Friday, March 28, 2014


I recently heard someone use the word "momager." I wondered, what do you call a word like "momager" that is a combination of other words? The answer--a portmanteau.

A portmanteau is a blend of the sounds and definitions of two or more words:

-smog (smoke + fog)
-guesstimate (guess + estimate)
-brunch (breakfast + lunch)

Many portmanteau words have become new, recognized words unto themselves, and we've forgotten that they're really blended words. Consider "gerrymander" (Gerry + salamander). The word was first used in 1812* to describe Massachusetts Governor Elbridge Gerry's redrawing of the state's election districts. One of the re-drawn districts resembled a salamander, and a new word was born.

We even find portmanteau words in the law, such as "breathalyzer," which comes from "breath" and "analyzer." And "carjack" (car + hijack). And the subject of the recent Hobby Lobby case--the contraceptive mandate in Obamacare (Obama + healthcare).

There are tons of fun portmanteau words:

-infomercial (information + commercial)
-staycation (stay + vacation)
-netiquette (internet + etiquette)
-emoticon (emotion + icon)

If portmanteau is ever a Jeopardy answer, you'll be ready! Happy Friday!

*However, the term "portmanteau" wasn't used until 60 years later. In his 1871 book, Through the Looking Glass, Lewis Carroll first used "portmanteau" (a piece of luggage with two compartments) to refer to a blended word.

Tuesday, March 25, 2014

Writing for Judges

NOTE: This post is adapted from my article, Writing for Judges, which first appeared in the Fall 2013 edition of the Federal Bar Association's Litigation Section Newsletter, SideBar.

Judges complain that practitioners don’t know how to craft concise, well-written briefs. Lucky for us, many things that irritate judges about the briefs they see are pretty easy to fix. The tips below are generally universal, but always defer to the first tip. If the local rules set strict guidelines for briefs and filings, follows those rules.

Follow the Local Rules
Few things annoy judges more than practitioners who fail to comply with local rules, such as rules setting margins, outlining font style and size, and establishing page limitations. Judges are less likely to respect the substantive points made by attorneys whose briefs don’t comply with the local rules. Why? Because failure to comply with the local rules means one of two things: either the attorney couldn’t be bothered to read the local rules or—worse—the attorney read them but didn’t care enough to comply with them. How can the judge trust the substantive work of someone who is either that lazy or that careless? We tend to forget the rules are there for a reason. Even if you don’t understand the reasons behind the local rules, comply with them anyway.

Use Introductions and Conclusions

Judges often complain that writers launch into their arguments or fact statements without giving the reader any context. Judges love short introductions that tell them the type of case and the issues, summarize the party’s position, and state the relief the party is seeking. A powerful opening sentence that concisely sets forth your strongest argument can set the tone for a persuasive, winning brief. If the brief or filing is lengthy, use a table of contents to set the roadmap. Judges appreciate informative conclusions as well. Use a short conclusion to summarize your client’s position and briefly remind the court of the authority you’ve cited to support that position and the reasons it should grant your motion. Keep introductions and conclusions short—I recommend no more than a double-spaced page for each.

Briefs are So Named for a Reason
Don’t feel compelled to fill every line of your 25 page (or 30 page or 50 page) limit. One of the most apt quotes I’ve encountered about legal writing says it all: lawyers suffer from an inability to say what is necessary and then to stop. Judges are busy—they appreciate brevity. I’m not suggesting you should sacrifice important points for the sake of keeping it short, but exercise discretion in choosing your issues—unless absolutely necessary, a brief or motion should probably be limited to 3 issues or fewer. Good points get lost in lengthy, verbose briefs, and untenable arguments dilute the strength of good ones. Fancy or esoteric words, unnecessary Latin phrases, and overly long sentences do nothing but lengthen your brief and distract the judge from the merits of your argument. And don’t belabor your points. Repeating the same position 15 times in a brief does not make the brief 15 times more persuasive. It just ticks the judge off and detracts from your credibility.

Organize Your Arguments in a Meaningful Way
Judges also complain about unorganized briefs. Use headings and subheadings to organize your points and thoughts. Even general headings such as Factual Background, Citation to Authority, Analysis, and Conclusion will help guide the reader. In considering the issues, judges often refer back to specific parts of the parties’ briefs—make it easy for the judge to find your arguments. A short recitation of pertinent facts is usually the best place to start (unless the court is so familiar with the facts that it is unnecessary to repeat them). Follow the factual background with an outline of the relevant authority and an analysis of the issues in light of the authority (including any counter-analysis to your opponent’s position on the issues).
Unless there is a good reason to do otherwise, you should start with your strongest argument. That said, if there are threshold, dispositive, or uncontested issues, don’t forget to address those first. For example, are you arguing a personal jurisdiction issue based solely on specific personal jurisdiction? Admit up front that the court lacks general jurisdiction—don’t make the court go through a general jurisdiction analysis only to learn you aren’t arguing it has general jurisdiction over the non-resident defendant. That would be frustrating to anyone and is especially frustrating to time-pressed judges. Also, don’t be afraid to make strategic concessions in your argument—they enhance your credibility as an advocate and give you the opportunity to show why unfavorable facts or law do not undermine your position. Judges strive to make fair decisions that are consistent with the governing law. Don’t make it difficult for them by making meritless arguments–or worse—frivolous ones.

Perform a Legal Analysis
You are responsible for convincing the judge your position is sound. You can’t just cite cases and expect the judge to do your analysis for you. Many judges say lawyers are good at citing relevant authorities but bad at analyzing their own cases in light of those authorities. Often, a lawyer’s analysis is simply a summary of the facts in a conclusory manner. This won’t cut it. The analysis should answer one question: Why should your client win in light of the facts and law? I try to make sure my analysis comprises 15-20% of any brief I write (e.g. 2-3 pages of a 15-page brief). I’ve found any less analysis generally isn’t enough—I haven’t done a complete analysis. And any more is too much, where I’m doing nothing more than beating the proverbial dead horse. And remember—never “fudge” the facts or law in your analysis or elsewhere in your filings. By doing so, you risk irreparable damage to your credibility and, as a result, your client’s case. Expect the judge to check your authority for accuracy.

Grammar and Style Do Matter
The goal of every brief should be to make it as easy as possible for the court to grant your motion. Judges have a hard time reading and understanding briefs replete with grammatical and other errors.You should know some core writing and grammar rules.If you don’t, invest in a short, helpful writing guide, such as Plain English for Lawyers or The Elements of Style.

Small Things that Are Really Big Things
Always remember that you are judged on your brief from the minute the judge picks it up. Judges have an easier time focusing on the substance of briefs that are well-formatted and professional. Don’t forget to:
• Number the pages of your brief.
• Spellcheck your documents.
Make sure your citations are correct so the court can locate the authorities you cite. If you rely on foreign or hard-to-find authorities, attach copies to your brief.
• Format your documents in a way that is aesthetically pleasing—choose appropriate fonts and margins and ensure the font style and size is consistent throughout.
• Avoid long paragraphs—particularly those occupying an entire page—and do not overuse block quotations or emphasis, or punctuate sentences with anything other than a period (unless you are citing from the record).

These are just a few suggestions to improve your written advocacy skills. I can’t promise you’ll win every motion if you follow these tips; however, I can promise the clarity and effectiveness of your motions and briefs will improve. And judges will appreciate that.

Friday, March 21, 2014

IRAC...Therefore I Am

Professor Jennifer M. Romig recently shared her funny legal writing memes, which you can find here.

In honor of Professor Romig's site, I came up with my own LW meme:

Happy Friday!

Tuesday, March 18, 2014

Sticks and Stones May Break My Bones...

You may already have seen this recent Seventh Circuit opinion from Judge Posner. If you haven't, take a few minutes to glance at it.

To make a long story short, the defendant and her lawyer, a co-defendant, settled a personal injury lawsuit. The plaintiff had a $180,000 lien on the proceeds from the settlement, but the lawyer disbursed the funds to himself and the defendant, leaving nothing to satisfy the lien. The plaintiff brought suit to recover the lien amount. The trial court issued a preliminary injunction ordering the defendants to place $180,000 in trust to satisfy the plaintiff's lien. The defendants didn't comply, and the trial court found them in contempt. 

In the opinion, the Seventh Circuit upholds the trial court's contempt order. But this opinion isn't interesting for its content--it's interesting because Judge Posner lets loose on both the defendants and the trial judge. He first criticizes the defendants' brief, calling it "gaunt and pathetic" and pointing out that it contains only 118 words of legal argument. For good measure, he even throws in a "brevity is the soul of wit" jab. Judge Posner goes on to describe the lawyer as "untrustworthy" and to criticize the lawyer's "shenanigans" before the trial court. 

But he doesn't stop there--he then goes after the trial judge, writing that she should have "smelled a rat" early in the litigation and not allowed the defendants to continue to drag the case along for more than two years.

I don't know what to make of this opinion. It's harsh--I don't think that can be disputed. But this is not the first harsh opinion we've seen, and it certainly won't be the last. 

Is it too harsh, though? Sometimes litigants deserve scolding--and maybe these litigants deserved every bit of the scolding they got. And maybe the trial judge shouldn't have let the case drag on. 

What do you think? Too harsh? Not harsh enough? Or just right?

Friday, March 14, 2014

Advanced Editing Marks

I'm one of those strange people who enjoys editing. I've never used any of these proofreading marks, but I'm keeping them in mind for future reference!

Happy Friday!

Tuesday, March 11, 2014

New Kids on the (Writer's) Block

Writer’s block stinks. Just when you need to be productive, you suddenly find you have nothing to say—or you know what you need to say, but you don’t know how to say it. Writer’s block is particularly challenging for lawyers who, as a group, tend to procrastinate and then try to cram a day’s worth of writing into a few hours. The best way to overcome writer’s block is to write every day—practice makes perfect. But these tips can help too.  

Write at the best time for you
I’m a morning person and am always more productive in the morning. Thus, my best writing comes early in the day. Write at the time of day you have the most energy and can be the most productive. If you work best after lunch, use the morning to answer emails, make telephone calls, and handle other issues, then devote the afternoon to writing. If you’re already suffering from writer’s block, don’t force yourself to try to write when you aren’t your most productive.  Of course, this requires planning—you can’t procrastinate or you’ll be stuck writing night and day.

Avoid distractions
This is easier said than done. But try to minimize things that distract you from writing—emails, telephone calls, Facebook etc. Turn off your cell phone or turn on the Do Not Disturb feature on your office phone. Close your office door and ask your assistant not to disturb you. If you need sound, listen to a Pandora station that won't distract you, such as Classical for Studying. If you lack the discipline to keep yourself from playing online while you should be working, invest in a program like Freedom that will block your internet access for a period of time.

Keep reference materials nearby
Don’t give yourself any reason to get up from your writing and become distracted. Keep your reference materials, such as a dictionary, Bluebook, and style guide nearby. If you are relying on cases or statutes, keep copies handy for easy reference. And cite as you go along rather than try to go back later and add citations—it’s much easier to do it right the first time.  

Write the easy part first
If you’re having trouble starting at the beginning, start somewhere else. Draft the standard of review first if that seems easy. Or start by drafting the statement of facts. Once you get going, the words often will start flowing. You can go back later to add or delete sections and homogenize your document.

Try writing on paper
If you’re like me, you write everything electronically now. But if you’re stuck, try changing things up. Move away from your computer and use a pen and notepad to make an outline or jot down some general thoughts. Once the creative juices get flowing, go back to your computer and use your hand-written notes for reference.

Talk it out
If you’re struggling with what you want to say, talk to a non-lawyer. Ask a friend, family-member, or spouse to listen to you explain the topic you’ll be writing about. Take notes as you go and pay close attention to areas that are confusing to the listener. Use the notes you’ve made from your conversation as a starting point for writing. Of course, avoid violating your attorney-client privilege by disclosing privileged information.

Thursday, March 6, 2014

Thistle Do Nicely!

I love a good play on words. While I was in Edinburgh recently, I came across this souvenir shop:

The thistle is the national flower of Scotland. According to legend, Scotland was almost invaded by a Norse army many centuries ago. Scottish warriors, who were supposed to be on guard, were sleeping as the Norse army crept in. One of the invaders, who was barefoot, stepped on a thistle and screamed out in pain. His screams woke the Scottish warriors, who jumped to their feet and defeated the invaders. The Scots honored the thistle's role in saving the country by making it the national flower.
Happy Friday!  

Tuesday, March 4, 2014

The Unfortunate Case of Sir Roger Casement

I've talked many times about the importance of serial commas and how commas can make a huge difference in the interpretation of a sentence. Sir Roger Casement should know—he was, quite literally, hanged by a comma. 

Casement, an anti-Imperialist, was accused of treasonous acts in Germany during World War I.  Under Britain’s Treason Act of 1351 (yes—1351), treason was committed:

If a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and conform in the realm, or elsewhere….
The Crown alleged Casement had given aid to the King’s enemies in Germany.  Casement’s counsel argued that the Act applied only to activities carried out in Britain or on British soil.  Because of the existence of the comma after “giving to them aid and conform in the realm,” the court determined that a person could be guilty of treason if he gave aid to an enemy of the British Empire on British soil “or elsewhere.”  Because Casement aided enemies of the Empire in Germany, he was convicted of treason and hanged in 1916.