“And/or” in jury instructions leads to reversal of conviction

Here’s something you don’t see every day: a defendant convicted of robbery and aggravated assault wins his appeal because the trial court, in instructing the jury, repeatedly used the phrase and/or to describe the elements of the crimes. State v. Gonzalez, No. A-0768-13T2 (N.J. App. Div. Jan. 25, 2016). Even more remarkable: the defendant failed to object at trial to the use of and/or in the jury instructions. Nevertheless, the appellate court reversed, finding the jury instructions so unclear that the defendant was denied a fair trial:

[N]ot even the most generous and forgiving harmless-error philosophy can save this verdict. The instructions were inherently ambiguous because the judge failed to explain in clear English what the jurors were required to decide and, as a result, generated numerous ways in which the jury could have convicted without a shared vision of what defendant did, [citations omitted], or convicted defendant on some charges without finding all the elements were proven beyond a reasonable doubt. [Slip op. at 20.]

Pages 9–11 of the opinion contain a long paragraph full of citations to cases lambasting and/or. Among the descriptions of phrase (with citations) are these gems:

  • an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment of record ....”
  • a “verbal monstrosiity, neither word nor phrase”
  • an “inexcusable barbarism[ ] ... sired by indolence”
  • a “mongrel expression ... an equivocal connective, being neither positively conjunctive nor positively disjunctive”
  • an “abominable invention”

“No forms for you,” say revised Fed. Rules of Civil Procedure

When the Federal Rules of Civil Procedure were first promulgated in 1937, they came with an appendix of forms. According to Rule 84, “The forms in the Appendix suffice[d] under these rules and illustrate[d] the simplicity and brevity that these rules contemplate.”

You may notice the alterations to past tense in the quotation of Rule 84. As of December 1 of this year, Rule 84 is abrogated, and the official appendix of forms is no more. Why this change? The Advisory Committee Notes for the 2015 Amendment explain:

Rule 84 was adopted when the Civil Rules were established in 1938 “to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate.” The purpose of providing illustrations for the rules, although useful when the rules were adopted, has been fulfilled. Accordingly, recognizing that there are many excellent alternative sources for forms, including the website of the Administrative Office of the United States Courts, the websites of many district courts, and local law libraries that contain many commercially published forms, Rule 84 and the Appendix of Forms are no longer necessary and have been abrogated. The abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.

“The Art of Readable Writing”—for free

Here is an interesting old book that’s available online for free reading: The Art of Readable Writing (© 1949 by Rudolf Flesch). You may recognize Flesch’s name from those readability algorithms you’ve encountered, like the one built into Word. So far I’ve just read part of the first chapter—the part where Flesch says that Aristotle was wrong (or at least wrong about English). Anyone who writes expository prose should at least be acquainted with Flesch’s work. (Hat tip to Cheryl Stephens.)

What’s in a (trademark) name?

Here at T(N)LW, we try to cover all aspects of legal writing. And of course, we love good legal research. With those thoughts in mind (and with an offensive-language warning),  here is the brief filed by the Washington Redskins in the team’s appeal of an order cancelling its trademarks. The brief, filed by Quinn Emanuel and Arnold & Porter, makes the point that the Redskins’ trademark is no more offensive than some other trademarks that have not been cancelled. The results of the legal research on that point are on pages 4, 23, 24 (including n. 4), 39, and 40. I suppose they would have found room for more if they were not bumping up against the word-count limit (13,997 words, according to the certificate of compliance).

Since this is an appellant’s brief, the hard copies will have a blue cover. That seems appropriate.

A rerun for Halloween: The vampires of legal writing

For the Halloween weekend, here’s a rerun of one of my personal favorite posts, first published in January 2009. Enjoy.

The Vampires of Legal Writing 1


“The world changes. We do not.” So says Armand in the movie version of Anne Rice’s Interview with the Vampire. His words are an apt description of boilerplate forms, the vampires of legal writing. Law and court rules change. Institutions and language continually evolve. Meanwhile, forms are passed on, unchanged, from one generation of lawyers to the next. As a result, undead words and phrases like “witnesseth” and “wherefore, premises considered” are perpetuated into the 21st century, like Lestat sporting 18th century garb while stalking his modern-day victims.

The problem really isn’t with forms themselves. A good set of forms, properly used, can save time and serve as helpful guides. The problems arise with what contract-drafting guru Ken Adams calls “uncritical regurgitation”—the slavish adherence to poor or obsolete forms. Here are some tips for reaping the benefits of forms while avoiding the problems that over-reliance on them can cause.

Start with good models

When I first started practicing law, I created my own form file by copying forms from a mid-level partner, who in turn had copied his forms from a senior partner. I had no idea who originally wrote these things or what rules they were intended to comply with. So I had no assurance that these forms were giving me proper guidance.

The solution to this problem is simple: use good, reliable forms. For pleadings, Bryan A. Garner recommends the appendix to the Federal Rules of Civil Procedure and Federal Trial Forms by Michol O’Connor. Bryan A. Garner, The Redbook § 17.4(a) (2002). You may also want to look at the DRI Defense Practice Form Book, a recent addition to the DRI Defense Library Series. To find it, go to www.dri.org and click on the “Bookstore” tab. For appellate briefs, see whether the appellate-court clerk’s office has sample briefs that are recommended as models.

Ultimately, the best forms for your practice will be those you develop yourself. When you have created the form, you will have less temptation to follow it uncritically. You will know why every word is included and when a word should be altered or discarded.

Assign an expiration date

The biggest problem with forms is their resistance to change—the vampire problem described above. Writer and editor Roy Jacobsen described the problem well: “All too often, [a boilerplate form] just gets passed along from year to year, and nobody asks whether it’s written well, whether it conveys the message well, or even whether it conveys the right message to begin with.” Roy Jacobsen, Writing, Clear and Simple, http://rmjacobsen.squarespace.com/ (Oct. 2, 2007).

Jacobsen suggests a good solution to the vampire problem: “[P]ut an expiration date on all of your boilerplate. When it reaches that date, stop using it. Take a long hard look at it and ask yourself if it needs cleaning up or revising. And maybe you’ll decide that you should toss it in the dustbin and start fresh.” Id. In litigation practice, I recommend an expiration date of one year from creation. The expiration date should coincide with the usual effective date of new statutes or court rules in your jurisdiction.

Question every word

Many lawyers mistakenly believe that the language in a form is sacrosanct. As Garner observes, they “are afraid to change the forms because they seem to enshrine an untouchable dialect.” Garner § 20.3(f). But in fact, there are many reasons to question every word and phrase in a form. The form itself may be poorly written. Or the law the form was intended to comply with may have changed.

Garner has good advice about questioning form provisions in contracts: “If you don’t understand a form provision—or don’t understand why it should be included in your document—try diligently to gain that understanding. If you still can’t understand it, cut it.” Bryan A. Garner, Legal Writing in Plain English § 40 (2001). That’s good advice for every word and phrase in any kind of form.

Every now and then, reinvent the wheel

The surest way to avoid misusing forms is not to use them at all. This may be impractical advice for rote writing. But how much of a defense lawyer’s writing is truly rote?

Take something as simple as an answer in an automobile-accident case. The defense lawyer may  plead an affirmative defense only if the defense rests on a reasonable belief formed after reasonable inquiry. To throw in, say, a boilerplate allegation of contributory negligence or failure to mitigate damages without a reasonable basis for alleging those defenses is to invite a sanction. See, e.g., Gargin v. Morrell, 133 F.R.D. 504 (E.D. Mich. 1991). How less rote than an answer in a fender-bender case are most of the things we write?

Starting every writing project from scratch may seem like an exercise in reinventing the wheel. But if you never reinvent the wheel every now and then, you’ll never improve on it. And if you never change the way you write things, you’ll never grow as a writer.

So use forms if you must. But use them critically. Put an expiration date on each one. When its expiration date arrives, put a stake through its heart.


1 Copyright © 2009 Raymond P. Ward and DRI.