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.

August 09, 2016

Writing Tip No. 85: Short Names

The best time to think of short names to use to refer to the parties and significant other persons in a case is when drafting the complaint.  The selected unambiguous names should be used consistently throughout the case to avoid confusion.

 

Many lawsuits lend themselves to a descriptive short name such as husband, wife, physician, gardener, professor, and so on.  These names don't work if there are two individuals fitting the role.  In a case involving the collision of two cars, "driver" is accurate but confusing in the extreme.  Nevertheless, when it is possible, this form of short name is clear and desirable.  Remember that judges, especially appellate judges, may juggle multiple pending cases at the same time, so eliminating the need for them to remember the specific name and the role allows them to focus on the critical facts and legal issues.

 

In dissolution and other actions, courts sometimes explain that they refer to the parties by their first names for clarity and ease of reference, and intend no disrespect.  Some young attorneys might wonder today why anyone would perceive intended disrespect, but many alive today remember when black witnesses and attorneys were addressed by their first names in court.  City of Greenwood v. Peacock, 384 U.S. 808, 813 n.6 (1966); Hamilton v. Alabama, 376 U.S. 650 (1964) (reversing per curiam the contempt conviction of a black woman who refused to answer questions when addressed by her first name).  Absent a clear custom on the use of first names in cases of the type at hand, it is wise to request guidance or permission from the court before using a first name or nickname in court or in court documents.

July 26, 2016

​Writing Tip No. 84: Formal Writing Style

Most active attorneys adopt a moderately formal writing style and diction.  Briefs, memoranda, and letters may all be essentially the same, or briefs may be even more formal.  Requirements for formality typically demand that contractions are not used, slang and the first person are avoided, and uncommon punctuation marks are very rare. 

 

One benefit in using the same formal style in briefs, memoranda, and letters is that material from one document can be excerpted and pasted into another with minimum editing.  If the same style and rigor are not used, a marginal memorandum may easily turn into a demand letter that should have had more thought, and the lawsuit and subsequent briefing relying on the memorandum really would not be good enough to be filed in court.  In the best case, however, the initial memorandum identifies any recognized and deliberate omissions (e.g., no analysis of copyright law) so they can be resolved before the letter is written and definitely before the complaint and briefing are filed.  In this case, the client need not pay for rewriting the same material repeatedly.

July 12, 2016

Writing Tip No. 83: Cadence

Cadence appears in the rhythm and flow of legal writing, not in the specific words and paragraphs.  Great legal writing often or always has a cadence that draws the reader forward into the document and gives it an inherent reliability.  Just as a strong cadence can give a military unit inner strength and outward invincibility, so too can compelling cadence in writing give it power beyong its individual words.

 

A questioner's cadence may be recognized as a hindrance to making a hearsay or similar objection. E.g., Oak Bluff Condominium Owner's Assn. v. Oak Bluff Partners, Inc., 263 S.W.3d 708, 714 (Mo. App. 2008), aff'd, 263 S.W.3d 714, 720 (Mo. App. 2008). 

 

Cadence may be an element in statutory construction.  E.g., United States v. National Broiler Marketing Assn., 550 F.2d 1380, 1386 (5th Cir. 1977), aff'd, 436 U.S. 816 (1978) ("Mr. Justice Holmes observed once that 'the meaning of a sentence is to be felt rather than to be proved . . . .' United States v. Johnson, 221 U.S. 488, 496, 31 S.Ct. 627, 55 L.Ed. 823 (1911). We believe the Capper-Volstead Act, with its listing of beneficiaries-farmers, planters, ranchmen, dairymen, nut or fruit growers-has a feeling, a cadence of meaning, that has no place for NBMA's member companies.")

 

All well and good, you say, but there is no time to introduce cadence into my writing when I have so much to do.  Read good books and speeches, even a few minutes a day—Abraham Lincoln, John Kennedy, J.R.R. Tolkein, Mark Twain, the list goes on.  Think about the passages that grab you and how you can incorporate their power into your writing.

June 28, 2016

Writing Tip No. 82: Ways to Shorten Documents

There are several techniques that can "force" you to tighten up and shorten documents.

 

  • Delete a word from every sentence

  • Delete or edit enough to shorten every paragraph by one line

  • Shorten headings enough to fit on one line or one less line

 

Each of these is artificial in that they only work if you follow the "rules." Nevertheless, these will reduce unnecessary wordiness and require editing sentences to squeeze out extra words.  Complex sentences become more straightforward.  Long sentences become shorter.  Comprehension is typically enhanced significantly.

Common sense is required, of course, when using these techniques.  A clear sentence that conveys the exact meaning intended cannot be altered to delete an essential word.  With that caveat, you can use these techniques with success.  Writers tend to be wordy in early drafts, and complex sentences often develop in early editing.  These techniques can help reduce both problems.

June 14, 2016

Writing Tip No. 81: Page Count

Instead of focusing on word count, some courts impose a page limit.  The writer cannot change the font size, margins or other requirements for the document because these are specified in detail in the rules. The caption page, tables, proof of service and similar documents are not counted.

Page limits are imposed by judges who have seen too many briefs that are twice as long as needed, so asking for an extension of the page limits brings no joy to the judge.

Techniques to reduce the number of pages:

  • Shorten the headings to take only one line each.

  • Edit each paragraph individually enough to shorten it by one line.

  • Tighten the signature block.

  • Consider the citations and possible ways to shorten them.

May 31, 2016

Writing Tip No. 80: Word Count  

Some courts restrict the size of briefs by imposing a word count.  The Ninth Circuit limits briefs to 14,000 words, for example.  No one recommends that writers do their best to reach a word limit, but an appeal with multiple complex issues may leave little choice.  There are some rules that apply to most word counters that may be helpful.

  • Footnotes may not be counted unless specifically triggered to count.

  • Hyphenated terms count as one.

  • Two words joined by a dash count as one.

 

Techniques to reduce the counted words

  • Remove articles (aanthethatwhich, and so on) when the sentence reads well without them.

  • Remove almost all adverbs and adjectives; consider more powerful verbs.

  • Remove redundant terms (past history, added bonus, accidental mistake).

  • Use one word instead of several (due to the fact that, point in time).

  • Avoid the passive.

  • Delete conjunctions; use a semi-colon instead.

May 17, 2016

Writing Tip No. 79: Avoid Empty Terms

Starting a sentence with the pronoun "this" is usually grammatical but carries little or no weight.  In such a sentence, the word "this" refers back to an unstated or disembodied concept.  Here are two examples.

This is the reason Rule 25 cannot apply in this case.

This explains why consolidation is necessary.

 

No problem arises other than wordiness when "this" is used as an adjective, making the reference clear:  "This statute provides the answer."  Often, however, "this" is used as a pronoun accompanied by a specific term.  The reader must reread the sentences or paragraph leading up to "this" to try to discern what this is intended.  Frequently, there is no specific term, although one may discern an overall concept or general theme that must be intended.  Anything forcing the reader to go back and try to figure out your meaning is undesirable. The reader may not go back, may misunderstand your intent, or may decide to read something more worthwhile.

 

Try searching for "this" in the next multi-page written work you do to see if you form these sentences.

May 03, 2016

Writing Tip No. 78: A Future Mediator Is Also Your Audience

Many lawsuits go to voluntary mediation conducted through the court with volunteer attorney-mediators or with paid mediators.  These mediators are often provided with copies of court filings that are informative about the facts, the law, or the parties.  Court filings written in the heat of the moment and intended for the court and opposing counsel may well be given to the mediator.  There may be no way to undo the bad impression presented by a court filing.

April 19, 2016

Writing Tip No. 77:  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 the opposing party directly or through friends who read the reports.  Inaccuracies make it easier to dismiss the reports.

April 05, 2016

Writing Tip No. 76:  Who Else Is Your Audience? Opposing Parties and Their Counsel.

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. In some instances, the opposing party may not be getting all the relevant information about the court proceedings from its 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.

March 22, 2016

Writing Tip No. 75:  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. 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. 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.

 

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.

March 08, 2016

Writing Tip No. 74:  Plagiarism

A portion of legal writing is formulaic, with substantially the same words used repeatedly for motions, the opening passages in documents, and orders. Attorneys routinely share these repetitive documents and borrow words as needed. Moreover, now that many legal documents are available on the Internet, attorneys undoubtedly borrow from those documents without the pretense of permission.

 

Plagiarism is a tort for which civil damages may be awarded. Students and professors and others are regularly punished for plagiarism. For attorneys, however, plagiarism is unethical conduct, a misrepresentation to the court, that may be compounded by charging fees for work not done in violation of ethical rules against excessive fees. Attorneys may be suspended or disbarred, and may become liable for damages.

 

Where is the line between the routine borrowing of forms and plagiarism? There is no clear line, and it differs depending on the state and probably the timing and circumstances. Iowa appears to address the issue most often in published decisions, and its decisions discuss the concerns fully.  E.g., Board of Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002) (see cases cited and cite check for more). The Illinois decision in In re Lamberis, 93 Ill.2d 222, 66 Ill.Dec. 623, 443 N.E.2d 549 (1982), yields many more. Both cite law reviews of interest as well.

February 23, 2016

Writing Tip No. 73:  Metaphors and Clichés

Judge Stephen Reinhardt once offered this comment on the overused phrase "two bites at the apple":

 

Metaphors enrich writing only to the extent that they add something to more pedestrian descriptions. Clichés do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depends on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us.

 

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1054 (9th Cir. 2003) (Reinhardt, J., concurring).

 

To learn more about metaphors and clichés, visit these webpages:

 

February 09, 2016

Writing Tip No. 72:  Be Nice

There is "a cardinal rule of effective appellate legal writing. The rule is: 'Avoid disparaging lower courts or opposing parties.'" State v. Rossmanith, 146 Wis.2d 89, 430 N.W.2d 93 (1988), quoting Spears, Presenting an Effective Appeal, Trial at 101 (Nov. 1985).

 

Many appellate judges sat on the trial court bench first, so insulting criticism of the trial court may hit a particular sore point.  Avoid reference to "the lower court" or "the court below," as these judges may take offense at that.  The term "trial court" is short and unambiguous.

January 26, 2016

Writing Tip No. 71:  Drafting Complaints 

Think about the plaintiffs and defendants and how much publicity may help or harm the complaint.  If publicity may help, place the well known names first as plaintiffs or defendants so they will be picked up by the local legal newspaper or other publicity makers.  If not, bury the names as disguised as possible in the middle of the listing.  Disguise the name by using initials, spelling out names that are usually shortened, and using legal names when the party is known by a nickname.

 

Identify each party in a separate paragraph, plaintiffs then defendants.  If a person seems appropriate to be a party but is not, explain the reason to avoid a motion objecting to the absence. Check standing, licensure, and the like so any additional allegations can be included.

 

Provide the allegations for all causes of action under that heading.  This part of the pleading is almost always best done in chronological order.  Then set out each cause of action with its elements (often best taken from the recognized jury-instruction source in the jurisdiction).

 

Often it is beneficial to make every document of importance an exhibit to force the defendants to admit or deny its authenticity.  Admissions may set up a summary judgment motion and, if not obtained at the pleading stage, may otherwise have to be obtained more expensively.

 

Then close by setting out the prayer.  Be sure the prayer captures all the relief desired.  It's best not to divide the prayer by cause of action because some causes of action may not survive.  Check to be sure that everyone needed for the desired relief is a party.

January 12, 2016

Writing Tip No. 70:  Headings

Whether called headings or captions or another term, headings are important to many legal documents and require more than the normal attention. 

 

A tentative heading may be used during the writing process.  Even if accurate when first written, the heading may become inaccurate as the paragraphs are written and revised.  The more the heading strays from the contents, the greater the likelihood that readers will be misled.  For example, in State v. Cooley, 608 N.W.2d 9, 13 (Iowa 2000), the court observed:

 

Cooley's competence was not questioned during oral argument, nor was the matter referenced in the defense brief beyond a heading which reads:

THE TRIAL COURT ERRED IN CONDUCTING INSUFFICIENT INQUIRY INTO THE DEFENDANT'S UNDERSTANDING OF PRO SE REPRESENTATION AND INTO WHETHER THE DEFENDANT WAS COMPETENT TO MAKE THE DECISION TO REPRESENT HIMSELF, ALL IN VIOLATION OF THE SIXTH AMENDMENT.

The State has interpreted this heading as a claim by Cooley that he was either incompetent to act pro se, or that the trial court owed him a duty to inquire as to his mental status. In either event, Cooley failed to articulate any arguments to that end so the point is moot.

 

A heading that has lost touch with the contents suffers from the additional problem that a scan down the table of contents will not reveal the actual contents of the paragraphs.  The arguments may be disregarded by the court as a result.  Provost v. Regents of University, 201 Cal.App.4th 1289, 1294 (2011) ("Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument").  Similarly disregarded are headings that are not followed by argument and authority. Donchez v. Coors Brewing Co., 392 F.3d 1211, 1217 n.3 (10th Cir. 2004); Callahan v. Barnhart, 186 F. Supp. 2d 1219, 1230 n.5 (M.D. Fla. 2002).

 

Likely the best way to avoid these problems is to leave enough time to review the headings independently and in connection with the material they introduce to ensure that each heading accurately reflects the contents and enables the reader to understand the intended meaning in full.

December 29, 2015

Writing Tip No. 69:  Paralepsis

The court in Martinez v. Department of Transportation, 238 Cal. App. 4th 559, 565 n.5 (4th Dist. 2015), considered a single Nazi reference during trial that was expanded into multiple references in closing argument. The court explained:

 

Paralepsis is a formidable Greek word for the rhetorical trick of making a point by telling your audience you do not want to make that very point. One of the most famous examples is from Marc Anthony's famous Romans-lend-me-your-ears speech. Anthony says he came to bury Caesar, not praise him. No, the whole point of the speech, in context, is that he really did come to praise Caesar, and thereby whip up the crowd against Caesar's assassins. (See Bridges & Rickenbacker, The Art of Persuasion: A National Review Rhetoric for Writers (1991) p. 90 ["Nor is it incumbent upon us to mention that paralepsis is the habitual refuge of the courtroom mechanic, who abuses it in order to suggest to the jury what he can very well deny to the judge ever having said."].)

 

Paralepsis can and should be less heavy handed than this unfortunate example. When properly used, the reader or listener is not fully aware of its subtle influence.

December 15, 2015

Writing Tip No. 68:  Consistency

Consistency in written work is as important as content because consistency in presentation is critical to ensuring that the reader can get through the words to the meaning. If the writer does not use a clear short reference to a party or event, the reader cannot be sure that the reference to the broker is intended to mean stockbroker Sam Sleeze. Shifting references to the Berner House, the house sold in 2009, the Newby's residence, and the house overlooking the ocean leave the reader wondering if all of these are the same house. Changing formats for block quotes raise questions whether all or only some are quotations.

 

Determine short names for everyone and everything that will need a short name, and use that same short name consistently. If drafting a complaint or answer, select your short names then and use them through the end of any appeal. Never leave your reader to wonder. A tired reader may simply quit reading when it becomes too annoying.

December 01, 2015

Writing Tip No. 67:  Common Errors

The website http://public.wsu.edu/~brians/errors/errors.html provides an easily searchable and very useful discussion of some thousands of common errors in American English. 

 

Many of the listings distinguish terms that are often confused—affect and effect; affluence and effluence; bullion and bouillon; celibate and chasteprincipal and principle; to, too, and two; within and among; and many others. But the listings also include many other terms that pose problems because we do not understand them or they are not words at all, not because we confuse them with other terms. These include intrigue, peremptory, practical, unconscience, and zero-sum gain.

 

There are additional pages identifying nonerrors or "usages people keep telling you are wrong but which are actually standard in English." A list of links to other good resources is helpful. There is much to discover here that can assist an individual seeking to improve writing skills.

November 17, 2015

Writing Tip No. 66:  Word Length and Word Choice

Consciously varying the length of the words in legal writing is less important than varying the length of the sentences. As a practical matter, many of the words are dictated by the subject matter, leaving little ability to introduce variation in word length.

 

More important than effort to achieve a specific average word length is the selection of words to use. All things being equal, use the shortest or simplest words that convey the meaning you intend.

 

  • Use words that fit the subject matter in tone and connotation. Serious writing should not include slang. Many avoid contractions as informal.
     

  • Be especially careful with words that are new to you. While incorporating new words into your vocabulary is valuable, you will be less confident in their meaning and usage. 
     

  • Avoid thesaurus words that you would never normally use in a sentence. Using a thesaurus is a great way to learn new words. Taking new words to sprinkle in your sentences so readers will think you are scholarly or sophisticated almost never achieves that goal.
     

  • There is no requirement to use a different synonym every time. The reader can be certain you are speaking of the same thing when you use the same word. It can be confusing and frustrating when the word used to describe an important thing is changed repeatedly.
     

  • Never hesitate to use the dictionary. For example, while "fortuitous" means happening by chance, many definitions include an element of happy chance.  So it would be a mistake to refer to a fortuitous fatal heart attack.

November 03, 2015

Writing Tip No. 65:  Varying Sentence Length

Reading legal papers can be boring and may even induce sleep. An attorney can reduce undesired naps by spicing up the writing. Although some kinds of spice are inappropriate (humor, sarcasm, off-color comments), others are desirable and relatively easy to implement.

 

One good approach is deliberate variation in the length of sentences. Too short, and sentences are choppy; too long, and they ramble and bore. A suitable mixture is best, especially when a significant point is made in a very short sentence. The word "No." can grab the reader and have special emphasis when it appears after several longer sentences.

 

Another aspect of this issue is average sentence length. A variety of sources urge writers to hold to an average of 20 to 25 words per sentence. You need not count yourself as various tools are available to help. For example, https://readability-score.com/ provides the following information for the paragraph above this one:

 

Grade Level Readability Formula

 

Flesch-Kincaid Grade Level         7

 

Gunning-Fog Score                       9.5

 

Coleman-Liau Index                   12.1

 

SMOG Index                                  7

 

Automated Readability Index     6.8

 

Average Grade Level                    8.5

 

Text Statistics

 

Character Count                         280

 

Syllable Count                              90

 

Word Count                                  59

 

Sentence Count                              5

 

Characters per Word                     4.7

 

Syllables per Word                        1.5

 

Words per Sentence                    11.8

 

Other calculators are available with a search for "sentence length calculator." For example, http://www.readabilityformulas.com/free-readability-formula-tests.php offers significant information in essentially no time.

 

One final tip: don't worry about sentence length when you are trying to get your thoughts down on paper initially. Sentence length is a consideration for the editing process.

October 20, 2015

Writing Tip No. 64:  Sarcasm and Irony

In the right time and place, sarcasm and irony can have enormous impact. In legal writing, however, these tools are rarely suitable. One explanation of the relationship between sarcasm and irony states:

 

Sarcasm is a subcategory of irony. That's the first thing you need to know and it makes a lot of sense when you understand this. The similarity comes from the root of the definition of irony—a subversion of expectations. Basically, anything said or done, or an event that occurs, which goes against expectations . . . .

 

Anyway, sarcasm is similar in that you are saying something that goes against expectations. There's two key differences with sarcasm though; first of all, sarcasm can only be verbal (whereas irony can be situational or dramatic). Secondly, sarcasm is designed as an attack. Irony can be innocent but sarcasm is used with the intent to mock or hurt somebody. The degree to which you are doing this can vary. Friends can be sarcastic with each other because friendship can withstand a bit of good-natured barbing, but again, there is an intent to single out a person or persons and ridicule them when it comes to sarcasm.

 

The Sceptical Prophet, available at http://tinyurl.com/p4rvzjd. See also http://typesofirony.com/.

 

The serious issue with sarcasm or irony is that the writer may not know the reader very well or at all. Judges take few attorneys as close friends, especially if there is an age difference between them, so the attorney may be only guessing as to the judge's interests, reading, favorite movies and so on. Will the judge or opposing counsel or other reader understand that your words are sarcastic rather than literally true? Will it be embarrassing if the reader does not understand? Would one prefer to sink into the floor rather than explain that words were used to mean their opposite?

 

A review of court decisions reveals many examples in which sarcasm went awry. A few examples:

 

United States v. Diaz-Carreon, 915 F. 2d 951, 959 (5th Cir. 1990) ("the prosecutor's repeated reliance throughout the trial on sarcasm, innuendo and misstatement comes dangerously close to reversible error");

 

Gore v. State, 719 So. 2d 1197 (Fla. 1998) ("Goaded by Gore, the prosecutor abandoned any semblance of professionalism and engaged in needless sarcasm."); and

 

State ex rel. Dyer v. Union Electric Co., 312 S.W.2d 151, 154 (Mo. App. 1958) ("the use of odiums, sarcasm and vituperative remarks have no place in a brief and are wholly unwarranted. Frankly, resort to the use of such statements is an indication of a lack of confidence in the law and the facts to support the position of the one using them."), discussed in Barksdale, Appellate Advocacy: The Role of Civility in Appellate Advocacy, 50 S.C.L. Rev. 573 (1999).

 

Sarcasm by trial judges is not appreciated on appeal.  The court in In re Albano, 75 N.J. 509, 384 A.2d 144 (1978), observed: "An attempt at judicial sarcasm or humor, directed at a litigant, witness, attorney or law student . . . , has no place in a courtroom. It is deeply resented and inevitably demeans the judge himself."

October 06, 2015

Writing Tip No. 63:  Make It Easy for the Appellate Panel

An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record. If you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number. Create a meaningful index to the record. For example, if a document has an odd or misleading title, provide that title and, [in brackets] a few accurate, neutral, descriptive words. Identify the declarant or witness if that information is not in the title. Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume.

 

Cite the record for every point. Dominguez v. Financial Indemnity Co., 183 Cal.App.4th 388, 392 n.2 (2010) ("because FIC's brief fails to provide a citation to the appellate record for these facts, we do not consider them"); AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005) ("It is not the function of this court to cull the record on behalf of a party"). It almost goes without saying that you should accurately cite the page with the relevant material. Scott v. Bank of America, 292 Ga. App. 34 , 663 S.E.2d 386, 387 (2008) ("while the parties cite to the appellate record, many of the page numbers cited are incorrect"). Cite the record by page and line, if the lines are numbered, even if that specificity is not required. Skinner v. State, 83 Nev. 380, 432 P.2d 675, 384 & n.4 (1967); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46, 50 (N.D. 2001). Cite by page and paragraph or use terms like "start," "middle," and "end" if there are no line numbers. 

 

Read the court rules multiple times and follow any court rules that govern briefing, citations to the record, or other relevant subjects carefully. Even if a rule seems silly or redundant to you, remember that the judges who wrote that rule or have elected not to revise it do not think their rules are silly or unnecessary.

 

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 and compliant with the rules.

September 23, 2015

Writing Tip No. 62:  Baby Steps

One successful approach to the preparation of opening briefs is to assume the court knows nothing of the subject and is uncomfortable making a decision that no judge has made before. Each step in the argument must then be accompanied by citation to relevant precedent reflecting the wisdom of that step and, overall, of the decision you seek. The key is to identify the right starting place and the steps required to travel from the starting point to the desired end, avoiding the tendency to slide over or combine them.

 

Briefs using this model should provide all forms of authority needed to convince the judge to take the next step. Possible evidentiary issues need to be resolved; substantive questions need to be answered or shown to be inapplicable. As each step is explained and answered, the next step can be introduced and its issues and questions answered. At the end, the table of contents alone can walk the reader through the points to the desired ruling.

 

Once the steps are identified, the writer may elect to address evidentiary issues as a group, at the beginning or end of the brief. Alternatively, a writer may prefer to brief all issues presented by one step before turning to the next step. No matter which technique is adopted, work on later steps will often turn up cases and points that can strengthen the earlier steps. As work progresses, a single step may be perceived as comprising several steps, requiring additional reworking.

 

This briefing technique works well for highly structured briefs that are supported by existing law or by arguments well supported by law. When there is a gap in the law so that a particular step cannot be supported by citations, this technique highlights the gap rather than carrying the judge forward on compelling reasoning. Likewise, arguments founded principally on passion, as is the case for assertions of prejudice, are often made without relying on this structure. In many circumstances, however, this technique can provide a powerful edge because an opponent may be unable to change the direction of the steps.

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September 08, 2015

Writing Tip No. 61: Block Quotes

Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bag Brief, N.J. Law. (2006). Add extra leading or space between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting instead of substituting a paragraph mark.

 

Choose block quotes carefully and sparingly. Judge Alex Kozinski remarked: "Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer." Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block. Write the lead-in to the block to reveal its importance. If the block is important because it states the three elements of this or the five tests for that, then add letters or numerals in brackets or otherwise format to assist the reader. Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity.

 

Have your secretary or a paralegal double check the accuracy of the quotations and citations to locate them. Errors the court finds in one raise questions on the accuracy of all, and your opponent and the court will check. E.g., Austin v. Pascarelli, 531 So. 2d 550, 551 (La.App. 1988) ("The trial court may have been misled by the incorrect quote of La.RS 9:3921 contained in Pascarelli's motion for summary judgment."). 

 

Be especially careful to check the use of ellipses to ensure that important qualifications or even the word "not" or another essential word has not accidentally been omitted. Dube v. Eagle Global Logistics, 314 F.3d 193, 194-95 (5th Cir. 2002) ("We rejected Provost Umphrey's briefs as noncompliant because, inter alia, they contained 'specious arguments' and had 'grossly distorted' the record through the use of ellipses to misrepresent the statements and orders of the district court."); United States v. Johnson, 187 F.3d 1129, 1132 n.3 (9th Cir. 1999) ("The government used ellipses to leave this decisive part of the statute out of its brief. Such use of ellipses to omit a relevant section of the Oregon statute is improper. Use of ellipses to excise relevant and decisive sections of the statute in a way that benefits the government's case is looked upon with great disfavor.").

 

The courts in these and, sadly, many other decisions made a public record that the attorneys involved could not be trusted. Even if a public record is not made, judges talk to each other and may keep records in chambers of the attorneys whose work is suspect. As a result, an attorney's reputation may be tarnished in many courtrooms for a single serious quotation error.

August 25, 2015

Writing Tip No. 60: Unnecessary Words in Parentheticals

Legal writing is filled with unnecessary words. Almost any written piece can be improved by one reading devoted specifically to eliminating them.

 

One example of unnecessary words appears in parenthetical phrases following citations. These parentheticals often use the format: "(holding that ...)," ("suggesting that ...)," or the like.

 

The parenthetical should contain information or quotes from the cited document, and nothing else. Thus, these opening words are redundant and should be deleted.

 

Baker v. Superior Court, 129 Cal.App.3d 710, 721 (1982) (holding that the firefighter's rule applied to defendants even though defendants were volunteer firefighters who received only five dollars per fire because defendants were entitled to receive[d] workers' compensation benefits, disability benefits, and any necessary medical treatment).

 

The material in the parenthetical should always come from the cited source. If you want to disagree with the source, never put your explanation into the parenthetical.

 

Author, Silly Law Review Article, 14 Silly L. Rev. 441 (2005) (suggesting that Rule 11 should be abrogated to leave all discipline to the state bars or other existing state bodies, a suggestion that would greatly reduce available remedies for federal judges)

 

The concluding words appear nowhere in the article and cannot appear in the parenthetical without creating significant confusion for the reader. Place your interpretation, approval, or criticism in the introductory passage or after the parenthetical so there can be no question what part is the cited author and what part is you.

August 11, 2015

Writing Tip No. 59: When to Stop Writing

A time comes in every writing project to stop writing and proceed to the various completion tasks that will wrap up the project. There is often a lot to do: locate the exhibits, check the spelling of names and words, be sure the formatting is pleasing for the headings and the document as a whole, prepare the tables of contents and authorities, cut the check for any filing fee, and so on.

 

When is the time to stop?

    

  • If there is a deadline, stop in time to complete all the critical tasks associated with the writing before it must leave the office. Don't jam up your secretary with too little time to do the secretarial tasks properly. 

 

  • If there is no deadline, stop when you find you are repeating yourself. Delete the duplication, complete the other routine end of document checks (no point inadvertently omitted, headings are suitable and sufficient, exhibits are consistently cited and available), and pass the document to your secretary.

 

  • If there is no deadline looming, follow the directions from your client about how far to go or how far to bill. Some clients fight for a principle and have the funds to do so, while others are more pragmatic or less well funded.

 

  • As a caveat to the last point, there are instances in which you may continue to work on a document long after your client's directions require that billing stop. Frequent appearances in the same court on multiple cases may require a higher level of quality than the client may be able to pay for. Personal interest in the subject matter or fondness for the client may justify an extra effort. Desire to maintain your reputation will factor in most decisions.

July 28, 2015

Writing Tip No. 58:  Definitions

Cases are often won or lost based on definitions. The specific statute may contain the relevant definitions. Often it does not, or it has only some of the definitions that may be needed. Where should one look for more definitions?

 

  • Be sure you have seen the entire statute—definitions may be uncodified or may be codified elsewhere in the code. Definitions enacted as part of the same statute are more powerful than definitions located elsewhere.

  • Definitions often appear near the beginning of a code and in the first code of a series of codes. Thus, 1 U.S.C. §§ 1-8 provide with minor reformatting:

§ 1. Words denoting number, gender, and so forth In determining the meaning of any Act of Congress, unless the context indicates otherwise—words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular; words importing the masculine gender include the feminine as well; words used in the present tense include the future as well as the present; the words "insane" and "insane person" and "lunatic" shall include every idiot, lunatic, insane person, and person non compos mentis; the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; "officer" includes any person authorized by law to perform the duties of the office; "signature" or "subscription" includes a mark when the person making the same intended it as such; "oath" includes affirmation, and "sworn" includes affirmed; "writing" includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise.

§ 2. "County" as including "parish", and so forth The word "county" includes a parish, or any other equivalent subdivision of a State or Territory of the United States.

§ 3. "Vessel" as including all means of water transportation The word "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

§ 4. "Vehicle" as including all means of land transportation The word "vehicle" includes every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.

§ 5. "Company" or "association" as including successors and assigns The word "company" or "association", when used in reference to a corporation, shall be deemed to embrace the words "successors and assigns of such company or association", in like manner as if these last-named words, or words of similar import, were expressed.

 

These definitions apply to "any Act of Congress, unless the context indicates otherwise." 1 U.S.C. § 1. Similar types of definitions appear in the first volume of many state codes. There is nothing very exciting about definitions, unless one is specifically what you need.

 

Definitions that support or negate an argument as to the meaning of one statute may appear in other statutes. The index to the code can reveal multiple definitions of a significant term, under "Definitions" or "Words and Phrases."  Consider carefully whether to rely on a definition from another statute. Depending on the purpose of the other statute, its definitions may be irrelevant or may give rise to arguments to the opposite point of view. Among the considerations in selecting which definitions may be useful:

 

  • When were the statutes enacted? Bilski v. Kappos, 561 U.S. 593, 607 (2010) ("Section 273's definition of 'method,' to be sure, cannot change the meaning of a prior-enacted statute. But what § 273 does is clarify the understanding that a business method is simply one kind of 'method' that is, at least in some circumstances, eligible for patenting under § 101.").

  • Does the definition from the other statute serve legislative intent in the statute at issue? E.g., Negusie v. Holder, 555 U.S. 511, 519-20 (2009); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 169-70 (2007).

  • Is the definition in the other statute unusually narrow or expansive for reasons relevant to that statute? E.g., State v. Arizona Property & Casualty Ins. Guaranty Fund, 192 Ariz. 390, 393-94, 966 P.2d 557, 560-61 (Ariz.App. 1998); Raum v. Restaurant Associates, Inc., 252 App.Div.2d 369, 370, 675 N.Y.S.2d 343, 344 (1998) (appeal dismissed).

  • Is the definition in one or the other statute or both consistent with the common-law definition? What result is most in keeping with the meaning and intent of the statute at issue? E.g., Neder v. United States, 527 U.S. 1, 21-25 (1999).

 

Court decisions often provide definitions of statutory terms. Court decisions construing the same statute are the first and best source in almost all circumstances. If the statute has been amended, of course, careful inquiry is required to determine whether the definition has been affected by the amendment.

 

Words and Phrases®, published by Thomson Reuters Westlaw is a multivolume set containing many thousands of judicial definitions, from both state and federal courts, of words and phrases, arranged alphabetically. The full multivolume set has over 50 volumes. Extracted words and phrases arising in a particular jurisdiction are replicated in volumes at the end of the applicable West's Digest®.

 

Words and Phrases® is perhaps the least used valuable source of legal research results. This set is far more than a dictionary, in that it provides caselaw definitions of phrases such as "newspaper of general circulation," "doctrine of superior equities," "exclusive concurrent jurisdiction," "general average," and "doctrine of the last antecedent."

July 14, 2015

Writing Tip No. 57:  Avoid Cliches "Like the Plague"

Cliches pop up endlessly and slip off the tongue before we realize it. In written communications, however, there is time to reflect and select different words and phrases to convey the intended meaning.

 

The Internet provides a wide variety of sites collecting cliches. These may be the most complete:

 

 

 

 

Equally available are sites instructing the reader on ways to avoid cliches:

 

 

 

 

June 30, 2015

Writing Tip No. 56: Rhetorical Questions

A rhetorical question is a figure of speech that the asker does not intend to be answered but uses to focus attention on a specific issue and to direct the discussion to that issue. Rhetorical questions can create serious problems when posed during trial in a manner that arguably directs the jury to consider the defendant's failure to testify.

 

When used in briefs, rhetorical questions can be valuable in focusing attention on the unanswerable question, the unknown point that may inform the decision, or the empty posturing of the other side. When one subject has been briefed, the rhetorical question can shift the reader's attention to the new issue still to be briefed.

 

Think carefully and write very carefully when using a rhetorical question. Don't ask, for example, "what else could plaintiff have done?" unless you have thought through all possible answers and determined that having the court thinking about them cannot hurt your client.

June 16, 2015

Writing Tip No. 55:  Alliteration, Assonance and Consonance

Alliteration is the repetition of the initial sounds of nearby words. Assonance is the repetition of vowels, while consonance is the repetition of consonants. A repeated sound can make a writing smoother to read and, often, easier to remember. Although one should never struggle with word choice to force the repetition lest the writing appear stilted, repetition that occurs comfortably and smoothly can provide significant benefits.

 

A sampling of cases addressing alliteration:

 

  • Megdal v. Oregon State Board of Dental Examiners, 288 Or. 293, 605 P.2d 273, 275 (1980), observed: "Possibly the seductive alliteration 'void for vagueness' is thought to have achieved constitutional status on its own, judging by how often it is invoked."

  • Alliteration, assonance and consonance may also be evidence supporting a trademark violation. DuoProSS Meditech Corp. v. Inviro Medical Devices, 695 F.3d 1247, 1255 (Fed. Cir. 2012).

  • Cunningham v. State, 131 Ga.App. 133, 134 n.1, 205 S.E.2d 899 (1974) (" 'All acknowledge the art of alliteration is of ancient ancestry; but propensity for this peculiar phrasing is the predilection of particular persons and plenty of people profess positive prejudice against the practice.' Personal Letter from Savannah U. S. Court Judge A. A. Lawrence"), rev'd on other grounds, 232 Ga. 416, 207 S.E.2d 48 (1974).

June 02, 2015

Writing Tip No. 54:  Ambiguity

There are some words that mean that have contradictory meanings. One example that appears in legal writing fairly often is "sanction," which means both support for an action and a penalty for an action. These contradictory terms are called "antagonyms and are collected at http://www-personal.umich.edu/~cellis/antagonym.html. Other examples likely to appear in legal writing include "license" (permission to act vs. excessive freedom or liberty), to "peruse" (to skim vs. to study carefully), and "presently" (now vs. later). Careful writers avoid these terms unless the context makes the intended meaning very clear.

 

To make the world more complicated, "homographs" are spelled the same but differ in meaning, derivation, or pronunciation. "Homophones" are pronounced the same but differ in meaning, derivation, or spelling. "Homonyms" are spelled and pronounced the same but have different meanings. The categories may overlap. "Heteronyms" are homographs with different pronunciations associated with different meanings. These words are collected at http://www-personal.umich.edu/~cellis/heteronym.html.

May 19, 2015

Writing Tip No. 53:  Words That Can Be Cut

Many words can be cut out of our writing. Some can be cut every time while others can be cut often but occasionally have value. Still others can be cut when they appear with other words. In this last category, for example, "past" can be cut from phrases such as "past history." Words in one of the first two categories" are listed here.

 

actually; a majority of/a number of; as a consequence of; as far as I am concerned; a sufficient number of; at the present time; at the time that/at the time when; at this point in time/at the present; basicall; because of the fact that; by means of; concerning the issue of; currently; definitely; despite the fact that; due to the fact that; during the course of; for all intents and purposes; for the purpose of; for the reason that; generally; has the capability to; if conditions are such that; inasmuch as; in a situation in which; in close proximity to; in light of the fact that; in my opinion/view/honest opinion; in order to; in regard to; in the amount of; in terms of; in the event of/that; in view of the fact that; I think; it is clear that; it is critical that; it is essential that; it is my opinion that; it is not an unjustifiable assumption that; it is often true that; it is possible that; it seems/it appears; just; kind of; large numbers of; literally; maybe; mostly; needless to say/it goes without saying; on account of/on the basis of; on a monthly basis; one of the best; on the grounds that; on the occasion of; perhaps

presently [means both now and soon]; previous to; prior to; question whether/question of whether/question as to whether; quite; really; reason for; seem; several of the; simply; somehow; sort of; start to; subsequently; subsequent to; there is/there are; this is a subject that; to tell the truth; type of; under circumstances in which; very; whether or not; with reference to; with regard to; with respect to; with the exception of

May 05, 2015

Writing Tip No. 52:  Similes

As observed in Franklin v. Gupta, 567 A.2d 524, 537 n.7, 81 Md. App. 345, 371 (1990), cert. denied, 319 Md. 303, 572 A.2d 182 (1990), quoting Sparger v. Worley Hospital, Inc., 547 S.W.2d 582, 584 (Tex.1977):

 

Similes sometimes help to explain a factual situation, but in legal writing, phrases have a way of being canonized and of growing until they can stand and walk independently of the usual general rules. Mr. Justice Frankfurter once wrote concerning such phrase-making in judicial opinions: "The phrase . . . is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1943) (Frankfurter, J., concurring).

 

Not all similes are bad. An apt simile can capture the imagination and carry an argument forward. But a poor one is the doorway to a reversal. As the Supreme Court ruled: "Nothing is more apt to confound than a simile."  Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 303, 18 S.Ct. 347, 350, 42 L.Ed. 752, 756 (1898).

April 12, 2015

Writing Tip No. 51:  Fancy Words

Although not a formal legal writer, Stephen King is a writer extraordinaire with some good advice for all writers. In his 2000 book On Writing, in the "Toolbox" chapter, he explains:

 

One of the really bad things you can do to your writing is to dress up the vocabulary, looking for long words because you're maybe a little bit ashamed of your short ones.

 

 

Shorter simpler words are easier to read and understand, more likely to convey the writer's intended meaning, and more comfortable. The law has many dozens of words that have no simple counterpart-rescission, force majeure, laches, subrogation-so there is little choice but to use these when required. All the more reason, then, to use simpler words the rest of the time.

April 07, 2015

Writing Tip No. 50:  Brackets

Never ever mislead a reader through misquotation. Judges and opponents will remember for years, and judges will often chastise you from the bench or in their opinions. Take, for example, Walsh v. Avalon Aviation, Inc., 125 F. Supp. 2d 726, 728 (D. Md. 2001), aff'd sub nom. Walsh v. Potomac Airfield Airport, 31 Fed. Appx. 818 (4th Cir. 2002):

 

[T]he Court notes, with some considerable dismay, that plaintiff's addendum inserts material into the MAA Report of Waiver in such a way as to make it appear that the material was in the original, by using parenthesis rather than brackets. In legal writing, it is commonly accepted that matter added editorially is bracketed, not surrounded by parentheses, as plaintiff's counsel apparently knows from having done it thus in other quotations. Here, the plaintiff took the statement "the approach slope to runway 24 is obstructed...." and altered it in footnote 1 of the addendum to read "the approach slope to runway 24 (the departure area for runway 06) is obstructed...." The original document makes no mention of "departure area," and for good reason, because, as the court has pointed out, there is no such thing recognized in the regulations.

March 24, 2015

Writing Tip No. 49:  Hyperbole

One person's factual statement may be another's whopping overstatement. For example, in an unfair-labor-practice case appealed from the National Labor Relations Board, Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255 (7th Cir. 1980), the size of overtime payments was at issue. The NLRB had adopted the decision of the administrative law judge:

 

The ALJ also noted that the Exchange's overtime payments during the week of March 4, the last week on which a discriminatory discharge was alleged to have occurred, "shot up" from an average of about 50 hours per week for the preceding two months to a "whopping" 201 hours. If "whopping" means large, it is difficult to characterize 201 as a "whopping" increase when a total number of 302 employees is considered, and how it was divided among them is not given. The word "whopping" is more often found in journalism than in legal writing. Placed before a monetary figure it somehow denotes a hugeness that the figure itself unadorned would not convey, and it substitutes for any comparisons that factually might establish the figure to be out of line. Here we have a number of overtime hours called "whopping" that is less than 1 hour per employee per week, nor is there anything to show that even this trifling overtime was worked by persons whose workload was directly affected by changes in the volume of security transactions.

 

Clearly, there was no whopping increase, but an advocate for one position might use that term without anticipating that it would trigger this level of criticism and derision.  Being aware that a court can embark on such a tirade, however, a wise advocate will use greater restraint in the selection of words. 

 

See also State v. Daigrepont, 560 So.2d 959, 961-62 (La.App.), writ denied, 566 So.2d 396 (La. 1990) (proof fails on whopping deal on an ATV).

March 10, 2015

Writing Tip No. 48:  Captions in Briefs

Many briefs follow the outline format with Roman numerals and all capitals for the main headings, followed typically by A., B., etc. and 1., 2., etc., one or both with possible indentation. Focusing on the main headings, in all capital letters, it is rarely desirable to allow these headings to exceed two lines. Single-spaced material is more difficult to read, and all capital letters are especially difficult.  Here is an example:

 

DEMETROPOULOS' PRE-JUDGMENT WRIT OF ATTACHMENT AND PROCEEDINGS THEREON WERE SUBSTANTIVELY INCORRECT AND VOID BECAUSE THE WRIT AND PROCEEDINGS THEREON WERE UNAMENDABLY DEFECTIVE BECAUSE A RETURN AND INVENTORY WAS NOT FILED FOR 7 MONTHS INSTEAD OF WITHIN 20 DAYS AS REQUIRED BY RULE 64C(h), A DETAILED INVENTORY WAS NOT FILED AS REQUIRED BY RULE 64C(h), THE SERVING OFFICER FAILED TO ASK FOR A MEMORANDUM OF CREDITS ATTACHED AS REQUIRED BY RULE 64C(h), NO DEFENDANTS WERE SERVED WITH PLEADINGS WITHIN 10 DAYS OF ISSUANCE OF THE PRE-JUDGMENT ATTACHMENT IN A WAY ALLOWED BY RULE 4, AND THE WRIT THEREFORE AUTOMATICALLY DIED A JUDICIAL DEATH AT THE END OF ITS 10-DAY LIFE, AND GARNISHMENT UNDER RULE 64D WAS THE APPROPRIATE WRIT TO ISSUE TO LIEN PROPERTY IN THE HANDS OF THIRD PARTIES RATHER THAN ATTACHMENT UNDER RULE 64C.

 

Demetropoulos v. Vreeken, 754 P.2d 960, 961-62 (Utah App.), cert. denied, 765 P.2d 1278 (Utah 1988). Part of the problem with this heading is that it contains what should be several separate headings. Each separate heading should have been revised and shortened into a crisp, clear statement of the point. The fundamental problem with a heading of this length is that the reader must make an effort of will to read it.

February 24, 2015

Writing Tip No. 47:  Simple Words, Simple Sentences

Life is complicated enough when we all use simple words we learned by high school.  Most briefs and opinions can be written with these words, and the rare need to use a more difficult word can be moderated by careful definition. Too often, attorneys and even some judges write as though their thesaurus was always at the ready to locate the more complicated synonym.
 

Even when composed of simple words, a sentence with several dozen to several hundred words is difficult to understand. Shorter sentences typically reflect a fuller, more confident understanding of the subject matter. It can't be a surprise that Federal Rule of Civil Procedure calls for "a short and plain statement of the claim." In other words, "Rule 8(a) requires parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud." Stanard v. Nygren, 658 F.3d 792, 798 (7th Cir. 2011), quoting United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).

February 10, 2015

Writing Tip No. 46:  Edit Pal

Although not intuitively obvious, one way to develop skill as a writer is to edit someone else's writing. Good editors struggle more before making a change in someone else's work than in changing their own writing. Questions editors ask include whether the change is grammatically required or just stylistic, whether this edit is more in keeping with the style of the writing than a different edit, and whether the document is missing material that would enhance understanding such as definitions, examples, maps, or charts. The editor brings a fresh eye and a new enthusiasm.

 

Attorneys who work in offices can often identify others whose skill level is similar. Although there are only so many times one can impose by asking others to review documents, the situation is very different if two attorneys are exchanging work for editing on a regular basis.

January 26, 2015

Writing Tip No. 45:  Spell Checkers

Certain words are frequently misspelled but are often not detected by spell-check functions. Writers may wish to pay extra attention or delete the correct words from their checkers to ensure that the words are always checked individually. The words include:

 

be / he

change / charge

country / county

form / from

it / is

or / of / on

phase / phrase

pubic / public

laws / saws

underserved / undeserve

united / untied

trial / trail

January 13, 2015

Writing Tip No. 44:  Bill Drafting Manuals

Many state legislatures and the U.S. House of Representatives have manuals for drafting legislation. Many are gathered at http://www.ncsl.org/legislators-staff/legislative-staff/legal-services/bill-drafting-manuals.aspx. Although these manuals are principally intended to aid in drafting legislation, they often contain other substantial materials on writing that may be valuable for the writer or for the person seeking to interpret the words. Lessons on the passive voice; capitalization; gender-neutral terms; use of shall, may, must, and the like; redundant and indefinite words; and many more are available.

December 30, 2014

Writing Tip No. 43:  Don't Be Rude

The court noted recently in Driscoll v. Superior Court, 223 Cal.App.4th 630, 634 n.2, 167 Cal.Rptr.3d 364, 367 n.2 (5th Dist. 2014), that "Driscoll's attorney suggested the court 'take a look at the ERISA Statute,' although he did not provide a citation or quote from the statute."

 

The suggestion without citation would be poor form, at best, even if the statute had only a few sections. ERISA is both large and complex. Just which part of it did Driscoll's attorney propose the court should look at?

 

This sort of citation to authority, like the bare citation to a 100-page Supreme Court decision, can be interpreted in various ways: The attorney hopes there is something good but could not find it specifically. The attorney assumes the court has time to search for law worth considering. The attorney is willing to force the other side to search. Frankly, there is no interpretation that does not amount to an insult to opposing counsel and the court. 

December 16, 2014

Writing Tip No. 42:  Signals

A statement of fact or legal conclusion in a brief or other legal document typically requires citation to the authority relied upon to support the statement. The authority may be strong or weak, and use of signals informs the reader how strong the authority is. Thus, a straight or unqualified citation means that the citation directly and clearly supports the statement, usually through a holding, or is the source of the quotation. Authority introduced with a see supports the proposition either implicitly or in the form of dicta; in effect, the see citations are one step removed from direct support. The signal cf. provides support through analogy.

 

Signals are explained at http://www.law.cornell.edu/citation/ at §6.300.

 

Use of a direct citation when a see citation is required reflects sloppy work at best and often overstatement or dishonesty. Judges learn which attorneys overstate the strength of their authorities.

December 02, 2014

Writing Tip No. 41:  Checklists

Especially for documents that are repeatedly prepared and filed, counsel may wish to prepare checklists for all the steps in preparing the documents. This task is best 

completed with an experienced secretary or paralegal and copies of all relevant rules.  

Once a checklist is completed, it should be calendared for updating at least annually.

Various courts provide a checklist for appellate briefs covering statutory and rule-based requirements. 

 

For example:

 

http://www.ca7.uscourts.gov/rules/check.pdf 

 

https://www.judiciary.state.nj.us/appdiv/forms/10836_cklist_brief.pdf

 

https://www.wicourts.gov/courts/offices/docs/clerkbriefchecklist.pdf   

 

An attorney's checklist will need to add requirements triggered by obligations to opposing counsel, to the client(s), and to third parties.

Please reload

November 18, 2014

Writing Tip No. 40:  Conclusions

Briefs must come to a conclusion, but what should it say and how much should it say?  Many simply ask that the court grant all requested relief. If the brief is accompanied by a proposed order that details the desired relied, the simple conclusion may be sufficient. Absent a detailed proposed order, however, or a section in the brief addressing the appropriate relief, the conclusion should identify and explain the elements of the relief desired. The desired relief can be so clear to the writer yet opaque to the court, and a court will typically not speculate or award relief that is available but not requested.

 

In one example, In re McKinney, 581 S.E.2d 793, 797 (N.C.App. 2003), the court dismissed the action:

 

Petitioner's motion does not seek a termination of parental rights hearing, or request that the court issue an order of termination of parental rights. Indeed, the motion fails to request any relief, judgment, or order from the trial court. Nor does the petitioner's use of the word "pray" establish what relief is sought, as petitioner does not "pray" for any desired relief.

 

It is no answer for a plaintiff or movant to ask for all the relief that can possibly be granted based on the law and the facts. That approach simply shifts to the court the research and analysis to be done. The court's unaided conclusions may not be the ones desired.

November 04, 2014

Writing Tip No. 39:  Citations

A number of guides for citations provide for a short form to be used after the first citation to an authority. Thus, the guide may require that one cite to Smith v. Jones, supra at 877, after the first full citation to the case if Id. is inappropriate. There is much to be said for ignoring this "rule."

 

  • Courts are more likely to be persuaded by the U.S. Supreme Court and the courts to which an appeal may be taken. A careful Illinois attorney will search especially for Ill., Ill.App. and 7th Cir. cases if in an Illinois state or federal court. That attorney wants to remind the reader of that critical information every time the case is cited, but the information is lost with a supra cite.

  • After writing sections or all of a brief, it can become clear that an argument later in the brief should be moved to an earlier position. The move is much more easily made if the citations are complete. 

  • During revisions, the section of the brief with the full citation may be deleted.  The missing full cite may be discovered when the table of cases is created, but time may be wasted searching for the full cite. The greater the stress in the final preparation of the brief, the greater the likelihood of errors.

October 21, 2014

Writing Tip No. 38:  Footnotes

There is substantial disagreement in legal writing circles on the use of footnotes, the nature of the material to be placed in footnotes, the benefit or detriment that footnotes present, and so on.

 

The court in Schmidt v. St. Joseph's Hospital, 105 N.M. 681, 736 P.2d 135, 139 (1987), observed in criticizing a brief with "excessive use of footnotes":

 

Extensive use of footnotes is a practice frowned upon by most legal writers. Professor Henry Weihofen, noted authority on legal writing style, states: "Footnotes are not normally used in brief-writing. If the thought is important enough to deserve a place in the brief, it can usually be fitted into the text." H. Weihofen, Legal Writing Style, 290 (2d ed. 1980).

 

The reader of a "footnote-bedecked" brief or opinion is continually interrupted and required to shift attention between the physically separated pieces of the page. Gordon, A Note on Footnotes, 60 A.B.A.J. 952 (1974).

 

On the other hand, legal writing scholars, such as Bryan A. Garner, recommend citational footnotes in which the footnotes contain only the citation for a point discussed in the text. Garner, The Citational Footnote, 7 The Scribes J. Legal Writing 97 (2000); see Ledet v. Seasafe, Inc., 783 So. 2d 611, 617 (La. App. 2001) (Woodard, J., concurring).

 

What rule is best? It would be foolhardy to say. The rule to follow when writing briefs for courts to read is to use footnotes or not as that court uses them. If the members of the court differ in their practice and you cannot know which judge will hear the matter, follow the approach of the judge who has expressed the most forceful views or the approach you find the most comfortable for the writing in question.

October 07, 2014

Writing Tip No. 37:  How Many Headings or Captions?

Aside from short letters and promissory notes, most documents attorneys draft have headings or captions, often in an outline format, throughout. Doing so may even be required, e.g., Cal. Rule of Court 8.204(a)(1)(B) (arguments shall be placed "under a separate heading or subheading summarizing the point"), so that failure to comply may cause a brief to be stricken or an issue to be ignored. Even if not required, headings are so valuable in assisting the reader that wise attorneys consistently use headings. 

 

Too many headings are distracting. A transactional document may use a heading for each paragraph, even the short paragraphs that often appear at the end of the document. A heading in a brief typically needs more "meat" than a single paragraph to justify breaking the material out with a heading. There is no hard rule, but more than one heading per page of text is usually too much.

 

Too few headings leave the reader searching mentally or physically for the place in the document occupied by the material the reader seeks to locate. More than two or three pages between headings usually means too few headings.

 

Headings lend themselves to a table of contents. Well written headings lead the reader through the document and enable the reader to be refreshed simply by reading the headings.

September 23, 2014

Writing Tip No. 36:  Friday Afternoon Emergencies

If at all possible, finish your motion for temporary restraining order or other emergency motion so that it can be filed earlier in the week than on Friday and scheduled for hearing before Friday afternoon. Friday afternoon filings and emergency hearings are a wry joke in courthouses across the United States. The moving party has a significant burden on any emergency motion, and the burden is greatly increased when the hearing is set for Friday afternoon. The rule is the same for trial and appellate courts. 

 

For example, as Judge Coffey explained in dissent in Doe v. Village of Crestwood, Ill., 917 F. 2d 1476, 1496 n.14 (7th Cir. 1990):

 

This sequence of events resulted in a hearing at 4:45 p.m. Friday afternoon, August 10, with a TRO being issued at 5:30 p.m. followed by an immediate emergency appeal, which necessitated our deciding the appeal on Saturday, August 11. Given the fact that ethnic festivals in the Village have included masses in the traditional language of the celebrated culture for six years, the last-minute timing of this suit may well have been deliberately orchestrated in order to prevent full consideration of the issues involved. Upholding the instant TRO encourages such orchestration. I believe it would be in the best interests of proper court management and the preservation of precious judicial time to give all parties sufficient opportunity to present a well-researched and well-prepared argument and thus give the court sufficient opportunity to make a well-reasoned judgment. I would favor rejecting last-minute motions for a TRO or preliminary injunction unless unique circumstances make such a last-minute motion necessary  especially when as here the question of irreparable harm does not exist.


Unless the facts prevent this suspicion, assume it will exist and explain the timing of the emergency motion if you must make it and especially if you must make it on a Friday.

September 09, 2014

Writing Tip No. 35:  How to Respond to the Bad Brief 

Your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time. How do you respond in your opposition or reply brief?

 

Laugh in private, but be respectful and neutral in public and in writing. Although you hope and assume that the judge shares your opinion of the bad brief, you could be wrong. Moreover, the more vigorously you attack and criticize, the less likely the judge is to do the same. The judge may know mitigating circumstances — a death in the family, a cancer diagnosis — that you do not.

 

Use the points in the bad brief to support the statement or restatement of your best position. You are not compelled to find cases and better arguments for your opponent's points. You need not restate arguments so they are comprehensible. On the other hand, if there is a germ of an argument that you can defeat, there are benefits in doing so to prevent the judge from seeing any merit there.

 

Careful attention to your demeanor and the tone of your writing can make you an ally in addressing an embarrassing issue for the legal community. Your opponent will not be your enemy.

August 26, 2014

Writing Tip No. 34:  What Defenses to Assert 

Although all reasonably applicable defenses should be asserted for protection of the defendant, there is no benefit in wholesale assertion of defenses that are not likely to have some application to the case. Not only do such defenses impose discovery burdens on all parties to no meaningful end, but the clearly irrelevant defenses also offer the opportunity for prejudice to the defendant. Plaintiffs in a bad faith case, for example, can make much of the presence of irrelevant defenses and embarrass the defendant before the jury.  E.g., White v. Western Title Ins. Co., 40 Cal.3d 870, 896-97 & n.6 (1985) (Grodin, J., dissenting). Allegations in the answer constitute judicial admissions by the defendant that may turn out to be damaging as the facts later unfold. Sanctions may be appropriate if the plaintiff is required to incur significant costs in eliminating irrelevant defenses from the case.

 
As a result, a defendant must follow the narrow path to assert all potentially relevant defenses without asserting clearly irrelevant defenses. Although courts are usually liberal in granting leave to amend answers to include additional defenses revealed by discovery, reliance on that liberality may be dangerous especially as the case gets closer to trial. The defendant may be better served by including defenses of possible but uncertain applicability in the answer and then dropping defenses that are revealed to be inapplicable as quickly as reasonably possible. To ensure that defenses discovered to be inappropriate do not linger in the pleadings, counsel should calendar review of the pleadings at regular intervals after filing the answer. Alternatively, counsel can omit the defense and calendar a date to move to amend to add the defense if discovery has revealed it to be appropriate.

A plaintiff who believes a defense has been waived should prepare to assert the waiver before or at trial. If the issue has already crystallized, with plaintiff asserting and defendant denying waiver, then the issue should be briefed and resolved, typically by a motion in limine. A defendant who perceives a risk that a waiver argument may be raised should address the issue affirmatively as promptly as possible before trial; the longer the delay, the greater the likelihood that plaintiff can make a credible showing of prejudice and lack of notice. Again, as a general rule, a plaintiff in these circumstances is best served by proceeding as though the defense has been waived and not seeking a ruling until shortly before trial. The plaintiff who raises the issue early will be faced with dual opposition arguments that there is no waiver but, if there is one, then it was excusable and leave should be granted to cure the waiver.

August 12, 2014

Writing Tip No. 33:  Answers — Allocation of Ambiguous Issues

For a number of issues that might be pleaded in defense of a claim, the burden of proof may be ambiguous, sometimes allocated to the plaintiff and other times to the defendant. When faced with one of these ambiguous issues, the defendant must determine how to plead the issue. Pleading the issue as an affirmative defense may leave the defendant vulnerable to an argument that the pleading itself concedes that the issue is an affirmative defense on which defendant has the burden. Omission, however, risks losing the issue altogether if the court determines that it is, in fact, an affirmative defense rather than an issue on which plaintiff bears the burden.

 

One solution to this dilemma is to set out the substance of the issue in the portion of the answer responding to the plaintiff's allegations, rather than in the portion devoted to affirmative defenses. Even in an answer setting out a general denial, the answer can include additional or more detailed denials directed to the complaint as a whole or to specific paragraphs. Careful placement can avoid both the argument that defendant has assumed the burden of proof by characterizing the issue as an affirmative defense and the risk of waiving the defense.

 

Another approach a defendant may take is to allege the matter in the defenses with an express allegation that plaintiff bears the burden of proof and a denial that the matter constitutes new matter on which the defendant bears the burden. The defendant may affirmatively declare that the matter is alleged purely in an abundance of caution to ensure that no claim of waiver is made.

 

An alternative approach that may be suitable is to demur to the complaint or move to dismiss on the ground that it fails to allege facts sufficient to satisfy that relevant element of the cause of action. Such a demurrer or motion requires the court to determine early in the case whether the issue is part of the plaintiff's burden or is an affirmative defense. When that determination is made before the time for filing the answer, the defendant can plead in accordance with the court's ruling, reserving the right to appeal if appropriate.

July 29, 2014

Writing Tip No. 32:  Inconsistency in Pleading 

A plaintiff may plead alternative or inconsistent causes of action, and a defendant may assert separately stated inconsistent defenses, whether the inconsistency exists in legal theory or in fact. Federal Rules of Civil Procedure 8(d)(2) ("A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count, or defense, or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."); Federal Rules of Civil Procedure 8(d)(3) ("A party may state as many separate claims or defenses as it has, regardless of consistency.")

 

The pleading of inconsistent causes of action or defenses may not be asserted as an admission against interest in the action in which the complaint or answer is filed, nor may the pleading of one cause of action or defense be cited as an admission to eliminate the other. Instead, each is considered separately from the remainder.

 

Although the defenses may be inconsistent one with the other, a single cause of action or defense must be consistent within itself. 

 

The fact that one can lawfully plead inconsistent defenses does not mean that such a pleading is wise or likely to be beneficial. McDonald, Alternative Pleading in the United States II, 52 Colum. L. Rev. 603 (1952). Some inconsistent claims or defenses are still compatible, while others are factually nonsensical when set out in a single answer. A litigant must exercise common sense in light of the facts of the case and the realities at hand. When assertion of inconsistent claims or defenses will result in difficulties responding to discovery and loss of credibility before the trier of fact, a reasoned choice must be made.

July 15, 2014

Writing Tip No. 31:  Strong Words

Sometimes it seems as though every other word in a brief is statesprovides, or pursuant to. Words like these have no punch and add no value to a brief. 

 

When speaking of a court, instead of states, try action verbs like heldexplained, comparedrejectedmandated, or ordered. Even declared has more punch than stated.

 

Statutes do "provide," of course, but a brief analyzing multiple sections of a statute can use the word provides far too many times. A statute may mandatedirectdefineorder, eliminate, and reorganize. When there has been an amendment, words like revised, updatedalteredsubstitutedabrogated, and the like come to mind.

 

Too many paragraphs and sentences start with pursuant to or use these words.  Alternative construction might have the statute or regulation prescribedeclarerequire, and so on.

 

 

On the other hand, a writer may not want to use strong words when describing what an opponent has said or written. An opponent might positproposeoffersuggestsubmit, hypothesize, and the like. Avoid using terms that demean your opponent; let the merits of your arguments prevail.

July 01, 2014

Writing Tip No. 30:  Prayers

Prayers receive relatively little attention and are often cobbled together at the end of the complaint's drafting process. Prayers are too important to receive such short shrift. Drafting the prayer at the outset can be valuable in forcing you to focus on a variety of topics that you must consider before filing the complaint, including

 

  • whether you have included all the different kinds of relief your client needs and wants;

  • whether special allegations are required to obtain each kind of relief;

  • whether seeking a kind of relief could negatively affect the client or the pleading;

  • whether a particular form of relief will impose a higher burden of proof; and

  • whether the relief contemplated requires any additional steps (e.g., exhaustion, notice, or demand).

 

Check the draft prayer with the client. Often the facts entitle a client to particular kinds of relief, yet the client does not want or is unwilling to pay extra for one of the available kinds of relief. The sooner the client's wishes are revealed, the less time is wasted. The client may be able to identify kinds of relief that are especially important, so you can concentrate on those. And you can explain the relief and the proof required so the client can assist you in locating what evidence the client can find. Finally, a client who has reviewed and approved the prayer is less likely to criticize it later.

June 17, 2014

Writing Tip No. 29:  Drafting a Petition or Complaint

When starting to draft a petition or complaint, you must consider a variety of details and make decisions on many of them:

 

  • Which court (and which of any possible subdivisions of the court) will the pleading be filed in?

  • Who will appear as counsel of record? Are these attorneys admitted to practice in that court or is a pro hac vice petition required?

  • Who will be plaintiffs or petitioners? Do they have standing? Are there others who should be named to permit other claims to be pursued?

  • Who will be the defendants or respondents? Is there personal jurisdiction over each one?

  • Are all the relevant parties identified? If an important party cannot be named, explain the reason in the pleading to avoid a motion to dismiss for failure to name an indispensable party.

  • In which order should the parties appear? If you wish to increase the likelihood of media attention, place any high-recognition names at the start of the listing of plaintiffs or defendants. If you hope to fly under the radar, bury the high-recognition names in the middle or at the end. Newspapers that print lists of recent litigation often use only the first name or two of each side.

 

Return to the caption from time to time as you draft to be sure you have not strayed. It is surprisingly easy to draft the pleading on the assumption that someone is a defendant who was omitted from the caption.

June 03, 2014

Writing Tip No. 28:  Page Limits, Word Limits

Page limits teach the wordy writer to be terse. Limits on the number of words do the same, but there are differences in approach depending on which type of limit one must satisfy. An initial list of techniques for shortening briefs will work for either type of limit:

 

  • Identify and eliminate any repetition that can be shortened throughout (1482 High Ground Road to "the Property").

  • Avoid multi-word short names for parties, agreements or other subjects ("the Bank of America" to "Bank").

  • Sometimes, place the detailed relief you seek into a proposed order so you don't have to set it out fully in the brief.

 

Page limits can be satisfied by some combination of the following:

 

  • Shorten headings to one line; a two-line heading on paper with numbered lines requires extra lines to restore alignment of text and numbers.

  • Widen the margins on block quotes.

  • Reduce white space.

  • Make the caption page an unnumbered page, so page 1 is actually page 2 (or a later page following the tables that use Roman numerals).

  • Make sure that there is no extra space at either end of the lines of text; sometimes subtracting a single character of text will move an entire word up a line. Cumulatively, moving up a number of lines can shorten multiple paragraphs each by a line.

  • In each paragraph that ends with a word or two on the last line, find a rewording or synonym that shortens the paragraph enough to bring up the word or two.

  • Squeeze the signature block.

  • Reduce the length of the document contents.

 

The last is often the hardest to do, after the hard work of writing the document.  Another person may be better able to tighten up the brief. One technique is to try to cut one line out of each paragraph (or as many paragraphs as needed). It is a rare paragraph that has no sentence that can't be reworded to convey the same idea in fewer words. 

 

Word limits require a different strategy, including the following:

 

  • Close up words in citations that do not absolutely have to be separate — Cal.App.4th.

  • Close up the date with Dist. and Cir. in citations — (3d Cir.2013), (4th Dist.2010).

  • Shorten case names when not misleading — Bank of America National Association v. Bank of America.

  • Use a single word short name for a case that appears repeatedly.

  • Close up or use hyphens in bill numbers — AB1484, H.185, AB-1484.

  • Avoid nounification and the like — Defendant filed a motion v. Defendant moved. 

 

Don't assume your use of these techniques will not be noticed. Judges see multiple examples of briefs and learn all the tricks that do and don't work. Nevertheless, when the choice is between annoying a tired judge and omitting a significant argument, there is little choice.