Friday, April 24, 2015

No Words

Another story of a litigant who tried to evade word limits has made the rounds this week on social media and is now being covered by the ABA Journal.

We've seen litigants try to place information in footnotes to get around word and page limits and modify spacing, fonts, and formatting. This litigant, however, took it to extremes by, for example, eliminating spacing in citations. One cite should have read 

Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)

but instead read

Thornerv.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012)  

Had the litigant apologized and offered to file a compliant brief, the case might not have been dismissed. Instead, the litigant's proffered amended brief also was non-compliant because the litigant again attempted to skirt the word limits by replacing case citations in the brief with abbreviations, such as TOA1, that referred the reader to the citation in the Table of Authorities.

This case is particularly egregious and, in the Federal Circuit's opinion, warranted dismissal. We see litigants chastized frequently for this type of behavior (which you'd think would be enough to convince others not to try it). An outright dismissal is pretty rare though, I think, appropriate in this case.

Happy Friday!

Tuesday, April 21, 2015

Teeming with Themes

An important—but often overlooked part of written advocacy—is developing a theme you’ll use throughout the brief. The theme should be supported by the evidence, consistent with the legal outcome you seek, easy to understand, and memorable.

In my book with Adam Lamparello, Show, Don’t Tell: Legal Writing for the Real World, we outline a fictional case in which the defendant is alleged to have defamed a California resident by making blog posts from the defendant’s home in Pennsylvania. The defendant doesn’t want to be subject to suit in California. The defendant’s theme might look something like this: 

Forcing a litigant to travel more than 2,500 miles to defend a lawsuit—based solely on two online blog posts—is unreasonable, unfair, and unconstitutional.

That theme is supported by the evidence (the defendant’s home is more than 2,500 miles away from the court), consistent with the legal outcome sought (dismissal or transfer to a Pennsylvania court), and easy to understand and memorable.

In contrast, this theme, while supported by the evidence and consistent with the outcome sought, isn’t interesting or memorable and isn’t a persuasive theme:

The California courts lack personal jurisdiction over Simon Harrison because he lives in Pennsylvania, not California, and his statements were posted to a website from his home in Pennsylvania.

As I discussed in last week’s post, common themes from literature that translate to persuasive advocacy include:

         Good versus evil
         Rich versus poor
         Powerful versus powerless/Strong versus weak
         Power and corruption
         Lack of fairness/justice

These themes may be applicable in any number of situations. But applicable statutes and case law may support additional themes.

Readers of this blog know I’m a big fan of Chief Justice Roberts, and I’ve talked about his work as an advocate many times before. My favorite Roberts’ brief, in Alaska v. EPA, contains a law-based theme.

To make a long story short, the Alaska litigation resulted from the state’s decision to allow a large mine to install a particular pollution control system (the BACT or Best Available Control Technology). The EPA challenged the decision, claiming that Alaska acted arbitrarily and capriciously in its determination. But the law at issue, the Clear Air Act, favored Alaska’s position:

The [Clean Air Act] by its terms thus gives the States the authority to determine BACT for a particular source, and allows the States broad discretion in making that determination. This is confirmed by the Act's legislative history: “The decision regarding the actual implementation of best available technology is a key one, and the committee places this responsibility with the State, to be determined in a case-by-case judgment. It is recognized that the phrase has broad flexibility in how it should and can be interpreted, depending on site.”

So Roberts reminded the reader throughout the brief of the “broad flexibility” given states to determine BACT on a “case-by-case” basis.

-“Because BACT is a discretionary judgment, involving the ‘case-by-case’ prioritizing and weighing of potentially competing impacts and costs, there is no single, objectively “correct” [technology] determination for any particular source.”

- “The determination of BACT is ‘strictly a State and local decision’ — “[f]lexibility and State judgment are [its] foundations.”

- “Congress intended the States to have ‘broad flexibility’ in applying the statutory factors, and ‘[t]he weight assigned to such factors is to be determined by the State.’”

-“In substituting its judgment for that of Alaska, however, the EPA plainly usurped the State's prerogative to determine BACT ‘on a case-by-case basis.’”

- “BACT is a discretionary judgment based on the case-by-case weighing of the applicable statutory factors. Accordingly, there is no single, objectively ‘correct’ BACT determination for any particular source—no ‘technology of choice’ that applies without regard to case-specific policy judgments about how to balance competing impacts and costs.”

- “By giving the States the authority to determine BACT ‘on a case-by-case basis,’ Congress ensured that the States would be able to effectively ‘manage their allowed internal growth’ under the Act.”

- “When it came to BACT, however, Congress had a different idea, and left that determination—‘on a case-by-case basis’—to the States.”

Whether your theme is fact-based or law-based, remember that you shouldn’t try to shoehorn the facts or law into theme they aren’t consistent with. And don’t beat your reader over the head with the theme: Do as Roberts does and weave the theme throughout the brief, like an undercurrent that is always present but not always visible.

Friday, April 17, 2015

Logical Punctuation?

The Twitter world was ablaze yesterday over this Slate article by Ben Yagoda on the shift in mainstream America toward "logical" punctuation. Yagoda's article specifically addresses the American English tradition* of placing punctuation inside quotation marks, though I think the term "logical punctuation" can also include other punctuation, such as the use of commas, dashes, and semi-colons.

I, like Judge Dillard of the Georgia Court of Appeals (@judgedillard), am opposed to logical punctuation. But as my Twitter friend Ellie Margolis (@elliemargolis) pointed out, logical punctuation can be fine if used intentionally. The problem of course, as Yagoda recognizes, is that most writers don't consciously use logical punctuation; their punctuation results from a lack an understanding of American English punctuation rules.

What do you think? With the movement toward less formalism in legal writing, is logical punctuation the next big thing? 

Happy Friday!  

*Writers of British English place punctuation outside quotation marks.

Tuesday, April 14, 2015

Writing Tools for Lawyers Part III

*This is the final part of a multi-post series based on Writing Tools: 50 Essential Strategies for Every Writer by Roy Peter Clark

Tool 38 Prefer Archetypes to Stereotypes

With Tool 38, Clark recognizes the stock structures or narrative themes present in writing. Clark urges writers to employ themes and symbols subtly—In Clark’s words, use symbols not cymbals to advance the story. 

Legal writers are wise to employ themes in their briefs. Common themes include:

-good versus evil (or big, powerful versus small, weak)
-government versus the little man
-heroism
-overcoming obstacles
-rich versus poor
-patriotism
-war and peace
-purposes of punishment  

Good writers don’t beat the reader over the head with the theme, though. Instead, they allow the theme to run as an undercurrent throughout the argument.
 
In next week’s post, I’ll tackle the topic of developing and employing themes in legal writing.   

Tool 43 Read for Both Form and Content

Clark urges writers to look for “the machinery beneath the text;” that is, to “see how it works.” Good writers better their craft by learning from other accomplished writers.

Legal writers should do the same and read briefs by good writers. Briefs written by John Roberts and Elena Kagan (when they were practitioners), Paul Clement, Seth Waxman, and David Boies are good places to start. Read briefs closely and critically, identifying the techniques used. 

Ross Guberman’s Point Made and Noah Messing’s The Art of Advocacy include hundreds of examples of good briefs that employ various legal writing strategies. Pick a strategy you can emulate and make a point to do so in your next brief. Once you become familiar and comfortable with that strategy, employ another.   

Tool 45 Break Long Projects Into Parts

“Tiny drops of writing become puddles that become rivulets that become streams that become deep ponds.” So says Clark, in reminding writers to make writing a habit. 

A large project (an appellate brief, for example) can seem overwhelming. And what happens when a project feels overwhelming? We procrastinate, choosing to work on easier tasks until the last possible minute.

Bad briefs often result from poor time management. I know from my own experience that too many attorneys don’t even think about—much less begin—writing a brief until a week (or less) before it is due. The near-certain result is a brief that could have been good if the writer had taken time to organize the arguments, polish the writing, and properly proofread.

Follow Clark’s suggestion and break large writing projects into parts, set a schedule, and stick to it. And leave plenty of time to pull those parts together to create a cohesive final product.

You don’t even have to devote an entire day to writing—you can break your schedule down into hours if that works better for you. And if you feel you need breaks from writing (which I recommend), you can schedule “off days.”

Date
Task
5/1—3 hours
Confirm and draft ancillary sections required by Court of Appeals rules
5/2—5 hours
Draft Statement of the Case
5/3—4 hours
Draft Appeal Issue #1
5/4—3 hours
Draft Appeal Issue #2
5/5—3 hours
Draft Appeal Issue #3
5/8—2 hours
Draft Summary of the Argument
5/9—2 hours
Draft Table of Contents and Table of Authorities
5/10
Off
5/11—5 hours
Proofread and polish
5/12—2 hours
Coworker review
5/13—2 hours
Finalize

 

Friday, April 10, 2015

Oral Argument Strategy?

Many first-year law students are preparing for oral arguments this week and next. If you're one of them, here's hoping you prepare hard and employ a better strategy!

 
Happy Friday!

Tuesday, April 7, 2015

More Writing Tools for Lawyers

*This is the second in a multi-post series based on Writing Tools: 50 Essential Strategies for Every Writer by Roy Peter Clark

Tool 26: Use Dialogue as a Form of Action

In Tool 26, Clark urges writers to use speech both to advance the story and to give the reader “airy white space that ventilates dialogue.” According to Clark, though, when reporting information—which lawyers often do—the writer should intermix dialogue and other storytelling techniques to ensure quoted material comes with context.

I’ve talked about this before, but choice quotes from documents or deposition testimony reveal far more than summaries of the same information. And deposition testimony offers the same “airy white space” that visually gives the reader a break.

Tool 27: Reveal Traits of Character
 
I got ahead of myself last week in talking about Tool 5. I urged writers to use facts to show, rather than tell the reader the story. Clark covers this tip in Tool 27, when he encourages writers to avoid “vague character adjectives,” such as “superstitious” or “quirky,” and instead use facts to allow the reader to draw the conclusion.
 
This recent article outlines how attorneys for the federal government in a high-profile criminal case are using emails to show that RBS employees made false statements about mortgage securities purchased by Fannie Mae and Freddie Mac.
 
Rather than simply tell the judge that RBS believed the securities were bad, the attorneys have used specific language from numerous emails in which RBS employees called the securities “lemons,” “junk,” and “pigs.” Attorneys presented one former RBS vice president with an email in which he called the securities “crap.”
 
When asked if the word “crap” is ever used in a positive sense, the former employee responded: “Nothing comes to mind.”
 
That's powerful stuff.

Tool 32: Place Gold Coins Along the Path
 
This is an interesting tool used most effectively, I believe, by suspense writers. Think of a novel or story with a plot twist—The Postman Always Rings Twice, Gone Girl, We Need to Talk About Kevin, The Secret Life of Walter Mitty. Once you learn the ending, you see the “gold coins” the writer dropped along the way foreshadowing the twist.
 
Clark has this to say about the importance of “gold coins”:
 
Think of a gold coin as any bit that rewards the reader. A good start is its own reward….But what about the territory between the beginning and the end? With no gold coins for motivation, the reader may drift out of the forest….’ The easiest thing for a reader to do,’ argued famed editor Barney Kilgore, ‘is to quit reading.’
 
That couldn’t be more true with legal briefs. While you probably can’t weave a plot twist in to your legal brief, you can drop gold coins along the way to ensure your brief remains as interesting as possible throughout. Clark suggests that a gold coin can be an anecdote, a “startling” fact, a “telling” quote, or other interesting information. While you’ll want to start with your strongest argument and evidence, work hard to keep the middle of you brief interesting as well by employing Clark’s other tools.  

Friday, April 3, 2015

Bill and Ted Would Approve

Justice Kagan's recent opinion in the Omnicare case has garnered attention for her use of "way" as an adverb: She concludes Omnicare "way overstates" the breadth of a law. Justice Kagan's known for her way cool writing style, so I’m not surprised to see her drop interesting colloquial phrases into her opinions. In fact, I hope she’ll continue to do so—she provides great fodder for me and others interested in judicial opinion writing.

I think 80s time travelers Bill and Ted would totally have a cow over the bodacious Justice Kagan’s gnarly opinion.