Tuesday, May 17, 2016

Meaningful Feedback for Associates

With summer and new associate season approaching, now’s a good time for attorneys to consider how to get the most of out their associates. I’ve found the tips below help associates improve their writing and help attorneys get the most bang for their associate buck.

Be Specific

“Improve your writing” (while perhaps true) isn’t the type of helpful feedback that summer and young associates need. If an associate’s writing is lacking, provide the associate with specific information about what aspects of the writing need improvement. Is the associate’s grammar and sentence structure poor? Does the associate fail to adequately outline the facts? Is the explanation of the law cursory? Does the analysis need more in-depth treatment?

And while you’re at it, offer explicit suggestions for improvement (e.g., you should also have included facts X, Y, and Z in your Statement of Facts). Being specific with the associate about the areas of his or her writing that need improvement greatly increases the likelihood that you’ll see that improvement.  

Give Feedback Verbally and In Writing

Associates generally learn more from written feedback when they can ask the attorney questions about why the attorney made certain changes to the associate’s work. Consider marking-up a portion of the associate’s work then sitting down with the associate for a few minutes to explain the comments. Letting the associate ask questions about specific changes and then revise his or her own work (as opposed to having an administrative assistant make changes) will help the associate better understand your expectations and the areas in which he or she needs to improve.

Be Timely

There’s no denying that lawyers are busy people. Finding the time to sit down with an associate to provide feedback can be a challenge. But both you and the associate will benefit if you provide the associate with feedback quickly. First, the associate’s written work is still fresh in his or her mind, making critiques easier to see and understand. Second, the associate can begin to improve his or her work immediately (rather than spending months doing work “wrong). And, third, by providing timely feedback, the attorney will hopefully see improvement on the next assignment (as opposed to continuing to receive sub-par work over and over again).

Give Praise, When Due

Studies have shown that most people respond best to positive reinforcement than to other behavior modification techniques. One thing many associates learn early in practice is that criticism is everywhere but praise is non-existent. Particularly for young associates, the pride in having an attorney tell you that you did a good job can sustain you through the long periods when you’re still learning to practice law and making mistakes on a seemingly daily (or hourly) basis. Offering a few words of praise and encouragement will go a long way toward ensuring that the associate continues to work to improve.    

You’ll do yourself, your firm, and your associate favors by providing helpful, specific feedback that the associate can use to improve his or her writing. 

Monday, April 18, 2016

Eliminate the Brown M&Ms from Your Legal Writing

*This is a guest post by Joe Fore, Assistant Professor of Law, General Faculty, and Co-Director of the Legal Research and Writing Program at the University of Virginia School of Law

Over the past three decades, the story of how Van Halen banned brown M&Ms has gone from backstage to boardroom. And for legal writing professors wrapping up their spring semester or for employers who will be hosting summer associates and interns, this same tale provides a convenient metaphor about the importance of watching the smallest details in legal writing.

While the story has been shared widely in recent years, perhaps a quick refresher is in order. As Van Halen toured the world in the early 1980s, the band brought along its contract rider, a thick document that detailed what the promoter was required to provide at the concert venue. Buried among the rider’s fairly straightforward—albeit extensive—food and drink requests was one very specific candy command: “M & Ms (WARNING: ABSOLUTELY NO BROWN ONES).”

For years, the brown M&Ms ban was panned as an outrageous act of rock-star decadence; pampered musicians making a ludicrous demand just because they could. But, as David Lee Roth later explained, the chocolate clause served a crucial purpose.

You see, at the time, Van Halen had perhaps the most ambitious stage show in rock history—complete with unprecedented amounts of complex rigging, lights, speakers. And they took their show into smaller venues that weren’t used to hosting such a massive event. Such a complicated show had numerous technical requirements—from having enough electrical outlets to ensuring that the building’s structures were sufficiently strong to support the stage and lights.

Those technical requirements were spelled out in the contract rider, but promoters often didn’t read it carefully, creating disruptions, delays, and even potentially dangerous conditions.

The brown M&Ms, therefore, were a test—a canary in the backstage coal mine. If the promoter had paid enough attention to remove the brown M&Ms, chances are they did the big stuff right, too. And if not . . . well, David Lee Roth describes his reaction:  

When I would walk backstage, if I saw a brown M&M in that bowl, well, line check the entire production. Guaranteed you're going to arrive at a technical error. They didn't read the contract. Guaranteed you'd run into a problem. Sometimes it would threaten to destroy the whole show. Sometimes, literally, life threatening.

OK, it’s a good story, but what does it have to do with legal writing? Well, in the same way that the brown M&Ms hinted at larger problems, small defects in a memo, motion, or brief can undermine the reader’s confidence in the bigger stuff—the substance of your writing. These defects tell your reader: “I didn’t care enough to get the small things right, so you should also be skeptical about whether my research and analysis are sound.” While there are many possible “brown M&Ms” that can taint your legal writing, here are three for new legal writers, in particular, to watch out for:

Court rule violations

From state civil procedure codes to court local rules to individual judges’ orders, lawyers are beset by technical requirements of all sorts: page limits, typography rules, and filing specifications. Overlooking or flouting these instructions can send the message that the lawyer isn’t committed to finding or following the rules—hardly a desirable reputation for an attorney.

And worse, a judge or clerk reading a submission that ignores basic requirements may think the writer purposely evaded the rules to gain an advantage. In a speech on the subject of “How to Lose an Appeal,” Judge Alex Kozinski of the Ninth Circuit cautioned that defying something as minor as a font-size requirement can “tell[ ] the judges that the lawyer is the type of sleazeball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority.”

Be sure to check any applicable procedural codes and court websites for any court- or judge-specific technical requirements.

Sloppy or visually unappealing formatting

First impressions matter. And “first impression” doesn’t just mean the opening line or the question presented; it includes how your writing appears visually on the page. A final, written product that looks sloppy, rushed, or poorly thought-out sends the same message about the substance of the attorneys’ work.

Again, it’s imperative to follow any of the venue’s/employer’s/ client’s specific formatting rules. But after you’ve done that, flip through and see how your writing appears on the page. There are many terrific resources for thoughtful and persuasive legal writing formatting. Before sending that memo to the client or e-filing that pleading, look at the document as a whole and ask:
  • Does it look neat and polished?
  • Have I balanced text and white space on the page?
  • Have I used headings to conveniently label sections? 
  • Have I limited the use of dense, uninviting chunks of text in footnotes and block quotes
  • Have I used bullet points and numbered lists to group related ideas in an easy-to-read way?
  • Is my formatting convenient for readers using computers or handheld devices?

Typos and grammatical errors

The odd typo here or there in a long piece of legal writing is almost inevitable. But an error-ridden brief or motion sends one of several messages to a reader:

(1) the writer was unaware of the proper grammatical rule or spelling;
(2) the writer was too inattentive to notice the error when editing; or
(3) the writer saw the error but was too lazy to fix it.

Applying the brown M&Ms principle, a reader might infer that the same writer might be less-than-fully competent, inattentive, or lazy in other areas beyond editing. And such an inference that might be justified. In their 2015 book The Science Behind the Art of Legal Writing, Professors Catherine Cameron and Lance Long share preliminary research showing that attorneys who had been disciplined by their state bar had higher rates of “careless” writing errors in their memos and legal briefs than non-sanctioned attorneys.

A quick grammar refresher, an editing checklist, and careful proofreading—preferably on paper—can help to minimize the chances of having such errors in your writing.

* * * * *

Legal writers spend a considerable amount of time trying to understand the law and then communicating that information in a clear, organized way. You’ve worked hard to produce an accurate and well-reasoned final product. Don’t let brown M&Ms in your legal writing send the reader a different message.

Saturday, April 2, 2016

The NYT Sacks the NFL

Anyone who reads this blog or follows me on Twitter knows I'm a huge sports fan. I've written before about Jimmy Graham's dispute with the Saints over the franchise tag, the rhetoric of Deflategate, and sports metaphors in judicial opinions.

David McCraw
And I also love a good lawyer letter. Now this week two of my loves meet in a letter from David McCraw, VP and General Counsel of the New York Times, to the NFL.

By way of background, CTE (chronic traumatic encephalopathy) is a brain disease that can lead to memory loss, impaired judgment, depression, and dementia. Research shows there is some link between repeated head trauma (of the type that occurs every day in the NFL) and CTE, though additional research is certainly needed to determine the extent and nature of that link. 

The NFL has known about CTE for a while. But last month's comments by Jeff Miller, the NFL's senior VP for health and safety, before the U.S. House of Representatives' Committee on Energy and Commerce appear to be the NFL's first public admission of a link between head trauma and CTE. Even after that admission, however, some NFL owners, executives, and coaches have continued to deny the connection, coming off just like climate change deniers and, before them, folks in big tobacco.

Enter the NYT which, a couple of weeks ago, published what I'll call an "unflattering" piece on NFL-funded studies on CTE. According to the article, the studies funded by the NFL were based on incomplete data, included incorrect data, and were performed by researchers who were in the NFL's pocket. The article also explored the connection between the NFL and the tobacco industry.

Understandably, the NFL was none too pleased by the piece. So it wrote a sternly worded letter to the NYT asking that it retract the story. As Deadspin noted when the NFL letter became public, the NFL's argument for retraction wasn't very strong. 

Like a good NFL defense, the NYT's David McCraw spared no mercy in responding to the retraction request. In his response letter to the NFL, McCraw first outlined the NYT's policy of correcting factual errors promptly (the "law," if you will) before noting that the NFL did not allege that the NYT story contained any factual errors about the connection between the NFL and the tobacco companies (i.e., the "law" does not apply). McCraw summarized the NFL's real gripe--that the article's connections between the two industries weren't "meaningful"--then pointed out that whether something is "meaningful" is clearly a question of opinion, not fact (more explanation of why the "law" doesn't apply).   

But McCraw didn't stop there. He went further, hitting the NFL where it hurts in noting that the NFL omitted from its letter any request for retraction of one "essential" documented connection between the NFL and tobacco companies--Preston R. Tisch, who served both as co-owner of the New York Giants and as co-owner of Lorillard (highlighting the NFL's omission of key facts).

McCraw even included the often-elusive public policy argument, pointing out that after the NYT published the story, discussion about CTE, the NFL, and its connection to tobacco companies increased substantially. By demanding a retraction, said McCraw, the NFL was attempting to "silence the public debate with legal threats...[doing] a disservice to its fans and, more generally, to the American people."

McCraw then moved on to the NFL's other issue with the NYT story--its discussion of the CTE studies--and explained why the NYT's retraction policy was inapplicable to that complaint as well:

The [NFL] letter bizarrely quibbles not over whether the research was valid (we all agree that it was not) or whether the NFL defended the research for years (we all agree it did) but whether the NFL has continued to "stand by" the research. If the NFL has previously acknowledged the undercounting of diagnosed concussions, your letter fails to identify any such public declaration.

Then, McCraw ended the letter rather abruptly. Most lawyer letters end with some conclusion, however brief:

--Thank you for your attention to this letter.
--Govern yourself accordingly.
--Please give me a call to discuss this case further.

Not McCraw's. In what would normally be an odd way to organize his response, McCraw concluded the letter by returning to the NFL's gripe about the comparison of the NFL to the tobacco industry. He did this for one clear purpose: the proverbial mic drop (as the kids these days say), which couldn't be better and which wouldn't have had nearly the impact earlier in the response. 

Unfortunately for the NFL, there is actually another interesting link between it and big tobacco, and McCraw did his homework in uncovering it:

While your earlier letter to the Times called the tobacco industry "perhaps [the] most odious industry in American history," you somehow fail to mention in either letter that it was your firm that represented Phillip Morris....

Oof. Perhaps the NFL should come at the NYT with a better offense the next time.

What do you think of McCraw's letter? Did the NFL deserve such a smack-down? Or would a lighter touch have been more appropriate? 

Friday, March 25, 2016

An Update in Caetano v. Massachusetts

Several weeks ago I wrote about Jaime Caetano’s cert petition in Caetano v. Massachusetts. For background information on the case, see my earlier post here.

In what I imagine is a rare occurrence, the Supreme Court simultaneously granted the cert petition, vacated the Supreme Judicial Court of Massachusetts’ judgment, and remanded the case. You can find the opinion here.

Justice Samuel Alito
The per curiam opinion isn’t particularly interesting from a legal writing perspective, but Justice Alito’s concurrence (which Justice Thomas joined) is a sight to see. We often find some of the best and most interesting judicial writing in concurrences and dissents. This case is no exception.

I was particularly drawn to Caetano’s use of pathos in her cert brief. That pathos was clearly effective, as Justice Alito’s concurrence begins:

After a bad altercation with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and in fear for her life. She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun for self-defense against her former boyfriend, Caetano accepted the weapon.

It is a good thing she did....Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: I’m not gonna take this anymore. I don’t wanna have to use the stun gun on you, but if you don’t leave me alone, I’m gonna have to. The gambit worked. The ex-boyfriend got scared and he left her alone.

I’m not sure I’ve seen an opinion from Justice Alito that is as strongly-worded as this one. Justice Alito’s language shows his dissatisfaction with both the prosecutor’s decision to prosecute Caetano in the first place and the Supreme Judicial Court of Maine’s opinion, which he describes as “def[ying] Heller’s reasoning.” I’ve highlighted some of Justice Alito’s most interesting and forceful words and phrases below:

-Under Massachusetts law...Caetano’s mere possession of the stun gun that may have saved her life made her a criminal.

-A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds.

-The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.

-Although the Supreme Judicial Court professed to apply Heller, each of its analysis defied Heller’s reasoning.

-The state court repeatedly framed the question before it as whether a particular weapon was in common use at the time of enactment of the Second Amendment. In Heller, we emphatically rejected such as formulation...[as] not merely wrong, but bordering on the frivolous.

-Because the Court rejects the lower court’s conclusion that stub guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” But make no mistake—the decision below gravely erred on both grounds.

-The Supreme Judicial Court’s conclusion that stun guns are “unusual” rested largely on its premise that one must ask whether a weapon was commonly used in 1789. As already discussed, that is simply wrong.

If you love good writing, Justice Alito's concurrence is a quick and interesting read that is well worth your time.

Happy Friday!

Tuesday, March 15, 2016

Transition Ambition

This time every year, when I’m grading student briefs, I’m always reminded that learning the basics of legal analysis and writing isn’t enough to make you a good writer. Being a good writer is also about telling a good story—one that flows logically; one that the reader can follow. Adding transitions won't fix dissonance, but transitions can certainly aid understanding.

Judge Neil Gorsuch
Take the writing of Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Judge Gorsuch’s writing has many rhetorical flairs, but his transitions are a hallmark. 

Judge Gorsuch likes to start paragraphs with sharp, short sentences. These sentences do double-duty; they both bridge the gap between paragraphs and serve as thesis sentences. Judge Gorsuch’s masterful transitions connect the concepts he’s writing about and vastly increase the reader’s understanding of the facts and law. Let’s take a look at several examples:

The questions presented in Freeman were whether and when an initial sentence imposed (as here) under a Rule 11(c)(1)(C) plea agreement—an agreement in which the defendant and the prosecutor stipulate to a sentence that the court must impose if it accepts the plea agreement—can be said to be “based on” a guidelines range.

Freeman produced a fractured result. Four justices, representing a plurality of the court, indicated that they would “permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.”

United States v. Fields, 500 Fed. Appx. 755 (10th Cir. 2012).


Any and all § 924(c)(1)(A) sentences Mr. Rentz receives must themselves be served consecutively to, not concurrently with, any sentences associated with his underlying crimes of violence (assaulting the first victim, murdering the second).

Cases like Mr. Rentz's are hardly unusual. In an age when the manifest of federal criminal offenses stretches ever longer, a parsimonious pleader can easily describe a defendant's single use of a firearm as happening “during and in relation to” multiple qualifying crimes. Like when a defendant shoots a potential witness against him—committing at once the separate crimes of murder and the killing of a witness.

United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015).


RLUIPA may be a “super statute,” capable of mowing down inconsistent laws, but to win its application takes no small effort. A plaintiff must carry at least two burdens, and even then can still lose if the government bears two burdens of its own.

Take the plaintiff's burdens first. RLUIPA requires us to ask whether an inmate's (1) religious exercise is (2) substantially burdened by prison policy.

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

I’m a fan of short, zippy transitions (e.g., and, but, so) over clunkier ones that lawyers often favor (e.g., therefore, furthermore, notwithstanding). But Judge Gorsuch takes transitions to a whole new stratosphere. 

I’m working on mimicking them in my own writing! 

Wednesday, March 2, 2016

A Cert-Worthy Brief in Caetano v. Massachusetts

The Supreme Court will soon decide a cert petition in Caetano v.
Massachusetts, a case about whether a stun gun is an “arm” under the Second Amendment. Jaime Caetano was convicted of violating a Massachusetts statute that outlaws the possession of a “portable device or weapon from which an electrical current...may be directed, [and] which...is designed to incapacitate temporarily, injure or kill...”

The Supreme Judicial Court of Massachusetts (which I’ll call the Massachusetts Supreme Court) upheld the conviction, finding (1) that a stun gun is not the type of weapon that Congress contemplated as being protected under the Second Amendment when that amendment was passed in 1789; (2) that Caetano’s conduct was outside the “core” of the Second Amendment; and (3) that the stun gun was a “dangerous and unusual” weapon.   

This case was interesting even before the death of Justice Scalia but is even more interesting now given Caetano’s heavy reliance on Justice Scalia’s opinion in D.C. v. Heller.

Caetano is currently represented by counsel with the Public Defender Division of the Committee for Public Counsel Services in Boston, Massachusetts. Her cert petition isn’t a perfect piece of legal writing—those are unicorns; they don’t exist except in our imaginations. But the brief is a solid piece of advocacy. Below are some of the most interesting parts (at least from a legal writing perspective).  

Logic of Logos

Caetano’s brief is full of logos, and she leans on the Heller opinion to support her position that Massachusetts’ law banning possession of stun guns violates the Second Amendment:

Heller could not be clearer on the point that “Arms”—as that word appears in the Second Amendment—includes, prima facie, bearable weapons that came into existence after 1789. And, just like the modern “handgun” at issue in Heller, a stun gun is an instrument designed to be borne “for defense, or to cast at or strike another.” Heller, 554 U.S. at 581.

And, like the modern handgun at issue in Heller, a stun gun may be kept in a location (such as a purse) “that is readily accessible in an emergency” and that may be utilized by “those without the upper-body strength to lift and aim” a heavier weapon.” Heller, 554 U.S. at 629. Stun guns thus share many of the features—albeit virtually none of the lethality—that make handguns so popular as weapons of self-defense.

The Massachusetts Supreme Court does not explain why a stun gun—a weapon designed not to kill or maim and is almost never fatal—could be banned in accord with Heller as an instrumentality designed and constructed to produce death or great bodily harm, while handguns, which cause well over 60,000 deaths and injuries in the United States each year, are the quintessential self-defense weapon for Second Amendment purposes.  

Individual self-defense is “the central component” of the Second Amendment itself. Although the “need” for self-defense may be “most acute” inside the home, it cannot be that the right itself simply evaporates at the threshold. Confrontations are not limited to the home. And [b]ecause the statute in question prohibits a class of weapons entirely, the approach taken by the [Massachusetts Supreme Court] would afford the petitioner no Second Amendment protection even if she had been arrested for possessing a stun gun while in the act of fending off her abuser inside whatever place she called “home.”

Presenting Pathos

Caetano reinforces her legal arguments with factual ones, reminding the Court over and over again that she carried the stun gun for a very particular reason:

The petitioner carried a stun gun for purposes of self-defense in case of further confrontation from her abusive former partner.

The petitioner told the police that the stun gun was for self-defense against her violate and abusive former partner.

The petitioner testified that the stun gun was for self-defense against her abuser, whom she had previously sought to keep at bay with restraining orders. The petitioner further testified that she had displayed the stun gun to fend off her abuser when confronted by him outside her place of employment....

Interesting Imagery

[The Massachusetts Supreme Court’s] conception of the Second Amendment—as a sort of fossilized relic trapped in amber—permeates [its] opinion in this case....”

Untethered to Heller’s definitional mooring, the [Massachusetts Supreme Court] reaches a result...which conflicts directly with the only other reported case to have considered this precise question.”

The Second Amendment is not a popularity contest.

My Favorite Passage

My favorite passage in the Caetano brief is the final paragraph. It is a mix of these three writing techniques, and others, and is an excellent example of going out with a bang (pun intended)!

In a parting shot, the [Massachusetts Supreme Court] says its affirmance of the petitioner’s conviction will not affect her right to bear arms because barring any cause for disqualification,’ she could have applied for a license to carry a firearm, or carried mace or pepper spray instead. Cold comfort. The statutes cited [by the Massachusetts Supreme Court] deem the petitioner to now be a prohibited person who is disqualified as a result of the conviction affirmed below from ever obtaining a firearm license, or from purchasing or possessing self-defense spray. The petition should be granted because, by reaching a result that violates the petitioner’s Second Amendment right to bear arms in case of confrontation, the [Massachusetts Supreme Court] renders its own suggested state-law self-defense alternatives infeasible.

Friday, February 26, 2016

"Come at the King, You Best Not Miss"

Texas judges and justices seem to write some of the more entertaining judicial opinions. We've seen Justice Willett's Lion King concurrence and dissent in El-Ali v. State and Justice Lehrmann's citation to The Big Lebowski on prior restraint.

Now, we get Judge Newell of the Texas Court of Criminal Appeals quoting The Wire in the high-profile criminal case against former Texas governor Rick Perry. I wrote about the Perry case several years ago when Perry's legal team filed a motion to dismiss the charges and contrasted Perry's lack of power over the purse with the almost absolute power exercised by Caesar Augustus and Louis XIV.

The Court of Criminal Appeals recently dismissed the indictment against Perry. Judge Newell, in concurring, cited Omar Little, notorious robber of drug dealers on HBO's The Wire:

"Come at the king, you best not miss."

You can read the majority opinion here and Judge Newell's concurrence here.

Happy Friday!