Friday, August 29, 2014

Legal Writing and Battlin' Bulldog Beer

In the South, football is religion, so it's no surprise that there's an Eleventh Circuit opinion full of football metaphors and references. In the 1980s, the University of Georgia sued a local brewer who was selling Battlin' Bulldog beer in a red and black can featuring a beer-
Photo courtesy of eBay seller betweenthehedges1980
swigging bulldog that strongly resembled the University's bulldog mascot.

The Eleventh Circuit described the beer maker’s hope that the beer would “pile up yardage and score big points” in the beer market, “kick[ed] off” its discussion by noting it would only be deciding whether the district court properly applied the Lanham Act, and concluded that while the beer maker had a clever “entrepreneurial game plan,” the University of Georgia was able to hold it to “little or no gain."

This case and others are part of my article Riding the Bench--A Look at Sports Metaphors in Judicial Opinions which is forthcoming this fall in the Harvard Journal of Sports and Entertainment Law.

Happy Football Season!

Tuesday, August 26, 2014

Persuasion and Deposition Testimony

Depositions are an integral part of discovery, and many lawyers use deposition testimony to support or defend dispositive and other motions. Often, lawyers will summarize deposition testimony:

The defendant stymied the discovery process by refusing to answer even the most basic questions at his deposition, acting in a combative manner, and refusing to cooperate.
October 30, 2013 Deposition of Kenneth Ray 4:15-25; 5:6-25; 6:1-25; 7:1-16.

This tactic is ok—it gets the point across. But including the exact testimony itself can be much more effective, especially if the testimony is unequivocal:

The defendant stymied the discovery process by refusing the answer even the most basic questions at his deposition, acting in a combative manner, and refusing to cooperate:

Q:    What is your address.

A:    I don’t see what that has to do with anything. You don’t need to know my address. It’s none of your business.

Q:    Mr. Ray, I’m entitled to ask these questions as part of the discovery process.

A:     Well I’m not answering it.

Q:    Ok. Where are you currently employed.

A:    That is irrelevant too. You don’t need to know that.

Q:   This is part of the discovery process, Mr. Ray. I can ask questions to obtain discoverable information. My client is seeking a judgment against you, and I’m entitled to know if you’re employed and where.

A:    You’re not getting that information from me. Next question.


Q:    Are you going to answer any of my questions.

A:    Maybe. It depends on what you ask.

Q:    Ok. We’re here to talk about an accident that occurred on June 24, 2012 between you and my client. Where were you going at the time of the accident.

A:     That has nothing to do with anything.

Q:     Are you declining to answer the question.

A:     Yes.

October 30, 2013 Deposition of Kenneth Ray 4:13-25; 5:6-14.

As you can see, the second example is exponentially more persuasive. The reader can see exactly how difficult the deponent was during his deposition. It’s one thing to say the deponent refused to answer basic questions, but another for the reader to “hear” the deponent refuse to provide even his address or employer’s name.  

And in many cases, courts want to see the exact testimony anyway. It’s not that they don’t trust the lawyers’ summary. It’s just that they want to confirm that the lawyer hasn’t taken too many liberties and attempted to extend the testimony to say something the deponent didn’t actually say.    

Next time you cite deposition testimony in support of or opposition to a motion, consider including the exact testimony to add persuasiveness.

Friday, August 22, 2014

A True Amicus Brief?

This week, Tony Mauro wrote an interesting article about a Supreme Court amicus brief penned on behalf of no one that supports neither party.

The author, Thomas Goldstein, calls the brief a "rare true amicus brief.” He argues many amici aren't real "friends of the court"—they have some interest in the outcome. Goldstein believes his brief—which contains data neither the parties nor other amici provided—may assist the justices in “coming up with a workable rule for everyone, not just the parties before them.”

One Supreme Court veteran noted if [the amicus brief] provides helpful information to the court, it is ‘in the very best traditions of the bar,’” but wondered “why this is a good use of the authors’ time.”

The full article is here.

What do you think? Will Goldstein’s “true” amicus brief become a trend?

Happy Friday!

Tuesday, August 19, 2014

Wordiess and Verbosity

I’ve been working hard lately to remove excess words and phrases and sentences that begin with “There is/are” from my writing. I’m still a work in progress, but here are some of the specific phrases that make their way into many lawyers’ writing, including mine:

Wordy Phrase

Better Option

As a result of…


In the event that…


For the purpose of…


Has an effect upon


In a timely/prompt manner…


Due to the fact that…


Adequate number of…


During such time as…

In his book Plain English for Lawyers, Richard Wydick has a list of additional compound constructions and good alternatives. And Daily Writing Tips has a helpful list of 50 plain-language substitutes for wordy phrases here.

I’m also attempting to remove sentences that start with “There is/are.” These sentences often are unnecessarily lengthy and confusing. For example:

There are three reasons why the court should dismiss this case.

The court should dismiss this case for three reasons.

The second sentence is shorter and more direct.

And I’m trying to nix “the fact that” from my writing—it’s rarely necessary. For example:  

The fact that the defendant initially lied to the police is irrelevant.

The defendant’s initial lies to police are irrelevant.

If you are like me, you must work hard to clean up wordiness in your writing. It won’t come naturally. You’ll need lots of practice. But the payoff will be big—better, more straightforward writing.

Friday, August 15, 2014

Editing Art

If we added a little paint, I think Bob Ross would approve.

Happy Friday!

Tuesday, August 12, 2014

A Few of My Favorite Reads

Raindrops on roses and whiskers on….oh, sorry, I got carried away there. Since we’re starting a new academic year, I'm offering a list of some of my favorite legal writing books. These texts will help improve your writing whether you’re a law student, new associate, or seasoned partner and will keep you away from the dog bites, the bee stings, and feelings of sadness about your writing.

Noah Messing, Art of AdvocacyArt of Advocacy could be used as a textbook but is a great source for practitioners as well. Art of Advocacy focuses on brief- and motion-writing strategies and offers hundreds of examples from practitioners’ briefs to illustrate Messing’s points. He provides an explanation of each technique and an introduction to each example, then highlights the specific information he wants the reader to focus on. Perhaps my favorite part of Art of Advocacy is Messing’s explanations for and examples of specific types of arguments, including policy arguments and arguments premised on legislative history. He explains the relative value of each type of argument then shows readers how to make them most that argument.      

Ross Guberman, Point MadePoint Made is an excellent resource for practitioners looking to add pizazz to their briefs. Guberman offers some really cool tips on organization and style. Like Messing, Guberman includes real-life examples for each of his tips, which really enable the reader to see how effective the tips are.  Point Made is well-organized; all tips on a particular topic are grouped together, and the reader can quickly flip to sections of interest. Point Made is, deservedly, popular, and Oxford University Press recently put out the second edition that includes additional tips and examples. For my prior review, see here.

Steven Stark, Writing to Win—I’ve reviewed Writing to Win before as well, here. I like Writing because of its easy-to-read, conversational style. The majority of the tips offered in Writing relate to trial-level and appellate brief writing, but Stark also provides tips for drafting pleadings, including complaints, answers, affidavits, and discovery requests. Writing is a great book for everyone from law students to mature lawyers. Even if you think you know everything there is to know about legal writing, I bet you’ll find something you didn’t know in Writing.

Bryan Garner, The Winning Brief—In The Winning Brief, Garner offers 100 tips for writing winning briefs. Each chapter includes an explanation of the tip and good and bad examples of brief writing. Because of the short nature of each chapter, the reader can pick up Winning Brief for a few minutes and come away with tons of useful advice. Garner’s tips are well-labeled, and the index enables the reader to quickly find specific tips. The appendix also includes some of Garner’s favorite briefs that allow the reader to see how to put all of Garner’s tips together to produce a winning brief.

Richard Wydick, Plain English for LawyersPlain English is a short but excellent source for those dedicated to improving their writing. Like the book itself, the chapters in Plain English are short and to the point. Wydick targets grammar, substance, and style, with tips ranging from avoiding nominalizations to punctuating carefully to arranging sentences to keep the subject, verb, and object close. Wydick also includes exercises at the end of the chapters for readers to practice their skills.

These are a few of my favorite reads! Do you agree, or do you have other favorites?

Friday, August 8, 2014

Scalia Irony

Per Merriam-Webster, irony is “a situation that is strange or funny because things happen in a way that seems to be the opposite of what [was] expected.” There’s “hipster irony,” and,

Photo taken by Steve Petteway,
Staff Photographer of the Supreme Court.
Licensed under Public domain 
via Wikimedia Commons

if some recent judicial opinions are any indication, there may be "Scalia irony" as well.

Federal judges in several states, including Idaho, Texas, Virginia, Utah, and Kentucky, have cited the words of Justice Scalia—specifically, Scalia’s dissents in Lawrence v. Texas and United States v. Windsor, the DOMA case—in striking down same sex marriage bans.

In the Idaho case, Latta v. Otter, the judge cited Scalia’s dissent in Lawrence to support her holding that Idaho’s same sex marriage ban is unconstitutional:

"But, as Plaintiffs argue, it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation. Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. “But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting)."

2014 WL 1909999, at *21 (D. Idaho May 13, 2014).

And in Kitchen v. Herbert, out of Utah, the judge cited Scalia’s Windsor dissent:

"The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare. . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.133 S. Ct. at 2709 (citations and internal quotation marks omitted).

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."

961 F. Supp. 2d 1181,1194 (D. Utah Dec. 30, 2013).

Isn't it Scalia ironic, don't you think? Happy Friday!

Tuesday, August 5, 2014

The Past Can't Hurt You Anymore, Not Unless You Let It

The past can’t hurt you anymore, not unless you let it.
                                                          -Alan Moore

Legal writers often have difficulty addressing unfavorable facts. Generally, they must include those facts to satisfy their ethical requirements but want to do so in a way that doesn’t draw unnecessary attention to them. As I’ve indicated before, I think the best way to avoid drawing attention to bad facts is to include them in the place they logically fit in the statement of facts so that they appear to be just another part of the factual history. Other strategies for minimizing bad facts: (1) include them in the middle of a long sentence or paragraph, or (2) place them in a dependent clause, where they will receive less attention from the reader.

The second strategy was employed by Christopher Simmons’s counsel in his brief in Roper v. Simmons. Simmons was convicted of murder and sentenced to death for a crime he committed when he was 17 years old. On appeal to the Supreme Court, Simmons’s counsel argued juvenile offenders should be ineligible for the death penalty. They argued that Simmons was extremely immature for his age and unable to appreciate the seriousness of the crime and its potential consequences.

But prior to his trial, Simmons’s trial counsel had hired a psychologist. Dr. Cuneo, who determined Simmons was sane and competent to stand trial. Because the psychologist’s opinion was unhelpful, he did not complete a report or testify at the trial. Simmons had to address this bad fact on appeal, but chose to hide it in a footnote: 

Dr. Cuneo testified at the post-conviction hearing that he had conducted only limited interviews with Simmons' family. He was unaware of much of the developmental history that [Simmons’s newly hired psychologist] Dr. Smith elicited, including Simmons' dysfunctional home environment and his drug and alcohol abuse, and he believed that, had he known that history, it would have been significant to his evaluation. Based on the more limited and incomplete evaluation of Simmons he was able to conduct, Dr. Cuneo concluded that Simmons was sane at the time of the offense and competent to stand trial, but that his psychological condition was potentially mitigating. After discussing Dr. Cuneo's initial findings with him, Simmons' trial counsel chose not to have Dr. Cuneo complete his evaluation and not to have him testify.


Brief for Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812, at *6 n.5 (internal citations omitted).

Simmons’s counsel does a good job of hiding this unhelpful fact that had to be addressed. After all, if a psychologist had found Simmons sane and competent to stand trial, that fact could undermine Simmons’s argument that juveniles lack the requisite understanding of the consequences of their actions.   

Strong legal writers have also learned more advanced strategies to deal with bad facts. Some writers choose to confront bad facts head on but to minimize their importance by including additional helpful facts. This strategy was employed by Exxon’s counsel in litigation over the Exxon Valdez oil spill. The Valdez ran aground because its crew failed to properly steer the vessel, negligence compounded because the Valdez captain had left the deck, in violation of Exxon’s explicit policies, at the time the accident occurred. The Valdez spilled 285,000 barrels of oil into Prince William Sound.  

In its brief to the Supreme Court, Exxon chose to confront those bad facts but minimize their importance by focusing attention on Exxon’s post-spill efforts: 

On March 24, 1989, the Exxon Valdez, a state-of-the-art, well-equipped tanker, ran aground on Bligh Reef in Prince William Sound. The immediate cause was the failure of Third Mate Cousins to steer the vessel away from the reef. The vessel's master, Captain Hazelwood, instructed Cousins when and where to make the turn, but then left the bridge - a violation of Exxon's explicit policy requiring two officers to be present. For reasons that remain unknown, Cousins failed to make the turn as instructed, and the ship went aground, spilling 258,000 barrels of oil.

Exxon immediately dispatched an emergency response team which prevented the discharge of the remaining 80 per cent of the vessel's oil. Exxon acknowledged responsibility for the spill and initiated a massive cleanup, ultimately spending $2.1 billion on that effort - almost double Exxon's annual profit at that time from all United States petroleum operations.  

Exxon also established a claims program that paid commercial fishermen and others asserting that the spill had disrupted their businesses. Plaintiffs “were almost entirely compensated for their damages years ago.” “Some were paid cash without providing releases, some released claims but not all, and some released all claims. Exxon spent $300 million on voluntary settlements prior to any judgments being entered against it.”  

Typically, claims were paid in advance, on estimates of what the fishermen would earn in 1989. Since fish processors pay fishermen at the end of the season, Exxon paid many fishermen before they would normally have received payment for fish. Such payments did not so much compensate for losses as prevent them. Alyeska Pipeline Service Company, the operator of TAPS, paid another $98 million to resolve claims that its oil spill contingency plan had been inadequate. Millions in claims were also paid by the Trans-Alaska Pipeline Liability Fund, the entity created by Congress to provide compensation for a spill. The Fund sought and obtained reimbursement from Exxon. 

In addition, Exxon instituted comprehensive remedial measures to reduce the risk of future spills, including: (1) new navigation policies specifying daylight-only departures and reduced speeds in icy conditions, limitations on deviations from traffic lanes, and increased use of tug escorts; (2) a technologically advanced satellite-based navigation tool; (3) a strengthened policy requiring masters to remain on the bridge; (4) enhanced safety training programs; (5) revised alcohol policies; (6) improved monitoring and reporting procedures; (7) random testing for alcohol or substance abuse; (8) an absolute prohibition against use of alcohol by vessel officers while on a tour of duty; (9) additional mates in port; (10) new mandatory rest periods; and (11) strengthened corporate environ-mental and safety policies, a new Safety, Environmental and Regulatory Department, and a $1 billion industry-wide program to improve spill response capability. 


Brief for Petitioners, Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (No. 07-219), 2007 WL 4439454 at *2-4 (internal citations omitted).

Exxon’s counsel’s strategy is genius. The Valdez spill was then the largest in U.S. history, and Exxon could not get around that fact or the fact that its crew was negligent. So Exxon succinctly addressed those bad facts in a single paragraph, then spent the next four paragraphs outlining all the good acts Exxon undertook post spill. By the time the reader finishes the passage, the reader has almost forgotten about the spill itself.

The next time you find yourself with bad facts, consider employing one of these strategies to minimize the impact of those facts and maximize persuasion.