• Appellate Procedure,  Judges,  Legal Writing

    Toning Down the Snark

    California Appellate Report notes an order from the Fourth District Court of Appeal yesterday in which it modified its original opinion by eliminating a snide comment about lawyering skills. As Professor Martin points out, this is an unusual amendment. Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t…

  • Legal Humor,  Legal Writing

    Legal Acronyms for the Communication Age

    Legal Writing Prof Blog has an amusing synopsis of an article titled “Legalese in the Age of IM (Instant Messaging).” If you are internet savvy and familiar with such acronyms as “rotfl” (rolling on the floor laughing) or “omg” (oh my God), then you’ll get a kick out of law-specific acronyms like OFG, 2SL, WADR, and others. Can you guess what they are before looking?

  • Legal Writing,  Stare Decisis,  U.S. Supreme Court

    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…

  • Legal Writing

    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…

  • Blogging,  Legal Writing

    Appellate-Related New Year’s Resolutions

    I discovered a few on-line resolutions by some appellate bloggers: At The Opening Brief, taking his own advice that improvement of one’s writing is a career-long endeavor, Sacramento appellate attorney Tom Caso resolves to work actively on his writing during the year. At the (new) legal writer, New Orleans appellate attorney Raymond Ward resolves to keep in perspective such legal writing trivialities as whether to put one or two spaces after a period, where to place citations, and whether to fully justify text. Attention to detail is important, he says, but there’s room to disagree on things like this. I’d like to say that I didn’t come up with any…

  • Legal Research,  Legal 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…

  • Blogging,  Legal Writing

    150 Resources for Legal Writing

    the (new) legal writer links to the Online Education Database’s “collection of 150 resources to help you write better, faster, and more persuasively.”  Terrific.  To help me get through all of those, one of them has to help me read better and faster. But seriously, there’s nothing like regular blogging to hone your speed-writing skills!

  • Legal Writing

    Are You Presenting Non-Topics as Topics?

    In a post called Choosing topics for topic sentences, Professor Wayne Schiess gives some great advice, backed up by commentary from judges, about topic pitfalls to avoid.  Read it to find out if you are guilty of turning cases, witnesses, or dates into topics when they aren’t.

  • Blogging,  Legal Writing

    Gold . . . Pure Gold

    I post a lot about legal writing, usually with reference to briefs or judicial opinions.  But what about blogs? If you saw my Simply the Best Law Blogs post, you know that Decision of the Day is among those I listed.  Yes, the analysis is good, the posts are extraordinarily timely, and the Ninth Circuit gets its fair share of coverage . . . but I also keep reading it because of writing like this (my emphasis): This Ninth Circuit criminal appeal is a cautionary tale about why you should do background checks on employees before you hire them – especially the white collar ones. The defendant was hired as…

  • Legal Writing

    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.

  • Legal Humor,  Legal Writing

    Gobbledygook Award Winners

    Party of the First Part has announced the winners of the Golden Gobbledygook Award, including a link to the first prize winner: an information for conspiracy, money laundering and other crimes, which includes a sentence more than 1,000 words long.  With writing like that, you could write the entire Jeff Skilling brief in just 58 sentences.

  • Appellate Procedure,  Briefing,  Legal Writing

    Skilling’s 58,922-Word Brief Accepted by Fifth Circuit

    The WSJ.com Law Blog reports that the Fifth Circuit has granted former CEO executive Jeff Skilling’s request to file an overlength brief.  WSJ.com has posted the Fifth Circuit’s order, which allows Skilling to file his brief of 58,922 words — 44, 922 words over the normal limit, or more than 4 times the maximum length provided by the rules — and grants permission for the government to do the same. My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here. 

  • Legal Writing

    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…

  • Legal Writing

    Fiction Writing Techniques in Legal Briefs

    Those interested in following up on this post regarding fiction-writing techniques in legal briefs can check out an article by M.C. Sungaila of Horvitz & Levy, “The Literate Lawyer: Fiction-Writing Principles Can Generate Courtroom Success” — if you’re interested enough to fork over $2 to read it at the online Daily Journal.  Otherwise, you’ll have to head to the law library to read it in the hard copy of the September 17, 2007 issue. Thanks to The Appellate Practitioner for the link.

  • Legal Writing

    Drawbacks to Form Files

    In his post entitled “Legal writing isn’t what it shoud be #4” — as its title implies, the fourth in a series of such posts — UT Law Professor Wayne Schiess  of Wayne Schiess’s legal-writing blog gives four drawbacks to relying on forms.  Setting the stage: Why do lawyers use forms (or “templates” or “precedent documents” as some prefer to call them) ? To save time, to save money, to give clients a better value, and to take advantage of previous documents that have worked. So forms are a necessity. No lawyer can get by in a typical practice today without them. The time and expense that would result from…

  • Legal Writing

    Your Introduction Shouldn’t be an Introduction

    Evan Schaeffer at The Illinois Trial Practice Weblog offers some good advice on how to start a memorandum or brief: At the trial court level, most lawyers begin their briefs with an “Introduction” section. There’s nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn’t. And that’s just the “introduction.” Ba-dum-bump.  Read the whole thing. I got this link from this post at Legal Writing Prof Blog, which has more.

  • Ethics,  Law Practice & Marketing,  Legal Research,  Legal Writing

    Plagiarism Sanctions Issue, Blog Readers React, and How this Relates to Value Billing

    This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution.  The attorney charged the client $5700 for the brief. Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position…

  • Legal Education,  Legal Writing,  Legal Writing Blogs and Resources

    A Professor’s Lament and More Legal Writing Resources

    Professor Austen Parrish of Southwestern Law School, as a guest writer at Prawfsblawg, laments the poor writing skills of first-year law students, including this comment: “Exam answers (at times written like lengthy text messages) can bring seasoned professors near to tears.” He offers a list of helpful books. The commenters on the post don’t seem particularly optimistic.

  • Appellate Procedure,  Briefing,  Legal Writing

    Roundup: Skilling’s Brief

    Former Enron executive Jeffrey Skilling’s brief in the appeal of his criminal conviction states in support of his request for oral argument that his prosecution was “perhaps the most prominent and publicized white-collar case ever prosecuted.”  One might guess he felt that way from the length of his opening brief: 237 pages and roughly 60,000 words. The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first.  It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes.  While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but…

  • Ethics,  Legal Research,  Legal Writing

    Arguing against Binding Authority

    What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case?  Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it.  The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007): It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument…

  • Legal Writing,  Legal Writing Blogs and Resources

    Addressing Your Brief To a Specific Circuit Judge . . .

    . . . or, at least, to a specific group of circuit judges, may now be possible, if Tom Caso at The Opening Brief is correct.  He cites a study covering ten years of federal appellate opinions that concludes “opinion specialization [is an] unmistakable part of every day judicial practice.”  In other words, cases of specific types tend to get assigned to certain judges. Says Tom, “If true, this suggests a more focused approach for the federal appellate lawyer.”  There’s more, including a link to the study, at his post.