the (new) legal writer

For “Bridging the Gap” participants

This afternoon, I gave a one-hour presentation on Louisiana appellate practice at the Louisiana State Bar Association’s “Bridging the Gap” seminar for newly sworn-in lawyers. For them and other interested persons, here are some things from that presentation, plus a few bonus materials:

• A copy of the written materials


• A PDF copy of the PowerPoint presentation


• Boudreaux v. State, 2001-1329 (La. 2/26/02) (on the importance of the Rule 10 writ-grant considerations)


• A Writ in Time, 51 La. B.J. 338 (Feb.-Mar. 2004) (how to determine your deadline to apply to the court of appeal for a supervisory writ)


• Alex Kozinski, In Praise of Moot Court—Not!, 97 Colum. L. Rev. 178 (Jan. 1997) (Judge Kozinski expounds on the differences between law-school moot-court and real-world appellate practice)


• How to Write an Appellate Brief, or more accurately, how to convert a multi-volume record into a 28-page or 14,000-word story.


• The Importance of Earnest Oral Argument. An attempt to answer the question whether oral argument make a difference in the outcome of an appeal.

If you’re looking for forms, please know that I preach against over-reliance on them. But if you'd like to see some samples of Louisiana appellate filings, then you’ll find some by clicking here and scrolling down a bit.

Use plain English, appear smarter (and more persuasive)

I just finished reading Yes! 50 Scientifically Proven Ways to Be Persuasive (hat tip to the [non]billable hour). One of the 50 ways confirms something Bryan Garner says in The Winning Brief (p. 177, 2d ed.): people who use plain language are perceived as smarter and more persuasive than people who do the opposite:

“... Take, for example, the fact that communicators frequently try to convey their erudition via their grandiloquent, magniloquent, sesquipedalian verbosity; in other words, they try to look smart by using unnecessarily long words or overly technical jargon....

“... [R]esearch by [Daniel] Oppenheimer has shown that using overly complex language like this can produce the exact opposite of the intended effect: Because the audience has difficulty interpreting the language, the message is deemed less convincing and the author is perceived to be less intelligent.”

In an endnote, the Yes! authors cite D.M. Oppenheimer, Consequences of erudite vernacular utilized irrespective of necessity: Problems with using long words needlessly, Applied Cognitive Psychology, 20:139–56.

So there you have it: scientific proof that plain language aids persuasion.

The Chief channels Mickey Spillane

Pennsylvania v. Dunlap. The Supremes deny cert. The Chief dissents:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Hat tipped to Craig Williams.

A checklist for drafting good contracts

If your work involves drafting contracts, then you should read A Checklist for Drafting Good Contracts, by M.H. Sam Jacobson. Why a checklist? Jacobson explains:

For all drafters, a checklist can ensure that the contract will contain the necessary substantive provisions and that the decisions about those provisions will have been made by design, not by accident. For the time-challenged drafter, a checklist eliminates the need to rethink from scratch what to include in a contract and how best to draft it. For the detail-challenged drafter, a checklist ensures that all tasks associated with the drafting are completed. For the occasional drafter, a checklist is an invaluable reminder of content and form that might otherwise be forgotten. For the experienced drafter, a checklist effectively reminds the drafter when boilerplate or often-used language is inappropriate, that special circumstances require special language.

Sex language

Patricia O’Conner has written an interesting post on the Grammarphobia Blog debunking myths about the history of English words used to refer to the sexes. For instance:

• The use of masculine pronouns (he, him, his) to refer to both sexes is a relatively recent innovation, getting its start in the mid-18th century. Before then, it was acceptable to use they, them, their, and theirs as singular pronouns for either sex.
• Female and male are not related etymologically.
• Woman is not derived from man. Neither is human. These words, like male and female, are unrelated etymologically.

Applied Storytelling Conference

If you’re interested in applying storytelling to the practice of law, and if you like to plan your CLE ahead, then block out July 22–24, 2009 on your calendar.  That’s when a conference on applied storytelling in law will be held at the Lewis & Clark Law School in Portland, Oregon.

And if you have the gumption to give a presentation at such a conference, the conference sponsors are looking for you. They are now soliciting proposals from potential presenters. If your proposal is selected, you will give a 45–60 minute presentation at the conference, and your paper will be published in the Journal of the Legal Writing Institute. (Click here to see papers presented at the last conference.) If you’re interested, then click here to download the flyer.

The deadline for proposals is December 8, 2008, so if you’re interested, then snap to it.

Defusing negative facts or law

Every advocate confronts the problem of handling bad facts or adverse authority. Do you ignore it? Do you wait for the other side to raise it and then rebut it? Or do you confront it head-on, hoping to defuse it? Experienced advocates have differing opinions on this question but usually cannot cite scientific studies supporting their opinions.

If you’re interested in knowing what social science has to say about the best strategy for handling negative facts or law, then read Kathryn Stanchi’s new article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. In it, she explores social-science studies about the persuasive effect of disclosing negative information, including when and how to do it.

(Hat tip to Legal Writing Prof Blog.)

“Sorry” seems to be the hardest word

Sometimes we lawyers have trouble saying we’re sorry. We should try to overcome that inhibition. Saying you’re sorry can be cathartic. For instance, here’s a letter¹ by a lawyer saying he’s sorry about having to reschedule a deposition.  I’m sure he felt much better after writing it.

__________
¹The recipient’s name has been whited out because we don’t have his side of this story. And 1,000 apologies to the many fine lawyers I know in Dallas.

Postscript: The recipient of the letter offers his counterpoint.