Professor Michael Higdon of UNLV’s William S. Boyd School of Law has an excellent article about thesis sentences in the September 2007 Nevada Lawyer.  It’s so good, you don’t want opposing counsel to see it, at least not until after they’ve written their briefs. Of particular value to appellate lawyers is this point about the value of good thesis sentences to the writer: Finally, thesis sentences are particularly beneficial for the legal writer who is seeking to persuade.  Psycholinguists (scientists who study the psychology of language) have discovered that readers subconsciously pay closer attention to things that come at the beginning and end of a document or a discreet unit…

“The Risk of the Kitchen Sink Approach” is a post at Raymond Ward’s the (new) legal writer blog about the necessity of trimming weak arguments so you can do your best presenting the good ones.  I highly recommend both articles linked to in Mr. Ward’s post (that recommendation goes for his blog, too).  They recognize the obstacles in identifying and excising weak arguments, with specific tips on how to overcome them. One culprit, in the opinion of James McElhaney, is technology, which aggravates two other obstacles: One of the easiest ways to obscure your theory of the case is to get caught in the word processor trap. The ease of…

Here’s the opening of Professor Schiess’s post at legalwriting.net: I stay current on legal writing the way you stay current on your practice area. I keep up on the trends in legal writing. Yes, trends. Are you surprised legal writing changes and evolves? It does, and here are three areas that are changing right now. Check it out.

You’ve heard it before: briefs should tell a story.  But rarely, if ever, have you seen the principle so thoroughly explained as it is by Associate Professor Kenneth Chestak at Indiana University School of Law, who accompanies his article on the topic with a sample brief and (short) appellate record.  Thanks to the (new) legal writer blog, where you should go for all the links. By the way, for a far more succinct (but also good) lesson in storytelling, see this short article in Nevada Lawyer by Tami Cowden of the Appealing in Nevada blog, which I originally linked to in the context of this post.

Following up on an earlier post about ending sentences with prepositions, Professor Wayne Scheiss posts at legalwriting.net what he thinks of some of the comments he got on the post.  Here is what really caught my eye about his critique: My commenters, I suspect, are real lawyers, practicing law. This is one of those times when I’m glad I’m not a real lawyer; no judges or supervisors scrutinize my writing. I live in academia, writing what I want, how I want, when I want. I’m lucky. So when real lawyers ask me about the rule, I usually tell them that to be safe, don’t end sentences with prepositions. It’s not…

Legal Writing Prof Blog links to an interesting article by University of Louisville Brandeis School of Law Professor Judith Fischer appearing in Montana Law Review.  The abstract: This article examines George Orwell’s theories about language and applies them to contemporary legal discourse in the United States. It concludes that Orwell’s advice about the importance of clear, plain English comports with today’s accepted legal writing style. However, his warnings about deceptive language in legal and political discourse have not been well heeded. The article suggests that lawyers can assume a role in changing that. Yes, that George Orwell, author of 1984 and Animal Farm.  Professor Fischer is in good company in…

Legal Writing Prof Blog points (with a link) to a law review article entitled Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs.  I won’t get a chance to read it until I return from San Diego later this week, but an excerpt from the abstract caught my eye: Many recurring brief writing errors may be caused by the demands of a high volume law practice, which allow little time for the brief writer to achieve the critical distance from the document necessary to edit and revise effectively. I’ve always considered this “distancing” a critical step, not just on appellate briefs but for any memorandum…

This post from Roy Jacobsen at Writing, Clear and Simple offers some advice derived from an unlikely source: Winnie the Pooh.  Jacobsen notes that too many people try to adopt a more “elevated” form of language in their writing than they use in their everyday speech.  Instead, he advises that you write more like you talk, and he offers advice for evaluating your writing in these terms.  Well worth a read. The use of plain language in writing is a recurring topic, (I recently linked to another blog post on the subject), no doubt because so many of us fail to heed advice in this area for more than a…

To avert offending, writers have strived not to use “he,” “him” or “his” as a pronoun for a generic person that could be either male or female.  The problem of the genderless pronoun is addresses humorously and practically in this post at Set in Style by Mister Thorne.  He notes the alternative of using “it,” notes the use of the plural “they” and “their” to refer to a singular person, and rejects both practices in favor of some common sense editing.

Kenneth W. Davis at Manage Your Writing has this post encouraging writers to use their erasers more.  Davis explains that because of the time and effort we put into our writing, it is often difficult for us to acknolwedge that our writing would benefit from being trimmed.  He bets that once you take his challenge to erase just three words from everything we write, you won’t be able to stop. His post also generated a link from a post at Writing, Clear and Simple, that I think has quite a clever title: “To sharpen your writing, use your eraser.“

In fact, if the study referenced by this post at Manage Your Writing is to be believed, they actually make you look less intelligent than when you use shorter words. Suppose I titled this post, “Utilization of Protracted Vocables Gives the Impression that You are Unintelligent.”  Would your first impression of this post have been different? Thanks to Legal Writing Prof Blog for the link.

In Roddy v. Superior Court, case no. D049796 (decision filed May 16, 2007, ordered published on June 7, 2007) the jury commissioner sought writ review of a trial court order enforcing a subpoena duces tecum served on him.  The suboena sought DMV information in the jury commissioner’s possession.  It was served on behalf of criminal defendants who were challenging the constitutionality of the procedures employed by the jury commissioner.  The Fourth District Court of Appeal summarizes its conclusion this way in the introduction: We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation…

Have fun reading Professor Martin’s teasing about a grammatical error repeated in two recent Ninth Circuit opinions. I agree with the professor. A mitigating circumstance, however, is that the mistake relates to a homonym pair for which I’d venture one word or the other is present in almost every legal opinion, so the odds of a mistake once in a while are high, even though the overall error rate might be low. While on the grammar front, here’s a pet peeve. Every time I see a reference to a “sole practitioner,” I think of someone who’s the only lawyer in town. Or maybe a shoe repairman. Judging by most of…

Twenty-five years after graduating from the Naval Academy, I still call whatever I happen to be walking on — whether a carpet, concrete, a lawn, or bare ground — “the deck.” I like a nautical theme as much as the next guy, maybe more. Maybe that’s why I don’t share Professor Martin’s opinion that Judge Kozinski’s dissent in today’s Ninth Circuit Exxon Valdez decision (Baker v. Exxon Mobile Corp., 04-35182 (May 23, 2007)) is an example of a clerk and/or judge “trying too hard.” Indeed, I thought there were some missed opportunities to use even more nautical turns of phrase — either Judge Kozinski missed them, or he deliberately refrained…