Can Bad Legal Writing Get You in Trouble?

You bet it can, and your boss isn’t the only one who can create trouble for you.  To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog.  The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”

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Bluebook Online

Is your office a little messy?  You don’t want to risk being unable to find your copy of “The Bluebook” (The Bluebook: A Uniform System of Citation) just as you’re finalizing citations for that brief that has to go out the door.  You’re a lot less likely to misplace your computer, so perhaps an on-line Bluebook is more reliably available to you. 

The Harvard Law Review is happy to oblige.  It just announced an on-line version of this essential publication, available via subscription at what appear to be reasonable prices, including multi-year discounts.

H/T to Legal Writing Prof Blog.  Who got it from Tax Prof Blog.  Click on either link for more details, including pricing.

Front Loading Your Legal Writing

Wayne Schiess’s legal-writing blog begins a post about summarizing your points with a very absolutist sentence:  “Every legal document should begin with a summary of some kind.”  Hear, hear! 

He gives you pointers for doing so, with before-and-after examples illustrating how to present important information early, leave tedious details for later, and avoid abstraction.  And since the title of the post includes “part 1,” you’ll want to follow his blog for the follow-up posts.

SCOTUS on Stare Decisis

The Blog of Legal Times has a good summary of the discussion of stare decisis in Tuesday’s U. S. Supreme Court opinions in John R. Sand & Gravel Co. v. United States, case no. 06-1164 (Jan. 8, 2008), including what it sees as an unusual alignment of the justices.

The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision.  The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases.

I remember my legal writing professor emphasizing the importance of citing recent precedent.  But sometimes, the only case you have directly on point is quite old.  I’m pretty sure I have cited cases from the 1800s.  John R. Sand & Gravel proves that old — very old — cases can serve as effective precedent.

Skilling’s Reply Brief

If you’re a fan of legal writing and/or legal blogs, you’ve probably read this elsewhere already.  But I’m still playing catchup from the holidays and thought some of you might be, too, so here goes.

Jeff Skilling filed his reply brief in his Fifth Circuit appeal of his convictions.  You might remember earlier posts about the extraordinary length of his opening brief here and here, the former of which also has a round-up of commentary on its substance.   

According to White Collar Crime Prof Blog, the 161-page reply is the shortest brief filed in the case yet.  The blog follows up with some commentary on the substance of the brief here, including an observation that the transition from the statement of facts to the first argument is “a masterpiece in the art of skillful brief writing.”

Footnote Guidance

Footnotes. Some people love ’em, and some people hate ’em.

And if you don’t know which way the judges deciding your appeal lean on the issue, and you can’t resist using footnotes, you’ll want to at least use them “correctly” — if there is such a thing.

In this post at the (new) legal writer, New Orleans appellate attorney Raymond Ward notes an article by The John Marshall Law School’s Prof. William B.T. Mock, Jr. entitled When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, which, according to Ward, divides footnotes into three types and describes the appropriate use of each type.

This is Ward’s second alert to a footnote article in as many months. Last September, he described another professor’s take on footnotes somewhat differently, going so far as to say the author found non-citation based footnotes — that is, footnotes containing anything other than citations to authority — to be “useless.”

Like I said: some people love ’em, and some people hate ’em. I think those two groups probably break down along these lines: Writers love ’em, readers hate ’em.

The articles Ward references are posted at Social Science Research Network. Links to the articles are provided in the respective posts at the (new) legal writer mentioned above.

Writing Advice from Scalia and Garner is Coming

Via Carolyn Elefant at Law.com (whose blog post title, by the way, is quite clever) comes news that Justice Antonin Scalia has teamed up with legal writing guru Bryan Garner to author a book on legal writing.  Ms. Elefant links to an article at Legal Times giving more details, and then asks some excellent (and amusing) questions:

Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers.  Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions?  Will Scalia offer “real life examples” of legal briefs or arguments that don’t simply don’t work, and if so, will readers be able to recognize the lawyers whose work is critiqued in the book?

Like I’ve said before, judges get away with things lawyers would never (or should never) dream of writing.  One of the perks, I guess.

The Great Writ

Professor Wayne Schiess excerpts The Party of the First Part by Adam Freedman, who writes against legalese at his blog of the same name.  To illustrate that alternatives to word-for-word translation for Latin legal terms of art make it possible to one day abandon the Latin altogether, Freedman notes that “Great Writ” has been offered as a practical translation for:

a.  coram nobis
b.  habeas corpus
c.  mandamus
d.  certiorari

You probably guessed correctly, but you’ll have to check the post to be sure.

Footnote Furor

Two posts at legal writing blogs Tuesday about footnotes.

Raymond Ward at the (new) legal writer links to a paper at SSRN (Social Science Research Network) by Professor Douglas Abrams called “Those Pesky Footnotes — Part I.”  According to Ward:

Professor Abrams divides footnotes into two groups that most of use are familiar with: citation-only footnotes and textual footnotes. Citational footnotes can be useful, Prof. Abrams writes, if they are kept lean. They show the support for the writer’s assertions without cluttering up the text. Textual footnotes, on the other hand, are usually useless to briefwriters for one simple reason: hardly anybody reads them. And anything that is not read cannot persuade.      

See Ward’s post for the links.

In a post with subheadings “In-Text Citation Bad” and “Footnotes Good,” Professor Wayne Schiess provides a wonderfully amusing illustration of why he feels that way.