Friday, March 28, 2008

Legal words you'd like to banish?

What legal words or phrases would you like to banish? They can be archaic, offensive, baffling, weasel-like, or hyperlegal.

I have a few, but I'll post mine later in a longer piece.

Thursday, March 27, 2008

More on questions presented

In a thoughtful comment, don has raised some valuable points about writing questions presented. My post, where you can also read don's entire comment, is here.

I want to address two topics he raised.

First, he called my approach dogmatic. I dislike being perceived as dogmatic--on most writing issues, I'm actually quite flexible. Mostly, I'm concerned with writers being informed and not hamstrung by "rules" that aren't. But as I re-read my original post, I do sound dogmatic. I'll work on it.

Second, he rightly points out that questions presented serve different functions in different documents. This I know, but my posts glossed over that. My posts were simple, not sophisticated. More on that in a moment.

For now, know this: all I really feel dogmatic about is that there should be no "rule" that all questions presented must be in a single sentence.

As to sophistication, here's a start. (There's definitely an article in this. Dibs!)

Questions presented, probably better called "issue statements," appear in many different kinds of documents, and a sophisticated writer will adapt the form, length, and sentences to the audience and the document. For example, in a persuasive brief on the merits, you should use a different approach from that used in an objective memo. The issue statement in a petition for discretionary review will take a different form from the issue statement in a client letter. And so on.

Consider these legal documents; the issue statement might take a different approach in all of them:

Client advice letter
Objective legal memo
Trial brief
Petition for discretionary review
Appellate brief on the merits
Mediation statement
Email message to a subordinate or supervisor

And more. What others can you think of?

Tuesday, March 25, 2008

Defending the single-sentence question presented

A reader defends the single-sentence question presented:
Focus is my #1 reason: Limiting the Question Presented to one sentence forces the writer to focus on the overall issue that is addressed in the memorandum and the key facts that determine its outcome.
I say that one can maintain the same focus even if the issue statement is three sentences long. To me, it's a matter of mental discipline, not the number of sentences.
Brevity is my #2 reason; 75 words is still way too long, be they contained in one sentence or more than one. About 30 to 40 words ought to suffice.
It's hard to argue with this. I'm a big fan of brevity, and 30-40 words will take the reader half as long to get through as 75 words. Point well taken.

I will only respond this way: For plenty of legal writers, executing of the 30-word, single-sentence question presented is a problem. Since it's not usually possible to cram much detail or specifics into 30 or 40 words, these short, single-sentence questions tend to be superficial and abstract, like this:
Does substantial evidence of record supports the ALJ's decision to deny disability benefits to the claimant?
And this:
Will a trial court deny Smith's Motion to Transfer Venue on the ground that Travis County is a proper venue?
Or they tend to be awkwardly constructed because the writer is trying to get a lot of information into one sentence, like this:
Is the evidence legally and factually sufficient to support the judgment that the wrapping and packaging exclusion to the resale exemption to the Texas sales tax applies to HWC's purchase of nonreturnable reels required in wire product assemblies that HWC sold to its customers?
These examples show what I all too often see when legal writers strive to keep the question presented to a single sentence. Maybe it's just poor execution, but I think the multiple-sentence approach, even if it is a bit long at times, is better because it allows the writer to get some details in there and make the text more readable.

I'm asking: what are the most misused legal words?

What are the most commonly misused words in legal writing?


Tell me your pet peeves or the one you see the most.

Thursday, March 20, 2008

Defending the single-sentence question presented

I can't.

I teach my students to use multiple sentences and construct the question as a type of syllogism, and I've been doing it for 10 years.

If you teach or use the single-sentence question presented, what are its strengths? Let me cut off two before you reply.

1. Brevity
Some say the multiple-sentence question is too long and single-sentence question is shorter. Not in my view. I limit my multiple-sentence questions to 75 or 80 words, and I routinely see single-sentence questions of 80, 90, or 100 words. In a single sentence.

2. Tradition
I don't think writing a question in a single sentence is worth doing if the only reason is that it's a tradition. There better be other reasons. Good ones.

So . . . ?

It doesn't all transfer that easily

I read something today that made me realize that lots of folks think that if you're a good writer--if you have a strong knowledge of written English or proven success in some type of writing--then you'll make a strong legal writer.


Even a superb grounding in writing English does not mean you'll be a good legal writer. Or a good fiction writer, or a good poet, or a good news writer, or a good science writer, or anything. Legal writing, despite what many say, is different from other types of writing, just as fiction is different from news writing and poetry is different from science writing.

Yes, a solid grounding in writing is a huge head start to becoming a good legal writer. (Many law students lack it.) But you will still have much to learn about law and the conventions of legal English. Besides, legal writing comes in at least three varieties: objective analysis, persuasion, and drafting. It's complex and idiosyncratic.

Even if you do not have a good background in writing English, you can still become a good legal writer. But the gains will come from your own efforts, study, and practice. Your law-school legal-writing course can only teach you about law, legal English, and legal writing. It can't and won't give you a solid grounding in writing if you lack it.

If you do have a good background in writing, you still might not become a good legal writer. Your legal-writing course can't and won't give you the energy and drive to become a good legal writer if you lack the motivation.

Wednesday, March 12, 2008

Summaries in legal writing, part 2

17 Austin Lawyer 6 (Mar. 2008).

Every legal document should begin with a summary of some kind. In part 2 on this subject I highlight the importance of up-front summaries by quoting the experts and then offering advice based on three before-and-after examples.

“All briefs should have a first-page, introductory summary, whether the rules require one or not.” Steven D. Stark, Writing to Win: The Legal Writer 144 (Main Street Books 1999).

“One of my partners says he begins the preliminary statement as if he had 30 seconds on the evening news to pitch his case. He shapes his opening like the lead sentence in a news article--focused and factual.” Kenneth Oettle, Making Your Point 85 (ALM 2007).

“In each part of your legal analysis, give the bottom line first, plainly and without fanfare.” Irwin Alterman, Plain and Accurate Style in Court Papers 97 (ALI-ABA 1987).

These experts say you should summarize up front. How do you do it? Three examples highlight some important principles:
  • Drop outdated conventions like “single sentence” and ALL-CAPS.
  • State, but condense, the key details.
  • Skip formula openers and get to your case.
Before--an 88-word sentence in all-capitals

Issue statements need not be phrased in a single sentence; it makes for hard reading. And all-capitals writing is hard to read and comes off as yelling today.

After--drop outdated conventions
In a contingent-fee, personal-injury case, the plaintiff's lawyer arranges for a lender owned by nonlawyers to reimburse litigation expenses as incurred. If the lawyer recovers money, the lawyer will repay the money advanced plus a funding fee--a percentage of the recovery--that is subject to a maximum. Is this agreement appropriate?

Before--abstract and superficial
Whether substantial evidence of record supports the decision that Claimant was not disabled.
In part 1, I advised you to “save tedious factual details for later.” But you must give at least some details or readers can't grasp the underlying issue and distinguish your case from others. Just condense the key details as much as you can.

After--state, but condense, the key details
In Harvey Reiner's disability case, the ALJ summarized the medical and other evidence in a lengthy decision. He considered Reiner's VA disability rating--and used that rating in a hypothetical question to the vocational expert. He also appropriately considered Reiner's alcohol use. The question now is whether substantial evidence of record supports the decision that Reiner was not disabled under the Social Security Act.

Before--a formula opener that repeats available information
COMES NOW the state of Texas, by and through the District Attorney for the 555th Judicial District of Texas, and files this response to the Defendant's Motion in Arrest of Judgment. The State contends that the Defendant is not entitled to the relief he seeks, and would show the court as follows: . . .
This opener tells us the name of the filing party, the nature of this document, and the name of the initial document--all information we can get elsewhere and none of which tells us anything specific about this case.

After--skip formula openers and get to your case
James Overby was convicted of capital murder because he failed to get help after he brutally beat his infant nephew. We ask this court not to intervene in the entry of judgment on that conviction. The indictment and jury charge were sufficient to charge and convict of this offense. They contained the phrase “knowingly or intentionally” when applied to Overby's mental state. Although he asserts that “[t]he use of the disjunctive 'or' allowed him to be improperly convicted for acting knowingly, without acting intentionally,” that is incorrect because "knowingly" implies intention and has been so held by at least two Texas Courts of Appeals.

Wednesday, March 05, 2008

Teaching Drafting conference

I will attend and participate on a panel at this conference:

Teaching Drafting and Transactional Skills: The Basics and Beyond

The conference is sponsored by Emory Law School.

Jury Instructions conference

I'll be speaking at this conference, individually and on a panel:

Writing to Win: Plain Language Jury Instructions

The conference is sponsored by Washburn University School of Law.

Tuesday, March 04, 2008

Professor Joseph Williams has died

Joseph M. Williams, 1944-2008. Details here.

I recommend his book, one of the best on writing:

Style: Lessons in Clarity and Grace (9th ed.)