Friday, June 27, 2014

Law and Liquor

I grew up in beautiful southern Tennessee. When I was in high school, we lived in Tullahoma, home of George Dickel, located about 10 miles down the road from Lynchburg, home of Jack Daniel’s. Both distilleries have produced and sold “Tennessee whiskey” for many years, but now a fight has arisen over a 2013 law that defines the term.

The LLW and her husband at Jack Daniel's in December 2013

Last year Tennessee lawmakers passed a bill defining “Tennessee whiskey” as alcohol (1) “manufactured” in Tennessee; (2) from mash of at least 51% corn; (3) distilled to no more than 160 proof; (4) aged in “new, charred oak barrels” in Tennessee; (5) filtered through maple charcoal; and (6) bottled at no more than 80 proof. T.C.A. § 57-2-106(a).
The “definition,” however, appears to apply only to Jack Daniel's (other distilleries use a slightly different mash, age their product in different types of barrels, or filter the product differently, or all of the above). Thus, under the statute, smaller distilleries, like George Dickel, can’t label their product “Tennessee whiskey.”

George Dickel’s parent company, Diageo Americas Supply, Inc., has challenged the law, and this summer, Tennessee legislatures are expected to revisit the definition of “Tennessee whiskey.

I feel a new law school seminar coming on: Law and Liquor.

Click here for more on this story.

Happy Friday!   

Tuesday, June 24, 2014

Drafting Requests for Production of Documents

Like interrogatories, requests for production of documents (often called RFPs or RPDs) are merely questions. Through RPDs you ask the opposing party to produce certain documents relevant to the litigation. Remember, discovery is broad, so you can generally ask for documents “calculated” to lead to discoverable evidence, which may include documents that aren’t admissible. And don’t forget that the local rules or relevant rules of your jurisdiction may limit the number of RPDs you can send, so prioritize your RPDs to ask for the documents you believe will be most important to the litigation.

As with interrogatories, you aren’t entitled to documents that constitute attorney work product or which are protected by the attorney-client privilege. Many jurisdictions, though, require a party withholding documents based on privilege to produce a privilege log describing the document generally and the reason it is being withheld.  

What to Ask For
It's difficult to create a list of RPDs that apply to every case. Generally, though, you’ll want to ask for these categories of documents:
-documents that support or are relevant to the claims or defenses;
-contracts or other writings, such as emails, that evidence a contract (if applicable);
-the CV of any expert witness;
-all documents reviewed by any expert witnesses;
-the contents of any expert witnesses’ files;
-incident/accident reports and records;

 -employee personnel files (if applicable); for employees involved in the incident/accident;
-corporate training manuals and materials;
-photographs (of any person or thing relevant to the litigation);
-documents the party used in responding to interrogatories; and
-documents referenced in the party’s interrogatory responses.
In personal injury actions, you’ll also want to ask for:
-medical records and bills;
-wage records (such as W-2s or 1099 forms); and
-records for any other claimed special damages.
In a products liability action, you may want to ask for documents related to other lawsuits or claims involving the same product. As with interrogatories, you likely will want to limit your RPDs in time or scope.
How to ask for it
Your RPDs should be straightforward, just like your interrogatories. If the RPDs aren’t clear and easy to understand, they’re likely to draw an objection. Your RPDs should look something like this:

Please produce all documents that support your defense of lack of service of process.

Please produce the curriculum vitae or resume of any person you intend to call as a witness in the trial of this matter.

Friday, June 20, 2014

Bring Up the Lawyers

Those who follow me on Twitter know I love to read. I firmly believe reading good writing (of all kinds) is essential to becoming a better legal writer. I justify my "pleasure reading" on that ground and always looks for ways I can use writing styles from my for-fun books in my lawyerly writing.  

I recently finished Bring Up the Bodies, written by Hilary Mantel, who won the Man Booker Prize for Wolf Hall. Both Bodies and Wolf Hall chronicle the events surrounding the schism that led the Church of England to break from the Catholic Church--specifically, the dissolution of Henry VIII's marriage to Katherine of Aragon and his subsequent, ill-fated marriage to Anne Boleyn. The story is told through the eyes of commoner Thomas Cromwell, a lawyer who worked his way into Henry's Court, eventually becoming Henry's chief minister.

Cromwell's take on lawyering--as told by Mantel--is intriguing. In my view, these tidbits from Bodies reflect (for better or worse) a rather common view among lawyers of the role of "truth" in the law:  

"What is the nature of the border between truth and lies? It is permeable and blurred because it is planted thick with rumour, confabulation, misunderstandings and twisted tales. Truth can break the gates down, truth can howl in the street; unless truth is pleasing, personable and easy to like, she is condemned to stay whimpering at the back door."       

"[W]e are not priests. We don't want their sort of confession. We are lawyers. We want the truth little by little and only those parts of it we can use."

Here's hoping you're the type of lawyer who "uses" more truth than you discard.

Happy Friday!

Tuesday, June 17, 2014

Drafting Interrogatories

Interrogatories (a fancy name for a list of questions) are sent as part of the discovery process in litigation and allow parties to gain information relevant to the litigation. Many attorneys send interrogatories before they engage in other types of discovery, such as depositions, because interrogatory responses often help an attorney narrow down the types of questions the attorney will ask during a deposition. Generally, though, there is no set order for discovery, meaning that interrogatories can be sent at any time during the discovery period, even after depositions. Below are some tips for drafting interrogatories:

Know How Many Questions You Can Ask

Many jurisdictions limit the number of interrogatories a party may ask, so before you get started, know the maximum number of interrogatories you can submit. Attorneys often draft interrogatories with subparts to get around the rules—in some jurisdictions that practice is acceptable, and in others it is not. So even if you know the relevant law, you also need to know the common practice in your jurisdiction. If you are only allowed a limited number of interrogatories, prioritize and send the most important questions. You can ask additional questions during a deposition and gain information relevant to other questions through Requests for Production of Documents (RPDs), which I’ll talk about next week.

Ask the Right Types Questions

Many new lawyers don’t know what types of questions to ask, and some veteran lawyers draft poor interrogatories and don’t receive helpful responses. Discovery in most jurisdictions is quite broad, meaning, generally, you can ask for information that isn’t even admissible (such as hearsay) so long as the information you seek is “reasonably calculated to lead to the discovery of admissible evidence.” Of course, a party need not provide information protected by a privilege, such as the attorney-client or work product privilege.

It’s impossible to provide a list of interrogatories that universally apply, but, generally, you’ll want to ask for the following types of information:

-personal or corporate information of the opposing party
-personal information of witnesses/others with knowledge of events leading to lawsuit
-party’s version of events leading to the lawsuit
-factual bases for claims or defenses
-personal information of expert witnesses
-insurance information
-the names of other parties who are or might be liable or responsible for paying a judgment

In personal injury actions, you’ll also want to ask for the injured party’s:

-pre-accident medical history
-injuries, diagnoses, and treatment received as a result of the accident

No matter the type of case, you’ll want to clarify the relief the party is seeking. If monetary damages are claimed, you’ll need to ask for information on:

-the amount of claimed damages
-how those claimed damages have been calculated

Avoid Overly Broad Questions

Keep questions short and to the point to avoid objections. For example:

Please state your name, date of birth, current address, and address on the date of the accident (if different from your current address).

Have you retained an expert to testify at the trial of this matter? If so, please provide that person’s name, employer, address, and telephone number.

If you want to ask for a broad category of information, consider either limiting the request in time or limiting the breadth. A question such as “Has Michelin ever been the defendant in a products liability suit” is going to draw an objection—Michelin likely has been a defendant in hundreds, if not thousands of products liability suits.
If you ask that question, you may have to spend substantial time and money fighting over whether and to what extent Michelin must respond. In the event you do have to seek court intervention to get discovery responses, you’ll look better in the judge’s eyes if you’ve limited your request either in time or breadth, or both:

Has Michelin been named a defendant in a products liability suit filed in Texas in the last 10 years? (limited in time to 10 years and breadth to those cases filed in Texas)

Has Michelin been named a defendant in a products liability suit arising from an accident allegedly caused by a defect in a LTX M/S2 tire? (limited in breadth to a certain tire type)

Next week I’ll offer tips on drafting RPDs.

Friday, June 13, 2014

Why I Write

My Twitter friend Jennifer Romig (@jennifermromig and @listenlikealwyr), who blogs at Listen Like a Lawyer (, invited me to participate in this cool blog hop on “Why I Write.”

Check out Listen Like a Lawyer for Professor Romig’s “Why I Write” post here, and you can follow the trail backwards to read other bloggers’ posts about why they write. At the end of this post, I’ve listed a few bloggers I follow. I hope these bloggers will pick up the “Why I Write” theme and carry it on.
What am I working on?
I’m very excited that a legal writing text (not quite sure of the title yet) I co-wrote with Adam Lamparello will be coming out this fall from LexisNexis. We’re really excited about this book because we don’t think there’s much else out there like it. The standard legal writing texts teach memos and appellate briefs, but we focus on trial-level civil documents, and we cover everything from complaints to motions for summary judgment to motions in limine. We use a single hypothetical throughout the text, offer numerous examples of the advice we give, and discuss how we utilize our suggestions in the sample documents. The book is intended to serve as a supplement to a traditional legal writing textbook, a text for an upper-level legal writing or litigation drafting course, and a helpful reference guide for new attorneys.  

I also have an article coming out later this year in the Harvard Journal of Sports and Entertainment Law called Riding the Bench—A Look at Sports Metaphors in Judicial Opinions. And I just wrote a short, follow-up article for the Sidebar (Federal Bar Association litigation section newsletter) called More Writing for Judges.

I have partial drafts of several other articles that aren’t anywhere close to being ready for publication. I’m particularly interested in the intersection between ethics and legal writing—specifically, the pedagogy of teaching law students how to be ethical writers. I’m also interested in religion and the ways judges use the Bible, Torah, and Koran as authority in their written opinions. 

As for my blog posts, you’ll see below that I don’t generally write posts more than a few days before I make them, and I haven’t yet decided on the topic for my next post.
How does my writing differ from others of its genre?
I don’t know that the substance of my writing is much different from that of others who provide legal writing instruction. While some writers and readers may have pet peeves (I’ve talked about that before here), many hallmarks of good legal writing are universal. My advice is generally non-controversial in the legal writing world—I believe in using serial commas, omitting contractions, erring on the side of formality, etc.  

My writing might differ slightly from that of others in my approach, though. I try to take a practical approach and give readers examples they can actually incorporate into their daily lives. It’s one thing to tell people how to write well, but quite another to show them how to do so with examples of good writing. I don’t give advice in the abstract—I show readers what I mean. Imitation is the sincerest form of flattery, and I learned many things about good legal writing from imitating the works of good writers (both legal and non-legal). I hope to help others do the same.

I also try to keep my writing light—I use a less formal, more conversational, readable style in my posts. And I try to incorporate real-world advice. In a perfect world, you’d have plenty of time to research and write, you’d catch every typo, there would be binding, on-point authority to support your position, and The Bluebook would be easy to use. Real-life practice is often different—at least it was for me. So I try to give realistic advice that time-pressed, stressed-out law students and attorneys can use.   

I’m not a particularly funny or clever person, but I add my brand of humor to my posts (to the extent possible). I think lawyers, as a group, take themselves way too seriously, and that’s often reflected in their writing—If you wouldn’t say something, you shouldn’t write it. This is a situation up with which we should not put (see what I did there). Practicing law is difficult, and in my Friday Funny posts, I try to add a little humor and show law students and lawyers a lighter side of law.
Why do I write what I write?
Because I’m a nerd—and I know it. I had the good fortune to learn about legal writing from some amazing professors—specifically, Linda Edwards and Jennifer Sheppard. I naively thought everyone received good legal writing training in law school. Then, when I got out in practice, I realized that many lawyers are poor writers.

Lawyers need to be able to communicate effectively with clients and other lawyers and write persuasive briefs. So many legal issues are decided on briefs. A lawyer can have amazing oral argument skills, but if the case is decided on the briefs, the lawyer will never get the opportunity to showcase them. I believe legal writing is one of the most important skills students should learn in law school—no matter what type of law a lawyer practices, the lawyer must be a good writer to be successful. So, I consider LLW to be my small contribution to the practice of law.   

I do try, however, to stay away from substantively controversial topics. I’m actually a very private person—writing a blog, tweeting, and having a LinkedIn account is the extent of my participation in social media, and sometimes I think even that is too much. I generally don’t share much about myself and my non-legal-writing opinions because I don’t want to discourage readers who might not agree with my views. The legal writing advice I offer is—I think—universal. When I talk about a case, I talk about the case’s importance in the context of legal writing. In all honesty, I’m not generally concerned about the outcome—I just want to know how lessons from the case can help me (and my readers) become better writers.  

And I love to learn. They say teaching others is a great way to learn, and that is the case for me. In writing this blog, I’m also improving my own writing—something I try to do every day.

How does my process work?

For LLW, I write about what comes to mind each week. When I first started blogging, I kept 5-10 posts in my queue, just in case I couldn’t think of anything to write about. But since I haven’t found that to be a problem, I now draft most posts a day or two before I make them. They might be based on something I saw on Twitter or read in a legal writing textbook, or on questions from my students, friends, or colleagues, or on something I have seen in court filings. Unless I indicate otherwise, the tips and suggestions I offer are my own, drawn from my experience, and they’re often given with a caveat that other legal writing professors and assigning attorneys may have different ways of doing things.

With respect to my articles, I gain ideas in much the same way. When an idea interests me, I do a little research to see if the topic is something I could feasibly write about. Based on the research, I decide the focus of the article and how long I might want it to be. Sometimes I write articles with a particular publication in mind and tailor my writing to that publication’s readership. I’m constantly looking for new ideas and publication opportunities.   

And in case anyone was wondering: I don’t post about cases I’ve worked on either as an attorney or a law clerk. While some of my ideas (especially my examples) are drawn from things I’ve seen in practice, I make significant changes to the facts or applicable law, or both, so the examples bear no resemblance to any real-life cases I’m familiar with.
Please check out these blogs:
Scott Bell— (@lawyerescape)

Scott describes himself as a recovering attorney. Scott’s blog is an insightful, honest look at his dissatisfaction with the practice of law and how he walked away and found happiness doing other things. Scott’s guest bloggers share their stories and encourage those looking for law practice alternatives to follow their passions, even if that means leaving law.
Raymond is a practicing appellate attorney based in New Orleans. On his Louisiana Appellate blog, Raymond outlines changing Louisiana appellate rules, summarizes important cases, and offers advice on useful CLEs. The (New) Legal Writer includes a collection of articles about legal writing from Bryan Garner, Ken Adams, and others as well as Raymond’s own musings on good legal writing.
Tony Iliakostas— (@lawandbo and @ailiakostas)
Tony just graduated from law school and is taking the New York bar exam this summer, so he may be posting and tweeting a little less. But Tony’s entrepreneurial spirit is evident in his Law and Batting Order brand—he’s everywhere online and even produces video episodes of LABO, where he discusses hot topics in sports law. This year alone, Tony’s covered a plethora of topics, including the Donald Sterling saga, Alex Rodriguez’s lawsuit against MLB, Darren Sharper’s legal troubles, MLB’s pine tar rule, college athlete unionization, and NCAA compliance. I love sports and enjoy Tony’s fun, insightful posts on his blog and Twitter.

Tuesday, June 10, 2014

More Non-Writing Tips for Memos

Below are my non-writing tips 6 through 10 for drafting memos in practice:                  
6. Learn the style and page-limit expectations. Some firms and partners use certain forms for memos, which may differ slightly from the form you learned in law school. If you're unfamiliar with the assigning attorney, ask if the attorney expects you to use a particular form for the memo. If not, use the form you’re most comfortable with. Also, be sure to ask if the assigning attorney is looking for a memo of a certain length or if there is a page limitation. Remember, though, the attorney wants a thorough memo, not a tome. So even if there is no page limitation, be concise.  

7. Allocate time for each task. New attorneys often spend WAY too much time researching legal issues (for fear they're missing the seminal on-point case) and don't leave enough time to write the memo itself. In your head or on paper, create a plan of action and allocate time for each task. For example, if you have 6 hours to research and draft a memo, you might allocate 2.5 hours to research, 3 hours to drafting, and 30 minutes to editing and revising. Try to stick to your plan as closely as possible so you don't get behind. But don't be afraid to adjust the plan later, if necessary. You may discover the law is convoluted and you need additional time to research before you start drafting. If you're going to need to bill more time to complete the assignment, refer to tip #5.   
8. Know what to do if there's no authority on point. In law school memo assignments, there's almost always some authority on-point that you'll use to support the conclusions in your memo. But in the real world, you won’t always find what you’re looking for. Sometimes there's no binding authority, only persuasive authority. And sometimes there's no binding or persuasive authority at all, and you'll be grasping at straws to find any authority you can use to analyze your client's legal issues. If there's no binding authority on point, ask the assigning attorney if the attorney wants you to look outside the jurisdiction for persuasive authority. And if you can't find any authority at all, let the assigning attorney know before you spend hours gnashing your teeth. Sometimes attorneys will suspect there's little or no authority on a particular issue and simply ask for research and a memo to confirm that suspicion. You can't generate court opinions out of thin air—if there's no relevant authority, there's no relevant authority. But let the assigning attorney know the difficulties you're encountering before you spend hours researching an issue for which you cannot generate any written work product. 

9. If you discover additional issues through your research, address them in your memo. Sometimes your research will reveal additional issues that the assigning attorney may not have contemplated. Assume you've been asked to research the likelihood your client will prevail on libel and slander claims. You discover through your research that your client's claims might be subject to an anti-SLAPP motion to strike/dismiss. Your memo should include a discussion of the anti-SLAPP statute, even if the partner never mentioned the anti-SLAPP statute when she assigned the memo. The partner might be unfamiliar with defamation law and have never heard of the anti-SLAPP statute. The partner is relying on you to educate her about that area of law, and unless she specifically tells you not to address a particular issue, address all important, potentially dispositive issues you learn about through your research.     
10. Don't be afraid to ask for clarification. If you ever have questions about the assignment, don't be hesitant to ask. The assigning attorney would much rather you ask questions in the midst of an assignment than complete the assignment with a misunderstanding of the facts or issues you are to research. But follow tip #1, and take good notes to minimize later questions.

Friday, June 6, 2014

Thumbs Down

Chief Justice Roberts had a little fun at the expense of government prosecutors in his recent Bond opinion. Bond v. United States, No. 12-158, --- S. Ct. ----, 2014 WL 2440534 (June 2, 2014). The facts themselves are entertaining: real-life desperate housewife Carol Bond sought to exact revenge on her husband's mistress by burning the mistress with chemicals (not funny) in the hope of causing the mistress an "uncomfortable rash." (funny). But the chemicals Bond used are readily visible (which Bond--a microbiologist--must certainly have known), and her rival was able to avoid them, except on one occasion, where the mistress suffered a minor burn on her thumb that she treated by rinsing with water.

For reasons unknown, federal prosecutors charged Bond under a federal chemical weapons statute ostensibly designed to prevent the use of chemical weapons by terrorists and during warfare.* The case ended up at the Supreme Court after Bond entered a conditional guilty plea and was sentenced to serve 6 years in prison.

Applying principles of federalism and statutory construction, Justice Roberts and the majority concluded the chemical weapons statute did not reach Bond's conduct.

A hint of sarcasm underlies the dry methodicalness of Roberts' majority opinion, in which he notes that "no speaker in natural parlance would describe Bond's feud-driven act of spreading irritating 'combat.'" 

According to Roberts, the government's reading of the statute would "sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room," and would criminalize the conduct of a parent who, "exasperated by the children's repeated failure to clean the goldfish tank...considers poisoning the fish with a few drops of vinegar." (Who knew vinegar could kill goldfish?)

Watch out, Bubbles!

Justice Scalia's concurrence also contains several funnies, including his question about whether an individual who poisons a Congressperson's goldfish to send a menacing message, "a small-time equivalent of leaving a severed horse head in bed," could be prosecuted under the chemical weapons statute. Props to Scalia for the Godfather reference.  Oh, those clever Supremes!

Happy Friday.        

* Bond was also charged with mail theft--she stole an envelope from the mistress' mailbox on one occasion when she deposited some of the powdered chemical there.

Tuesday, June 3, 2014

Memos: Not Just About Writing

There's more to writing a legal memorandum than simply writing the memo. There's learning the facts, there's figuring out the legal issues, and there's researching the law, just to name a few. Students learn to draft memos in a controlled law school environment (and rightly so) with distinct legal issues and on-point authority. But once students get out in the real world, memo drafting isn't always so straightforward. Here are the first 5 of my top 10 non-writing tips for drafting memos in law practice.

1. Take thorough notes and read any written assignment carefully. If you receive a memo assignment orally, take thorough notes that you can refer to later for clarification, and don't be afraid to ask the partner to slow down if you need a few more seconds to jot down the information. Consider writing an email to the partner or assigning attorney summarizing your understanding of the assignment. If you receive the assignment in writing, read it carefully, both when you receive it and when you begin your research. Highlight the information you think is most important. If any essential information is missing from the written assignment, email the assigning attorney and ask for that information.   
2. Make sure you have a clear understanding of the facts. The facts are very important to your analysis, so think critically about the facts of your client's case. Are you missing information that might sway the analysis? Are you unclear about certain important facts? Do some facts seem to contradict each other? If so, go back to the partner and ask if the partner can answer your questions or clarify your understanding of the facts. The partner may also be able to speak with the client or connect you with a client contact who can answer additional questions you may have about the facts at issue.    

3. Know the legal issues you need to address. Often, partners will be very clear about the legal issues you are expected to research and analyze--Is the client likely to prevail on a claim for tortious interference with business relations? Sometimes, though, the partner won't be clear enough on the relevant law to know exactly what to tell you to research, and your assignment will be more amorphous--What causes of action should the client allege in his complaint? Sometimes you'll need to research multiple issues and sometimes only one. Be sure you're clear on what the issues are before you start your research.          

4. Know how long the assigning attorneys expects you to spend on the memo. When you are learning to draft legal memos, you might spend 30 hours or more researching and drafting a single memo. But in the real world, you'll likely need to spend substantially less time, especially if you will be billing your time to a client. It's often difficult to ensure you perform thorough research and analysis while meeting the client's billing expectations, but this is the reality of real-life practice. If you are given only 5 billable hours to spend on a memo, do your best to allocate your time appropriately between research and writing. If it's not possible to complete the assignment in the time allotted, ask the assigning attorney for more time (firms will often eat associate time that can't be billed to clients). If you can't get more time, include a caveat in your memo indicating which issues you weren't able to thoroughly research or analyze.       

5. Relatedly, ask when your memo is due. Sometimes you'll have a week or more to research and draft a legal memo. Other times, your client will need an answer in 24 or 48 hours, and you'll have to generate written work product in a much shorter period of time. Be sure to ask the partner or assigning attorney when the memo is due. And if the memo is taking longer than anticipated or other work will prevent you from completing the memo on time, talk to the assigning attorney to see if the due date can be adjusted.    

Check back next week for tips 6-10!