Tuesday, December 22, 2015

12 Days of Law School

On the first day of law school, my writing prof told me—
Everyone hates Bluebooking

On the second day of law school, my writing prof told me—
Proofread carefully

On the third day of law school, my writing prof told me—
Avoid legalese

On the fourth day of law school, my writing prof told me—
Employ strong verbs

On the fifth day of law school, my writing prof told me—
Use passive voice selectively

On the sixth day of law school, my writing prof told me—
Follow local rules

On the seventh day of law school, my writing prof told me—
Use serial commas

On the eighth day of law school, my writing prof told me—
Judgment has no “e”

On the ninth day of law school, my writing prof told me—
Deploy your spell checker

On the tenth day of law school, my writing prof told me—
Thorough but concise

On the eleventh day of law school, my writing prof told me—
Explain first, argue second

On the twelfth day of law school, my writing prof told me
Be forthright with the law

                                               *******

Best wishes for a happy holiday season and a wonderful new year!

I'll be back with new posts in January.

In the meantime, enjoy my favorite rendition of 12 Days:


Tuesday, December 15, 2015

Lawyers, Liars by Jonathan Shapiro

I recently read Lawyers, Liars, and the Art of Storytelling by Jonathan Shapiro. I may do a more thorough review soon but, in the meantime, I wanted to share some of my favorite food-for-thought from this funny, breezy, yet somehow substantive book about the importance of storytelling in the law.

On timing: "For lawyers and writers, why and when someone chooses to say something are as important as what they actually say. Story choice, timing, and representation matter as much as content." And while the storyteller is "in charge," for the story to work, the conversation "can't be one-sided." 

On using what you're given: "Unlike writers, lawyers are more limited by the story elements they are given. We cannot make things up out of thin air; we must win with what we have....The materials in the box are the case facts and the law, along with anything else fate has provided. If you can use the materials to build a persuasive story, you can save [your client]. It depends on your intelligence and creativity. Whether the resolution is happy or sad depends on how well you do your job. Begin by knowing what is in the box." 

On "the truth": "There is a difference between television truth and legal truth. But they have one thing in common. Neither is the actual truth."

On editing: "Having written their script, lawyers should edit their stories with the same amount of thought and planning. That often means rewriting the script to reflect additional information, better material, or new ideas. It means being flexible, taking advice, changing things to make the story better. In short, editing requires the exact skill and temperament most writers and lawyers don't have."

On logos: "Not everything in law or life is logical."

Lawyers, Liars is currently available only in hardback, but the paperback version will be released in February 2016. 

 

Friday, December 4, 2015

Thank You

The ABA has selected Lady (Legal) Writer as a 2015 Blawg 100 honoree!

Many thanks to all who regularly read my posts and share them with others. The feedback and support I've gotten from readers has been wonderful. I hope you continue to enjoy this blog. If you've got feedback for me or would like to see a topic covered, please don't hesitate to let me know! 

Happy Friday!


Tuesday, December 1, 2015

American Legal Style PerfectIt: A Review

American Legal Style PerfectIt is billed as a product to "improve the process of editing and proofreading legal documents." According to its website, PerfectIt checks "the most common errors and tricky or hard-to-remember rules" from The Bluebook, Bryan Garner's The Red Book, Black's Law Dictionary and other style guides to locate errors in legal documents and recommend corrections. It basically works like a spell-checker by flagging issues, recommending changes, and allowing you to accept or reject its recommendations. 

The Tests

PerfectIt checks, among other style issues: 

Hyphenation
Abbreviation
Capitalization
Headings
Formatting
Spelling
Bullets/Lists
Tables

These functions far exceed those available through Word's generic spelling and grammar checker. But PerfectIt does even more. It checks for Bluebook errors (i.e. correcting the abbreviation for Tennessee Court of Appeals from Tenn.App. to Bluebook-compliant Tenn. App.). It ensures you've removed all Track Changes and comment bubbles. It flags straight quotes and suggests "smart quotes" instead (the curly ones my Blogger platform won't allow me to use). PerfectIt even flags tricky exceptions to general grammar and usage rules (e.g. corrects "previously-used documents" to "previously used documents").

Ease of Use

PerfectIt is easy to use and, as promised, there's no learning curve.
PerfectIt appears as a ribbon on your Microsoft Office toolbar. To use, you simply click the PerfectIt ribbon and select "Launch PerfectIt." I intentionally chose not to read any directions first to see how easy the tool is to use, and I can confirm that it's easy to use. For those who want a little more direction, the "Getting Started' and "Using PerfectIt" buttons provide tons of information on the product.  

The "Manage Styles" and "Choose tests" buttons allow you to modify the software, instructing it to check certain sections or run only some of its many tests. Further, you can use the style sheet editor to customize PerfectIt to your firm or department style. For example, you can set PerfectIt to flag certain words or phrases (e.g. "cease and desist") and to suggest a recommend change (e.g. "cease"), to check that your document contains Oxford commas, and to ensure that certain words or phrases always or never appear in italics.  

My Take

I tested PerfectIt on both a settlement agreement and a summary judgment motion. It caught errors in both. For example, in the settlement agreement, the software noted an internal inconsistency--I referred to the document as both "Agreement" (my defined term) and "agreement." In my brief, PerfectIt flagged my inconsistent use of "re-confirmed" and "reconfirmed." I changed my brief to contain a few citation errors and PerfectIt caught them. It even flagged legalese ("pursuant to") and suggested a change ("under").

The only drawback I noticed was how the program treated the word "court." At times I used the term generically (the court held) and at times to speak directly to the reader (this Court). The program flagged my use as inconsistent (which it was, but intentionally so). I believe, however, that the customization feature will allow me to add the phrase "this Court" to the list of phrases checked and to prefer capitalized "court" when preceded by the word "this."

A word to the wise: PerfectIt is subject to the GIGO principle--garbage in, garbage out. Like any computer software, PerfectIt does what the user tells it to do. So if the user isn't making thoughtful decisions about the recommended changes (remember the sea sponge attorney?), the end product will suffer. The program is very easy to use, but you can't simply run it and print. You must decide whether to implement the recommended change for each flagged item.   

A single PerfectIt license is $99 (a one-time fee, I believe) and, in my opinion, is well worth that price. Based on my test, PerfectIt does what it promises to do--reviews legal documents for a variety of grammar, usage, and citation errors and suggests ways to improve the document checked. I think PerfectIt is a great product, and I'll continue to use it on all my legal documents. If you'd like to test PerfectIt before purchasing, you can download a free 30-day trial here.

*I received a free license to test the PerfectIt product, but I am not being paid for this review, and all opinions are my own. 

Friday, November 20, 2015

Word (?) of the Year

Oxford Dictionaries' word of the year for 2015 is...


not actually a word. It's the "face with tears of joy" emoji. 

The response to this week's announcement has been mixed. Some love the "progressiveness." Others believe Oxford Dictionaries has taken liberties with the word "word" in choosing a symbol.

What do you think? Is OD progressive, or is its choice unbefitting of one of the world's most authoritative English dictionaries? 

Happy Friday!

Tuesday, November 17, 2015

Re-Post: Using Legal Writing Skills on Law School Exams

Law school exams will be upon us in just a few short weeks. Rather than reinvent the wheel, I'm re-posting this piece from last year showing students how they can use their legal writing skills on doctrinal law school exams. 

Exam time is a stressful period, no doubt. Students: study hard. Keep your nerves under control. And use these tips to help you get all that information in your head down on paper.

http://ladylegalwriter.blogspot.com/2014/11/using-legal-writing-skills-on-law.html

Good luck!

Thursday, November 12, 2015

Emoticons, Emojis, and Evidence

This cool article, published by Slate a couple of weeks ago, outlines the history of emoticons and
emojis and considers several cases in which courts have been asked to interpret the meaning of these little digital characters. According to author Amanda Hess, the first emoticon appeared in 1982, when Carnegie Mellon computer science professor Scott Falhman suggested using :-) to convey jokes and :-( to convey seriousness on his department's online message boards. Since then, emoticons have evolved, to say the least. The Unicode Consortium, which standardizes text characters and emojis, now recognizes 1,281 of these digital symbols. 

Hess notes that, in many ways, emoticons and emojis are similar to the non-verbal cues that judges and juries have been asked to interpret for centuries. Just like non-verbal acts, which have various meanings, emoticons and emojis have no standard definitions. They can be used literally or ironically and can be interpreted by the sender and recipient in very different ways. I'm certain we'll continue to see more emoticon and emoji cases as this fascinating area of communication develops and changes.  

Happy Friday! :)

Monday, November 9, 2015

Commas, Canons, and Prior Convictions--The Lockhart Case

I tell students every year that a comma can mean the difference between life and death, as was the case for Sir Roger Casement, who was hanged by a comma. The existence or lack of a comma can be the difference in millions of dollars or none. And in the case of Avondale Lockhart, a comma may mean many extra months in prison. 

Last week, the Supreme Court heard Lockhart's case, which centers on interpretation of 18 U.S.C. 2252(b)(2).  That statute provides for a mandatory minimum sentence of 10 years for someone convicted of violating federal child pornography laws who has also previously been convicted of a state charge "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."

In 2010 Lockhart pleaded guilty to buying child pornography. His sentencing guidelines were increased to the mandatory minimum of 10 years because Lockhart had previously been convicted of attempted rape of his then-girlfriend (who was not a minor). The government took the position that the qualifying language "involving a minor or ward" applies only to the third class of crimes, meaning that even though Lockhart had not previously been convicted of a sexual crime involving a minor, he was subject to the trumped-up sentence for his prior attempted rape conviction. Lockhart disagreed, arguing that the qualifying language applies to all three classes of crimes, and because his prior conviction did not involve a minor, he should not have been subject to the mandatory minimum sentence. 

In Lockhart's case, two canons of statutory interpretation produce different results. Under the last-antecedent canon, the qualifying phrase only applies to the final class of crimes; under the series-qualifier canon, the qualifying phrase applies to each class of crimes in the series. 

During last week's oral argument, Justice Alito gave Congress a D grade for its drafting of 2252(b)(2), and Justice Scalia told attorneys for the parties that he had "no assurance what the right answer is." As The Economist notes, Congress could have modified the language and punctuation of the statute in several different ways to clarify its intent. Because it didn't, another canon of statutory interpretation--the rule of lenity--likely will save Lockhart from the longer term. 

Friday, November 6, 2015

Being a Lawyer is Easy...

It's that time of both the semester (for students) and the year (for lawyers) when everyone is tired. We've all been working hard for a while now, and the holidays are still a few weeks away.

The good news is that for many lawyers, the crazy busyness of law practice starts to slow down some in late November and early December. The bad news is that the hecticness starts all over again in January.

A friend recently showed me this t-shirt which, I think, accurately sums up the practice of law some days. Not every day, thankfully. But some.


For those interested, you can purchase this funny shirt here.

Happy Friday!

Tuesday, November 3, 2015

Florida's Brief in Hurst v. Florida

Last week I discussed Timothy Hurst's brief in a death penalty case pending before the Supreme Court, Hurst v. Florida. This week, I'm looking at Florida's brief, in which it argues that its laws relating to death sentences are constitutional. 

Outlining Favorable Facts

Like Hurst, Florida uses its brief to point out helpful facts, some of which aren't important to the issues before the Court. For example, Florida provides great detail about the heinousness of Hurst's crime, detailing the "sixty slash and stab wounds," some of which were so deep they "cut through the tissue into the underlying bone."

Additionally, Florida notes several times in the brief that not just one jury or one judge, but two juries and two judges sentenced Hurst to death, leaving the impression that this is not a close case but one in which the death penalty was warranted.

Flipping Hurst's Argument on its Head

Unlike Hurst, who suggests that the Florida sentencing scheme in death penalty cases provides fewer protections than those of other states, Florida argues that its sentencing laws actually provide more not fewer protections than those of other states. Florida outlines its five-step process in death penalty cases, noting that a jury may only recommend death if it finds "at least one aggravating circumstance beyond a reasonable doubt" and that even after a jury recommendation of death, the trial judge conducts an "independent" hearing, and all death sentences are automatically reviewed by the Florida Supreme Court.

As you may recall, Hurst spends a substantial portion of his brief arguing that Florida could not even prove a majority of jurors agreed on the same aggravating circumstance in recommending a death sentence. In Florida's brief, however, we learn two important facts that Hurst does not mention: (1) Hurst never contested one of the aggravating factors--that the murder occurred during a robbery--during the trial in chief, and (2) at the sentencing hearing, Hurst acknowledged that the State had proven both aggravators but argued that the mitigating factors outweighed the aggravating factors.

Ouch. That really hurts Hurst's argument.

Finally, in his brief, Hurst argues that his case is controlled by the Supreme Court's 2002 decision in Ring v. Arizona and that, under Ring, Hurst was entitled to have a jury, not a judge, decide his sentence. As Florida points out, however, Florida has long used the same death sentencing scheme, the Court has reviewed the scheme at least four times before, and, each time, the Court has upheld the constitutionality of Florida's death sentencing laws. Ring did not overrule those prior cases, Florida argues, and Ring's requirements relate to death penalty eligibility (which is not at issue in Hurst) and not to death penalty sentencing (as Hurst claims).    

Downplaying the "What Ifs" 

In it's brief, Florida does a good job of allaying concerns Hurst raises in his brief. For example, Hurst raises the possibility that a single judge could override a life sentence recommendation from a 12-person jury. Florida notes that its precedent allows such an override in only the "most extraordinary circumstances," and no judge has overridden a life recommendation since 1999.


Hurst also argues that during the sentencing hearing before only the trial judge (known as a Spencer hearing), the court could consider evidence never presented to or heard by the jury. That seems disconcerting to the average reader, but we learn that in Hurst's case, neither Hurst nor the State submitted additional evidence. With just a few keystrokes, Florida dismisses one of Hurst's key concerns. 

Friday, October 30, 2015

Happy Halloween, from Justice Scalia

Justice Scalia's concurrence in Lamb's Chapel v. Center Moriches Union Free School District is one of my favorite "spooky" opinions and perfect for the Friday before Halloween:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman,
conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

Happy Halloween!

Tuesday, October 27, 2015

A "Brief" Analysis in Hurst v. Florida

It’s Supreme Court season again! In response to positive feedback from last year’s posts on Supreme Court briefs, I’m going to be posting my thoughts on briefs filed in some of this year’s most high-profile cases.

Timothy Lee Hurst
A death penalty case, Hurst v. Florida, was argued earlier this month. Hurst was convicted of murder and sentenced to death. That sentence was overturned by the Supreme Court of Florida, and Hurst was re-sentenced, again to death. Under Florida law, the jury is charged with rendering an “advisory sentence,” but the ultimate sentencing decision is left to the judge. Hurst challenges the constitutionality of Florida’s sentencing laws.

Seth Waxman is the primary author of Hurst’s brief. Waxman was Solicitor General from 1997 to 2001, has logged more than 70 arguments before the Supreme Court, and has won previous death penalty cases before the Court. He is one of the nation’s most well-respected appellate advocates, and his brief—as expected—is stellar.

Facts that Make You Go Hmmmm

Good advocates know the power of helpful facts, even those that don’t speak directly to the issues on appeal. Through good drafting, Waxman gets the following helpful facts before the Court:

The jury voted for death by a slim 7-5 majority. The jury deliberated for less than 2 hours in deciding to recommend a death sentence.

Hurst suffered from brain damage consistent with fetal alcohol syndrome, had “below average adaptive functioning skills,” and borderline intelligence (an IQ somewhere between 69 and 78). At the time of the crime, Hurst was 19 years old but had to be “reminded to take care of himself…and to bathe and dress appropriately.” Two defense psychologists testified that Hurst was “mentally retarded,” yet the judge rejected Hurst’s claim that his mental retardation barred the imposition of death under Atkins.

Theme

Waxman’s brief contains several themes, one of which is apparent from the introduction: Florida’s death penalty sentencing scheme, whereby juries provide only an advisory role, is unconstitutional.

By my count, the term “advisory” appears nearly 20 times in the brief. Waxman hammers home his theme time and again: “Florida juries play only an advisory role. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”

Waxman highlights the constitutional problems with Florida’s death penalty sentencing laws in several ways:

(1) To recommend death, a jury must find at least one statutory aggravating factor. Florida presented two in Hurst’s case, but Florida law prohibits using a special verdict form that would reflect the jury’s vote on each aggravating factor. Thus, three jurors could have voted for death based on one factor and four could have voted for death based on the other factor, meaning that each aggravator could have been rejected by two-thirds of the 12 jurors.  

(2) The judge makes the ultimate sentencing decision and actually holds a separate hearing after the jury has recommended a sentence. At this hearing, the judge may consider evidence not presented to the jury and may find the existence of aggravating factors not presented to the jury. 

(3) Florida’s system goes against “centuries of practice recognizing unanimous verdicts,” “departs from the uniform position of the federal system and 49 other States in capital and non-capital cases,” and goes against the “bedrock principle that the jury system is predicated on meaningful deliberations, which a simple-majority vote cannot safeguard.”

Seth Waxman, from his days as SG
These arguments hit the law-trained reader hard. We know the importance of jury trials, of requiring a finding of guilt beyond of a reasonable doubt, and of requiring unanimity. Yet the Florida scheme seems to fly in the face of all those foundational principles—A judge decides a death sentence and can base the decision of evidence the jury never heard? Florida requires unanimity to convict a defendant of murder but not to recommend a death sentence? Florida prohibits special verdict forms that would tell a defendant which aggravating factor(s) mattered to the jury? Florida is the only state that thinks this sentencing scheme is proper?

Even to the most critical reader, Waxman’s arguments are hard to ignore.

Short Sentences

I’ve talked numerous times before about the power of short sentences. They can be used to emphasize a point, break up dense prose, and add interest. Waxman peppers his brief with these beauties:

Hildwin does not survive those later decisions.

That is the case here.

Apodaca was wrong when it was decided.

Similar logic applies here.


Next week I’ll discuss Florida’s response brief in Hurst v. Florida.

Friday, October 23, 2015

Thought For the Day

On storytelling in law:

"Plotting is important in any legal storytelling. It is crucial in legal advocacy that can best be understood as the battle of competing stories in the courtroom." But "even where the legal storyteller is an appellate judge who is purportedly retelling a story 'objectively,' merely presenting the facts in a simple linear chronology, she inevitably constructs the trajectory of a purposeful plot to reach a predetermined outcome."

--Philip N. Meyer, Storytelling for Lawyers

Happy Friday!

Tuesday, October 20, 2015

On Point: A Review of Point Taken

I’m a big fan of Ross Guberman’s work. I’ve previously reviewed
two of his books, Point Made and Deal Struck. Ross’ latest, Point Taken, is an instruction manual on opinion writing. I’m a believer that simply telling others how to be good writers isn’t effective—you have to show them through good (and bad) examples. And that’s exactly what Point Taken does.

Ross has selected some of the best snippets from the world’s best judicial opinion writers to teach and inspire readers. In Point Taken, Ross breaks opinions into three main parts—the introduction, the facts, and the legal analysis—and offers strategies for drafting each. He suggests, for example, situations where writers might want to use a “succinct and unresolved” introduction versus a “succinct and resolved” introduction. Ross offers many examples, then shows readers how to draft each type.

For fact sections, Ross helps opinion writers decide which facts—and how much detail—to provide to further the writers’ purposes. Again, he offers contrasting examples, from England’s Lord Denning, Judge Patricia Wald, Judge Posner, Judge Kozinski, and many others.

Ross then moves to the “meat” of every opinion—the analysis. How should the writer organize the analysis? How much analysis should the writer offer? How should the writer address counterauthority and counterarguments? Ross answers these questions, and more, all the while giving interesting examples of analyses from trial and appellate judges both here and abroad.   
   
In the second half of the book, Ross gives readers his style must-haves, such as variations in sentence length and form, parallelism, seamless transitions, and 16 key phrases to remove from writing (e.g., with respect to, with regard to, assuming arguendo). For the more ambitious writers, Ross also offers his style nice-to-haves, which include metaphors and similes, analogies, and rhetorical devices, such as word repetition (e.g., John Roberts’ “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”). Finally, Ross ends with a short chapter on dissenting opinions.

As expected, many of Ross’ tips and suggestions apply equally to brief writers and opinion writers—the value of introductions and headings, the importance of accuracy in the recitation of facts, and the need to fully analyze the authority, just to name a few. So even though Point Taken targets opinion writers, it’s good reading for all legal writers.  

As they were in Ross’ first book, Point Made, the good examples Ross offers in Point Taken are varied and entertaining (e.g., the 7th Circuit’s Pull My Finger® Fred case—yes, it’s about exactly what you think it is), making the book both enjoyable (seriously!) and informative. Point Taken is a quick read at around 300 pages and well worth your time.

You can read an excerpt from Point Taken here.

Friday, October 16, 2015

Supreme Court Fixes Two Major Issues With Its Opinions

At the start of the new Supreme Court session, the Court announced that it is fixing two major problems with prior opinions: post-release edits and link rot. 

Supreme Court pundits had complained about the Court's prior practice of revising post-release opinions without notifying the public of the changes. According to a study conducted by Harvard professor Richard J. Lazarus, these alternations were not all aesthetic. Some were substantive changes to facts and reasoning. 

Adam Liptak wrote about this issue in The New York Times in May and apparently the Court listened. Post-publication changes will now be noted in a new column on the charts of opinions and altered material will be highlighted. 

And link rot has long been a problem. A 2013 study showed that nearly half of all links in Supreme Court opinions no longer work. The Court will now preserve online content cited in its opinions and make that content available on its website. 

These changes are wonderful improvements and, I think, evidence that the Supreme Court is willing to alter its procedures to improve its opinions and its transparency. Who knows--maybe cameras in the courtroom are the next frontier! 

You can see explanations of the new procedures in the What's New section of the Court's website.

Tuesday, October 6, 2015

I Do Not Think It Means What You Think It Means

English is difficult. Many English words have nuances that escape even native English speakers. And many words sound similar but mean very different things. In my experience, these are some of the words most misused, especially by lawyers.



Appraise and Apprise. To appraise something is to assess its value. To apprise is to inform. The jeweler appraised the diamond and apprised the seller of the diamond's value.  

Disinterested and Uninterested.  Disinterested means unbiased, not lacking interest. That's uninterested. You might ask a disinterested party to mediate your case, but if you want him to mediate the case pro bono, he'd likely be uninterested in your offer. 

Hung and Hanged. Hung means suspended. Hanged is an older form of capital punishment.  

Imply and Infer. These words aren't interchangeable. They aren't antonyms in the strict sense, but they do, in a way, have opposite meanings. To imply is to suggest but not state outright. To infer is to guess based on context clues. Thus, a speaker will imply and a listener will infer based on the speaker's implication.

Ironic and Coincidental. Irony is a disconnect between actual events and what's expected. If you travel to Utah to ski, and there's no snow in Utah, but snow at your house, that's ironic. A coincidence occurs when seemingly unrelated events happen simultaneously. If you make a last-minute trip to Utah to ski and your friend also decides to travel to Utah to ski at the last minute, that's coincidence. 

Practicable and Practical. Practicable means easy to perform or put in practice. Practical means many things, including sensible and suitable. A practical solution to a problem may not always be practicable.  



Friday, October 2, 2015

LOUD NOISES!

I just found this cute cartoon from David Mills. So true!



Reminds me of one of my favorite scenes from Anchorman



Happy Friday!

Tuesday, September 29, 2015

The Seven Words You Can't Say in Court? (Bad Language)

When I still practiced law, I represented insurers in coverage and bad faith actions. I had a serious case in which the insured refused to cooperate with the insurer. And when I say refused, I mean flat-out refused. He was ultimately compelled to give a deposition, and he was not happy about. At one point he yelled at me to “hurry up with this shit” and at another told me to “stop asking dumb fucking questions.”

Did I include those quotes in my motion for summary judgment asking the court to relieve the insurer of its duty to defend for failure to cooperate? You bet I did. Why? Because they told the story of the insured’s refusal much better than I ever could.

Whether it’s contained in an email, captured in a surreptitious recording, or part of live testimony, many cases involve bad language in one way or another. Judges have heard most anything and everything you can imagine, but some lawyers still seem hesitant to use bad language, even in cases where the specific language used may make or break the case (e.g. Title VII claims).

Here’s my rule about using “dirty words”: If the language speaks to an element of a claim or crime, I include it without modification (usually with some notice that the language is offensive). If the language is just superfluous, I leave it out.  

I don’t use grawlixes or obscenicons, the symbols some people use in place of bad language (e.g. a**hole), because they don’t have the same connotation that seeing the exact language in print does.

Plenty of opinions contain bad language for the same reason, though some judges refuse to include it, reasoning that “quoting vulgar language [does not] contribute[ ] to the development of [bodies] of law.” Carr v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1015 (7th Cir. 1994) (Coffey, J., dissenting).


What do you think? Is bad language acceptable when it serves to further a case? Or should lawyers and judges sanitize those seven “dirty words?”

Friday, September 25, 2015

Yogi On Law

The death of baseball icon Yogi Berra has everyone talking about their favorite "Yogi-isms."* Berra's formal education was limited; he left school as a young teenager to help support his family. But his athletic skill, depth of practical knowledge, and wit made him one of America's most beloved sports icons and a favorite source of aphorisms. 

Unsurprisingly, Yogi-isms have made their way into law as well. Justice Brown of the Supreme Court of California used a famous Yogi-ism in an interesting way in People v. Mendez, 969 P.2d 146 (Cal. 1999), a case involving California’s certificates-of-probable-cause requirement for appeals from guilty or nolo pleas. Justice Brown, frustrated with the court’s inability to articulate a workable scope for the certificate requirement, noted the court’s 15 previous attempts to articulate the standard and called the case “déjà vu all over again.” (A quote normally used by courts asked to decide multiple issues within the same litigation.)

In an entertaining case involving an oral licensing agreement between a distributor and the Butthole Surfers, Judge Evans of the Seventh Circuit opined: “One would ordinarily think that an agreement of the type we just described would be in writing, for as Yogi Berra observed, ‘A[n] oral contract isn't worth the paper it's written on.’” Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999).

And the Supreme Court of Florida cited Berra not once, but twice, in a case involving baseball’s antitrust exemption. The court called the issue “déjà vu all over again” as it had answered the question previously and cautioned readers of the opinion not to consider it a ruling on the merits of an antitrust claim against the National League, because “it ain’t over till it’s over.” Butterworth v. Nat’l League of Professional Baseball Clubs, 644 So.2d 1021 (Fla. 1994).   

Happy Friday!

*Interestingly, Berra may or may not have uttered many of the sayings attributed to him. Some he claims; others he doesn't


Friday, September 18, 2015

Pesky Pronouns

I taught my Clear Writing class this week, so I've been thinking about clear writing for the last few weeks. This is still my favorite funny reminder to use pronouns thoughtfully.


Happy Friday!

Tuesday, September 15, 2015

Editing to Meet Page Limits

We’ve all finished a memo or brief only to realize it is WAY too long. If you’ve edited your statement of facts, explanation of the rule, and arguments but you’re still over your page limit, these tips should help you eliminate excess words and phrases and tighten up your writing.

1. Choose single-word names, if possible, and avoid honorific terms, like Mr. For example, use the first or last name only, such as “Smith” or “Jane” or “John,” instead of the full name.

2. Look to eliminate or reduce the number of prepositional phrases, if possible. Prepositional phrases often add bulk but not meaning.

The Smiths were walking across the street on their way to eat lunch when they were struck by a car driven by Jones

Jones’ car struck the Smiths as they were crossing the street.

(I also eliminated passive voice.)

3. Use active voice rather than passive voice. Look for sentences in which the true subject has something done to it rather than doing something itself. Double check forms of the “to be” verb (is, are, am, was, were, has been, had been, etc.) followed by a past participle (usually a verb that ends in –ed)—these usually signal passive voice.

The Smiths were struck by Jones.

Jones struck the Smiths.

The court held that the plaintiff was injured by the defendant.

The court held the defendant injured the plaintiff.

(I also removed the prepositional phrase.)

4. Prefer possessives. You’ll significantly reduce the word count by modifying phrases to create possessives when doing so doesn’t change the meaning.

The beer glass, thrown by Jones, struck the car owned by Smith.

Jones’ beer glass struck Smith’s car.

5. Remove extraneous phases. Phrases such as “the fact that” can often be removed without changing the meaning

The fact that the defendant was a minor on the date he committed the crime is irrelevant.  

Defendant’s youth on the date of the crime is irrelevant.

6. Target paragraphs that overlap slightly onto another line. Try to remove just a few words to pull that paragraph up a line. Sometimes doing so will actually pull your paragraphs up two or three lines (because of the way Word spaces lines and pages).


Friday, September 11, 2015

"Lie is So Unmusical a Word"

Photo courtesy of
/www.pbs.org/wgbh/masterpiece/downtonabbey
Judge Carnes of the Eleventh Circuit has been providing entertaining opinions for years. I wrote about one of them here.

Earlier this week, Judge Carnes chose Maggie Smith's Dowager Countess from Downton Abbey to make his point about lying.

Judge Carnes' opinion in United States v. Hough, in which the defendant was convicted of tax fraud, begins:

It may be, as the Downton Dowager bemoaned, that “[l]ie is so unmusical a word,” but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns.

Happy Friday!

Tuesday, September 8, 2015

What Would You Like to See Lady (Legal) Writer Cover?

I've discussed many topics, both academic and practice-related, over the years. I continue to strive to provide content that's interesting and helpful for LLW readers. 

Some topics interest only a few readers, while others have more broad appeal. So I'm asking you: As a LLW reader, what writing-related topics do you want to see me cover? Do you have questions about memo or brief writing? Do certain grammar issues continue to confound you? Do you know of a unique brief or opinion that makes for good fodder? Do you have a book you'd like reviewed? 

If you have a topic you'd like to see on this blog, please tweet me, email me, or respond in the comments. If I use your idea, I'll send you a copy of my book, co-authored with Adam Lamparello, Show, Don't Tell: Legal Writing for the Real World

Friday, September 4, 2015

Without a Final Resolution, Play Cannot Proceed

With college football just starting and the NFL season right around the corner, I'm sharing another of my favorite football-themed judicial opinions. 

Despite the almost unbelievable amount of attention recent disputes have garnered, fights between the NFL and the NFLPA over the collective bargaining agreement are nothing new. They've been going on for decades. 


For example, in 1993, 37 players in the NFL's Washington franchise failed to pay their union dues. Under the CBA, players who failed to pay dues were to be suspended. After the NFLPA notified the franchise of the delinquencies, the franchise refused to suspend the players because doing so would have, for all practical purposes, required the franchise to forfeit its final game of the season. The NFLPA filed a grievance, and the arbitrator (not Roger Goodell) held that the CBA required the franchise to suspend those players.


The franchise appealed the arbitrator's decision to the United States District Court for the District of Columbia. According to Judge Thomas Hogan, who heard the appeal, the franchise was seeking to “make an end run around the arbitrator’s decision” by filing the appeal. Judge Hogan described the franchise as “behind on the scoreboard and buried in its own territory with less than a minute to play,” and compared the arbitrator’s finding to a “referee’s pass interference call,” where “the key is not necessarily the correctness of the decision, but its finality.” In justifying his order upholding the arbitrator's decision, Judge Hogan noted that, “[w]ithout a final resolution of the matter, play cannot proceed.” 


The Court of Appeals for the D.C. Circuit eventually vacated Judge Hogan's decision on the ground of mootness. But his entertaining opinion lives on!


Happy Friday and Happy Football Season!

Wednesday, September 2, 2015

The Expert Institute Best Legal Blog Nominee

I'm pleased to announce that Lady (Legal) Writer has been selected to compete against other well-known law blogs in The Expert Institute's Best Legal Blog contest.

  
If you're inclined, please vote here for Lady (Legal) Writer for Best Niche and Specialty Blog!

Tuesday, September 1, 2015

IBM Watson's Tone Analyzer

A few weeks ago this article about IBM Watson's new tone analyzer made the rounds. The goal of the tone analyzer is to help writers "assess and refine" the tone of their written communications. The analyzer considers three different "types" of tone: emotional tone (e.g. anger, cheerfulness), social tone (e.g. openness, agreeableness) and writing style tone (e.g. analyticalness, confidence). Per IBM, the analyzer is currently in "experimental" mode. 

From what I can tell, the analyzer appears to compile scores based on the particular words used and not other factors, such as sentence structure and sentence and paragraph length, that I think are also important in this type of analysis. 

I was skeptical, but thought I'd give the analyzer a go using different types of documents. First, I used the text of an email I sent to a friend. As expected, my emotional cheerfulness score was high (82%), as were my social agreeableness score (84%) and writing analytical score (82%). After all, I was talking to a friend! 

I was surprised to see, though, that my writing tentativeness score was also high (90%), given that I generally make quick, definitive decisions. But when I went back and looked closely at the content of my email, I realized that I did sound somewhat tentative about several topics, though I didn't intend to come across that way.  

Next, I plugged in the text of a professional letter I had sent. My emotional tone showed a high cheerfulness score (78%) but also a really high negative score (92%). I did not intend to sound negative, and in re-reading my letter, I do not believe I sounded negative. The words the analyzer flagged as indicating negativity did not (at least to me) convey negativity given the manner in which I used them, though they could have conveyed negativity in other contexts. My social tone showed scores in agreeableness (55%) and conscientiousness (16%), which I could see in the language I used. And I was pleased to see that my writing style confidence score was 100% as I wanted to (and apparently had) come across as completely confident in my position.  

Finally, I entered several paragraphs of a brief I recently wrote. I anticipated this sample would show confidence, analyticalness, and, perhaps, some unintended hostility. 

The results weren't quite what I expected. The analyzer showed a somewhat negative emotional tone (46%) but also cheerfulness, which I don't really see in the input sample. My emotional anger score was 0%, which I was pleased to see as I didn't intend to come across as angry in my advocacy efforts and was glad I didn't.

My social tone showed 59% conscientiousness, which is good for a lawyer, given that the concept encompasses organization and thoughtfulness. Finally, my writing style was 86% analytical (which you'd expect from a legal document), but also 35% confident and 33% tentative.  I would have expected my confidence score to have been substantially higher and my tentativeness score to have been substantially lower. And in looking back at my sample, I don't see tentativeness or hedging and see language showing substantial confidence in my position.

In my three samples, I agreed with Watson's analyzer in many instances but disagreed in others. This could mean several things: Either the analyzer is imperfect (probable), I'm imperfect at assessing my own writing (also probable) or some combination of the two caused the results (the most probable, I think). 

The analyzer is still in its testing phase, and I expect IBM will continue to improve it. That said, the computer-generated results I got were, in many cases, consistent with my human assessment. And I didn't test the analyzer using someone else's work, only my own. So the disconnect could be the result of my bias toward my own writing, and my results and Watson's results might be more consistent if I hadn't analyzed my own work. 

The analyzer has many potential applications in the world of legal writing, and I'll continue to follow IBM's product updates. I'll be interested to test the Watson analyzer again once the final product is available.