the (new) legal writer

Plain English magazine

The good folks at Plain English Campaign have posted the November 2009 issue of Plain English magazine. Also on line are 10 years’ worth of back issues. The second-best part (after the content) is the price: free. So go there, peruse some back issues, and be both edified and entertained.

Plagiarism: An issue for every lawyer

Law professors, judges, and practicing lawyers have one thing in common besides a law degree: All of us write. And in writing, we often borrow from the writings of others. Indeed, a certain amount of borrowing is permissible—even expected.

At what point does borrowing cross the line into plagiarism? Professors Carol Bast and Linda Samuels tackle that question in their article, Plagiarism and Legal Scholarship in the Age of Information Sharing. Although the title suggests that the article is directed toward academia, it also addresses plagiarism issues in judicial chambers and law firms. If you write anything, and if you want to avoid accusations of plagiarism, then you should read it.

Conserving the canvas: Increasing legibility while decreasing tree mortality

If you have some influence in creating or amending court rules governing the form of pleadings and briefs, this post is for you.

In the process of churning out vast quantities of paper, lawyers really do kill a lot of trees. Unfortunately, in complying with some court rules governing the form of our filings, we kill more trees than necessary. As Prof. Ruth Anne Robbins explains, a few simple rule changes would make a big difference. For instance:

• Many courts require pleadings or briefs to be printed on one side of the paper. Allowing two-sided printing would result in nearly 50% less paper filed.
• Many courts require all type to be double-spaced, except for block quotations and footnotes. Allowing 1.5-line spacing would shorten most papers filed by around 25%.

Many other changes suggested by Prof. Robbins would not only save trees, but also increase legibility. For the particulars, read her paper, Conserving the Canvas (also available on SSRN).

Defining terms of art

Legal writers often must use terms of art—technical words or phrases unique to a profession. Sometimes these terms come from the legal profession; sometimes they come from other professions, such as medical or engineering. But they all have one thing in common: not everyone knows what they mean. So to make sure that your reader understands a term of art in your writing, define it.

You can define terms of art unobtrusively, without interrupting the flow of your writing. To learn how, read Robert Fugate’s recent article in the Texas Bar Journal, Defining Terms of Art in Legal Writing.

(Hat tips to Wayne Schiess and to my colleague Frank Liantonio.)

Jan Freeman, the columnist that defends “looking to”

“Looking to” may be overused these days, but it’s neither new nor incorrect. Jan Freeman explains. She also explains that it’s okay to use the pronoun that to refer to a person.

One way to make your bills more palatable to clients

Billing clients may seem a bit off topic for this blog. Then again, there’s no denying that bills are important written communications from lawyers to clients. With that in mind, here’s a tip from Jim McElhaney on how to write a more effective bill: stop rounding time entries to the nearest tenth of an hour. As McElhaney explains, “7.82 hours at $436.79 an hour looks a lot harder to challenge than 7.5 hours at $400 an hour. As if somehow it’s exact, so it must have a rational basis.”

Another tip I learned long ago: Write time entries that reflect how the task benefits the client. Thus:

• Not so good: “Legal research. 4.5 hrs.”
• Improved: “Legal research to support planned motion for summary judgment. 4.5 hrs.”

Of course, if you can’t explain how the task benefits the client, you may want to question whether the task should be performed at all.

How to get your cert petition granted

There’s no one article that you can read to transform yourself from a run-of-the-mill briefwriter into a writer of killer cert petitions. But this article by Erin Coe provides some insights from appellate lawyers who have succeeded in that area.

For Louisiana lawyers: How to go to the front of the line

Many courts, especially appellate courts, process cases in numerical order according to docket number. This means that when you take a case there, you take a number and wait your turn.

That is the general rule. There are exceptions. In Louisiana, the legislature has enacted numerous laws, scattered throughout the codes and Revised Statutes, mandating that certain classes of cases either be decided in preference to others or decided within an expedited time frame. Southern University law professor Gail S. Stephenson has written an article exploring these laws. Here’s an excerpt from the abstract:

This article explores the history of docket preferences in Louisiana, unearths the buried statutes so that practitioners can use them if they choose, examines Louisiana’s procedural rules for requesting and applying the preferences, discusses the constitutional and ethical issues connected to docket preferences, and suggests improvements to the rules that would make them more effective.

Prof. Stephenson has also created this handy list of Louisiana laws requiring preferential or expedited decisions in various kinds of cases (MS Word format).

Telling the law’s story

All advocates should know that good storytelling is powerfully persuasive. Certainly our clients have stories that we should search for and tell. But what we may not realize is that the law itself has its own stories. And when our task involves developing the law itself, we should search for and tell the story that will persuade the court to move the law in the desired direction.

That is the thesis of a thoughtful article by Prof. Linda Edwards: Once Upon a Time in Law. In it, she gives examples of how lawyers in Miranda v. Arizona and Bowers v. Hardwick transformed what might have been abstract legal discussions into compelling stories. The lesson for the rest of us: Go thou and do likewise. (Hat tip to Legal Writing Prof Blog.)

The Fall 2009 issue of JALWD has hit the streets

I haven’t had a chance to read it yet, but I’ve just learned that the latest issue of JALWD (Journal of the Association of Legal Writing Directors) has been released. For those unfamiliar with this publication, I think it’s academia’s finest and most advanced contribution to practicing lawyers. It’s going to take me a while to download and read this issue’s articles. But you don’t have to wait for me.

The theme is “Best Practices in Persuasion.” If your legal practice involves persuading people, then read it—or be left behind.