Legal Mumbo Jumbo

I love this cool article on Lawyerist in which the author analyzes Justice Scalia's use of the word "argle-bargle" in his dissent in United States v. Windsor (the DOMA case). The author also outlines other fun words that have appeared in opinions, including "jibber-jabber," "gobbledygook," and--my favorite--"higgledy-piggledy."

I did a little research of my own and found some more interesting word pairs, including:
 
-fuddy duddy (Butler Lime and Cement Co. v. Occupational Health and Safety Comm'n, 658 F.2d 544, 548 (9th Cir. 1981));
-dilly dally (Kam Hon, Inc. v. Cigna Fire Underwriters Ins., 933 F. Supp. 1060, 1063 (M.D. Fla. 1996)); and
-hocus pocus (Tucker v. Sebelius, No. 07-2230 (RBK), 2010 WL 2761525, at *2 (D.N.J. July 12, 2010)

Happy Friday!

Commandment #3--Grammar, Nominalizations, Serial Commas etc.

Commandment #3—Thou shalt follow writing and grammar rules; avoid contractions, legalese, nominalizations, and passive voice; and use a serial comma

Grammar and writing rules
You should strive to follow general principles of good writing and use proper grammar. I know this seems like a no-brainer, but you’d be surprised how many briefs contain sentences that lack subject-verb agreement, contain a misplaced modifier, or include a comma splice. These sentences have very different meanings:

The victim picked just the defendant out of a lineup.

The victim just picked the defendant out in a lineup.

Lawyers are frequently under time-pressure (albeit often self-imposed) to complete briefs and filings and don’t check closely for writing and grammar errors. Good legal writers proofread carefully for these types of mistakes. If you lack an understanding of good grammar rules or could stand to brush up on your skills, consider a program like Core Grammar for Lawyers^SM. Core Grammar provides lessons tailored for lawyers on topics such as commas and sentence structure, quotations, and subject-verb agreement.

Contractions
Admittedly, there’s a dispute among legal writing professionals about whether writers should use contractions in formal writing. With the plain language movement, more people think contractions are acceptable. But many still believe contractions are too informal for documents filed with a court. Unless you know your judge is contraction-friendly, I’d avoid using them. You should feel free, however, to include contractions in less formal writing, such as client letters and correspondence with opposing counsel.

Legalese
There’s no need for legalese. The use of legalese does not—in any way—improve the quality of writing. If anything, it makes legal writing more difficult to understand. COMES NOW…is unnecessary. WHEREFORE…is also unnecessary. HEREINBEFORE…ugh. What does ipso facto mean? It means “because”—so why not say “because?” Work to cut legalese from your writing.

Nominalizations
Lawyers—and writers in general—use too many nominalizations. A writer creates a nominalization by turning a verb into a noun. Many (but not all) nominalizations end in –ion, -ment, or -ence. Let’s take an example.

The detective made an investigation into the victim’s claims.

The detective investigated the victim’s claims.

“Investigation” in the first sentence is a nominalization that—as most nominalizations do—adds  length and reduces clarity. Besides increasing the strength of your writing, cutting nominalizations has another practical value—it will help you comply with those pesky page and word limits! The second sentence is 33% shorter than the first.

Passive voice
Like nominalizations, passive voice often obscures meaning and adds length. Passive voice is a bit hard to define. In a sentence in active voice, the subject is doing an action. Put most simply, in a passive sentence, the subject is being acted upon.  Consider these two sentences:

The plaintiff slipped on the water.

The water was slipped on by the plaintiff.

You generally should avoid passive voice; however, passive voice can be useful if you do not know the actor or if you want to minimize the actor’s conduct. For example:

The documents were destroyed.

This sentence makes no mention of who destroyed the documents and sounds much better than:

My client destroyed the documents.

Learn to recognize passive voice and use it sparingly and strategically.

Serial comma
Why use a serial comma? There’s no reason not to! A serial, or Oxford comma, is the comma before the “and” in a series: lions, tigers, and bears.

In most cases, the decision not to use a serial comma is of no consequence.  When I say “lions, tigers and bears,” you know I am talking about three distinct animals. But the better practice, for purposes of legal writing, is to use a serial comma to avoid ambiguity.  For example:

This semester, students will be expected to turn in papers on the following topics: law and religion, race-based admissions policies, the Due Process clause and the death penalty in America.

How many topics are listed in the sentence above?  Four—(1) law and religion; (2) race-based admissions policies; (3) the Due Process Clause; and (4) the death penalty?  Or is it three—(1) law and religion; (2) race-based admissions policies; and (3) the Due Process Clause and the death penalty?

Many courts have been called on to analyze the meaning of documents containing, and lacking, serial commas. Telenor Mobile Commc'ns AS v. Storm, LLC, 587 F. Supp. 2d 594, 607 (S.D.N.Y. 2008) (noting that “the omission of the serial comma in the Shareholders Agreement definition of ‘control’ accounts for much, if not all, of the confusion here”); Commonwealth v. Silva, 488 N.E.2d 34, 36 (Mass. App. Ct. 1986) (interpreting cocaine trafficking statute that provides greater penalties for “manufacturing, distributing or dispensing…twenty eight grams or more of cocaine….”).

I can’t guarantee that your sentence will be unambiguous if you use a serial comma, but I can guarantee that the number and descriptions of items in a list will be clear.

Follow these good practices to improve your writing.

Let No Such Man Be Trusted

Nearly 400 years after Shakespeare's death, American jurists still cite his works. Quotes from plays such as Othello, Macbeth, Hamlet, and Romeo & Juliet appear in opinions from the state and federal courts in nearly every jurisdiction. The Supreme Court has even gotten in on the action. Justice Thomas, in his concurrence in Shelby County v. Holder, --- U.S. ---, 133 S. Ct. 2612, 2642 (2013), quotes The Tempest: "[W]hat's past is prologue."  

Judge Thomas Thrash added to the list of citers of the Bard on January 16, 2014 when he issued an order in United States v. Hill, No. 1:05-CR-269-11-TWT, --- F. Supp. 2d ---, 2014 WL 186098 (N.D. Ga. Jan. 16, 2014). Hill received a 30-year sentence and alleged ineffective assistance of counsel, claiming that his lawyer advised him to reject a 12-year plea deal because he had a complete defense to the charges* against him.

Hill testified that his lawyer advised him to reject a 12-year plea deal, but both the lawyer and the prosecutor testified that no plea deal was ever offered. Judge Thrash found Hill's testimony not credible, noting: "Mr. Hill is a twice convicted felon whose crimes involved fraud, dishonesty and deceit on an enormous scale. Any testimony by him involving the subject of money or his self-interest is inherently suspect." Id. at *1.

Judge Thrash aptly quotes King Lear, a tragedy, to describe Hill's situation:

This is the excellent foppery of the world, that when we are sick in fortune, often the surfeits of our own behavior, we make guilty of our disasters the sun, the moon, and stars; as if we were villains on necessity; fools by heavenly compulsion; knaves, thieves, and treachers by spherical predominance; drunkards, liars, and adulterers by an enforced obedience of planetary influence; and all that we are evil in, by a divine thrusting on.

-William Shakespeare, King Lear, Act 1, Scene 2.

Food for though: Love all, trust a few, do wrong to none. -William Shakespere, All's Well That Ends Well, Act 1, Scene 1.

Happy Friday!

*Hill's charges arose from a mortgage fraud scheme that Judge Thrash noted was the "largest mortgage fraud conspiracy ever prosecuted in the Northern District of Georgia." At the time he was charged, Hill apparently was already on probation for charges arising from an earlier mortgage fraud scheme.

Commandment #4--Rhetoricals, Hypotheticals, and Artificial Emphasis

Commandment #4—Thou shalt think twice before employing devices such as rhetorical questions, hypotheticals, artificial emphasis, and exclamation points.

This commandment is a catch-all for several different, often ineffective techniques lawyers use.

Rhetorical questions

 

Lawyers should generally avoid asking rhetorical questions in their briefs. As one court noted, "[r]hetorical questions do not an issue make." Hartford Cas. Ins. Co. v. Jenkins, No. 09-05214-WS-M, 2010 WL 2348619, at *4 n.6 (S.D. Ala. June 9, 2010). Consider whether this sentence could add anything to a brief:

 

Based on these cases, can anyone question whether Plaintiff has stated a claim for negligence?

 

That sentence doesn't serve any purpose. The writer is essentially asking the reader to perform the analysis. Instead, this writer should spend brief space performing a strong analysis and showing the reader how and why the cases cited apply.

 

Questions can be effective in limited situations, however. Suppose you are arguing that a statute is unconstitutionally vague and doesn't provide fair notice of what conduct is illegal. You might pose questions to show that the statute is vague--questions the statute doesn't answer. For example:

 

The statute prohibits the possession of "child pornography" but does not define that term. What constitutes child pornography? Even if a reasonable person would interpret the term "child pornography" to include materials depicting children engaging in sex acts, the statute is silent about the situation here--where the defendant merely possessed a handful of photos of naked or semi-naked children.

 

Does a new mother violate the statute by possessing photos of her naked, newborn child? Would the statute allow the State to prosecute a father who keeps a picture of his son's first bath? The statute does not answer these questions.

 

Most of the time, however, questions posed in briefs just waste space. Think about whether a question—rhetorical or otherwise—will add anything to your brief before including it. 

Hypotheticals

Like rhetorical questions, posing hypothetical situations is often ineffective too. Every once in a while, a writer will find a really good, strong hypothetical. But most fall flat. Unless a hypothetical is dead-on, it will probably do nothing but detract the reader from the case at hand. Remember, courts decide actual controversies, not potential ones. Generally, you shouldn't waste precious space on hypotheticals--use the pages you have to address the pending case.  

Artificial emphasis*

Good writers use their language and sentence structure to make their points and don’t rely on artificial devices such as bolding, underlining, italicizing, or capitalizing. That’s not to say these devices should never be used—I think they should be, with the exception of ALL CAPS. In my mind, capitals should never be used to provide emphasis (see what I did there).

You should bold, underline, and italicize sparingly; you should never use these devices in conjunction with each other; and you should never use them for more than a few words at a time. Here’s a good example of underlining for emphasis:

To constitute an “automobile” under the policy, the vehicle must be (1) self-propelled; (2) have at least four wheels; (3) weigh less than 12,000 pounds; and (4) have been “designed principally for use on public roadways.” The parties do not dispute that the golf cart has four wheels, is self-propelled, and weighs less than 12,000 pounds.

Defendants’ argue that the golf cart is an “automobile” because they have driven it on the roadways of the community in which they live. Pretermitting the issue of whether the roads in Defendants’ private, gated subdivision are “public roads,” Defendants have failed to offer an evidence that the golf cart was “designed principally for use on public roadways.” Defendants’ evidence shows only that they used the golf cart on public roads. Defendants offer no evidence that the manufacturer of the golf cart designed the golf cart for use on public roads.

Compare that passage with this one:

Defendants’ argue that the golf cart is an “automobile” because they have driven it on the roadways of the community in which they live. Pretermitting the issue of whether the roads in Defendants’ private, gated subdivision are “public roads,” Defendants have failed to offer an evidence that the golf cart was “designed principally for use on public roads.” Defendants’ evidence shows only that they used the golf cart on public roads. Defendants offer no evidence that the manufacturer of the golf cart designed the golf cart for use on public roads.

Do you see the difference? Underlining the entire sentence takes away from—rather than highlights—the important distinction between “use” and “design.” And underlining and bolding the sentence gives the reader the impression you are yelling—it’s off-putting, not persuasive. Short, isolated uses of artificial emphasis can have a big impact. But these techniques should be used carefully and only for the most important points.

Exclamation points

Someone—I believe F. Scott Fitzgerald—once said that using an exclamation point is like laughing at your own joke. And it’s true. In my opinion, exclamation points have very limited use in professional writing. You should include an exclamation point when you are quoting another document or record that contains the exclamation point, such as an email between the parties. You should also, of course, include any exclamation point contained in the original text of any case you cite. Other than those two situations, you should avoid exclamation points in your legal writing—let your words do the talking instead.

 

*The use of artificial emphasis is a sticking point among legal writing professionals. Some say these techniques should never be used; other disagree. I employ these techniques myself from time to time, and I've noticed that many of the nation's top advocates and judges use them quite effectively. So, I think it's unfair to say they should never be used. But they must be used sparingly. Otherwise, you become the writer who cried wolf, and the emphasis loses all effectiveness.

A Jury of His Peers?

The perils of double negatives...

Happy Friday!

Commandment #5--Provide Accurate Citations to Authority

#5—Thou Shalt Provide Accurate Citations to Authority

I can tell you from my personal experience and the sentiments expressed by judges and other law clerks I’ve spoken to—Courts get really irritated when they are unable to locate authority cited by a party.

In discussing the necessity of providing accurate citations, I’m not talking about situations where a party represents that the authority stands for a proposition it doesn’t actually stand for—that was covered in Commandment #7. With this commandment, I’m talking about providing the court with the correct statute or case citation and providing pinpoint citations. I know this commandment seems nitpicky, and it is, but if you follow it, judges will greatly appreciate the effort—I promise.  

You should strive to provide citations that comply with The Bluebook, ALWD manual, or other citation authority used in your jurisdiction. Minor citation errors aren’t a big deal. The real problem arises, however, when the judge or the judge’s clerk cannot locate the case or statute you’ve cited, usually because you’ve transposed or omitted the reporter number, the page number, or the title, chapter, or section of the statute. The third edition of the Federal Reporter (F.3d) can easily become the second edition (F.2d), and 310 Ga. App. 223 (2011) can be turned into 301 Ga. App. 233 (2011).

The court may be familiar enough with the statute or case the party intended to cite to locate the correct authority quickly. However, if the party has cited an obscure statute or unfamiliar case, the court may have difficulty locating the applicable authority.

Even if you do make a citation error, as long as you’ve provided the court with the correct case name and jurisdiction info, the court probably won’t have too much trouble locating your authority. Westlaw and Lexis* both have a feature that enables a searcher to find a case by case name. But that’s not always easy, especially when the case name is a common one, like Smith v. Smith. Providing the correct citation is very important, so try to remember to double-check your cites before filing any brief.

And don't forget to provide pinpoint cites. Unless you are citing a case generally or citing a case as an example of some general legal proposition, you should include a pinpoint cite to let the court know the page number where the quote, proposition, or explanation appears.  And something many litigants may not realize: you should provide pinpoint cites even if you aren't quoting directly from the case but are simply summarizing a legal proposition. For example,

Courts interpret the Rule 9(b) pleading requirements strictly. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008).  

Parties almost always cite cases for specific points, not general principles. In my experience, you probably need a pinpoint cite about 95 percent of the time. If you’re not sure, err on the side of providing the pinpoint citation.

Remember—in persuasive legal writing, you goal is always to make it as easy as possible for the court to rule in your client’s favor. Make the judge’s job easier by providing accurate citations.

*A quick tip about citing unreported cases from Westlaw or Lexis: If you cite a case available on Westlaw or Lexis, include the case number (e.g., 4:05-CV-2049) and exact date of the opinion (e.g., May 21, 2007). Not all courts have access to both databases and, without this information, the court may have trouble locating the authority. The case number and opinion date are included in The Bluebook citation formula for unreported cases found in the Westlaw and Lexis databases.

Hancock v. Penn State Univ., No. 4:05-CV-2049, 2007 WL 1490481 (M.D. Pa. May 21, 2007).

"I Would Have Made 'Periodicals' the Main Character"

This Amazon "review" of The Bluebook has been around for a while, but it still cracks me up.  If only I were so clever.

Happy Friday!

Commandment #6--Perform a Legal Analysis

#6—Thou Shalt Perform a Legal Analysis

As an advocate, your job is to convince the court that your position is the better one, and you do that through your legal analysis.  You can’t just cite statutes and cases and expect the judge to make the connection between the authority cited and the facts of your case.  Too many analyses look something like this:

 

This case is exactly like Church of the Lukumi Babalu Any, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and the other cases cited above. Because those cases control, the City's ordinance is an impermissible restriction of religious practice and is void.

That’s not an adequate analysis—in fact, it's not an analysis at all.  Your analysis should consist of more than a conclusory summary of the facts or a blanket statement that the cases offered apply and support your position.  The analysis should answer the question: Why should your client prevail in light of the facts and law?  Some questions you should ask yourself to guide your analysis:

-Why is a statute/regulation/ordinance applicable or inapplicable?

-How are favorable cases factually similar?
-Does a comparison between recent cases and older cases suggest a trend that supports your position?
-How are unfavorable cases factually distinguishable?
-Was an unfavorable case decided under a different statute with different language? 
-Was an unfavorable case decided under common law principles but a statute now applies?
-Are there policy arguments that support my position/disfavor my opponent’s position?

In the example above, this would mean answering how Lukumi and the other cases cited are factually similar, explaining why Lukumi, as opposed to any “bad” case, applies, and outlining the reasons public policy, equitable principles, or—even—common sense supports your argument that the ordinance is an improper restriction of religion.   

While you probably will have to devote the majority of your brief to outlining the factual background and controlling authority, a good rule of thumb is to save at least 15-20% of your brief space for your analysis.  For example, in a 20 page brief, at least 3-5 pages should be set aside to analyze the facts of the case in light of the cited authority.  Any less, and your analysis is likely inadequate. 

I’ve seen a number of motions for summary judgment denied because the litigant failed to perform an adequate analysis.  In many of those cases, the judge wasn’t convinced the litigant couldn’t prove entitlement to summary judgment—the litigant just hadn’t.  It’s not the court’s job to do your analysis for you.  You will strengthen your writing substantially and increase the chance of a positive outcome by providing a thorough, convincing analysis. 

Lighten Up

This funny opinion (courtesy of Niki Black) is a reminder to all lawyers to think twice before forcing a court to decide minor issues that civilized individuals should be able to work out on their own. Apparently, two of the parties to the case got into a dispute over several (very) petty issues.  The dispute resulted in a "heated" exchange before the court and this hilarious opinion in which the court orders the parties to "lighten up" after finding that they displayed "a startling lack of sense of humor, or proportion, or both."

Happy Friday!