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!

Tuesday, October 7, 2014

Websites for Improved Legal Writing


I've got most every legal writing book known to man, but I love to browse my favorite legal writing websites and blogs for new, hot-off-the-press tips.  I regularly follow these blogs and websites to improve my writing.


Lawprose

Legal writing godfather Bryan Garner's website is a treasure trove of information for those eager to learn about good legal writing. LawProse has Garner-conducted interviews with federal and state judges on legal writing, usage and writing tips, a word of the day, and many other features. 

www.lawprose.org


Legal Writing Pro 

On his website, Ross Guberman offers excellent tips for brief writing that he supports with real-life examples. I’m a huge fan of Guberman’s book, Point Made, now in its second edition, and Guberman offers additional brief-writing advice on Legal Writing Pro. Some of my favorite Guberman articles include Five Ways to Write Like John Roberts and The Supreme Writer on the Court: The Case for Kagan.

www.legalwritingpro.com


Brief Right
 
Brief Right is the brainchild of Hollingsworth LLP’s Kirby Griffis. On the blog, Griffis offers a variety of practical advice for creating briefs—recent posts include using the table of contents to persuade, acknowledging weaknesses, and avoiding what Griffis calls BRIQs (Big, Really Impenetrable Quotes). 

www.briefright.com


Adams on Drafting
 
Ken Adams is a contract-drafting guru, and his website offers great tips for drafting clear contracts. Adams is the author of A Manual of Style for Contract Drafting, and he offers plenty of advice through his regular articles and posts on some of the stickiest contract drafting issues.

www.adamsdrafting.com


Typography for Lawyers 

The Typography for Lawyers website provides some of the information contained in Matthew Butterick’s excellent book of the same name. Butterick’s advice ranges from selecting readable fonts to using white space to avoiding widow and orphan lines. Butterick provides sample documents to demonstrate the importance of typography and even offers typography strategies for different types of documents, from briefs to business cards.

www.typographyforlawyers.com

Thursday, October 2, 2014

Thesaurus Club

Couresy of
http://themetapicture.com/first-rule-of-thesaurus-club/

Thesaurus Club is missing a serial comma, but pointing that out would make me a pedant.

Happy Friday!

Tuesday, September 30, 2014

Don't Just Take My Word For It...Take Judge Dillard's Word for It!

Judge Stephen Dillard clerked on a federal court of appeals and has been a judge on the Georgia Court of Appeals, one of the busiest intermediate appellate courts in the country, for four years, so he’s an expert on how to and how not to write an effective appellate brief (and a fantastic follow on Twitter: @judgedillard).

Judge Dillard recently wrote an article entitled Open Chambers: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals. 65 Mercer L. Rev. 831 (2014). The article contains loads of helpful and interesting information about the Georgia Court of Appeals, including tips for appellate brief writers, which I summarize below.

As those who read this blog know, briefs are very important, and in his article, Judge Dillard confirms the importance of brief-writing at the appellate level: 

To put it plainly, a lawyer's likelihood of success on appeal before our court is largely dependent upon the substance of the appellate brief(s). As my former colleague, Judge J.D. Smith, has rightly and astutely observed, “[t]he Court's procedures and its institutional culture mean that the brief is almost always far, far more important, [and] far more likely to be outcome-determinative than oral argument.”

Id. at 840.

Include an Introduction

Judge Dillard, like many judges, appreciates an introduction:

[C]onsider giving the court a roadmap of your argument at the outset of the brief. Specifically, I strongly recommend including a “Summary of Argument” section, even though our rules do not currently require it. I am constantly amazed at how many times I read briefs that only get to the heart of the argument after spending ten to fifteen pages recounting largely unimportant background information and procedural history. Get to the point quickly. You do not want our judges and staff attorneys reading and re-reading your brief in an attempt to figure out the basis of your client's appeal….

Id. at 837. For a refresher on how to use introductions, check out my prior posts here and here.

Provide All Required Information and Accurate Record Citations

Judge Dillard also notes the importance of accurately citing the record and including all required information in the appellate brief:  

The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions. [The Georgia Court of Appeals] requires that appellant's brief, among other things, “contain a succinct and accurate statement of . . . the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of,” as well as the “argument and citation of authorities,” and that “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” And when an appellant fails to support an enumeration of error in its brief by (1) citation of authority or argument, or (2) specific reference to the record or transcript, “the Court will not search for or consider such enumeration,” which “may be deemed abandoned.” 

Id. at 837-38. While the procedure and requirements may vary from jurisdiction to jurisdiction, I think this advice is universal.

Understand Physical Precedent

Judge Dillard notes that when using opinions that constitute physical precedent only, lawyers should clearly identify that precedent. Physical precedent plays a special role in appellate brief-writing: 

A physical precedent of the court of appeals is neither binding on the state's trial courts nor on the court of appeals itself, but the opinion is instead merely persuasive authority. Typically, a published opinion becomes a “physical precedent” when an opinion of a three-judge panel includes a “concurrence in the judgment only….”

Id. at  838.

In Georgia, concurrences in judgment only aren’t always apparent, and Judge Dillard reminds lawyers that the “only way an attorney can identify an opinion as being or including a physical precedent is to read the judgment line (which is easy to overlook).” Id. at 838-39. And the only way to know the precedential value of a special concurrence in judgment is to “carefully read that concurrence and make sure that it can be reasonably understood as containing a statement of agreement with all that is said in the majority opinion. Id. at 839. If not, then the opinion (or any identified division of that opinion) is not binding in future cases.” Id.

But Judge Dillard cautions that a lawyer shouldn’t avoid citing physical precedent opinions, “especially if [the lawyer] believe[s] that the reasoning contained in that opinion is persuasive…so long as [the lawyer] clearly designate[s] the opinion as being or containing a physical precedent.” Judge Dillard and at least some of his colleagues find physical precedents more persuasive than opinions from other jurisdictions, so declining to cite them could be detrimental.

Judge Dillard’s article is an excellent read for anyone interested in the workings of the Georgia Court of Appeals specifically or appellate practice generally.