• Legal Writing,  Uncategorized

    “Quoth the Judge, ‘Nevermore'”

    If you have ever had the itch to write something like the title of this post into a brief, you might enjoy “What Lawyers Can Learn from Edgar Allan Poe,” one of the latest legal papers available from the Social Science Research Network. Will it really teach you how to write a brief that resembles a horror story? No. But the abstract does suggest it will teach you how to employ the elements relied on by Poe to write successfully. Here’s the abstract: Treat yourself to a spine-tingling Edgar Allan Poe sensation by reading about the synergy between stories of horror and legal writing. Poe defined a short-story writing technique…

  • Humor,  Legal Writing

    A light-hearted Friday post: what is the standard of music on appeal?

    I wrote last year about In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a cautionary tale about a trial court’s “clarification” of its order (read: “void modification for lack of jurisdiction”). Justice Butz’s concurring opinion opened with this sentence: “With apologies to Dolly Parton, here I go again, concurring with myself.” I like it when judges write colloquially, but I think I would have used a different musical reference if I were in Justice Butz’s place: What can I say? I loved the 80s!

  • Legal Research,  Legal Technology,  Legal Writing

    Does Internet technology influence the way lawyers and judges think? Should it?

    The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age: A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in…

  • Legal Writing,  Stare Decisis

    The twists and turns of precedent

    Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedent, brought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract: Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will…

  • Briefing,  California Courts,  Legal Research,  Legal Writing

    It is important to keep up with the law while your appeal is pending

    Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that…

  • Legal Writing

    Language help for everyone, not just lawyers

    In his latest book, The Sense of Style — described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated for the 21st century” — Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over. My favorite in the list (emphasis and brackets in original): Irregardless is not a word but a portmanteau of regardless and irrespective. [Note: Pinker acknowledges that certain schools of thought regard “irregardless” as simply non-standard, but he insists it should not even be granted that.] Correct: Regardless of how you feel, it’s objectively the wrong decision. / Everyone gets a…

  • Law Practice & Marketing,  Legal Writing

    OMG! Can you imagine writing an argument in the style of an email or a text?

    If not, then why write emails and texts the way you do? In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications. The piece starts with this: On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting. On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?” Now Kelly texts Becky, “OMG! Look at her butt!” and…

  • Legal Writing

    Jargon-filled, academic writing has no place in your briefing on appeal — but does it have its place?

    Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately: Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed…

  • Announcements,  Legal Writing,  Summary Judgment,  Summary Judgment and Summary Adjudication,  Waiver of Issues

    SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

    On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.…

  • Legal Technology,  Legal Writing

    Maybe “iPad Judges” aren’t such a good idea?

    I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices. The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but…

  • Legal Writing

    Do longer briefs correlate to success for Appellants?

    I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Many Notes”? An Empirical Study of Advocacy in Federal Appeals (download link),which, if this excerpt from the abstract is any indication, appears to raise a statistical challenge to that line of thinking, at least in the Ninth Circuit: Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States…

  • Legal Writing

    What can Ernest Hemingway teach you about legal writing?

    In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers: No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.” In large part, the article explains the need for adverbs…

  • Legal Writing

    The law, the story, and the policy

    Almost sounds like the beginning of a joke, doesn’t it? (A law, a story, and a policy walk into a bar . . . ) But I’m not presenting these things as a joke. According to San Diego antitrust attorney Jarod Bona at the Antitrust Attorney Blog, these are the Three Components of Every Effective Appellate Argument. I agree with a lot of his post, but I especially like this sentiment near the end (emphasis mine): To [combine these elements] effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful. Amen!

  • Legal Technology,  Legal Writing

    How to write for the “iPad judge”

    Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly. As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written…

  • Legal Writing

    A novelist/academic’s views on persuasive writing

    A lawyer in one of my LinkedIn groups alerted the group to an interesting article that gives a non-lawyer’s perspective on persuasive writing. Introducing the article, St. Louis attorney Daniel Schramm notes: When I was a law student, we were taught how “to write like a lawyer.” This article suggests lawyers would be better served if they follow the modern trend to make arguments simple and easy to read. At first, this did not make sense to me. “Writing like a lawyer” and “simple and easy to read” are not mutually exclusive concepts, and any lawyer who thinks they are is in big trouble. But after reading the article, I…

  • Appellate Advocacy,  Briefing,  Ethics,  Legal Writing

    Don’t get snide on appeal

    Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are. Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of…

  • Judges,  Legal Writing

    A different kind of “three strikes and you’re out”

    A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point. [Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red…

  • Legal Research,  Legal Technology,  Legal Writing

    Citations of the future

    Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority: No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last. If you’re an academic writer, you should check out the article. Here’s…

  • Clients,  Legal Writing

    Can your clients help you be more persuasive?

    Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract: Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The…

  • Ethics,  Legal Writing

    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.”

  • Legal Writing

    When a lawyer must include one or more issue statements in a brief, either for purposes of clarity or because required by court rule, and the lawyer has trouble formulating a succinct issue statement that correctly identifies the parties and the critical facts necessary to an understanding of the statement, where can the attorney find a resource to help him write a clear, succinct issue statement that is easily understood by the reader?

    No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement — something we all see way too often. As for an answer to the question itself, this looks like a pretty darn good place to start.

  • Jurisdiction,  Legal Writing

    Judicial Opinion Shortcuts: Skipping the Substance of the Argument

    Sometimes, a judicial opinion leaves you wondering what a party contended on appeal.  That’s always a little frustrating.  OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried. Why…

  • Legal Research,  Legal Technology,  Legal Writing,  Web Resources

    A Great Resource: Social Science Research Network

    I’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN very much. I took the time to do so this evening, and discovered there are some terrific features. Besides the subscriptions, there is a “briefcase” feature that allows you to accumulate articles of interest for later access. Going though the subscription list, I flagged about 30 papers published just this year. I’ll probably be posting…

  • Events,  Judges,  Legal Writing

    Pepperdine’s Justice Alito Event — Video Available

    Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event).  Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests. Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School…

  • Briefing,  Legal Writing

    The Value of a Good Reply Brief

    As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.” Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one. If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs…

  • Legal Writing

    “E” is for “Explain”

      If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym.  Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.

  • Legal Writing,  Oddities

    How “Intense” is Your Appellate Panel?

    It might make a difference in how the members of the panel view your brief! In this highly unusual study, the authors looked for correlations between the use of “intensifiers” — words like “clearly,” “obviously,” “blatant” and “very” — in appellate briefs and the outcome on appeal.  From the abstract of the paper: This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But – and this was an unexpected result – if an appellate opinion uses a high rate of…

  • California Supreme Court,  Legal Writing,  U.S. Supreme Court

    A Supreme Editor is Needed

    Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects eight grammatical errors in the recent SCOTUS gun rights case, D.C. v. Heller, and links to an ad soliciting an attorney editor for the California Supreme Court, placed in what I would have thought was a rather unconventional place, considering the job.

  • Appellate Procedure,  Briefing,  Ethics,  Legal Writing

    It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

    “Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story. Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.