Dr. Seuss, the Judge

Niki Black at My Case Blog always finds funny, interesting judicial opinions, and this one is no exception. The plaintiff, apparently a prisoner suing the New Hampshire Department of Corrections, filed an egg--literally. He promptly received this order, written in Dr. Seussian style, prohibiting him or anyone else from filing any more eggs and instructing the clerk to destroy the stinky submission.

The Egg Order

Happy Friday!

Thanks for your patience while I've been in Scotland. I'll be back to my regular posting times next week.

Writing to Win: A Book Review

I recently read Steven Stark's well-written book, Writing to Win. Stark advocates a journalistic approach to legal writing and Writing follows that pattern--starting broadly and narrowing its focus as the book goes along. Stark begins by outlining nine rules for good writing--using strong verbs, keeping things short, avoiding generalities etc. He provides specific examples for each of his nine rules, making them easy to understand and apply.

Stark then moves on to "the art of argument" where he offers tips for writing arguments; these tips include focusing on the big picture, developing a theme, and making your writing interesting. As expected, though, Stark devotes the bulk of Writing to tips for drafting briefs. He breaks down his brief-writing tips into two sections--drafting facts and drafting arguments. Stark shows readers how to lead with the most persuasive facts, deal with bad facts, and show, rather than tell, the client's story. He then outlines his tips for writing arguments, which include making the strongest argument first, using CRAC to outline arguments, and effectively using case law. Starks's tips are generally applicable to trial-level briefs (both dispositive and non-dispositive) and appellate-level briefs.

Stark also touches on trial-level documents, such as complaints, answers, affidavits, and discovery requests. I like the tips Stark offers--especially his tip to include an introduction in complaints. I don't normally see introductions in complaints, but I like the idea of including them to help the reader understand the allegations that follow. Other tips, which Stark echoes elsewhere in Writing, include writing in plain English, avoiding adjectives, adverbs, and subjective words, and using short sentences and paragraphs.

Writing is conversational and easy to read. Throughout Writing, Stark offers both good and bad examples from real briefs, showing readers how to apply the tips he offers. Stark also draws examples from other disciplines, including advertising and journalism, to show lawyers why they must get the point quickly to "sell" the client's story.

My only complaint with Writing is Stark's failure to update many of the "real life" examples. Stark originally published the book in 1999 and then updated it in 2012. Many of Stark's examples are from the 1980s and 1990s. While the plain language movement was certainly in effect during that period, I feel legal writing has changed substantially in the last 20 years. And I would have liked to see Stark update some of his older examples to reflect more recent trends in legal writing. That said, Writing is a great resource for new and more mature lawyers alike. Stark offers hundreds of tips that can be implemented by everyone from novice legal writers to experienced appellate litigators.

I Do Not Disapprove This Message

Double negatives, like other tactics used by politicians, obscure rather than enlighten. Lawyers sometimes use double negatives for the same reason, generally with poor results.

Conan O'Brien's recent parody of a Joe Biden campaign ad takes double-negative politician speak to a new level.

Parody: Biden 2016 Campaign Ad

Happy Friday!

Dear Lady (Legal) Writer

In my Dear Lady (Legal) Writer posts, I’ll answer legal writing questions I get from readers, students, colleagues, and friends.

Dear Lady (Legal) Writer,

 

I notice you start sentences with and and but. I was taught you can’t start sentences with these words. What gives?

--JPS

Dear JPS,

I, too, learned you should never start a sentence with “and” or “but.” I think we probably learned this “rule” when we are young because our English teachers were trying to help us avoid sentence fragments. I’m not aware of any widely used style or usage guide that prohibits starting sentences with “and” or “but.” In fact, professional writers frequently start sentences with “and” and “but”—and do so effectively. This isn’t a new trend, either. Shakespeare, Chaucer, and authors of the books of the Bible all started sentences with these conjunctions.   

It is true that “and” and “but” are somewhat informal. That said, sentences starting with “and” or “but” are more conversational than those that start with words such as “however” or “nevertheless.” And many readers respond well to conversational writing—even law-trained readers, like judges.

You should use “and” and “but” sparingly, though, to ensure your writing flows. And remember—mix your sentence structure and length to change emphasis and add interest.

LLW

Love and Due Process

For you procrastinators out there who haven't bought your sweetie a card yet, consider downloading this amazing RBG Valentine.

Happy Valentine's Day!

Commandment #1--Be Clear

Commandment #1--Thou shalt strive to be as clear as possible.

In many ways, the outcome of each of the commandments is clear writing--whether you're using an introduction to give the reader a roadmap, performing a strong legal analysis, or minimizing the use of nominalizations or passive voice, you're doing so to make your writing as clear as possible. The additional tips in this commandment will help you polish your writing further.

Don't use fancy, esoteric words. Good legal writing isn’t about displaying your knowledge of SAT words. Don’t make your reader work too hard to figure out what you are trying to say. If you force your reader to consult a dictionary, you’ve distracted the reader from the substance of your argument. After a court’s directive to file future submissions in “plain, simple English, devoid of any rhetorical flourishes,” a lawyer submitted these sentences in response to a motion to dismiss:

The mise en scene of these proceedings emanates from a background of Machiavellian intrigue, cunning deception, and sensational double entendre. Essentially, it is a text book example of myopic greed and clandestine chicanery designed and intended to conceal from respondents' knowledge a pre-existing business relationship between the movant and others....”

Kochisarli v. Tenoso, No. 02-CV-4320 DRH/MLO, 2006 WL 721509, at *6 (E.D.N.Y. Mar. 21, 2006).

This response went over about as well as you might expect: “[I]t is difficult to have a serious discussion of Counter-claimants' legal arguments here.” Id. Don’t be like this lawyer.

Aid readability by keeping most of your sentences short--30 words or less. Keep paragraphs on the shorter side as well. A three- to five-sentence paragraph is a good length. You can even use a single-sentence paragraph to make an important point.

And avoid excessive use of acronyms. Of course, you shouldn’t hesitate to use commonly recognized acronyms (e.g., FBI). But acronyms tend to "obscure, certainly in the reader's mind and sometimes even in the writer's, the underlying reality of a case, and the legal issues on which it must turn.”  Nat’l Paint & Coatings Ass’n, Inc. v. South Coast Air Quality Mgmt. Dist., 100 Cal. Rptr. 3d 35, 37 n.1 (Cal. Ct. App. 2009). And acronyms do not aid reading comprehension. Consider this sentence:

In their request, the legislators cited “serious concerns” regarding whether the AQCC's and the PUC's analysis and approval of the SIP amendments were conducted in accordance with the agencies' duties under the APA.

Colorado Mining Ass’n v. Urbina, No. 12CA1648, ---P.3d---, 2013 WL 6118417, at *3 (Colo. App. Nov. 21, 2013). 

Acronyms also depersonalize the parties. Imagine you represent three defendants, America’s United Bank, America’s United Bank Holding Company, and America’s United Bank Mortgage Corporation, which foreclosed on a home owned by an elderly woman, Elsie Copeland, whose husband died the previous year.  While the law might be on your clients’ side, sympathy is not.  And you’re not going to help the situation by referring to the entities by impersonal acronyms—AUB, AUBHC, and AUBMC. Instead, you could collectively refer to the defendants as the "Mortgagor" or "American" and refer to Elsie Copeland as "Mortgagee" or "Copeland."

 

Use these tips, and those offered in Commandments 2 through 10, to improve your legal writing.

What's in a Name?

Several readers have asked where I got my blog name, Lady (Legal) Writer. First, it's a tribute to one of my favorite bands, Dire Straits, and its song, Lady Writer. Second, it's a tongue-in-cheek homage to female attorneys in the South, who are frequently referred to as "lady lawyers."

If you're not familar with Dire Straits or Lady Writer, check out Mark Knopfler and his bandmates in this video:

Thanks again to all who read my posts. Happy Friday!

Commandment #2--Proofreading and Spell-checking

Commandment #2--Thou shalt proofread, use spell-check (but not rely exclusively on it), and proofread some more

Proofreading is vital to good written advocacy. You should be proofreading in two separate phases. The first phase should be a macro-level proofread where you look for large-scale problems including organization, flow, and clarity. During the first reading, you should be checking to ensure that your writing is not disjointed, that your paragraphs and sentences flow logically, and that legal principles are clearly and thoroughly outlined and analyzed.

In the second phase, you should be performing micro-editing, looking for smaller details such as proper grammar, syntax, word usage, and sentence structure. Avoid the temptation to combine the micro and macro phases. It’s difficult, if not impossible, to review for content and detail simultaneously.  If you try, you’ll inevitably overlook various problems with both.  Of course, if you find obvious grammatical or other micro mistakes during the macro proofreading stage, you should go ahead and fix them. 

I’ve talked before about good proofreading practices, but as a reminder:

-put the document away for as long as possible before you try to proofread it

-proofread on paper, as opposed to a computer screen
-give yourself time to proofread—thorough, careful proofreading takes a long time
-read the document out loud—you’d be amazed how proofspeaking will help you catch errors
-enlist the help of a colleague—When I practiced, I read numerous briefs for other attorneys and offered both macro and micro suggestions

Spell-check is a very important tool. But you can’t rely on it as your sole method of proofreading. Spell-check often won’t catch errors in words in ALL CAPS (I frequently see BREIFS), doesn’t recognize many legal terms (tortious, for example), and can’t help you recognize typos that are words (guaranty and guarantee, for example).

That said, there is no reason not to use spell-check. I rarely draft a document more than a page in length that doesn’t contain at least one spelling error—the type of error that spell-check will catch. Spelling errors scream sloppiness. It’s difficult for judges to trust the substantive points in documents replete with spelling errors, so you should always spell-check your documents. In using spell-check, keep these points in mind:

-turn off or be careful with “auto correct” features (for a horror story, see my sea sponge story, here)

-add frequently used legal terms to your spell-check dictionary
-double check short, frequently used words like is, it, and if; of, or, and on; and to and do

Proofreading is a very important part of legal drafting. Follow good proofreading practices to improve your writing.