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
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.