the (new) legal writer

“Affect” can be a noun, and “effect” can be a verb.

It’s easy to confuse the words affect and effect. I’ve seen some tipsters suggest using affect when you need a verb and effect when you need a noun. That will work most of the time. But occasionally, affect is a noun and effect is a verb. Confused? Roy Peter Clark will clear things up.

A clinical demonstration in portraying the facts

As advocates, we are called upon to drive home the good facts and soften the bad facts. For a clinical lesson in how to do both, read Ben Opipari’s analysis of subtle bias in a death-penalty article.

Prevision

Writing guru Roy Peter Clark has come up with a great word for the mental work done before putting fingers to keyboard: prevision. It’s the first of three stages in the writing process: prevision, vision, revision. Prevision is “[w]hat to call that period of mental and physical rehearsal that precedes coming to a full understanding of what your story is really about—before you truly ‘see’ the story.”

Me, I spend a majority of my briefwriting time in the prevision stage: digesting the record, researching the law, looking for what pop-song writers call the hook. Why? Because before you hit the road, you’d better figure out where you’re going.

Of headnotes and issue statements

Ernie the Attorney had an interesting post yesterday asking how the headnotes in West digests encourage lawyers to write long-winded sentences. The answer: the headnote authors follow the senseless convention of trying to cram all the pertinent information into one sentence.

Unfortunately, lawyers who read these headnotes often imitate their style. In my world of appellate practice, this pernicious influence most often manifests itself in the issue statements in briefs. You briefwriters out there, please do this: Before you write another long, convoluted, one-sentence issue statement, check the applicable procedural rules to see whether you’re required to do that. If not, then please feel liberated to write a multi-sentence issue statement. Put your premises in the form of declarative sentences. End with a one-clause question, which should have one of these — ? — as its ending punctuation. It’s not hard, folks. All you have to do is write like a human being.

Sure, you can split an infinitive, but this is ridiculous.

This blog’s official position on split infinitives is that they’re okay. The Star Trek catch phrase — “to boldly go” — is A-okay with us. But please, please don’t use your freedom from the no-split-infinitives superstition to write a sentence like this:

Is it kosher for a law enforcement agency to, pursuant to a lawfully granted search warrant, search your Gmail account without telling you?

I found this on, of all places, the Wall Street Journal Law Blog. As my high-school Spanish and Latin teacher, Fr. Gregor, would say, “Et tu, Brute?” The problem isn’t the split; it’s that the split is a chasm — a seven-word something-or-other phrase interrupting another phrase.

Two things wrong with this headline

New Orleans CityBusiness features this headline: N.O. area shed 1,800 jobs over the year. I see two things wrong with this headline.

1. The subject, “area,” is singular, and should therefore take a singular verb. (The story talks about jobs being lost now. So the verb’s tense is presumably present, not past.)
2. More importantly, the verb should not be “shed.” That word implies that the 1,800 jobs were unnecessary or superfluous, which insults the 1,800 who lost their jobs. “Loses” would be a more appropriate (and a grammatically correct) verb.

Great legal-writing advice from a non-lawyer: What are you trying to accomplish?

What Ken Davis said.

Send a message to the bookstores about usage guides

SPOGG (Society for the Promotion of Good Grammar) reports receiving this e-mail from Bryan Garner:

I have a favor to ask of you as a loyal reader: In the next few hours or days, would you please go to http://www.amazon.com/ or http://www.bn.com/ and buy one or more copies of the new third edition of Garner’s Modern American Usage as holiday presents? In fact, keep this gift possibility in mind through the end of the year, won't you?

I need your help in sending a message to the major bookstore chains: they’re not stocking the book because they’ve told Oxford University Press that they consider usage guides a “defunct category.” It’s maddeningly unbelievable. Please help me show them that they’re stupendously wrong.

Meanwhile, in the coming months you might ask about the book when you’re in a bookstore: ask the managers why they don’t stock copies, and encourage them to do so.

If you’re curious to see what effect you’re having, watch the rankings on Amazon.com or Bn.com in coming days and weeks. We’ll be alerting the major chains to those numbers, and we want to get as close to the top 50 as we can. If you're trying to order and see that the book is labeled “out of stock,” order anyway: the effort is also to ensure that the online booksellers keep adequate stocks.

In return for this favor – it’s a grassroots effort – I’ll be happy to inscribe copies that you send to LawProse for that purpose, if you (1) include a filled-out FedEx airbill for returning them to you, and (2) suggest an appropriate inscription.

Thank you for whatever help you can provide in this endeavor to show booksellers that the concern for good English is alive and well.

I already have my copy of this book. I haven’t spent a lot of time with it yet, but from what I’ve seen so far, I got my money’s worth. If you’re waffling, have a look at John McIntyre’s review.

Appellate-practice materials from my “Bridging the Gap” presentation

This afternoon, I’m joining Justice Harry T. Lemmon (retired) in presenting the appellate-practice hour of the Louisiana State Bar Association’s Bridging the Gap seminar for newly minted lawyers. For those participants and others who may be interested:

• My heavily annotated outline of Louisiana appellate practice (PDF).
• PDF copy of my PowerPoint presentation.
• A Writ in Time (my article on how to calculate the deadline to apply to a court of appeal for a supervisory writ).

Participants may also be interested in these two articles by Judge Alex Kozinski of the Ninth Circuit:

• In Praise of Moot Court — Not!, in which Judge Kozinski discusses the differences between law-school moot-court programs and real-world appellate practice.
• The Wrong Stuff, in which Judge Kozinski explains how to lose an appeal that, for whatever reason, you must lose.

Drunk and Tight

I often blog with a tumbler of Dewar’s nearby. So I should pay particular attention to John McIntyre’s A Sot’s Guide to the Elements of Style.