Wednesday, August 28, 2013

Check Yourself Before You Wreck Yourself

Editing is a skill that takes lots of practice.  Entire books have been written on editing, so I can’t teach you to be a great editor in one short blog post.  A few tips, however, can go a long way toward helping you produce documents with fewer errors.

1.    Tips that too few people follow.

Too many lawyers forget these “common sense” tips—use spell check (but don’t rely solely on it), ensure that your font size and style are consistent throughout the document, double check small words, such as “is,” “it,” and “in,” and words that have multiple spellings (e.g. guarantee and guaranty).  Review case and statute citations twice.  It is very easy to transpose reporter and page numbers and your audience (i.e. the judge) will get frustrated if she can’t find the case or statute you’ve cited.

2.     Proofread on Paper

I’ve never met anyone who can proofread well on a screen.  Readers catch more errors when they proofread on paper—I don’t know why this is true, but it is.  Print your draft double-sided if you’re concerned about conserving paper.

3.     Spell check will not catch spelling errors in ALL CAPS.

Many folks don’t realize this, but it’s a fact.  Thus, if you don’t carefully check document titles, section headers, and other parts of motions and briefs in all capitals, you’re just as likely to submit a BREIF as a BRIEF.

4.     Give yourself time, if you can.

The best writers give themselves time to put a document away for a few days so they can look at it again later with fresh eyes.  Even if you don’t have that much time, don’t start editing immediately after you finish drafting—come back an hour or two later.

5.     Read your document out load.

This tip is a particularly good way to catch awkward sentences and redundant words and phrases.  It may seem silly, but try it after you’ve already made one proofreading pass-through and see if you don’t catch additional errors.

Tuesday, August 20, 2013

Are You Ready for Some Football?

I didn’t mean to suggest by my last post that judges should never have fun with their opinions.  Opinions with (appropriate) apropos metaphors and references are interesting and memorable. 

Take, for example, the opinion in Dunkelman v. Cincinnati Bengals, Inc., 821 N.E.2d 198 (Ohio Ct. App. 2004), a case about seat licenses at the Bengals’ Paul Brown Stadium.  The opinion is peppered with football references.  The Ohio Court of Appeals describes how the trial court “punted the case to binding arbitration,” thereby forcing the appellate court to “reverse the call made on the field.” Id. at 199.  The plaintiffs argued the Bengals tried to change the rules regarding seat licenses “midgame,” a tactic akin to an “illegal pass.” Id. at 201.  Conversely, the Bengals argued that the plaintiffs had agreed to the seat license “gameplan.” Id. at 201.  The appellate court found the plaintiffs were not required to arbitrate their claims and “return[ed] the trial court’s punt.” Id. at 204.

Judicial opinions should always be well reasoned and well written—but they don’t have to be sterile and boring!

Monday, August 12, 2013

Rhyme Time

Anyone who has ever practiced will tell you that lawyering can be overwhelming, omnipresent, and exhausting.  A little levity in the practice of law is often a good thing.  But is it really appropriate for a court to issue an opinion written in rhyme—especially in a criminal case that resulted in a seven-year sentence?  

In Brown v. State, 134 Ga. App. 771, 216 S.E.2d 356 (1975), the Georgia Court of Appeals issued a rhyming opinion overturning the defendant’s conviction.  According to the court, the trial court erred in refusing to delay the trial to permit one of the defendant’s witnesses to testify.  The opinion reads, in part:

To continue civil cases  
The judge holds all aces
But it’s a different ball-game
In criminal cases.
Was one day’s delay
Too much to expect?
Could the State refuse it
With all due respect?...
This case was once tried
But should now be rehearsed
And tried one more time.
This case is reversed.

Id. at 773, 216 S.E.2d at 357.

What do you think?  Is this opinion appropriate, or does it cross the line?  Does it make a difference that the court overturned, rather than affirmed, the defendant’s conviction?  


Tuesday, August 6, 2013

The Bluebook Blues

I’m not going to pretend that The Bluebook is not confusing—because it is.  And for every general rule I think I’ve learned, I always seem to later find an exception I didn’t know about.  Below are three “tricky” Bluebook rules:

1.       Case names—Case names are abbreviated pursuant to the abbreviations listed in Table 6 only in citation sentences.  If the case name is contained in the text of the sentence, the name is not abbreviated except for “widely known acronyms” and the words “&” “Ass’n,” “Bros.,” “Co.,” “Corp.,” “Inc.,” “Ltd.,” and “No.” Bluepages Rule B4.1.1(vi).  For example:

          “[E]ven subject-matter jurisdiction may not be attacked collaterally.”  Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004)).

     The Supreme Court’s holding in Travelers Indemnity Co. v. Bailey, 557 U.S. 137 (2009), is narrow.

2.       Citations to Westlaw/Lexis—I often see errors with these citations.  The failure to include the docket number and the full date of the opinion are the most common errors in citations to unreported cases available on Westlaw or LexisNexis.

         Westlaw and LexisNexis cases are cited like other cases with the full case name, docket number, database, court name, and full opinion date. Bluebook  Rule 10.8.1  For example:

     The opinion is Wreyford v. Citizens for Transportation Mobility, Inc., No. 1:12-CV-2524-RLV, 2013 WL 3965244 (N.D. Ga. Aug. 1, 2013).

                   Pinpoint cites for unreported cases are slightly different than those for cited cases.  For unreported cases, you should put a comma after the database information then the word “at” and an asterisk before the page number.

          The court held that “[e]ven if commercial calls are more burdensome on average than non-commercial calls, under intermediate scrutiny, Congress is not required to use the least restrictive means of promoting the government interest….” Wreyford v. Citizens for Trans. Mobility, Inc., No. 1:12-CV-2524-RLV, 2013 WL 3965244, at *3 (N.D. Ga. Aug. 1, 2013).

3.       Numbers and superscript—“Second” is abbreviated “2d” and “third” is abbreviated “3d” (not 2nd or 3rd), and no superscripts should be used (e.g. 11th).  So,

          Courts consider more than just the defendant’s proximity to a firearm in determining if the defendant was in “possession” of the weapon. United States v. Benjamin, 711 F.3d 371 (3d Cir. 2013).*

              Appellate courts review a district court’s grant of summary judgment de novo, viewing all evidence and making all reasonable inferences in the light most favorable to the non-moving party. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1243 (11th Cir. 2004).

*“United States” is not abbreviated when it is a party to an action. Bluepages B4.1.1(v).

Friday, August 2, 2013

I Used to Could, But Now I Can't

Colloquialisms are informal words or phrases that often are regionally specific.  Colloquialisms, while acceptable in conversations, have no place in formal writing, legal or otherwise.  Below are some common colloquial phrases that should be avoided:

We know for sure the accident was caused by the defendant’s negligence. 
“For sure” is a colloquialism that should either be replaced with “for certain,” or removed altogether. 

It is like the contract never existed. 
“Like” should be avoided.  Replace “like” with “as if.”

The plaintiff use to golf prior to the accident. 
“Use to” is never appropriate—the correct phrase is “used to.”

The defendant could of/would of/should of avoided the accident. 
Replace “of” with “have.”  The defendant could have/would have/should have avoided the accident.

At the time of his death, the decedent was caring for three kids. 
“Kids” are baby goats.  Use “children” when referring to human offspring.

The defendant was pretty angry after the victim pushed the defendant’s girlfriend.
You should avoid “pretty” and stick to more formal words, such as “relatively,” “fairly,” and “quite,” or simply remove altogether.

There were an awful lot of people affected by the defendant’s conduct.
“Awful lot” should be replaced with “many,” a synonym of “many,” or a specific number.