Tuesday, March 31, 2015

Roy Peter Clark's Writing Tools

*This is the first in a multi-post series based on Writing Tools: 50 Essential Strategies for Every Writer by Roy Peter Clark

Roy Peter Clark is a writing expert, instructor at the Poynter Institute, and author of several books on writing, including the must-read Writing Tools: 50 Essential Strategies for Every Writer. While Clark is a journalist, his strategies and tips can help legal writers as well. Below are some of his tools along with my thoughts on using them in pleadings and briefs.

Tool 5: Watch Adverbs
Clark directs writers to minimize adverbs and, instead, choose strong verbs. As Clark notes, many adverbs are duplicative: For example, the adverb “completely” adds nothing to the verb “destroyed.” And in other cases, strong verbs can take the place of adverbs. For example, “whispered” means “quietly said.”  
Those subject to page and word limits should pay attention to this tip because fewer adverbs means shorter, clearer briefs.
And legal writers should minimize adjectives as well. In my book with Adam Lamparello, Show, Don’t Tell, we encourage brief writers to avoid over-the-top language and allow the reader to reach the desired conclusion for him or herself. Instead of telling the court the result it should reach, brief writers should show the court why a certain conclusion is inevitable.
For example, telling the court that the parties had "serious" prior conflicts isn't helpful. What does "serious" mean? Verbal altercations? Physical fights? How long ago did these conflicts occur? What were the outcomes?  
Instead, write that on at least two prior occasions, the plaintiff sought medical treatment for injuries sustained when she was struck by the defendant. Give the dates of the prior incidents and the plaintiff's specific injuries (quote medical reports, if you can). Be specific, not conclusory. 

Tool 16: Seek Original Images
Clark encourages writers to avoid staid clichés and metaphors. While staid journalistic clichés differ from staid legal clichés, Clark’s suggestion is well-taken. Legal writers are better off avoiding clichés altogether than using ones that have been used—literally—millions of times before, such as second bite at the apple, slippery slope, split the baby, low-hanging fruit, red herring etc.
Clichés and metaphors like these don’t add value to legal briefs, just lengthen them. As Ross Guberman says, avoid them like the plague. 

Tool 24: Work from a Plan
Clark recommends writers use outlines—even rough ones—to ensure readers know the whole story. Many legal writers, especially seasoned ones, think outlines are too elementary to bother with. But outlines can not only help writers include necessary information but also help lawyers ensure their briefs flow seamlessly. And even creating an outline after drafting a brief can be helpful. As Clark notes, “if I could not write the outline from the story, it means that I could not discern the parts from the whole, revealing problems of organization.”
Before you start writing, take a few minutes to jot down the “big” ideas you want to convey and think about the best order to convey them in. After you finish writing, use your original outline as a checklist—have you included all the ideas you wanted to include? Then, use your work to create an outline and consider if your order actually makes sense.

Next week I'll be back with more tips for legal writers from Writing Tools.

Clark's full list of tools is available here.

Friday, March 27, 2015


Traditionally, when judges or justices dissent, they do so "respectfully." But in Alabama Legislative Black Caucus v. Alabama, issued this week, Justice Scalia didn't "respectfully" dissent; he just dissented.

According to Josh Blackman, several other members of the Roberts Court have "disrespectfully dissented," including Justice Roberts himself in House v. Bell (a 2006 case involving post-conviction DNA evidence in which Roberts concurred in part and dissented in part).

How much should be we read into the disrespectful dissent? Why would a judge or justice stray from the collegial respectful dissent? Might the judge or justice be sending a message that the opinion deserves no respect because the majority is totally off base? Maybe, as I *think* we saw Justice Ginsburg do in Hobby Lobby ("Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court's judgment can introduce, I dissent.")

But Roberts' disrespectful dissent in House suggests this isn't always the case because Roberts concurred in part in that case. And certainly we have seen some "respectful dissents" in which the dissenting justice clearly believes the majority is out in left field.

What do you think makes a judge or justice "disrespectfully dissent?"

Happy Friday!

Tuesday, March 24, 2015

Picking on Passive Voice

Why do people hate on passive voice?

Passive voice is used by many writers unintentionally because identification of passive sentences can be tough for writers. The actor is hidden and made the object of the sentence by these writers. The traditional pattern of subject—verb—object is shunned by passive-voice writers, and objects are used by them as subjects. Instead of writing about a subject that does something, an object that has something done to it is written about by writers who use passive voice. 

Wow—do you have any idea what I just said there, because I don’t. Readers struggle to comprehend passive sentences. They often are long; they often are wordy; they often are confusing.  That’s why people hate on passive voice!

So here’s what I said above: Many writers use passive voice unintentionally because they don’t actually know what passive voice is and can’t recognize it when they use it. When writers use passive voice, they hide the actor of the sentence. Rather than writing so that the actor does something to the object (subject—verb—object), they write sentences so that the object is having something done to it by the actor (object—verb—actor).

Thus, an active sentence reads:
The writer wrote the sentence.
And a passive sentence reads:
The sentence was written by the writer.

Importantly, past tense doesn’t equal passive voice. “Wrote” is past tense, but that sentence is not a passive sentence.


The best way to identify passive voice is to look for a form of the verb “to be”—is, are am, was, were, has/had/have been, will be, will have been—then a past participle (a verb that usually ends in –ed). So you’ve got a passive sentence here:

The Smith case has been handled by John for years.   

Just remember—not all forms of the verb “to be” are passive—you’ve got to have both “to be” and a past participle.

Another common tip to identify passive sentences is this: If the sentence reads properly when you insert “by zombies” after the verb, you’ve got a passive sentence:

The sentence was written by zombies.

Finally, Word has a feature to help you identify passive voice. Under the File menu, selection Options, then Proofing. Check the box labeled “Show readability statistics.” When you spell-check a document, this box will pop up at the end with some cool statistics, including the percentage of passive sentences.

If you highlight a single sentence for proofing and select “No” when asked if Word should check the remainder of the document, the readability statistics report will tell you if that sentence is passive.    
Passive sentences aren’t inherently wrong—as I’ve said before, you ca use passive sentences strategically when the actor is unknown or, if the actor is known, to minimize the actor’s role. But if you aren’t using passive voice strategically, try to identify it and minimize it using these tips!

Friday, March 20, 2015

West Virginia Legislature's Typos Too Much for Governor

West Virginia's governor, Earl Ray Tomblin, recently vetoed a bill that would have eliminated partisan judicial elections in the state. Governor Tomblin vetoed HB 2010, which had been passed by both the West Virginia Senate and House of Representatives, because the bill contained typos, missing language, and errors in referencing other statutes. You can read Governor Tomblin's veto letter here.  

The West Virginia House amended the bill to address Governor Tomblin's concerns, and the Senate approved the changes. The amended bill has been sent back to Governor Tomblin but has yet to be signed.

To the casual observer, Governor Tomblin's complaints might appear nitpicky. But all lawyers (and some non-lawyers, like Governor Tomblin) know the importance of precise language. The Governor's concerns are hardly minor and almost certainly would have cost the state time and money if challenged. For example, the original amendments to § 3-1-17(b) of the West Virginia Code omitted the language "There shall be elected," leaving an incomplete sentence that made no sense:

At the general election to be held in 1992, and every fourth year thereafter, a sheriff, prosecuting attorney, surveyor of lands, and the number of assessors prescribed by law for the county; and at the general election to be held in 1990, and every second year thereafter, a commissioner of the county commission for each county; and at the general election to be held in 1992, and every sixth year thereafter, a clerk of the county commission and a clerk of the circuit court for each county.

This error and others, including additional missing language and misplaced commas, were too much for Governor Tomblin, who apparently is a stickler—he’s vetoed four other bills in the 2015 session alone for technical errors like these.

Happy Friday!

Tuesday, March 17, 2015

A Limerick for St. Patrick's Day

In keep with LLW tradition, here's this year's St. Patrick's Day writing limerick:

 She loved to teach others to write
Though try and try as she might
They didn’t believe it was fun
And couldn’t wait to be done
But soon they knew she was right!

Happy St. Patrick's Day! Check back next week for a new substantive post!

St. Patrick, Stained Glass
St. Thomas Aquinas Church, Park Slope, Brooklyn

Tuesday, March 10, 2015

Skeletons: For Halloween, Not Briefs

Leonardo Skeleton 1511
Leonardo da Vinci
Skeleton briefs provide only an outline—rather than a fully fleshed-out argument—of the facts or law. Skeleton briefs can be tempting. You're buried in work, your filing is due tomorrow, and you have no time to put an adequate brief together. So, you think, "I'll file this skeleton brief now then beef up and hone my understanding of the issues and law prior to oral argument. This is the perfect solution." 

Skeleton briefs, however, cause problems for several reasons.

First, they don’t apprise the Court of the full background of the case or the party’s complete arguments. Second, they don’t put the opposing party on notice. Third, they usually result in more work for the parties and the Court and lengthen the time needed for the Court to issue an order.

Here’s why. Some trial courts and most (if not all) appellate courts review the parties’ briefs before hearing oral argument and, at least mentally, form a list of questions to ask at oral argument. Incomplete or skeleton briefs often leave a court confused—and the more confused the court is, the more time the parties will have to spend at oral argument clearing up that confusion. Courts become easily frustrated with parties who could have—but chose not to—adequately provide the facts or law in their briefs.

Skeleton briefs also don’t adequately put the opposing party on notice of the facts alleged or legal arguments. What happens at oral argument when the opposing party finds itself faced with law or facts not contained in the original brief? The opposing party complains: "Judge, this is the first time I’ve heard this argument. I’m not adequately prepared to address it—I haven’t done any research on this issue because I didn’t know it would be raised. "And what do most judges do in that situation? Scold the party that didn’t adequately brief the issue and allow the opposing party to respond via a supplemental brief.
But allowing supplemental briefing is frustrating to the court. Doing so creates more work for the court and the opposing party—work that shouldn't have been necessary—and delays the court’s ability to issue a ruling. Now, the court must wait—sometimes several weeks or longer—for the parties to file the supplemental brief(s) and then must review the brief(s) and research any supplemental authority provided. By that time, the issues are no longer fresh in the court’s mind (as they were at oral argument), which can lead to even further delay.  

Some courts aren’t that generous, though, and won’t even consider inadequately brief arguments. For example, Rule 28 of the Federal Rules of Appellate Procedure requires that an appellant’s opening brief outline its contentions and the reasons for them and cite authority in support of those contentions. In some jurisdictions, courts have determined that under Rule 28 and similar state court rules, arguments inadequately presented in an opening brief are waived. Cacioppo v. Town of Vail, Colo., 528 Fed. App’x 929, 934 (10th Cir. 2013); Nowacki v. Nowacki, 20 A.3d 702, 706 (Conn. App. Ct. 2011); Slagle v. Prickett, 345 S.W.3d 693, 700 (Tex. App. 2011).

The moral? Skeleton briefs are a big pain for courts, slow down litigation, and can get attorneys in trouble. No bones about it—you should ignore the temptation to file a skeleton brief!

Friday, March 6, 2015

Grammar Girl's Grammar Myths

Grammar's not exactly a sexy subject,but Grammar Girl Mignon Fogarty tries to make grammar as interesting as possible. In honor of National Grammar Day, which was March 4, check out Grammar Girl's Top 10 Grammar Myths--she's got some good ones here!

Happy Friday!

Tuesday, March 3, 2015

Gideon's Children: A Book Review

Howard G. Franklin’s first novel, Gideon’s Children, tells the story of Matt Harris, a young attorney assigned to a small public defender’s office in the late 1960s. From day one, Matt—who’s never even tried a case before—finds himself immersed in an all-out war, fighting with his co-workers for their clients’ rights while struggling to handle a staggering case load.

Matt quickly learns what his poor, mostly minority clients are up against: all-white juries, unethical judges, biased prosecutors, and corrupt police officers. In short, they don’t stand a chance. Or they wouldn’t without Matt, whose deep-rooted sense of right and wrong leads him to do everything in his power to ensure his clients get fair trials, even risking his own freedom to do what he believes is right.

Then, Matt and his fellow PDs hatch a risky plan to gain respect for themselves and, more importantly, fair shakes their clients. Will their plan work? Are they risking their careers? And can they get at least some form of justice for their clients in a world that seems anything but?

Gideon’s Children is fiction but clearly parallels Franklin’s own experiences as a Deputy Public Defender in Los Angeles County in the late 1960s and early 1970s. Franklin brings to life a period that many have argued was the most tumultuous in American history—he sings the songs of the time, watches the television programs of the time, and voices the concerns of many Americans of the time. He tackles race, class, and socioeconomic issues that persist today, nearly 50 years later. And Gideon’s Children reminds us of the continued struggles of public defenders, who are forced to juggle too many cases with too few resources, and their clients, who, too often, still face justice systems that seem stacked against them.

Gideon’s Children is available today through Chamberlain Press.