admissible?

For summary judgment, preliminary injunctive relief, and other circumstances in which a litigant may present evidence in support of a motion, many simply provide a copy of the contract, letter or other document or repeat significant statements by the opponent.  In such a case, the opposition brief challenges the evidence as hearsay or as otherwise inadmissible.  The moving party must then devote a significant part of the reply brief to rehabilitating the challenged evidence.  This briefing minuet is repeated at most law and motion days. 

 

A better approach is to drop a footnote for every document or statement to establish its admissibility.  An example follows:

This profit and loss statement, authenticated by opponent's accountant during her deposition at pages ______, is a business record excepted from the hearsay rule.          [authentication cites] ; [non-hearsay cites].

 

This approach may not entirely eliminate challenges to evidence supporting motions, but the challenges will be significantly reduced.  The reply brief can then focus on the merits, as it should.

December 27, 2016

Writing Tip No. 95: Don't Block Copy Declarations into Briefs

Assume you have a signed declaration establishing five distinct ways that your declarant knows the essential fact.  Do not ever block copy and paste the contents of the declaration into the brief so the judge can have two opportunities to read it.  One reading is sufficient, and the judge can reread the declaration if desired.  Two versions in different documents may require cross-checking one against the other to see if they are the same and will require reading the same material twice.

I have seen a federal judge become so enraged at having to reread a declaration pasted into a brief that he had to leave the bench for 10 minutes to cool down.

December 13, 2016

Writing Tip No. 94: Alliteration

Alliteration appears when the first letter in each of a series of words repeats the same sound. Alliteration can draw attention to the words or the underlying concept and may make either easier to remember. Too much alliteration will make the author look silly or worse, so this literary device should be used in moderation.  Used with discretion, this device can be pleasing and can aid in imprinting the desired idea in the reader's mind.

November 29, 2016

Writing Tip No. 93: Persuasive Numbers

Accurate numbers can be more or less persuasive depending on how they are presented. 

  • Specific numbers, or numbers that are as specific as possible, are often more persuasive than generalized statement such as "many land transactions" or "a large number of transactions." The power to persuade is enhanced by citations to reliable sources for the specific numbers.

  • Compare apple to apples.  Your credibility is damaged if you take numbers from different years or different places for comparison.  Land transactions in Yolo County for 2015 can only reasonably be compared to transactions in Lake County for 2015.  Long tons are not the same weight as tons. Metric tons, short tons and imperial tons only add to the confusion.

  • Consider how best to use the numbers you have.  Are numbers more persuasive than fractions?  Can the numbers be reversed to refer to the 95 percent that graduate instead of the 5 percent that do not?  Can the numbers be presented more persuasively in a graph?

 

Whitney Ryan has a YouTube video on this subject that is worth viewing. www.youtube.com/watch?v=wBKSwyREdV4

November 15, 2016

Writing Tip No. 92: Writing for the Tired Reader

Appellate panels read a great number of briefs.  You may be lucky and have your brief reviewed early in the day when the judge is fresh, but it is just as likely that yours is the last brief to be read on a given day.  The judge may be tired and stressed, under the pressure of deadlines.  You can't know in advance and rarely will ever know.  So make every brief easy to navigate from its table of contents to its record citations.  

November 01, 2016

Writing Tip No. 91: Rules of Thumb

Some rules of thumb typically improve legal writing but may be ignored when good reasons exist to do so.  Examples include:

  • always include a table of contents even if the court rules require a table only for briefs longer than 10 pages, but skip the table for the one or two page brief;

  • shorter paragraphs and sections are better than longer ones, but some subjects don't lend themselves to shorter paragraphs or sections.  Consider using bold to signal transition to a subtopic;

  • a long footnote should be avoided (if important, move to the text, perhaps as its own section; otherwise omit or shorten); and

  • don't play games with the font, spacing, margins, and the like to squeeze in more words, but include a table or diagram that will assist the reader even if a smaller font or different margin is required.

October 18, 2016

Writing Tip No. 90: Quotation Accuracy

The last Writing Tip noted that a "quote is what the source document actually says." Although not always true, a quote of any length should reproduce exactly the source document, with any alterations shown by ellipses and brackets. Even minor inaccuracies raise concerns about the entire document.

October 04, 2016

Writing Tip No. 89: Paraphrase or Block Quote?

Every moderately extended discussion of a case, statute, or other writing leads to the question whether to paraphrase the significant parts or to present them as block quotes. Both options have advantages, as the paraphrase can be shorter and can include explanatory material not in the quote, while the quote is what the source document actually says, avoiding issues about the accuracy of the paraphrase.

 

This is a choice that must be made repeatedly. The default should be a paraphrase based on the ease of reading and the ability to omit irrelevant points while adding material not in the quote.  Many people find block quotes very hard to read and simply skip them altogether. 

September 23, 2016

Writing Tip No. 88: Divide the Prayer by Cause of Action?

One often sees prayers in complaints in which the prayer is divided to list separately the prayer on the first cause of action, the prayer on the second cause of action, and so on. Do those drafters know something? Should you model your complaints on those pleadings?

 

If a state law or local rule requires that the prayer be divided, then definitely comply with the requirement. In virtually all other circumstances, list the relief prayed for without identifying the cause(s) of action that support the prayer. There are many reasons, including the following:

  • Specificity is good but excessive specificity can be a trap. You may actually be wrong in designating the relief available under a given cause of action. Your error would be inconsequential if the prayer listed all the relief sought without identifying the cause of action.

  • The law may change between drafting the complaint and entry of judgment, affecting the relief available under one or more causes of action.

  • The facts may change.  The third cause of action may be dismissed in early pleading battles, eliminating the sole pleaded basis for a kind of relief that your client needs.

 

These risks are not necessarily fatal as the court may grant leave to amend.  Nevertheless, why place yourself at risk unless there is a good reason?

September 06, 2016

Writing Tip No. 87: When and How to Write the Prayer

Many attorneys devote little attention to the prayer in the complaint and even less to the prayer or conclusion to a motion.  It may be obvious to them what their client needs, but it is often not at all obvious to the court.  A well-drafted prayer is a shopping list for the relief sought and a reminder of the evidentiary and briefing obligations to be fulfilled.

 

Ask in the prayer for all the forms and amounts of relief that are possible and permitted given the known and likely facts unless the forms overlap and create confusion or the amounts exceed the bounds of reason.  As an Illinois court explained: "The prayer of the complaint to this extent asks for too much, but the prayer for relief need not shape the relief awarded. A court may grant less relief than demanded.  In any event, excesses in the prayer do not vitiate the complaint." Cannell v. Medical & Surgical Clinic, S.C., 21 Ill.App.3d 383, 315 N.E.2d 278, 280-81 (1974) (citations omitted).

 

The prayer to the complaint must be written before the complaint is filed, but counsel should calendar a date before trial to review the existing prayer and move to amend it if needed.  Leave to amend is much more likely to be granted if requested before trial. 

 

Prayers for motions necessarily vary depending on the nature of the motion and the circumstances.  Take every opportunity to tailor these prayers to the facts at hand.

August 23, 2016

​Writing Tip No. 86: References to Counsel

No good result is likely to arise from references to other attorneys in a case by first name or nickname.  Judges are criticized for these references as well as attorneys.  In an unpublished 2013 decision, a California court explained:

 

We note from the transcript of the Marsden hearing that the court referred to defense counsel by her first name, Karen, on a number of occasions. Such references were not made in the public sessions. At the close of the Marsden hearing when the court asked to have the prosecutor return to the court the prosecutor was referred to as mister. It appears that defense counsel may frequently be in this particular courtroom and we discern no intentional disrespect for her. However, we consider it inappropriate to refer to the male attorney as "mister" and the female attorney by her first name. Indeed we doubt that it is useful to refer to any counsel on the record by their first names.

 

People v. Beck, No. D062468 (Cal.App. 4th Dist. 2013); cf. In re Vincenti, 458 A.2d 1268, 1272, 92 N.J. 591, 598 (1983) (disciplined attorney referred to a female attorney as "Miss Wrinkles," "Miss Bags."and "old bag"); Principe v. Assay Partners, 154 Misc. 2d 702, 704, 586 N.Y.S.2d 182, 184 (1992) (references to female attorney as a "little girl," "little lady," and "little mouse").

 

There is little to no risk in being formal in words and behavior.  Formality respects the court and all the participants in the judicial process.  Formality in the trial court reflects well on trial counsel on appeal.