Over at Above the Law, Mark Herrmann has an interesting self-assessment test, designed to determine whether you are a “crappy litigator.” (Mark’s words.) It also contains a lesson on how not to write the first sentence in a brief. Here’s the short version: if the first words are “Comes now” or the equivalent, well, Mark has some bad news for you.
If Mark’s piece doesn’t convince you, look up Bryan Garner’s entry for “comes now, now comes” in Garner’s Dictionary of Legal Usage 176 (3d ed. 2011). And if you happen to have Garner’s The Winning Brief handy, check out Tip 73.
Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.
As for me, I won’t presume to tell you what to do. I will suggest that you read Bryan’s article to see what he is really advocating—it’s more involved than just relocating the citations from text to footnotes. Read Rich’s and Jason’s responses. And make up your own mind. But don’t be too quick to criticize a writer who makes the opposite choice, because the writer probably has some good reasons for that choice.
If you happen to be writing a brief for the U.S. Fifth Circuit, I have one more thing that I recommend you read: my own blog post on the reading habits of Fifth Circuit judges and its effect on how I have since been writing my Fifth Circuit briefs. Here is the short version: most Fifth Circuit judges not only read briefs on iPads or other e-readers; the briefs they are reading are hyperlinked. Before being uploaded to the judges’ e-readers, the briefs are run through a program that converts every legal citation to a hyperlink to Lexis or Westlaw, and converts every record citation to a hyperlink to the electronic record. That means that the judges can do exactly what you are doing while reading this blog post: click on the hyperlink to be taken directly to the referenced material.
In light of this information, I have been putting all citations in main text: both legal citations and record citations. Here’s why. I’ve been blogging in one form or another for about 10 years now, meaning that I have 10 years of experience reading and writing hyperlinked text. Believe me when I tell you that most readers of hyperlinked text want the hyperlinks as close as possible to the material supported by the hyperlink. They don’t want to scroll down the page to find the hyperlink. If I were to rewrite this post to footnote all the hyperlinks, forcing you to scroll to the bottom of the post to find them and link to the stuff I refer you to, you wouldn’t like it.
That is my choice for U.S. Fifth Circuit briefs. For state-court briefs, I usually put legal citations in text and record citations in footnotes. I use other strategies to make the textual legal citations unobtrusive and to preserve the readability of the text. But I don’t go “tsk, tsk” if another brief-writer makes a different choice.
More than once, I have been asked for a form, or a template, or for some boilerplate language. For briefs, I have nothing pre-fab. I cook everything from scratch, from the cover up to the certificates of service and compliance.
Why? Because in my brief-writing world, my job is not to push a passable work product out the door. My job is to persuade another human being who, starting out, does not necessarily agree with me. So aside from the certifcates of service and compliance, not a drop of ink that I sign is boilerplate. Every letter has no purpose—no purpose—except to persuade the reader.
Why: I don’t know about you, but speaking for myself, I am never, ever, persuaded by a patch of boilerplate. So if your job is to persuade the reader, why would you include boilerplate in your brief?
p.s. I’ve edited this post to tone down some of the language; apologies to anyone who was offended. Also the original post overstated my non-use of boilerplate—I do use boilerplate for the certificate of service and certificate of compliance. But except for those elements, I do write every brief from scratch, from the certificate of interested persons through the signature block at the end.
I’ve gotten to a point where I no longer believe in ironclad rules. Avoid passive voice? Don’t use contractions? Never write a sentence fragment? I’ve consciously broken every one of these “rules” at one time or another to achieve some effect: emphasis, tone, whatever.
Nevertheless, after reading this post on Bryan Garner’s LawProse blog, I can confidently posit at least one absolute, ironclad, no-exceptions rule: Never, ever use the word witnesseth in serious legal writing.
This seminar is hitting 12 U.S. cites between March 4 and June 5. The stops:
Miami, FL, March 4
Minneapolis, MN, March 18
New Orleans, LA, April 1
Houston, TX, April 3
Washington, DC, April 14
Dallas, TX, April 18
Chicago, IL, April 21
New York, NY, April 24
San Francisco, CA, April 28
Los Angeles, CA, May 2
Kansas City, MO, June 3
Austin, TX, June 5
I can vouch for the quality of the material. And Bryan is probably the most skilled CLE presenter I have seen. Good presenters hold your attention for an hour; Bryan can hold your attention for an entire day.