the (new) legal writer

Tip of the day

Today’s writing tip, spotted by Evan Schaeffer, comes from a letter by Raymond Carver to his daughter:

When something feels complex or complicated to you, write it out carefully and thoughtfully, several different times if necessary, until it flows smoothly and expresses exactly what you want it to communicate and nothing else.

Make it flow

What’s the secret to making your writing flow? Actually it’s no secret at all. Taylor explains at Men With Pens. (Hat tip to the [non]billable hour.)

Owning your downloaded legal authorities

A few years ago on my other blog, I advised legal researchers to own their downloaded legal authorities. For those who missed that post, here’s the skinny version.

First, when you download cases from Lexis, Westlaw, Fastcase, or whatever, download in a word-processing format (Word or WordPerfect), not PDF. This will enable you to edit them before printing or saving them, which in turn will enable you to do the following things:

• If you find the case difficult to read, re-format it. Change the type face or enlarge the font size.

• Delete all the headnotes having nothing to do with why you downloaded the case, saving only the pertinent headnotes. This simple tip not only saves you the trouble of wading through dozens of useless headnotes; it also saves paper when you print a hard copy.

• While you’re at it, delete the lawyers’ names. Every little bit of clutter-elimination helps. And nobody will mind except the lawyers’ mothers.

• Use Word or WordPerfect to highlight the parts that are most important.

• Instead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy.

• Edit the document header to add all information needed to cite the case. This will later save you the trouble of printing an entire 24-page case when you only need one page with one juicy quotation.

• Here’s a new one I figured out: If the case is part of a quantum study, insert the dollar figure up front, on the first page, in big bold text.

One thing should go without saying: Do not change the substance of the opinion itself. Instead, highlight the important parts, as you would with a hard copy. Whatever part of the case you intend to use, you must see it in its full context.

A word on jury instructions

While researching jury instructions today, I came across this passage:

The fact that the language was borrowed from the reasoning of a written opinion does not uphold the charge. Isolated from its context, or sought to be translated from mere discussion into substantive law, opinion language is apt to become invested with a quality wholly inappropriate for use in instructions. Taylor v. Insurance Company of North America, 263 So.2d 749 (Miss.1972). The mere fact that certain language has been used by a judge in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury. News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385 (1939).

Source: Trapani v. State Farm Fire & Cas. Co., 424 So. 2d 449, 451–52 (La. App. 5 Cir. 1982).

Cast of characters

If you’re telling a story involving many players, how do you help the reader keep the players straight? You might do what Judge John R. Brown did in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969) (copy in Word format here). In a case involving 17 characters, he listed the entire cast in footnote 3, providing each player’s full name and shorthand name used in the opinion. For individuals, he also listed each one’s employer. This technique yielded two benefits. First, it spared readers the dreaded parenthetical accompanying each character’s introduction (e.g. “... Coastal Marine Service of Texas, Inc. (“Coastal”)”). Second, it gave readers one sure and easily accessible place to find who’s who.

Tip of the day: Proofread appendices

Today’s West Headnote of the Day carries a useful lesson:

Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).

My guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file. Later, someone copied the opinion—with marginal notes—for inclusion in the appendix, and no one ever eyeballed the appendix to catch embarrassments like this.

The lesson: Before selecting file materials to be copied for an appendix, inspect them to look for marginal notes, underlining, doodles, etc. If you find any, erase them or cover them up with white tape before photocopying.

Another lesson in hyphenating phrasal adjectives

A couple of weeks ago, a headline in a law-oriented magazine prompted me to write on the importance of hyphenating phrasal adjectives. Today a different headline teaches the same lesson more vividly, and this time, the headline writer gets it right.  From the Onion:

I’m a Diseased- and Deformed-Animal Lover

Without the hyphens, diseased and deformed would describe the author. But the hyphens make clear that those words modify animal.

Why we should hyphenate our phrasal adjectives

A magazine I’m looking at now has a story with this headline:

401(k) Excessive Fee Litigation

This leaves me to wonder what is excessive: the fee or the litigation? The story reveals that it’s about litigation over excessive fees. A little punctuation removes the ambiguity:

401(k) Excessive-Fee Litigation

“When a phrase functions as an adjective—an increasingly frequent phenomenon in late-20th-century English—the phrase should ordinarily be hyphenated. Seemingly everyone in the literary world knows this except lawyers.” Bryan A. Garner, A Dictionary of Modern Legal Usage 657 (2d ed. 1995).

McElhaney on briefwriting

Here are some tips for more lively briefs, courtesy of Jim McElhaney. The advice is sound, though I’d treat his rules as general rather than absolute.

Sometimes we don’t notice transposed letters.

Daily Writing Tips has an interesting post titled “Cna Yuo Raed Tihs?” The idea is that, if the first and last letter of the word are in the right place (or just the first letter of a three-letter word), then you can probably read the word even if all the letters between the first and last are jumbled.

This phenomenon illustrates the importance of careful proofreading—one word at a time. If you accidentally transpose two letters in the middle of a word, then the faster you read the writing, the smaller the chance that you’ll notice the error.

This phenomenon also illustrates why running a spell check is a good idea. Although you shouldn’t rely exclusively on spell check, using it in conjunction with careful human proofreading can’t hurt; more likely it will catch some mistakes that a human proofreader is prone to miss.