Friday, October 31, 2014

Constitutional Costumes

For those looking for last-minute ideas, consider these Constitution-themed costumes:

"Constitutional Mustard" available at www.halloweenexpress.com (just add the "Constitutional")


"The Right to Bear Arms" available at www.costumesgalore.net
 

"Second Bite at the Apple," available at www.halloweencostumes.com

And, if you have ski equipment, you could also go as the "Slippery Slope."
 
Skier carving a turn in Méribel, France
available at commons.wikimedia.org/wiki/File:Skier-carving-a-turn.jpg 
 
Happy Halloween!
 

Tuesday, October 28, 2014

More Thoughts on the Hobby Lobby Brief

I’ve talked before about strategies employed by the litigants in the Hobby Lobby case, decided by the Supreme Court earlier this year. Today, I’m focusing on some additional techniques employed by Paul Clement in his brief on behalf of Hobby Lobby.

The Conjurer
Hieronymus Bosch
 via Wikimedia Commons
The best advocates work hard to make their briefs interesting and readable and often pepper them with distinctive, memorable words and phrases. In the Hobby Lobby brief, Paul Clement offers some of these gems:

-“The government’s attempt to drive a wedge between the Greens and their businesses—where only the former have rights and only the latter suffer burdens—is a misguided shell game.”
 
-The “draconian” penalties against the Greens for non-compliance

-The government “offers a fig leaf….”

-The “unadorned term” person applies to both for profit and non-profit corporations.

-The government’s “tortured standard”

-The government’s brief is a “masterpiece of obfuscation.”

-The contraceptive mandate is "honeycombed with religious and secular exceptions."

In Point Made, Ross Guberman talks about adding interest and readability to briefs by including short, pithy sentences. Clement also excels in this strategy:

-“The contraceptive-coverage mandate violates Respondents’ RFRA rights.”

-“Both the Greens and their businesses can sue under RFRA.”

-“Quite obviously that is not true here.”

-“The question is simply whether the law burdens religious exercise.”

Numbers, percentages, and statistics can be powerful tools for writers, but too much of this type of information distracts, rather than enlightens the reader. Clement uses numbers and percentages strategically to make good points:

-“The ACA is an exceptionally complex piece of legislation with many novel, overlapping mandates and exemptions. The Act’s 10 titles stretch over 900 pages and contain hundreds of provisions.”

-“Based on the government’s own estimates, the contraceptive-coverage requirement presently does not apply to tens of millions of people. (55% of large employer plans would retain grandfathered status in 2013); (36% of Americans covered through their employers were in grandfathered health plans in 2013).”

-“Respondents face fines of $100 per affected individual per day, which could total over $1.3 million per day, or close to $475 million per year. If Respondents drop insurance altogether, they would face annual penalties of $2,000 per employee, or more than $26 million.”

Next week I’ll examine some strategies employed by HHS in its brief.

Friday, October 24, 2014

Avoid the Zombies!

In honor of Halloween, check out this excellent TED-talk on nominalizations (the author calls them zombie nouns)!


Happy Friday!

Tuesday, October 21, 2014

Show, Don't Tell: Legal Writing for the Real World

I generally avoid using LLW and Twitter to self-promote, but I have exciting news to share about my legal writing book with Adam Lamparello, Show, Don’t Tell: Legal Writing for the Real World. The text will be available starting December 4, 2014 via LexisNexis.

We wrote Show, Don’t Tell to help law students and lawyers learn to draft litigation pleadings. For ease, we use a single hypothetical lawsuit, take readers chronologically through the litigation process, and show them how to draft effective complaints, answers, discovery requests, motions, and other common pleadings.
 
We’re very excited about the book and hope that it can serve as a “real world” resource for law students and new and seasoned lawyers.You can pre-order Show, Don't Tell: Legal Writing for the Real World here.

Back to your regularly scheduled programming next week!

Friday, October 17, 2014

The Passive Aggressive Raven

This funny cartoon is a good reminder to avoid using pleadings to take passive aggressive jabs at your opponent or the court.


Happy Friday!

Tuesday, October 14, 2014

Using Parentheticals

Parentheticals are grossly underused. Many times, a full case explanation isn’t necessary to make the point the lawyer needs to make, yet lawyers often shy away from parentheticals—perhaps for fear that the judge will think the case isn’t important if explained through a parenthetical. I like parentheticals, use them frequently, and understand that many judges like to see them too. Parentheticals work well when used in the following ways: 

To explain a relatively straightforward case with uncomplicated facts: Some cases don’t need a full case explanation. The facts are straightforward, the law is uncomplicated, and the reasoning is short. Generally, those case explanations should be made through a parenthetical.

For example, under Georgia law, service of process on a defendant made after the statute of limitations expires will only relate back if the plaintiff acts with the “greatest possible diligence” in perfecting service (i.e. the plaintiff must act quickly). Numerous Georgia courts have considered whether certain lengths of time are sufficient to satisfy the requirement of “greatest possible diligence” in perfecting service. You needn’t complete a full case explanation for those cases because the facts are all going to be similar: the plaintiff filed suit but did not perfect service until X days after the statute of limitations expired; the law is straightforward (the plaintiff must exercise the “greatest possible diligence) and the reasoning is short. So parentheticals will help you explain the cases quickly and concisely:

A plaintiff must act with the “greatest possible diligence” in perfecting service after the statute of limitations has expired. Wade v. Whalen, 232 Ga. App. 765, 766, 504 S.E.2d 456, 458-59 (1998). While the Georgia courts have offered no express rules, several courts have concluded that service must be made within a matter of days or weeks to relate back. See Akuoko v. Martin, 298 Ga. App. 364, 680 S.E.2d 471 (2009) (affirming dismissal where defendant sued 19 days after statute of limitations expired); Neely v. Jones, 271 Ga. App. 487, 610 S.E.2d 133 (2005) (affirming dismissal where plaintiff waited a month after statute of limitations expired to serve complaint); Hardy v. Lucio, 259 Ga. App. 543, 578 S.E.2d 224 (2003) (holding trial court properly dismissed complaint where service was perfected seven weeks after statute of limitations expired); Harris v. Johns, 274 Ga. App. 553, 618 S.E.2d 1 (2005) (upholding trial court’s decision to dismiss case where 51 days passed between filing and service of suit, service was not diligent, even though plaintiff had made at least one unsuccessful attempt at service during that period). 

To show consistency in outcome with a case previously explained through a full case explanation: Sometimes, you’ll have multiple cases with similar facts and a similar outcome. You almost certainly want to provide a full rule explanation for one at least one of those cases (usually the seminal case, a case with facts most similar to yours, or a case decided by the same court).

But you needn’t bore the judge with a full rule explanation for all the cases, though you want to use the other cases to ensure the judge understands that the law is settled or that multiple courts have reached the same results under similar facts. Parentheticals work well in these situations too.  Take this example from a Daubert motion: 

In Plantation Pipeline Co. v. Continental Casualty Co., No. 1:0-CV-2811, 2008 WL 4737163 (N.D. Ga. July 31, 2008), the parties sought to offer testimony from competing insurance experts regarding when the insured’s duty to report a claim for a gas pipeline leak was triggered and whether the claim was covered under the language of the policy.  The trial court concluded that both experts' opinions were inadmissible under Rule 702 and Daubert because both opinions were improper “expert legal opinion.” Id. at *7.  The court noted that because construction of a contract is a question of law, “[e]xtrinsic evidence to explain ambiguity in a contract becomes admissible only when a contract remains ambiguous after the pertinent rules of construction have been applied.” Id.  Because the trial court had already analyzed the policy at issue and determined it was not ambiguous, the extrinsic opinion evidence was not admissible. Id.; see also Sheet Metal Workers, Int'l Ass'n v. Architectural Metal Works, Inc., 259 F.3d 418, 424 n.4 (6th Cir. 2001) (noting that the opinions of expert witnesses regarding the meaning of contract terms are irrelevant and inadmissible); Marx, 550 F.2d at 511 (vacating jury's verdict where the trial judge allowed testimony of expert who offered opinion on legal standards derived from contract and whether conduct of one party met those standards); Nova Cas. Co. v. Waserstein, No. 04-20755, 2005 WL 5955694, at *2 (S.D. Fla. September 7, 2005) (refusing to allow expert to testify on his interpretation of insurance policy's pollution exclusion because policy language was not ambiguous).

Sheet Metal Workers, Marx, and Nova all support the Plantation Pipeline finding but don’t warrant full rule explanations themselves because they don’t add any reasoning not already explained in Plantation Pipeline. Using parentheticals to explain these cases unobtrusively bolsters the persuasiveness of Plantation Pipeline (after all, other courts follow the same rule) without beating the judge over the head with rule explanations.

To offer an important quote: I also like to use parentheticals for helpful, pithy quotes. The case itself might not warrant a full case explanation (or even any explanation), but if the opinion contains a good quote that’s helpful to my case, I’ll use a parenthetical. This good example comes from a brief I’ve discussed before on this blog—Jeremy Simmons’s brief in Roper v. Simmons:

“Even the normal 16-year-old customarily lacks the maturity of an adult.” Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982) (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)); see also, e.g., Johnson v. Texas, 509 U.S. 350, 367 (1993) (“A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”).
 

Brief for Respondent at 15, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812 (internal citations and quotes omitted).

Thursday, October 9, 2014

Keyboard Shortcuts

I saw this handy chart on Twitter recently and wondered whether the shortcuts are legitimate. They are—I tested them! While you may never need a heart or square root in your legal writing, there's a good chance, at some point, you'll need a trademark™, registered trademark®, or degree symbol°.


Tweeted by @lifeproadvices

Happy Friday!