Tuesday, October 31, 2006

Law review: editors won't split verb phrases

Professor Jonathan R. Siegel of George Washington University School of Law has written an article in the Journal of Legal Education called A Short Note on the Placement of Adverbs. It's fascinating.*

He asserts that many law reviews follow a grammatical convention that prohibits inserting an adverb between the parts of a verb phrase.

So when most us of us would write--
  • A court might even have to impose a structural injunction.
the law review editors insist on--
  • A court even might have to impose a structural injunction.
See 56 J. Leg. Educ. at 62. He gives numerous other examples, many of them equally silly.

Professor Siegel points out the lack of authority for this supposed rule of grammar and even cites one expert (H.W. Fowler) who insists that the actual rule is to place the adverb inside the verb phrase. He guesses that this false rule arose by analogy to the supposed rule against splitting infinitives. Id. at 63-67.

It's a cogent and well written little essay. His thoughts bring to mind my favorite take on student law-review editors, Bryan Garner's:
    [L]egally trained young men and women are called upon to be professional editors when not one in fifty has a background suitable to the task.
A Dictionary of Modern Legal Usage (2d) at 507.

I was not on law review, so I know I must sound unnecessarily critical and therefore bitter. Perhaps it's true. But tomorrow I'll share the results of a student's survey of law-review students before and after their experience, and perhaps my lack of law-review experience will be seen as a strength.

*If by "fascinating" you mean "nerdy beyond all reason."

Monday, October 30, 2006

Punctuation: space after periods

In the debate about spaces after periods, I always tell my students and the lawyers at my seminars that I like 1, but that the rule is in flux today. I think you can't really say that 1 or 2 is right or wrong--for now.

The legal-drafting expert Ken Adams comments on it here

He concludes that the 2-space convention has no reasoned support.

Writing poorly: help from the court

In a federal district court, a lawyer filed a wordy, repetitive complaint containing multiple allegations per paragraph, improperly pleaded evidence, and argumentative language. The court ordered the lawyer to re-plead the complaint, and offered this help:
    To assist plaintiff’s attorney, the court is enclosing a copy of a sample pleading in a negligence case taken from 2 James Wm. Moore, Moore's Manual--Federal Practice Forms, Form No. 10:86G (1998). The court also recommends that plaintiff's attorney study William Strunk, Jr. & E.B. White, The Elements of Style (3d ed. 1979).
Politico v. Promus Hotels, Inc., 184 F.R.D. 232, 234 (E.D.N.Y. 1999).

Tuesday, October 24, 2006

Ethical legal writing: be kind to trial judges

As part of the joint appendix submitted to the appellate court, a lawyer had included a photocopy of the trial court's opinion on which someone at the firm had made handwritten margin notes stating "WRONG" next to various of the trial court's findings. The appellate court considered this "indecorous and unprofessional" and stated its hope that it would not recur.

Allen v. Seidman, 881 F.2d 375, 381 (7th Cir. 1989).

Thursday, October 19, 2006

Plain language: Short good; long bad

Research offers proof that gratuitously fancy words tend to make authors seem less intelligent than they would if they relied on shorter words."

Read about it here.

Wednesday, October 18, 2006

Plagiarism: it follows you after law school

I just read two eye-opening cases about law-school plagiarism.

1. A student was accused of plagiarism in law school but was exonerated by the school. When he applied for admission to the state bar, the bar re-considered his plagiarism case and decided the school had been wrong: he was guilty of plagiarism and should be denied admission to the bar. On appeal, the state supreme court affirmed the denial of admission and held that the state bar was not bound by the school's conclusion on the plagiarism charge.

2. A student was accused of plagiarism in law school and admitted wrongdoing, agreeing to a one-semester suspension. When he applied for admission to the state bar, the bar reconsidered his plagiarism case. His answers to questions from the hearing board were evasive and less than candid. The bar denied him admission, and he appealed. The state supreme court affirmed the denial of admission.

I feel bad for these applicants, but it is nice to see that the state bars are taking plagiarism seriously.

Monday, October 16, 2006

Haiku: The comma

The comma: a haiku chain

Vexing comma. Why—
When countless options beckon—
Still rely on me?

Run-on into night,
Spliced clauses without full stop.
You darken my mind.

Hide inside the quotes,
Friend comma. Let foolish peers
Stray and risk my wrath.

Series comma: Yes!
Reliable and clear, but
Many shun you. Why?

Aim falling commas;
Make them not like sprinkling rain,
Scattered on the page.

Thursday, October 12, 2006

The memo: issue statement as syllogism

Framing the issue as a syllogism
According to classical logic, the syllogism has three parts: a major premise, a minor premise, and a conclusion. The major premise states a broad and generally applicable truth. For example, "All humans will eventually die." The minor premise states a specific and usually more narrowly applicable fact: "My legal-writing professor is human." The conclusion then draws upon these premises and offers a new insight that is considered to be true based on the premises: "My legal-writing professor will eventually die." Thus

All humans will eventually die.
My legal-writing professor is human.
My legal-writing professor will eventually die.

One effective way to frame a legal issue is to model it on the syllogism. To do this, make your major premise a general rule of law or a legal principle based on a widely-known legal rule or on your own legal research. Then make your minor premise a statement of the key facts of the legal problem. Then make your conclusion into a legal question about the result when the major premise about the law is applied to the minor premise about the facts.

3d. Major premise about the law: Drivers who lapse into unanticipated fainting spells are not negligent for injuries they cause.

3e. Minor premise about the facts: Daniel Lee had unexpectedly lapsed into sleep once in a meeting and once in his office. He then lapsed into sleep while driving his car, which resulted in an accident.

3f. Legal question derived from the major and minor premises: Can Lee obtain a summary judgment in a negligence case against him on the ground that the third incident was unanticipated, and that therefore he was not negligent?

As simple as this example may seem, framing a legal issue this way requires a lot of work. You must research the law and be sure you are right about it before you can state the major premise about the law. You must be thoroughly familiar with the facts of your problem and be able to condense the key facts into a brief synopsis. And you must frame the underlying legal question accurately.

Often, framing an effective legal issue requires several drafts and must come after a draft of the discussion section of the memo. Here is another example:

3g. Major premise about the law: If a party in a suit has a claim against an opposing party that arises from the same transaction or occurrence as that opposing party'’s claim, it is a compulsory counterclaim and will be barred if not asserted.

3h. Minor premise about the facts: Anderson sued Dicenzo for injuries to his daughter caused by a horse that Dicenzo sold Anderson. Anderson still owes Dicenzo money for the horse.

3i. Legal question: Is Dicenzo's claim for the unpaid price a compulsory counterclaim in Anderson’s injury suit?

Monday, October 02, 2006

The memo: issue statements

Sentence structure in issue statements
The traditional way to structure an issue statement was in a single sentence beginning with the word whether. Many legal memos written today still contain issue statements structured that way. The whether style is less than ideal because it requires the writer to frame the issue in a single sentence, and that sentence, because it begins with whether, is a fragment.

Even if we abandon the whether structure, tradition still calls for the issue statement to be framed in a single sentence. The single-sentence issue statement is still common today, even though it routinely produces issue statements that are single sentences of more than 50, 70, or 90 words.

This book recommends a multi-sentence issue statement of two or three sentences with a total of 50 to 80 words.