Reasonable people can disagree on whether citations should be in footnotes or in main text. But if a court rule or order tells you to put them in text, follow the rule or order. If you don’t, you may get bench-slapped with one of these. (Hat tip to Above the Law.)
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.)
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.
The second edition of Matthew Butterick’s instant classic, Typography for Lawyers, has hit the streets. If you don’t have your copy yet, don’t fret; you can start improving your typography now. Just read and follow Matthew Salzwedel’s 10 Takeaways from Typography for Lawyers.
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.
Do you see an error here?
Dee was two years younger than me.
Yesterday, I would have edited this sentence by substituting I for me. But according to Mary Norris, the Comma Queen of the New Yorker, me is correct. In this video, she explains her position. What do you think?
The New York Times has an interesting article about how Texas school textbooks use grammatical structure when talking about the history of slavery, to emphasize the less-bad parts and de-emphasize the worse parts. The short version: To play up the good, write sentences in the active voice, with real people as the subjects and real verbs. To play down the bad, use passive voice and hide your verbs in nominalizations.
For an older article on the same topic, follow this link.
I saw this quotation attributed to Frank Zappa:
Without deviation from the norm, progress is not possible.
This quotation captures my theory about what’s wrong with most legal writing: fear of deviating from the norm. This same fear kills whatever spark of writing talent that young lawyers may have had before law school. Folks, the norm is mediocre. So why strive for mediocrity?
Sorry, snoots, but “hopefully” as a sentence adverb is okay in all but the most formal contexts. So says the OED.
One way to make your client happy is to make his or her job easier. One way to make the client’s job easier is to submit drafts less in need of editing. How do you do that? Mark Herrmann explains.