Minor Wisdom

For Bridging the Gap participants

Today I'm giving a one-hour presentation on Louisiana appellate practice at the Bridging the Gap seminar, organized by the Louisiana State Bar Association. For seminar participants (and anyone else who may be interested), I've uploaded the written materials, PDF copy of the PowerPoint presentation, and other goodies on my other blog, The (New) Legal Writer. You can get there by clicking here.

"Don't they know ..."

So you think that if the world ends, you won't have to pay off all of those debts? It seems some contract drafter in the U.K. thought of that contingency. Click on the thumbnail, and you'll see this clause:

Upon the occurrence of the end of the world before full payment and performance of the Notes and Drafts, the Notes and Drafts, at the option of the Required Banks, will become immediately due and payable in full and may be enforced against the Company by any available terrestrial, extra terrestrial or spiritual procedure. For remedial purposes and for purposes of determining the relative equities of the parties, the Company, by virtue of its attorneys, will be deemed to be aligned with the forces of light, and the Banks and their attorneys will be deemed to be aligned with the forces of darkness, regardless of actual ultimate terrestrial, extra terrestrial or spiritual destinations of the Company or the Bank or any of their particular officers (including the Treasurer and the Vice President-Finance).

Hat-tip trail: Rob Hyndman, Slaw, Times.

Legal-writing feed added to Minor Wisdom

Long-time readers of Minor Wisdom (all three of you) may remember that legal writing was one a frequent topic here. In January of this year, I started another blog, called the (new) legal writer; that's where all the legal-writing posts now go. Since then, I've been trying to figure out an easy way to cross-reference the legal-writing posts on both blogs. Solution: a TypePad feature that allows users to add an XML feed to their sidebars. Visitors to this blog will now see, at the top of the right-hand column, a list of recent posts from the (new) legal writer.

If you read Minor Wisdom via an RSS feed and you'd like to have the legal-writing posts delivered to your news reader, please visit the (new) legal writer, click on the subscription icon, and follow the directions.

Good thinking

The other day, my law firm's court runner sent an e-mail to everyone in our New Orleans office with some useful information and a thoughtful suggestion:

Jefferson Parish now images every pleading filed.  Part of the imaging process requires the clerk to hand write the case number on every page of the pleading, including memo's and exhibits.

As a courtesy to them and to speed things up, I have been doing this before going to court. It occured to me that it would be easier for the person preparing the document to create a footer on each page, excluding the first page, with the case number.

It is NOT required by the clerk that we do this, it is simply something that will speed things up and might put the clerks in a better mood when they accept pleadings from [our firm].  Hopefully they will remember it when we need a favor.

This is a wonderful example of the attitude every lawyer–writer should have. If we empathize with the reader, we think of little things we can do to make the reader's job easier.

All they really need to know about legal writing they learned in 3rd grade

Well, maybe not "all" — just research, organization, drafting, and editing. Come to think of it, maybe that is "all."

Naked briefwriting

Today, thanks to the [non]billable hour, I found Presentation Zen, where I found an entry from last October titled Making Your Next Presentation Naked. Though its author, Garr Reynolds, was talking about standing up and giving an oral presentation before an audience, I think much of his advice can be applied to legal writing.¹

I'm not talking about literal nakedness — I'm not suggesting that you sit before your computer in the altogether while writing your next brief. What I'm talking about is simple honesty and authenticity. Much legal writing is dull "because we are overly cautious. We are afraid. We want it all to be so safe and perfect, so we over think it and put up a great many barriers," and write in a style "devoid of emotion." Nakedness removes those barriers, letting the audience (or reader) see the real you.

Reynolds describes several qualities of naked presentation that, I think, are also the qualities of what I'll call naked briefwriter. Such as:

• The naked briefwriter "embrac[es] the ideas of simplicity, clarity, honesty, integrity, and passion. She presents with a certain freshness. The ideas may or may not be radical, earth shattering, or new. But there is a "newness" and freshness to her approach and to her content."
• "Don't try to impress. Instead try to, share, help, inspire, teach, inform, guide, persuade, motivate...."
• "Keep it simple. All of it. Simple goals, clear messages, and moderation in length."
• Be credible.
• Speak (write) like a human being.

A couple of years ago, some appellate lawyers in my firm were giving a presentation to Loyola's moot-court members. One of our number recommended that the students "embrace intellectual nudity." That recommendation took me by surprise. But after reading Reynolds's entry, I have a better idea what my comrade was talking about.

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¹ Reynolds's advice would also help anyone giving an oral argument before a panel of appellate judges.

Ph.D. from MIT can't understand jury instructions

From the (new) legal writer:

Most of us know that most jury instructions are poorly written and difficult for non-lawyers to understand. But I had no idea how bad it was until I read this story by Arnold Kling, who recently served on a jury and wrote about his experience. Mr. Kling is about the most intelligent juror you can hope to find: he has a Ph.D. in economics from MIT, and he works as an adjunct scholar¹ with the Cato Institute. During deliberations, he asked for and received a written copy of the jury instructions. What do you suppose this MIT-educated scholar thought of the jury instructions after reading them?

We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.

...

In my view, the instructions ... were almost impossible to sort out.

Wow! So what did the jurors do? Mr. Kling suggests that they "tried to follow the law," but ended up following their gut.

Why are plain-English jury instructions important? This is why.

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¹ I have no idea what an "adjunct scholar" is, but it sounds brainy.

Garner's Usage Tip of the Day is back

A couple of years ago, I signed up for Garner's Usage Tip of the Day, a daily e-mail containing one or more selections from Garner's Modern American Usage, with a bonus pithy quotation. Several months ago, the e-mails stopped. But just a few days ago, they re-started. You can subscribe by clicking here.

Yesterday's bonus pithy quotation is an excellent digest of the writing process, applicable to any form of expository writing:

We should "first think, and then write": think till we have thoroughly assimilated our materials and have determined what we would say, and then write as rapidly as possible, with minds not occupied with choice of word or turn of phrase but intent on the subject. After the first draught has been made, we may at leisure attend to matters of detail, criticise from various points of view, curtail here, amplify there, until each part has its due proportion of space and effectiveness; but unless we have a conception of the whole before beginning to write, and unless we write with an eye to that whole, there is little likelihood that our work will be a unit.

— Adams Sherman Hill, The Principles of Rhetoric 243 (rev. ed. 1896).

How to cite a blog

From Legal Writing Prof Blog, I learned this morning that the ALWD Citation Manual (3rd ed.) has a rule for citing weblogs: Rule 40.3. (And — lucky me — my copy of the manual arrived late last week.) For a full citation, include:

• the full name (if available) of the person who posted the entry
• the name of the weblog in ordinary type (abbreviations are okay — see Appendix 3 of the manual)
• the title of the weblog entry in italics
• the blog URL
• the exact date the cited entry was posted in month-day-year format. Put the date in parentheses and abbreviate the month per Appendix 3.

Example: Raymond P. Ward, Minor Wisdom, How to Cite a Blog http://raymondpward.typepad.com/rainman2/2006/03/how_to_cite_a_b.html (Mar. 27, 2006). I would add that, if the citation will appear on-line, then it should incorporate a hyperlink to the cited material. My suggestion is to use the URL as the linking text, because most computer users nowadays are familiar with URLs as links.¹

For a subsequent short-form citation, use id. if appropriate. For a different URL on the same web site, add "at" followed by the new URL. If id.is not appropriate, use one of the following:

• the author's or owner's last name, or
• if you used a "hereinafter" form for the first full citation, a partial title.

Then add a comma and the word supra. If needed for clarity, you may insert a comma after supra and include the URL.

I should add that this rule applies to formal legal writing. If you're writing a brief or an article for publication, follow the rule. If you're writing something less formal (e.g. a blog entry), feel free to adapt according to the writing's level of professionalism and your own style. Most blog writers incorporate the citation information with hyperlinks in the stream of narrative, letting the hyperlinks serve as the citation. E.g., "Over at Minor Wisdom, Ray Ward gives us ALWD's rule for citing blogs." That style is fine for blogs. But for professional legal writing, follow the rule.
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¹ P.S. As originally posted, the URL in this paragraph was hyperlinked. But I discovered that the hyperlink was causing a formatting problem, chopping off the bottom of the entry when the text column wasn't wide enough to display the URL on one line. So let me change my suggestion to this: if possible, provide a hyperlink to the cited material.

A gap in Black's Law Dictionary

A court in Minnesota has discovered that there's no legal definition for "lap dance." So reports the Twin Cities' Star Tribune. Indeed, my copy of Black's Law Dictionary contains no definition for the term.

(Hat tip to Legal Writing Prof Blog.)