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July 2014

Upcoming appellate CLE

If you’re looking for CLE focused on appellate practice, I have two suggestions:

Update — 23 July 2014. The paper registration form for the LSBA program hasn’t been printed yet, but the good folks there were kind enough to send me a PDF, which you can download by following this link. For the registration fee, follow the link to the program information provided above.

You say tomato, I say to-mah-to, you say certiorari, ...

How do you pronounce certiorari? However you pronounce it, you are probably neither right nor wrong. Our friends at Legal Writing Prof Blog explain.

In high school, I learned that we really don’t know how the Romans pronounced Latin. For instance, when Julius Caesar said, “Veni, vidi, vici,” it may have sounded like Pontius Pilate in Monty Python’s Life of Brian: “weni, widi, wici.” If my teachers were correct, then there is no “correct” pronunciation of certiorari. My suggestion: forget the Latin and just say “cert,” as in Certs.

Don’t let your brief be DOA.

Here is a briefwriting tip courtesy of Senior Judge Laurence Silberman of the D.C. Circuit: avoid overuse of uncommon initialisms.

Petitioner’s brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing. [Ouch!]

The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last twenty years. Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means. Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.

Delaware Riverkeeper Network v. Fed. Energy Regulatory Commn., No. 13-1015 (D.C. Cir. June 6, 2014) (Silberman, J., concurring).

Judge Silberman is not the first authority to advise against overuse of initialisms. Garner’s Dictionary of Legal Usage includes a persuasive essay against what Bryan Garner dubs “Initialese.” It opens with a quotation from this footnote by Justice Rehnquist:

The term “alphabet soup” gained currency in the early days of the New Deal as a description of the proliferation of new agencies such as WPA and PWA. The terminology required to describe the present controversy suggests that the “alphabet soup’ of the New Deal era was, by comparison, a clear broth.”

Chrysler Corp. v. Brown, 441 U.S. 281, 286–87 n. 4 (1979). But my favorite comment on this all-too-common writing tick comes from Chief Judge Alex Kozinski (9th Cir.), advising lawyer on how to lose an appeal:

[D]on’t forget the acronyms in bureaucratese. In a recent brief I ran across this little gem:

LBE’s complaint more specifically alleges that NB failed to make an appropriate determination of RTP and TIP conformity to SIP.

Even if there was a winning argument buried in the midst of that gobbledygoop, it was DOA.

Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325, 328.

So what’s a briefwriter to do? Feel free to use commonly known initials as shorthand names, such as IRS, FBI, or (in Louisiana) LSU. Otherwise, use descriptive names. If, say, the Louisiana Public Service Commission is the only commission referred to in your brief, refer to it by its full name the first time you refer to it. In subsequent references, call it “the Commission,” not “the LPSC.” When I write a brief for the Louisiana State Board of Medical Examiners and it is the only licensing board referred to in the brief, its shorthand name is “the Board,” not “the LSBME.” If the Department of Health and Hospitals shows up more than once in your brief , call it “the Department,” not “DHH.”