the (new) legal writer

Of ostriches’ heads

Over the last few days, Howard Bashman and Judge Richard Posner have debated a singular-versus-plural question. It started with this sentence in a Posner opinion:

The reference of course is to the legend that ostriches when frightened bury their head in the sand.

Howard questioned Judge Posner’s use of the singular head:

And while we are debunking canards (which, by contrast, are birds that can fly), allow me to question the use of the singular “head” in the following sentence from Judge Posner's opinion: “The reference of course is to the legend that ostriches when frightened bury their head in the sand.”

To which Judge Posner replied:

Dear Prof. Bashman, to say “ostriches hide their heads in the sand” would imply that each ostrich had more than one head.

Richard Posner

P.S. And yes, canards fly—glad you caught the pun.

Who has the better end of this debate? According to linguistics professor Mark Liberman, Howard does. In a lengthy post on Language Log, he catalogs hundreds of years’ usage of head versus heads, and finds that heads heads head by more than 91:9.

As for myself, I agree with Howard: When in doubt, write around the problem. “The reference of course is to the legend that an ostrich when frightened buries its head in the sand.”

Candor toward the tribunal

Spotted on Legal Antics:

“Comes now the Appellant, by counsel, and moves the Court to reschedule the Oral Argument currently scheduled for August 1, 2007. The grounds for this motion are that undersigned counsel will be out of town in Oregon, on a 350-mile bicycle trip from July 30 through August 4, 2007, for no other reason than to please his wife. Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip.”

Coyote v. Acme

What would happen if Wile E. Coyote, after suffering the 85th malfunction of an Acme product, found a lawyer who (a) was fluent in legalese, and (b) was willing to file suit against Acme? Ian Frazier, author of Coyote v. Acme, thought that the result would be something like this.

On the importance of proofreading everything

Holden Oliver at What About Clients? exhorts us to proofread our invoices and everything else that our clients read. Why? Because the reader is the client.

He also reminds us that “invoices, if done correctly, are a great way to communicate what you've done for a client and they can even serve as a marketing tool.” If we’re trained in persuasive writing, then we ought to apply that training to our time entries—and just about everything else we write.

Grammar: Something white people like

If you read this blog, then you may be more Caucasian than you care to admit. It seems that number 99 on the list of stuff white people like is grammar. Why?

White people love rules. It explains why so they get upset when people cut in line, why they tip so religiously and why they become lawyers. But without a doubt, the rule system that white people love the most is grammar. It is in their blood not only to use perfect grammar but also to spend significant portions of time pointing out the errors of others.

...

If you wish to gain the respect of a white person, it’s probably a good idea that you find an obscure and debated grammar rule such as the “Oxford Comma” and take a firm stance on what you believe is correct. This is seen as more productive and forward thinking that simply stating your anger at the improper use of “it’s.”

Q&A with Justice Scalia

C-Span Q&A has posted the transcript of an interview with Justice Antonin Scalia by Brian Lamb. It includes some of Justice Scalia’s thoughts about legal writing and oral argument. (Hat tip to Legal Writing Prof Blog.)

The glamour of grammar

Roy Peter Clark, author of Writing Tools, is beginning The Glamour of Grammar, a twice-weekly series of blog posts to eventually be transformed into a book. Writing Tools started out the same way, so TGOG has the burden of living up to high expectations. To monitor Roy’s work in progress and to contribute constructive criticism along the way, check Roy’s blog every Tuesday and Thursday until further notice.

Unless, of course, you like powdered wigs

Ken Davis has some business-writing advice particularly appropriate for legal writers. The headline: Lose the powdered wig. Go have a look; it won’t take long.

Tactical choices in briefwriting

Mark Herrmann has an interesting post at Drug and Device Law about tactical choices in briefwriting. His point: Every choice has its potential benefits and potential risks. Reasonable tacticians may disagree on the best choice. Sometimes the best choice doesn’t work out.

To set the stage: A drug manufacturer, defendant in a state-court class action, is alleged to have promoted its brand-name drug for off-label uses, i.e. uses not approved by the FDA. The manufacturer filed a motion for summary judgment seeking to dismiss claims based on use of generic versions of the drug that the manufacturer did not make or sell. There is no caselaw from the forum state addressing the issue, but there is abundant and unanimous caselaw from outside the forum state—including the federal circuit encompassing the state—holding that the manufacturer cannot be held liable for claims arising from use of generic drugs not manufactured by the defendant. If you’re writing the brief for the manufacturer, what do you do? Herrmann sees two choices:

1. File a short, sweet, 5- or 10-pager, citing all the cases that say the manufacturer should win, and then shut up. After all, judges always say that they prefer shorter briefs.
2. “[L]et the thunder roar.” Cite all those cases, but buttress them with policy arguments and maybe analogical reasoning showing that all this foreign caselaw accords with the forum state’s law.

Either choice is reasonable. Herrmann thinks that the manufacturer may have gone with option # 1. If it did, this time shorter was not better. The judge rendered a scathing decision denying the manufacturer’s motion, featuring a 4½ page block quote from a criminal bill of information, to which the manufacturer pleaded guilty.

I haven’t read any of the briefs in the case, so I have no idea what tactical choices the lawyers made in writing them. But the judge’s opinion provides a clue that the parties’ issue statements may have been crucial, and that the judge adopted the plaintiffs’ issue statement. Here’s an excerpt from page 12 of the opinion:

Plaintiffs claim that defendants ... intentionally manipulated the consensus of medical opinion in America so that doctors came to believe that Gabapentin was a suitable drug for uses which had never been approved by the FDA.... Plaintiffs claim defendants did this when they had a statutorily imposed monopoly on the sale of Gabapentin and that the fruits of this illegal activity resulted in a continuing loss to class members after their monopoly had ceased. The question presented by this Motion for Partial Summary Judgment is whether this loss is compensable as to class members who purchases the generic equivalent of Gabapentin after the defendant’s monopoly had ceased if these allegations are eventually proven at trial.

The legal question presented by this Motion for Partial Summary Judgment is whether under Pennsylvania Law, a drug company which negligently or intentionally perpetrates a fraud upon the medical community may be held responsible for sums paid to other drug manufacturers because of their misrepresentations....

The lesson here may not be brevity versus “letting the thunder roar,” but the importance of framing the issue in a favorable way, to persuade the judge to adopt your statement of the issue.

The world’s hardest English vocabulary test

If you’d like to succeed William F. Buckley Jr., find out whether you’re up to the task by taking Brad Schorr’s World’s Hardest Vocabulary Test. Brad lists 57 words and will give you an A+ if you know 20 of them. Good luck, and prepare to be humbled.