Applause for Justice Kagan

One of the Court's two* best writers, Justice Elena Kagan, recently talked to Bryan Garner about the importance of legal writing.

Justice Kagan told Garner that law schools should "think in a deep way" about the importance of legal writing instruction which, Kagan acknowledged, is "one of the hardest things to teach."   

Justice Kagan's timing at the start of a new academic year couldn't be better for those of us who do have the difficult yet rewarding task of teaching legal writing.

Garner's multi-part interview with Kagan is here, and a National Law Journal article on the interview is here.

Happy Friday!

*Justice Kagan and Chief Justice Roberts are considered by many to the be the Court's best writers.

Come On In and Cover Me

It's OCI season for law students, many recent graduates are looking for positions, and firms and other employers are looking to hire before the end of the year. So what better time to talk about cover letters? 

Disclosure: I am not a career services professional. As a lawyer, though, I read many cover letters and resumes from new and young lawyers seeking employment.

The law-practice economy has been and continues to be a hirer’s market. This means as an applicant, you have to put your best foot forward and catch your reader’s attention quickly. Based on my experience on the hiring side, below are some tips to make your cover letters stand out. 

 

Use an introductory paragraph. In cover letters, space is at a premium, so you’ve got to make the most of what you’ve got. Start off with a bang by telling the reader how you learned of the position and why you’d be a good fit. If an employee of the potential employer or someone well-known to it (like a local judge) recommended you apply, put that person’s name in the first paragraph as well.   

 

Tailor your cover letter to the position and employer. Many applicants use the same cover letter over and over. While you should feel free to use certain passages in multiple letters, always tailor your letter to the position and employer. I saw many a form cover letter that referenced practice areas my firm didn’t have (like entertainment law) or geographic areas where my firm didn’t have an office. Make sure you’ve spent a couple of minutes learning about the position and the employer and tailor your letter as appropriate.

For example, if you’re applying for a litigation position, don’t use your cover letter to talk about contract-drafting or transactional experience. Highlight your in-court experience, membership on an award-winning moot court team, or STLA presidency. Use the position announcement to see what skills the employer is looking for and use your cover letter as an opportunity to highlight times when you’ve exhibited those traits. If the employer is looking for a self-starter, talk about specific times when you took and ran with a file at your previous employer or when you identified a need for an outline bank in one of your law school clubs and single-handedly made that happen. And remember—saying “I’m a self-starter” isn’t convincing. But using specific instances of past conduct to show you’re a self-starter is.   

 

Focus on your value to the employer.

Many cover-letter writers focus on how the employer or position will help them, rather than the opposite. I’ve seen this sentence or some variant too many times:

I believe this would be an excellent opportunity for me to further my legal career.

The employer wants to know what you can do for it.

My experience in insurance defense work will enable me to step in and start handling cases from day one.

Again, review the position announcement to see what type of experience or personality traits the employer is looking for, and focus on drafting a cover letter that highlights that experience and the value you’d bring to your potential employer.

 

Use active voice and strong verbs and avoid nominalizations. The good writing practices that apply elsewhere apply to cover letters as well. Use active voice and strong verbs. Avoid less-powerful nominalizatons, abstractions, and imprecise words that take up space but don’t add value:

As I student I had the opportunity to participate in a clinic. During my second year, we took the case of a client who we believed had been wrongfully arrested and jailed for several months. With the supervision of our advising attorney, other students and I participated in every aspect of preparing the client’s case. A trial, the jury decided to believe our client’s testimony, decided not to believe the arresting officer’s testimony, and reached the conclusion that our client had been wrongfully arrested and issued an award of $100,000. It was one of the most memorable experiences of my law school career. I know I want to be a criminal defense lawyer.

That passage isn't particularly illuminating. The paragraph below is about the same length but exponentially more persuasive. It tells a compelling story that highlights the student’s success, shows the student has real-world experience, and explains why the student wants to be a criminal defense lawyer. 

As a law student, I gained real-world legal experience by enrolling in a clinic. During my second year, our clinic took what we believed was a viable wrongful arrest case. Under the eye of our supervising attorney, my fellow students and I prepared every aspect of our client’s case, from interviewing her to filing the complaint to trying the case under the third-year practice act.  After a three-day trial, the jury concluded that our client was wrongfully arrested and awarded her $100,000. Handling her case from start to finish over a two-year span showed me what a difference lawyers can make in people’s lives and confirmed that I have the drive and passion to be a successful criminal defense lawyer.  

Proofread. Proofread. Proofread. Your cover letter must be perfect—even a single typo can prevent you from getting an interview for the job of your dreams. Once you've written your letter, proofread it until you just can’t look at it anymore. Start by spell-checking your letter. Then review for misused words and typos that Word want catch (See what I did there?). Read your letter out loud to yourself. Read it to a friend or family member. And have someone knowledgeable about the legal professional review it as well.   

  

Good Ole' Southern Sayin'

We're in the dog days of summer in the South. The temperature is high. The humidity is high. The wind doesn’t blow and the air is heavy. If you’ve lived in the South, you’re familiar with these dog days. And you’re also probably familiar with Southernisms—those uniquely Southern phrases that make their way into almost every conversation with a true Southerner.

These Southernisms have made their way into judicial opinions as well. Surprisingly, though, most of these Southern phrases have come from judges in non-Southern states. I’ve listed some of my favorites below:

-You can catch more flies with honey than vinegar, People v. Crawford, California

-Grown too big for his britches, Carrasquillo v. Sindicato De Empleados de Equipo Pesado, Construcciony Ramas Anexas de P.R., Inc., Puerto Rico

-That dog won’t hunt, U.S. v. Pineda-Mendoza, California

-Playing possum, Fattah v. Beard, Third Circuit

-Can’t make a silk purse out of a sow’s ear, Jawad v. Holder, Seventh Circuit

My favorite Southern phrase, “bless his heart,” didn’t make any opinions. I’ll keep looking for it, though—“after all, tomorrow is another day.”

Happy Friday!

Collective Soul

Collective nouns describe groups of people who act together (collectively) or as a single unit. Lawyers use collective nouns frequently:

-Court

-Majority

-Jury

-Congress

-Legislature

-Committee

-Corporation/Business

When the people who make up the collective noun act collectively, the noun is singular and takes a singular verb:

-The Court rules …

-The majority holds …

-The jury finds …

-Congress votes …

-The legislature convenes …

-The committee calls …

-The corporation/business recalls …  

This also means that collective nouns take a singular pronoun (i.e. it):

-The Court ruled in favor of the defendant. In doing so, it overturned nearly 200 years of prior precedent.

-The legislature voted to amend its ill-thought-out apportionment statute.

-The court held that while U.S. Airways was not precluded from delegating its duties to third-party independent contractors, it remained liable to plaintiffs injured by the negligence of those contractors.

The people in these groups can act individually as well, in which case the collective noun takes a plural verb:

-The team disagree on the proper course of action and have asked the managing partner for assistance.

-The class have begun working on their first legal writing assignment.  

These sentences sound awkward, and the question of whether a group is acting collectively or individually can confuse both the writer and the reader. If the writer believes a collective group is acting individually, I think the better practice is to insert the word “members” (or a similar term) after the collective noun and use a plural verb:

-The team members disagree on the proper course of action and have asked the managing partner for assistance.

-The class members have begun working on their first legal writing assignment. 

So, unless this exception applies, a collective noun is never a “they” (a very common error I see from both lawyers and law students).

Deflategate Continued

If Brady’s brief is a 100-foot view of the case, the NFL’s brief is a 10,000-foot view. Brady makes many nuanced arguments about the propriety of his suspension, but the NFL’s brief can be summarized in one sentence: The CBA gives Goodell broad discretion to both interpret the CBA provisions and punish players and Goodell properly exercised that discretion.



Photo courtesy of AP/Ghanbari

The NFL doesn’t want the judge to get into the nitty gritty of the case, so it hammers the reader with the collectively-bargained-for nature of the CBA and reminds the reader that the standard of review is extraordinarily narrow. The terms Collective Bargaining Agreement and CBA appear nearly 50 times in the NFL’s 15-page brief. That’s not a coincidence—the NFL wants to remind the judge that this case comes down to the CBA provisions that give Goodell exceptionally broad power to mete out discipline.

The NFL argues that Brady wants is for Goodell to have interpreted the CBA differently, but the court’s review is extremely deferential to the arbitrator (here, Goodell) and is one of the “narrowest known to law”  (a quote from a Supreme Court case). This is an excellent use of helpful language from binding authority. And the NFL makes good public policy arguments: arbitration provisions exist to minimize in-court legal disputes, and the CBA’s appeals process “accords with Congress’s desire for parties to settle their labor disputes privately through final and binding arbitration.”

The NFL continues by touting the thoroughness of the Wells investigation and report and of  

Ted Wells
Photo courtesy of www.paulweiss.com

Goodell’s decision-making process. The NFL describes the “months-long investigation” that resulted in a “thorough and public report” of 139 pages. It notes that Brady was represented by multiple counsel at the “extensive” arbitration hearing, and that Goodell “carefully” considered Brady’s arguments but rejected them based on his assessment of the evidence and interpretation of the CBA.

Brady argues that he was improperly disciplined without notice under somewhat obscure policies governing player equipment and competitive integrity. But the NFL counters that Brady was actually disciplined under the extraordinarily broad provision in the CBA permitting the NFL to discipline players for “conduct detrimental” to the League. Rather than delve into details of the many NFL policies that govern player conduct, the NFL cursorily dismisses each of Brady’s notice arguments with the conclusion that the discipline occurred under the broad “conduct detrimental” rule.

This argument (or lack thereof) may come back to bite the NFL. According to the Wells report itself, the Well investigation was conducted pursuant to the competitive integrity policy. If Brady’s argument that the competitive integrity policy does not apply to players is correct, the NFL may be in trouble.

The Deflategate saga continues. Oral argument is scheduled for August 19, though the judge has strongly encouraged the parties to settle the case, and settlement talks are ongoing. Given the speed with which the judge has acted, I think it likely that a written opinion will come down quickly.

Happy Friday!

The Rhetoric (to Date) of Deflategate

Those who read this blog or follow me on Twitter know I love sports and, especially, the intersection between legal writing and sports (yes—it exists)!

Over the last few weeks, I've become interested in the rhetoric of Deflategate, the controversy surrounding the deflation of footballs during last season's AFC Championship game.

Background

After the NFL discovered the deflated footballs, it hired lawyer Ted Wells to investigate and report his findings. In his report, Wells concluded that Patriots employees tampered with game balls after those balls had been checked by referees and that Brady was at least generally aware of the scheme to deflate the footballs.

Acting of behalf of NFL Commissioner Roger Goodell, Troy

Troy Vicent
courtesy of NFL Communications

Vincent, the Executive Vice President of Football Operations, suspended Brady for four games, to be served at the fast-approaching start of the 2015-2016 season. Brady appealed that suspension, but under the Collective Bargaining Agreement that governs disputes between players and the League, Goodell served as arbitrator of the appeal. Goodell upheld the four-game suspension, finding that Brady “induced” the ball tampering and attempted to hide his conduct by refusing to turn over his cell phone or make text messages between himself and Patriots employees available to Wells and his investigators.

Since Goodell issued the arbitration award several weeks ago, the parties have leveled some inflammatory accusations at each other. Brady’s agent called the discipline “ridiculous,” the Wells report a “frail exercise in fact-finding and logic,” and chastised the NFL for its “well-documented history of making poor disciplinary decisions.”

Roger Goodell

The NFL instituted suit first in the Southern District of New York to have Goodell’s arbitration award affirmed, then Brady filed an action in the District of Minnesota to have the award vacated. The actions were consolidated and will be heard by Judge Richard Berman of the Southern District of New York, who has instructed the parties to “tone down” their rhetoric. They seem to have listened if their latest filings in the litigation are any indication. Though some of the words and tone in the NFL and Brady filings are sharp, they aren’t nearly as pointed as the prior barbs the parties traded.

Below is a summary of the more interesting arguments and language in Brady’s brief, filed in advance of the August 19, 2015 oral argument.

Law of the Shop

The core of Brady’s brief is his “law-of-the-shop” argument in which he focuses on the overturned arbitration awards in the Adrian Peterson and Ray Rice cases. According to Brady, the essence of the CBA includes the express terms of the agreement, prior arbitration awards (akin to case law), and the custom and practices of the parties. Brady argues that under the CBA he cannot be disciplined for conduct that he did not know was prohibited or punishable. To advance this notice argument, Brady relies on the “precedent” of the Peterson and Rice cases.

Tom Brady
Courtesy of www.businessinsider.com

Both Judge Doty (who presided over the Adrian Peterson appeal) and former United States District Court Judge Barbara S. Jones (who served as the arbitrator in the Ray Rice case) found that the CBA does not permit retroactive application of new disciplinary policies without notice. Brady effectively uses select language from the those cases to argue Goodell has done the same thing to Brady in this case that he did to Peterson and Rice in prior cases: handed-down punishments “arbitrarily” in response to “public criticism” that exceeded the punishments the players were notified they might receive.

I like Brady’s reliance on this “prior precedent” to highlight what many see as Goodell’s make-up-the-rules-as-you-go approach to player discipline. Not only does that precedent provide good language that supports Brady’s arguments, it reminds the reader of Goodell’s actual and perceived failures in meting out appropriate discipline consistent with the CBA.

The No-Other-Player Argument

Brady also spends considerable space outlining the “unprecedented” nature of his suspension, using phrases such as “no other player” and “no player in NFL history” to effectively emphasize the ways the NFL singled-out Brady for punishment.

For example, Brady argues that “no player in NFL history has been disciplined” for being generally aware of another person or player’s misconduct—not even the players who knew about Bountygate (involving the New Orleans Saints) or the Miami Dolphins bullying scandal that resulted in the suspension of Richie Incognito.

Further, Brady notes, “[n]o player suspension in NFL history has been sustained for an alleged failure to cooperate with—or even allegedly obstructing—an NFL investigation.” Brady makes the “unprecedented” argument again later in noting that he was initially disciplined pursuant to the League’s Competitive Integrity Policy which, according to Brady, is not applicable to players. Brady supports this argument by noting that he is “the first player ever disciplined” under that policy. And Brady further argues that the only other investigations of ball tampering in recent years “resulted in no player investigation, much less player discipline.”

No Protocols

Brady also challenges the premise of the suspension itself; that is the League’s finding that game balls were purposely deflated. Brady argues that prior to the publication of the Wells report, “neither the NFL nor its referees had any appreciation of the Ideal Gas Law and the fact that some deflation was naturally expected; no set procedures existed for testing balls at halftime or after the game; and, as a result, the referees did not record critical information about the sequence and timing of the measurements, temperature, wetness, or which of two gauges was used.” 

Thus, according to Brady, the arbitration award cannot be fair where the League cannot even prove the balls were intentionally deflated because “it had no protocols for collecting the information essential to determining what actually caused the deflation reflected in the halftime measurements.” I like this argument very much as I see the facts as compelling—the League suspended Brady based on what does appear to be some suspect “science.”

I think Brady’s counsel should have hammered the NFL with some stronger language by, for example:

--calling the NFL’s finding or process “junk science”

--noting the “complete lack of protocols” (not just “no protocols”) for determining if balls were intentionally deflated

--highlighting that the people responsible for ensuring balls were not tampered with (referees) had no idea that deflation could even occur naturally and absolutely no understanding of how to determine if ball deflation resulted from environmental factors

The NFL's brief contrasts starkly with Brady's. On Friday I’ll post my writing-related thoughts on the NFL's filing.

The Struggle Is Real

Is legal writing a struggle for you? You're not alone. Professor Wayne Schiess pointed out in “Legal Writing Is Not What It Should Be,”

Producing clear, effective writing is hard work, and producing clear, effective legal writing is harder still. In that way, legal writing is like any other valuable skill: playing the piano, running a marathon, or performing heart surgery. It takes practice, lots and lots of practice.

Professor Schiess is right: Lots of practice will improve the clarity of your writing. But even after you’ve practiced and practiced, writing will probably remain challenging. It remains challenging for me and for many I know. I spend time almost every day both writing and working to improve my writing skills.

Some days my writing flows almost effortlessly. And other days, like today, I slog along listlessly, struggling to get down even my most basic thoughts. So if you are toiling today, take heart. Keep at it. As Louis L'Amour noted, “The water does not flow until the faucet is turned on.”

Happy Friday!

The Early Years: Tackling Legal Research and Writing

Congratulations to all law graduates out there who just finished the bar exam--hopefully you'll soon be on your way to the legal career of your dreams! 

I wanted to use my post this week to offer some legal writing advice for the baby lawyers out there who will be starting new jobs in the next few weeks. But then I realized the advice I want to give is already contained in a article I did a few months ago for Ms. JD's Surviving and Thriving in the Early Years series.

In my article, called Tackling Legal Research and Writing, I suggest ways young lawyers can use the legal research and writing skills they learned in law school to excel in real-world practice. These tips include: take clear notes, know how much time you can spend on the project, learn style requirements and page limits, and know when to ask for clarification.

Many new lawyers find that the skills they developed in their legal research and writing courses translate immediately to the work they do in their first years of practice. I hope my tips will be useful to new law graduates embarking on their legal careers in the coming weeks and months.