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November 2014

October 2014

Free La. appellate CLE materials

This morning, I presented an hour of CLE on appellate practice for the Louisiana State Bar Association’s “Bridging the Gap” seminar, a program for newly minted lawyers who passed the February 2014 bar exam. For attendees and anyone else who may be interested, here are some supplemental materials used or discussed in the presentation:

For reasons discussed at the seminar and elsewhere, I recommend against over-reliance on forms. With that caution stated—and with no warranties—I offer some samples of pleadings and briefs, all in PDF:

Tweaks to the Uniform Rules

Today the Louisiana Second Circuit announced a few amendments to the Uniform Rules. If you need a copy, click here to download the PDF. Here is my take on the amendments:

  • Rule 2-18.2, governing the time to apply for rehearing, has been updated to accommodate electronic notification of the court’s actions. The 14-day period to apply for rehearing is now triggered by transmission of the notice of judgment (as opposed to mailing or delivering of the notice of judgment). 
  • Rules 2-7.2 and 2-7.4, governing motions, have been amended to require motions to be of “a singular or alternative nature.” I think the purpose of this amendment is to prevent parties from seeking multiple forms of relief in a single motion. For example, if you want both an extension of time to file your brief and an enlargement of the page limit, you have to file two motions; you can’t combine both requests in one motion.

(Originally written 15 Oct. 2014; corrected on 16 Oct. 2014.)

U.S. Fifth Circuit: Tab your record excerpts

Today the U.S. Fifth Circuit posted this notice regarding tabs in record excerpts:

Fifth Circuit Rule 30.1.7 provides that the electronic PDF version of the record excerpts should contain pages representing the “tabs” identified in the index of the document. However, we remind attorneys that the paper copies of record excerpts filed with the court must contain actual physical tabs that extend beyond the edge of the document, to facilitate easy identification and review of tabbed documents.

Don’t boilerplate. Write.

I am no expert in drafting contracts; that expert is Ken Adams. But this post of his resonates with me as a briefwriter. I don’t like boilerplate anything in persuasive writing. Why? Because nobody reads boilerplate. If you have not put any thought into the sentence, if you have not figured out how to make it either informative or persuasive (or better yet, both), then you are wasting ink, paper, pixels, etc.

The only formulaic things in your brief should be things like certificates of service and of compliance with the rules, and the verification in a writ application. Even those should be written in plain English; and you should check the rules to see whether they’re necessary. Everything else must either inform or persuade or both. This rule includes things that many lawyers boilerplate, such as the jurisdictional statement and the statement regarding oral argument. It definitely includes the standard of review. This means that nothing, NOTHING in your brief should be a cut-and-paste job.

Tip for appellate lawyers who smoke

Tip of the day for appellate lawyers: handle the court’s record with care. Try to avoid spilling coffee or Diet Coke on it. And if you smoke, well, heed n. 1 in this recent decision by an Indiana appellate court:

We note, as we have in a prior memorandum decision, that the transcript in this case emits an unpleasant odor consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly remind all those who handle the record on appeal to avoid such contamination.

Hat tip to the ABA Journal.

The curse of knowledge: the root of incomprehensible writing

Bryan Garner tells participants in his seminars that good writing makes the reader feel smart, while bad writing makes the reader feel stupid. What is the root of this kind of bad writing? Mark Herrmann has an idea about that, drawn from cognitive scientistSteven Pinker: we think that our readers already know what we are trying to tell them. Pinker calls this phenomenon “the curse of knowledge.”

So what is the cure for this affliction? Herrmann recommends empathy for the reader. “Put yourself in the reader’s state of ignorance,¨ he counsels, “and write for that audience.” Pinker suggests testing your draft one people who don’t already know what you’re trying to tell them:

A better way to exorcise the curse of knowledge is to close the loop, as the engineers say, and get a feedback signal from the world of readers—that is, show a draft to some people who are similar to your intended audience and find out whether they can follow it. Social psychologists have found that we are overconfident, sometimes to the point of delusion, about our ability to infer what other people think, even the people who are closest to us. Only when we ask those people do we discover that what’s obvious to us isn’t obvious to them.

Garner has a similar recommendation in The Winning Brief, at least for cases where the amount at stake is worth the expense: Convene a focus group of lawyers unfamiliar with the case to play the part of appellate judges by reading and reacting to your draft brief. This exercise has many benefits. One of them is to tell you whether the curse of knowledge has infected your brief.

(Cross-posted on The (New) Legal Writer.)