the (new) legal writer

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.

A reminder about the 5th Circuit’s “Practitioner’s Guide”

Like other circuit courts’ web sites, the U.S. Fifth Circuit’s web site has an on-line copy of the Federal Rules of Appellate Procedure, the Fifth Circuit’s local rules, and its internal operating procedures. Another valuable document on the Fifth Circuit’s web site is the Practitioner’s Guide to the U.S. Court of Appeals for the Fifth Circuit. If you practice before the Fifth Circuit, then be aware of these on-line resources, bookmark them, and refer to them often.

If you practice before one of the other federal circuit courts, then visit the court’s web site; you should find at least a copy of the F.R.A.P. and the most up-to-date version available of the court’s local rules. You may even find a practitioner’s guide. If these resources are available on the court’s web site, then you’re doing your clients and yourself a disservice if you don’t consult them every time you communicate with the court.

A lesson for editing

A few days ago, I posted this video on my other blog. Today it occurred to me that the video contains a lesson for legal writers. Watch the video, then read the lesson below.

If you’re like me, then you correctly counted the number of passes the white team made by focusing all your attention on that task. The cost of your focus was that you missed the moonwalking bear. But don’t feel bad about that—your task was to count the number of passes, not to keep a lookout for moonwalking bears. If you’d peeled your eyes for things like moonwalking bears, you could not possibly have correctly counted the number of passes.

Your brain is not wired to do both things at the same time. You can correctly count the number of passes the white team makes only if you focus all your attention on that task. But when you do that, you miss the moonwalking bear. You see the moonwalking bear only when you look for him and forget about counting the passes. Let’s call this “the moonwalking-bear phenomenon.”

What does this lesson have to do with legal writing? The lesson is to edit in stages, with each stage focusing on one task. Bryan Garner, for instance, recommends two levels of editing—a micro level and a macro level—with each level encompassing eight different tasks. That means 16 different editorial passes over the document, with each pass focused on one task.¹

That sounds like a lot of work, and it is. But if the brief is important, then you’re probably going to proofread it 16 times anyway. And 16 focused proofreading sessions will likely be more effective than 16 unfocused sessions.
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¹ Bryan A. Garner, Legal Writing in Plain English 138–39 (2001). As an illustration, here are Garner’s Level One (micro level) edits:

1. Cut or reword pointless legalisms.
2. Convert be-verbs into stronger verbs.
3. Convert passive voice into active voice unless there’s a good reason not to.
4. Change –ion words into verbs when you can.
5. Check every of to see whether it’s propping up a wordy construction. If so, rephrase.
6. Check for misused words, faulty punctuation, and other mechanical problems.
7. Try to cut each sentence by 25%.
8. Read aloud, accenting the final word or phrase in each sentence. Does it read naturally?

You can never be too careful.

The past several days, I’ve been working on a U.S. Fifth Circuit brief. It’s a moderately sized brief: 45 pages of substance (double-spaced, 14-point typeface), about 9,650 words. Today was the filing deadline. I had read, re-read, and re-re-read this brief, so I thought it was in pretty good shape. But I decided yesterday evening to give it one more good proofreading. To prevent myself from skimming, I used a big fat ruler to make sure I read no more than one line at a time. What I found was embarrassing: a total of 71 things that needed to be fixed. Here’s the breakdown:

• Inconsistent form in record citations: 7
• Grammar errors: 1
• Verbiage: 8
• Missing record citations: 25
• Record-citation errors: 9
• Miscellaneous things needing to be fixed: 21

So I ironed out the glitches and, this morning, got the thing to photocopying. I got back a good-looking pile of briefs ready to be filed, and I did something I always do: I checked each copy individually, page by page. In years past, this ritual has caught some embarrassing errors before they left the office: things like missing pages and pages copied upside down. Today the photocopy people did an outstanding job. Copy after copy looked great. That is, until I got to the third-to-last copy — which was missing the back cover. That copy did not leave the office. (I should say that the photocopy folks’ batting average is way better than mine. I made 71 mistakes; they made only one.)

The photocopy glitch was no big deal, because I always order a couple of extra copies just in case. To file and serve this brief, I needed exactly 13 copies. I ordered 15. So after pulling the bad one out of the batch, I still had one copy to spare.

The Fifth Circuit also requires filing and service of an electronic copy of the brief, either on CD or floppy disk. I found out that our photocopy department can make attractive CD labels to stick on a CD. For filing and serving, I needed 4 CDs with pretty labels. I ordered 5. This morning, when I copied the brief to the CDs, I found that one of the CDs was bad. No problem; I tossed that one in the trash and still had enough for filing and serving.

The lessons I learned today:

• If you’ve read and re-read that brief so many times that you’re sick of it, it probably needs one more painstaking proofreading before it’s ready to file.
• Always order one or two more copies than you think you’ll need, so that if something goes wrong, you’ll still have enough copies.

Relax

Evan Schaeffer has an excellent tip for legal writers who struggle to find the right words: Forget that you’re writing a brief. Instead, pretend that you’re writing a letter to someone you’re comfortable with. Says Evan, “Try to communicate what you are trying to say in a way that comes naturally to you—that is, exactly as you do when you're writing a letter or an email to someone you know.”