I'm leaving on Sunday for Egypt, so in celebration, here's one of my favorite grammar cartoons:

I won't be posting for the next two weeks while I'm enjoying my vacation, but be on the lookout for a brand new post on Tuesday, January 6, 2015.

Thank you for reading my blog and providing thoughtful comments. This year has been a great success for LLW thanks to you. As always, if you have ideas for posts you'd like to see, please let me know!

Happy Friday and Happy Holidays!

Justice Scalia Admits Fault

We all make mistakes, even Justice Scalia. In his dissent in Dart Cherokee Basin Operating Co., LLC v. Owens, here, Justice Scalia owned up to an error in a 2013 case, an error he said he would take "to the grave." But he also made an important point, so eloquently put by Justice Jackson:

"I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."

This sentiment serves as a good reminder to legal writers. Correct past errors in your writing, don't perpetuate them.

Supreme Ambitions Book Review

If you're looking for some light reading over the holidays, you might enjoy David Lat's Supreme Ambitions. Check out my book review here, at Ms. JD.

Happy Friday!

Making the Most of Motions for Reconsideration

Motions for reconsideration often aren’t successful. Generally, once the judge has issued a decision (especially a written one), you’re unlikely to convince the judge that decision was wrong. But motions for reconsideration sometimes work. Here are my tips for making the most of a motion for reconsideration.

A motion for reconsideration isn’t the place to make new arguments—the judge almost certainly won’t consider them. The most effective motions for reconsideration are those that target the judge’s (1) misunderstanding of the facts; (2) misapplication of the law; or (3) failure to address certain issues.

The Facts. If the judge’s ruling is based on a misunderstanding of the facts, use the motion to explain the true facts and support that explanation with affidavits, deposition testimony, documents etc. Attach copies of the relevant transcripts or documents, if permissible, or include the exact testimony—rather than characterizations—in the motion itself. (See my prior post here on the effectiveness of this technique)   

Similarly, if the judge has granted a motion for summary judgment when a factual dispute exists, show the judge the evidence of the dispute—the conflicting deposition testimony or documents, for example. Attach them if you can. Otherwise, refer to them in a way that will enable to the judge to easily locate them in the file or record.   

The Law. If you believe the judge misapplied the law, tell the judge how by offering language from the cases, statutes, etc. themselves and the judge’s order to show the disconnect. Be specific. For example:

In its order, the Court expressed sympathy for Plaintiff but held it had no choice but to dismiss the complaint, citing Section 54.3(b) of the statute. But Section 54.3(b) uses the term “may,” not “must.” Thus, the Court incorrectly held it was required to dismiss the complaint when, in actuality, it was not.

Unaddressed Issues. If the judge failed to address certain arguments, show the court that you made those arguments by referring to any prior briefs or argument in the case. For example, assume a court granted a motion for summary judgment on the ground that the plaintiff could not state a claim for breach of contract but failed to address arguments that the plaintiff could recover under another theory (promissory estoppel or unjust enrichment). Your motion for reconsideration might include something like this:

The court found Plaintiff cannot recover for breach of contract and dismissed the complaint. But the Court failed to address Plaintiff’s other theories of recovery: promissory estoppel and unjust enrichment. Plaintiff’s complaint includes counts for promissory estoppel (Count 2) and unjust enrichment (Count 3). Further, in response to Defendant’s motion, Plaintiff also argued that it could proceed under those theories even if its breach of contract claim were dismissed. See Plaintiff’s Response to Defendant’s Motion to Dismiss pp. 6-9. In dismissing the complaint, the court failed to consider or address Plaintiff’s alternative theories of recovery.    

No matter the basis of your request, keep it as short as possible while saying what you need to say. As a Twitter friend reminded me recently, never forget BITSOW: Brevity is the soul of wit. (Shakespeare—Hamlet). You won’t score any points with the judge by filing a lengthy, tedious request for reconsideration. Make the points you need to make, then stop!   

Finally, never attack the judge. You shouldn’t feel timid is saying the judge “erred” or “misapplied the law” or “failed to address” an issue. Judges are humans—they make mistakes and most want to correct those mistakes. But calling the judge “uninformed” or “uneducated”  won’t win you any points.

Pregnant Pause?

This week the U.S. Supreme Court heard oral argument in Young v. UPS, a case that may hinge on a semicolon. The facts are short: when Young became pregnant, her employer, UPS, refused to accommodate her pregnancy-based physical restrictions (though UPS did accommodate "light-duty" requests from non-pregnant workers). She was placed on unpaid leave, returned after the birth of her child, and sued under the Pregnancy Discrimination Act, an amendment to the Civil Rights Act of 1964.

The PDA was intended to clarify that the Act's prohibition against discrimination "because of sex" or "on the basis of sex" includes discrimination based on pregnancy:

The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes...as other persons not so affected but similar in their ability or inability to work.

Under Young's interpretation, UPS violated the PDA by failing to treat Young, a woman "affected by pregnancy" (what an inartful phrase!) the same as "other persons no so affected but similar in their ability or inability to work."

According to UPS, in refusing to accommodate Young's light-duty request, it was not acting discriminatorily but merely being "pregnancy blind." During oral argument, several justices, including Kagan and Ginsberg, were skeptical of this argument, suggesting that UPS's interpretation would render the language after the semicolon in the PDA "superfluous." (Check out Dahlia Lithwick's article on oral argument here.)

What do you think?  Will UPS's argument carry the day, or will the Court deliver Young a victory?

Happy Friday!

Drafting Statements of Jurisdiction and Venue

Statements of jurisdiction and venue are important parts of complaints (especially in the United States district courts) and appellate briefs. Too many lawyers’ statements of jurisdiction look like this:

This court has jurisdiction over this matter and venue is appropriate in this court. 

That sentence tells the court nothing about whether jurisdiction and venue are proper—it contains no statute or case to support the contention and no facts that would enable the court to determine the truthfulness of the statement.

In the trial courts, the complaint should contain statutes or cases and facts that allow the court to determine whether it has jurisdiction and whether venue is proper. A good statement of jurisdiction and venue in a complaint should look something like this:

This Court has jurisdiction over this matter under 28 U.S.C. § 1332(a) because Plaintiff and Defendant are citizens of different states—Plaintiff is a resident of New York and Defendant is a resident of Delaware—and the amount in controversy exceeds $75,000, exclusive of interests and costs, because Plaintiff is seeking to recover $150,000 from Defendant.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because the Defendant does business in New York, and its registered agent for service is located in New York City, New York, in the Southern District of New York.

In the appellate courts, every appellant’s brief must contain a statement of jurisdiction, and that statement should also include statutes or cases and facts that show the trial court had jurisdiction and the appellate court has jurisdiction to hear the appeal. The facts should include the date on which the order appealed was entered and the date the notice of appeal was filed to show the appeal was timely. An appellate statement of jurisdiction might look something like this:

The district court had jurisdiction over this matter under 28 U.S.C. § 1332(a) because Appellant and Appellee are citizens of different states and the amount in controversy exceeds the statutory minimum of $75,000, exclusive of interest and costs. On November 11, 2014, the district court granted Appellee’s motion for full summary judgment and entered judgment for Appellee. On November 24, 2014, Appellant timely filed its notice of appeal in the district court. Fed. R. App. P. 4(a)(1)(A) (civil appeals must be filed within 30 days after entry of the order appealed from).

This Court has jurisdiction over the appeal under 28 U.S.C. § 1291 because an order granting a party’s motion for summary judgment is an appealable final decision. See Catlin v. United States, 324 U.S. 229, 233 (1945) (For purposes of 28 U.S.C. § 1291, a final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”). 

 

Of course, the local rules may require additional information, so check them to ensure completeness.   

Statements of jurisdiction and venue are important. Make sure yours are thorough and accurate!

Turkey on Trial

Happy Friday and Happy Thanksgiving!

Programming Note: I'll be on hiatus next week to celebrate the holiday, but be on the lookout for a new post on Tuesday, December 2, 2014.

"It was the best of times, it was the worst of times."

Law and Literature is a popular course at many law schools for good reason—the impact of literature and storytelling on the law is well-documented. Judges use literature to make points about everything from the parties’ behavior during litigation to the interpretation of statutory language.

Several courts have referenced Alice in Wonderland when addressing arguments they deem nonsensical:  

“‘Alice felt dreadfully puzzled. The Hatter’s remarks seemed to her to have no sort of meaning in it, and yet it was certainly English.’

Alice in Wonderland by Lewis Carroll

PD-US
Illustration of Humpty Dumpty
from Through the Looking Glass
by John Tenniel, 1871.

The appeal before us raises the question of whether a defendant may confound the enforcement of the law of this State by engaging in Hatter-like dialogue. Unlike Alice, we are not puzzled and consequently, we reverse the order of the circuit court.” People v. Myers, 474 N.E.2d 923, 924 (Ill. App. Ct. 1985).

And Courts have used Humpty Dumpty’s line “When I use a word…it means just what I choose it to mean—neither more nor less,” when addressing statutory and contract language. See Murakami v. United States, 46 Fed. Cl. 653, 657 n.7 (Fed. Cl. 2000).  

Famous opening lines, such as those from A Tale of Two Cities and Anna Karenina, are also popular among judges:

“As Charles Dickens famously observed at the beginning of his A Tale of Two Cities, ‘It was the best of times, it was the worst of times ....’ The defendant on this appeal, who pled guilty to bank fraud, had a childhood that the record shows was never the best of times; it was always the worst.” United States v. Brady, 417 F.3d 326, 328 (2nd Cir. 2005).

“Tolstoy wrote, ‘Happy families are all alike; but every unhappy family is unhappy in its own way.’ ANNA KARENINA 1 (C. Garnett trans.1933). The Held family’s unhappiness manifested itself in litigation, but the courts cannot resolve this stale dispute.” Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998)

George Orwell’s 1984 makes notable appearances, including in cases regarding government surveillance and privacy interests:

“There was of course no way of knowing whether you were being watched at any given moment.... It was even conceivable that they watched everybody all the time.... You had to live-did live, from habit that became instinct-in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. George Orwell, 1984 4 (1949). George Orwell’s bleak and chilling vision of post-modern civilization has not come to pass, at least not in this country. But allowing police agents to set up surreptitious, twenty-four-hour video surveillance of landowners on their own property without judicial oversight raises the specter of such a society.” State v. Costin, 720 A.2d 866, 871 (Vt. 1998) (Johnson, J., dissenting).  

As expected, Shakespeare’s works also appear in numerous judicial opinions, with judges quoting both tragedies (e.g. Macbeth and King Henry VI) and comedies (e.g. As You Like It and Much Ado About Nothing), sometimes in the same opinion:

“Delays have dangerous ends.” —King Henry VI, Part I

“And so, from hour to hour we ripe and ripe,

And then from hour to hour we rot and rot,
And thereby hangs a tale.”
—As You Like It

Florida Mun. Liability Self Insurers Program v. Mead Reins. Corp., No. 88-6427-CIV, 1993 WL 206274, at *2-3 (S.D. Fla. May 24, 1993).

And judges don’t just rely on classical literature—even the works of modern authors have made their way into judicial opinions:

Michael Crichton’s Jurassic Park: “Life finds a way.” Center for Food Safety v. Vilsac, 636 F.3d 1166 (9th Cir. 2011) (“Life finds a way.”).

Tom Clancy’s Clear and Present Danger: “This court don't dance.” County of Madison, Ill v. Fed. Emer. Mgmt. Agency, No. 10-cv-919, 2011 WL 3290177, at *7 (S.D. Ill. Aug. 1, 2011).

Hey, Tittle Tittle

I love the names of certain accent marks associated with letters and words (especially words borrowed from other languages).

Tittle—the dot above the lowercase i and j in English

Tilde—the squiggly line (~) used as an accent mark in certain languages, such as Spanish and Portuguese (e.g. ã).

Umlaut—the two dots above letters in Germanic languages (e.g. ä).

Cedilla—the backward "c" symbol under certain letters in French and other languages (e.g. façade)

Happy Friday!

Using Legal Writing Skills on Law School Exams

Exam season will soon be upon us, so now is a perfect time to talk about how to use legal writing skills on law school exams. Your legal writing skills can help you organize your thoughts and write thorough exam answers.

Follow IRAC, CREAC, or Similar Structure

Many professors grade exams by looking to see how many issues you address or “key words” you use—known as issue spotting. Professors can find that information much more easily in exam answers that are organized using IRAC, CREAC, or a similar structure.

Take, for example, a contracts question. Your answer could start:

The question is whether the Plaintiff can prove the existence of a valid contract. (The I in IRAC)

or

Under these facts, Plaintiff likely can prove the existence of a valid contract. (The C in CREAC)

Then, you’ll move on to give the elements of a contract (the R).

To prove a contract, the Plaintiff must show that there was (1) an offer; (2) an acceptance; (3) consideration; and (4) a meeting of the minds.

Unless you have a professor who expects you to reference specific cases, you likely won’t have a rule explanation section (where you would normally outline explanatory cases either in long-hand or parenthetical form). Instead, you’ll move right into your analysis (the A).

Here, the Plaintiff can prove the Defendant made an offer because, on October 24, 2014, the Defendant sent the Plaintiff an email offering to sell the Plaintiff 500 widgets at a cost of $50 per widget. Further, the Plaintiff can prove he accepted the Defendant’s offer because the following day, on October 25, 2014, the Plaintiff replied to the Defendant’s email accepting the offer of 500 widgets at a cost of $50 per widget.

 

******

 

You’ll continue to talk about the remaining elements of consideration and meeting of the minds and finish your analysis, taking the opportunity to talk about as many sub-issues as you can spot (i.e. contract sufficiently definite, not governed by statute of frauds etc.)

Then, you’ll conclude by summarizing:

Therefore, the Plaintiff likely can show the existence of a valid and enforceable contract (the C).

Address Counterarguments to Gain Additional Points

Addressing counterarguments is an important in a law school exam as it is in a memo or brief and should help you get additional points.

In the example above, the hypothetical facts might suggest that the Defendant will argue he had withdrawn the offer before the Plaintiff accepted it. Thus, your analysis should address that counterargument:

Here, the Plaintiff can prove the Defendant made an offer because, on October 24, 2014, the Defendant sent the Plaintiff an email offering to sell the Plaintiff 500 widgets at a cost of $50 per widget. Further, the Plaintiff can prove he accepted the Defendant’s offer because the following day, on October 25, 2014, the Plaintiff replied to the Defendant’s email accepting the offer of 500 widgets at a cost of $50 per widget.

In its offer email, the Defendant did not specify a time by which the Plaintiff had to respond to the offer, meaning that the Plaintiff could accept the offer at any time until the Defendant withdrew it and notified the Plaintiff that the offer was withdrawn. While the Defendant may have subjectively intended to withdraw the offer on the afternoon of October 24, 2014 after he sold the 500 widgets to a third-party, the Defendant failed to communicate that withdrawal to the Plaintiff. Thus, when the Plaintiff replied to the Defendant’s email on October 25, 2014, the Plaintiff accepted the offer. 

 

******

 

Address Related Arguments to Gain Additional Points

Further, as you would in a memo or brief, you should address all related issues that might arise. In our contract hypothetical, the facts might suggest that even if the parties did not reach an enforceable contract, the Plaintiff should be able to recover under an alternative theory, such as promissory estoppel.

If so, after you complete the full IRAC, CREAC etc. for your main contract issue, you'll want to follow the same structure to address each related issue:

Even if the Plaintiff cannot prove the existence of a valid contract, he may be able to recover under the theory of promissory estoppel (the I or C).

To recover under the theory of promissory estoppel, the Plaintiff must prove: (1) the Defendant made a clear and unambiguous promise; (2) the Plaintiff reasonably relied on the promise, and the Plaintiff’s reliance was foreseeable; (3) the Plaintiff changed his position to his detriment in reliance on the promise; (4) injustice would result if the Plaintiff were not permitted to recover (the R).

The first element is met because the Defendant made a clear and unambiguous promise to sell 500 widgets to the Plaintiff for $50 each. The second element also is met because after the Plaintiff notified the Defendant by email on October 25, 2014 that the Plaintiff wanted to purchase the widgets, the Plaintiff entered into a contract to sell the widgets to a third-party, Smith. The Plaintiff’s reliance on the Defendant’s promise to sell the Plaintiff the widgets was reasonable and foreseeable because… (the A).

 

*******

 

The Plaintiff, therefore, may be able to recover under promissory estoppel if he cannot prove the existence of an enforceable contract. (the C).

Use your legal writing skills to your advantage in your law schools exams to ensure you receive credit for every issue you spot and discuss.

The Magna Carta as Authority?

Chief Justice John Roberts recently noted: "If you're citing the Magna Carta, you're in pretty bad

Via Wikimedia Commons

shape. We like our authority a little more current."

That's undoubtedly true, but courts, including the Supreme Court, cite the Magna Carta as the original authority on a variety of important legal issues:

-8th Amendment prohibitions against cruel and unusual punishment, Solem v. Helm,  463 U.S. 277, 284 (1983)

-due process, Strahler v. St. Luke's Hosp., 706 S.E.2d 7, 15 (Mo. 1986)
 
-open courts/access to the courts, Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194 (Utah 1999)
 
-law provides a remedy for injuries to person and property, Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 340-41 (Or. 2001)

-subrogation rights, Liberty Northwest Ins. Corp. v. Oregon Ins. Guarantee Ass'n, 136 P.3d 49, 57 (Or. Ct. App. 2006)

So, maybe the moral of the story is: the Magna Carta is good authority, as long as it's not your only authority.

Happy Friday!

More Thoughts on the HHS Brief in Hobby Lobby

This week, I'm discussing some additional strategies used by the Department of Health and Human Services (HHS) in its brief in the Hobby Lobby case. For my prior posts on this case, see here and here. 

A theme is an excellent way to leave an impression on the reader and pull together arguments that might otherwise seem disjointed. HHS advances one of its themes time and time again—the argument that corporations are distinct from their incorporators and officers. Throughout the brief, HHS notes the “bedrock principle” that corporations are distinct legal entities and, therefore, have no rights under RFRA:

-“Few norms are more deeply ingrained into the fabric of American law than the principle that a corporation and its stockholders are deemed separate entities. And this Court has consistently interpreted federal states in a manner than respects this bedrock norm.”

-“Nothing in RFRA purports to reject the bedrock principle that a corporation is legally distinct from its owners.”

-“The corporations [the Greens] formed are distinct legal entities, and nothing in RFRA overrides that bedrock principle of corporation law.”

 

Additionally, HHS makes good use of non-legal sources--a tactic we saw in Christopher Simmons's brief in Roper--to further its argument that the contraceptive mandate advances public health, a compelling government interest. HHS notes that a woman’s decision about whether and when to become pregnant “impacts her health, her child’s health, and the economic well-being of herself and her family.” HHS relies on reports from the American Medical Association, the American Academy of Pediatrics, and the March of Dimes, all of which “recommend the use of family planning services as part of preventive care for women.” Thus, argues HHS, it has provided a “concrete and specific” interest “supported by a wealth of empirical evidence.”

 

HHS also employs a strategy I recommend for dealing with counterarguments—make your best and strongest arguments first, then address counterarguments. Otherwise, you end up with a muddled ping-pong-like presentation that gives undue credence to the opposing party’s arguments.

 

HHS starts by arguing that RFRA doesn’t grant rights to for-profit corporations, the Greens’ exercise of religion isn’t burdened by the contraceptive mandate, and the mandate advances compelling government interests. Then—after it’s made its best and strongest arguments—HHS addresses counterarguments. While HHS does use the initial parts of its brief to distinguish some cases relied on by Hobby Lobby, it doesn’t address the “meat” of the counterarguments (and the Tenth Circuit’s holding) until page 48 of the 58-page brief, when HHS starts referencing its earlier points to explain why arguments to the contrary are wrong.

 

As I've noted previously, the Hobby Lobby and HHS briefs are excellent examples of strong written advocacy and offer a wealth of strategies that lawyers old and young alike can employ.

Constitutional Costumes

For those looking for last-minute ideas, consider these Constitution-themed costumes:

"Constitutional Mustard" available at www.halloweenexpress.com (just add the "Constitutional")

"The Right to Bear Arms" available at www.costumesgalore.net
 

"Second Bite at the Apple," available at www.halloweencostumes.com

And, if you have ski equipment, you could also go as the "Slippery Slope."

 

Skier carving a turn in Méribel, France
available at commons.wikimedia.org/wiki/File:Skier-carving-a-turn.jpg 

 

Happy Halloween!

 

More Thoughts on the Hobby Lobby Brief

I’ve talked before about strategies employed by the litigants in the Hobby Lobby case, decided by the Supreme Court earlier this year. Today, I’m focusing on some additional techniques employed by Paul Clement in his brief on behalf of Hobby Lobby.

The Conjurer
Hieronymus Bosch
 via Wikimedia Commons

The best advocates work hard to make their briefs interesting and readable and often pepper them with distinctive, memorable words and phrases. In the Hobby Lobby brief, Paul Clement offers some of these gems:

-“The government’s attempt to drive a wedge between the Greens and their businesses—where only the former have rights and only the latter suffer burdens—is a misguided shell game.”

 

-The “draconian” penalties against the Greens for non-compliance

-The government “offers a fig leaf….”

-The “unadorned term” person applies to both for profit and non-profit corporations.

-The government’s “tortured standard”

-The government’s brief is a “masterpiece of obfuscation.”

-The contraceptive mandate is "honeycombed with religious and secular exceptions."

In Point Made, Ross Guberman talks about adding interest and readability to briefs by including short, pithy sentences. Clement also excels in this strategy:

-“The contraceptive-coverage mandate violates Respondents’ RFRA rights.”

-“Both the Greens and their businesses can sue under RFRA.”

-“Quite obviously that is not true here.”

-“The question is simply whether the law burdens religious exercise.”

Numbers, percentages, and statistics can be powerful tools for writers, but too much of this type of information distracts, rather than enlightens the reader. Clement uses numbers and percentages strategically to make good points:

-“The ACA is an exceptionally complex piece of legislation with many novel, overlapping mandates and exemptions. The Act’s 10 titles stretch over 900 pages and contain hundreds of provisions.”

-“Based on the government’s own estimates, the contraceptive-coverage requirement presently does not apply to tens of millions of people. (55% of large employer plans would retain grandfathered status in 2013); (36% of Americans covered through their employers were in grandfathered health plans in 2013).”

-“Respondents face fines of $100 per affected individual per day, which could total over $1.3 million per day, or close to $475 million per year. If Respondents drop insurance altogether, they would face annual penalties of $2,000 per employee, or more than $26 million.”

Next week I’ll examine some strategies employed by HHS in its brief.

Avoid the Zombies!

In honor of Halloween, check out this excellent TED-talk on nominalizations (the author calls them zombie nouns)!

Happy Friday!

Show, Don't Tell: Legal Writing for the Real World

I generally avoid using LLW and Twitter to self-promote, but I have exciting news to share about my legal writing book with Adam Lamparello, Show, Don’t Tell: Legal Writing for the Real World. The text will be available starting December 4, 2014 via LexisNexis.

We wrote Show, Don’t Tell to help law students and lawyers learn to draft litigation pleadings. For ease, we use a single hypothetical lawsuit, take readers chronologically through the litigation process, and show them how to draft effective complaints, answers, discovery requests, motions, and other common pleadings.

 

We’re very excited about the book and hope that it can serve as a “real world” resource for law students and new and seasoned lawyers.You can pre-order Show, Don't Tell: Legal Writing for the Real World here.

Back to your regularly scheduled programming next week!

The Passive Aggressive Raven

This funny cartoon is a good reminder to avoid using pleadings to take passive aggressive jabs at your opponent or the court.

Happy Friday!

Using Parentheticals

Parentheticals are grossly underused. Many times, a full case explanation isn’t necessary to make the point the lawyer needs to make, yet lawyers often shy away from parentheticals—perhaps for fear that the judge will think the case isn’t important if explained through a parenthetical. I like parentheticals, use them frequently, and understand that many judges like to see them too. Parentheticals work well when used in the following ways: 

To explain a relatively straightforward case with uncomplicated facts: Some cases don’t need a full case explanation. The facts are straightforward, the law is uncomplicated, and the reasoning is short. Generally, those case explanations should be made through a parenthetical.

For example, under Georgia law, service of process on a defendant made after the statute of limitations expires will only relate back if the plaintiff acts with the “greatest possible diligence” in perfecting service (i.e. the plaintiff must act quickly). Numerous Georgia courts have considered whether certain lengths of time are sufficient to satisfy the requirement of “greatest possible diligence” in perfecting service. You needn’t complete a full case explanation for those cases because the facts are all going to be similar: the plaintiff filed suit but did not perfect service until X days after the statute of limitations expired; the law is straightforward (the plaintiff must exercise the “greatest possible diligence) and the reasoning is short. So parentheticals will help you explain the cases quickly and concisely:

A plaintiff must act with the “greatest possible diligence” in perfecting service after the statute of limitations has expired. Wade v. Whalen, 232 Ga. App. 765, 766, 504 S.E.2d 456, 458-59 (1998). While the Georgia courts have offered no express rules, several courts have concluded that service must be made within a matter of days or weeks to relate back. See Akuoko v. Martin, 298 Ga. App. 364, 680 S.E.2d 471 (2009) (affirming dismissal where defendant sued 19 days after statute of limitations expired); Neely v. Jones, 271 Ga. App. 487, 610 S.E.2d 133 (2005) (affirming dismissal where plaintiff waited a month after statute of limitations expired to serve complaint); Hardy v. Lucio, 259 Ga. App. 543, 578 S.E.2d 224 (2003) (holding trial court properly dismissed complaint where service was perfected seven weeks after statute of limitations expired); Harris v. Johns, 274 Ga. App. 553, 618 S.E.2d 1 (2005) (upholding trial court’s decision to dismiss case where 51 days passed between filing and service of suit, service was not diligent, even though plaintiff had made at least one unsuccessful attempt at service during that period). 

To show consistency in outcome with a case previously explained through a full case explanation: Sometimes, you’ll have multiple cases with similar facts and a similar outcome. You almost certainly want to provide a full rule explanation for one at least one of those cases (usually the seminal case, a case with facts most similar to yours, or a case decided by the same court).

But you needn’t bore the judge with a full rule explanation for all the cases, though you want to use the other cases to ensure the judge understands that the law is settled or that multiple courts have reached the same results under similar facts. Parentheticals work well in these situations too.  Take this example from a Daubert motion: 

In Plantation Pipeline Co. v. Continental Casualty Co., No. 1:0-CV-2811, 2008 WL 4737163 (N.D. Ga. July 31, 2008), the parties sought to offer testimony from competing insurance experts regarding when the insured’s duty to report a claim for a gas pipeline leak was triggered and whether the claim was covered under the language of the policy.  The trial court concluded that both experts' opinions were inadmissible under Rule 702 and Daubert because both opinions were improper “expert legal opinion.” Id. at *7.  The court noted that because construction of a contract is a question of law, “[e]xtrinsic evidence to explain ambiguity in a contract becomes admissible only when a contract remains ambiguous after the pertinent rules of construction have been applied.” Id.  Because the trial court had already analyzed the policy at issue and determined it was not ambiguous, the extrinsic opinion evidence was not admissible. Id.; see also Sheet Metal Workers, Int'l Ass'n v. Architectural Metal Works, Inc., 259 F.3d 418, 424 n.4 (6th Cir. 2001) (noting that the opinions of expert witnesses regarding the meaning of contract terms are irrelevant and inadmissible); Marx, 550 F.2d at 511 (vacating jury's verdict where the trial judge allowed testimony of expert who offered opinion on legal standards derived from contract and whether conduct of one party met those standards); Nova Cas. Co. v. Waserstein, No. 04-20755, 2005 WL 5955694, at *2 (S.D. Fla. September 7, 2005) (refusing to allow expert to testify on his interpretation of insurance policy's pollution exclusion because policy language was not ambiguous).

Sheet Metal Workers, Marx, and Nova all support the Plantation Pipeline finding but don’t warrant full rule explanations themselves because they don’t add any reasoning not already explained in Plantation Pipeline. Using parentheticals to explain these cases unobtrusively bolsters the persuasiveness of Plantation Pipeline (after all, other courts follow the same rule) without beating the judge over the head with rule explanations.

To offer an important quote: I also like to use parentheticals for helpful, pithy quotes. The case itself might not warrant a full case explanation (or even any explanation), but if the opinion contains a good quote that’s helpful to my case, I’ll use a parenthetical. This good example comes from a brief I’ve discussed before on this blog—Jeremy Simmons’s brief in Roper v. Simmons:

“Even the normal 16-year-old customarily lacks the maturity of an adult.” Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982) (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)); see also, e.g., Johnson v. Texas, 509 U.S. 350, 367 (1993) (“A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”).

 

Brief for Respondent at 15, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 1947812 (internal citations and quotes omitted).

Keyboard Shortcuts

I saw this handy chart on Twitter recently and wondered whether the shortcuts are legitimate. They are—I tested them! While you may never need a heart or square root in your legal writing, there's a good chance, at some point, you'll need a trademark™, registered trademark®, or degree symbol°.

Tweeted by @lifeproadvices

Happy Friday!

Websites for Improved Legal Writing

I've got most every legal writing book known to man, but I love to browse my favorite legal writing websites and blogs for new, hot-off-the-press tips.  I regularly follow these blogs and websites to improve my writing.

Lawprose

Legal writing godfather Bryan Garner's website is a treasure trove of information for those eager to learn about good legal writing. LawProse has Garner-conducted interviews with federal and state judges on legal writing, usage and writing tips, a word of the day, and many other features. 

www.lawprose.org

Legal Writing Pro 

On his website, Ross Guberman offers excellent tips for brief writing that he supports with real-life examples. I’m a huge fan of Guberman’s book, Point Made, now in its second edition, and Guberman offers additional brief-writing advice on Legal Writing Pro. Some of my favorite Guberman articles include Five Ways to Write Like John Roberts and The Supreme Writer on the Court: The Case for Kagan.

www.legalwritingpro.com

Brief Right

 

Brief Right is the brainchild of Hollingsworth LLP’s Kirby Griffis. On the blog, Griffis offers a variety of practical advice for creating briefs—recent posts include using the table of contents to persuade, acknowledging weaknesses, and avoiding what Griffis calls BRIQs (Big, Really Impenetrable Quotes). 

www.briefright.com

Adams on Drafting

 

Ken Adams is a contract-drafting guru, and his website offers great tips for drafting clear contracts. Adams is the author of A Manual of Style for Contract Drafting, and he offers plenty of advice through his regular articles and posts on some of the stickiest contract drafting issues.

www.adamsdrafting.com

Typography for Lawyers 

The Typography for Lawyers website provides some of the information contained in Matthew Butterick’s excellent book of the same name. Butterick’s advice ranges from selecting readable fonts to using white space to avoiding widow and orphan lines. Butterick provides sample documents to demonstrate the importance of typography and even offers typography strategies for different types of documents, from briefs to business cards.

www.typographyforlawyers.com