the (new) legal writer

One space is enough

Thirty-four years ago in high-school typing class, I learned to hit the space bar twice at the end of each sentence. This was good advice, because my instrument was an Underwood typewriter (not as old as this one, but almost).

Today, writing on a computer with proportionally spaced typefaces, one space is enough; two is too many. For reasons why, read One Space or Two?, by Ken Adams.

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p.s. (11/2/06): See also Ruth Ann Robbins, Painting With Print, 2 J. ALWD 108, 129 (2004) (footnotes omitted):

The practice of using two spaces between sentences and indented first lines to begin the new paragraph are merely remnants of days when attorneys had only typewriters at their disposal and were forced to use a monospaced font. Using a monospaced font requires two spaces between sentences in order to provide enough visual cueing through width. But using two spaces with proportionally spaced fonts will create extra gaps, which will cause the reader to experience a greater fixation pause between sentences as her eye searches for the next phrase.

Language Corner

Language Corner, featured on the Columbia Journalism Review, addresses "[v]arious rules of the language, including rules of thumb ... (with as little jargon as possible)[,] because we need to know the rules to know when to follow them, when to bend them, even when to break them." It's written by Evan Jenkins, whose résumé includes a stint as senior editor of the Racing Times. Evan "claims infallibility only in matters concerning 'who' and 'whom,' and even there opposes following the rules out the window."

Hat tip to Celia Elwell.

Apostrophe Catastrophe

Some blogs promote proper usage generally. I suppose there may be a few blogs focused on proper punctuation. Here's one with an even narrower focus: Apostrophe Catastrophe, dedicated to promoting proper use of the apostrophe and exposing its misuses (hence the "Catastrophe" part). (Hat tip to Celia Elwell.)

For Bridging the Gap participants (and other interested persons)

This afternoon I am giving a one-hour presentation to newly sworn-in lawyers as part of the Louisiana Bar Association's Bridging the Gap seminar. For those participants — and anyone else who may be interested — here are some materials to supplement the presentation:

• Outline of Louisiana appellate procedure. These are the same materials that the participants received from the LSBA. Included are:
  • Outlines for practice in Louisiana Courts of Appeal and the Louisiana Supreme Court
  • Act No. 644 of the 2006 Regular Session (the latest development for appellate courts in Louisiana)
  • A redacted copy of Boudreaux v. State, DOTD, 815 So.2d 7 (La. 2002), required reading for anyone who would apply to the Louisiana Supreme Court for a writ of certiorari or review.
• PDF copy of PowerPoint presentation.
• Amendments to Uniform Rules of La. Cts. of Appeal, effective Nov. 1, 2006.
• How to Write an Appellate Brief. This is a chapter I contributed to A Young Lawyer's Guide to Defense Practice, published this year by DRI.
• A Writ in Time. This is an article I wrote for the Louisiana Bar Journal on calculating the time to apply for supervisory review of a trial court's interlocutory judgment.
• In Praise of Moot Court — Not! by Judge Alex Kozinski (9th Cir.). Required reading for anyone who thinks that law-school moot-court programs prepare you for real-world appellate advocacy.

Forms. I generally recommend against reliance on forms, for two reasons. First, there's never a guarantee that a form you get from another lawyer (not even one from me!) complies with the rules. Second, even a form that was good when created will inevitably fail to keep up with changes in the rules. With those warnings in mind, here are some samples of appellate papers that I've written within the last few years. If you use these, please please consult the rules to verify compliance. If anything in any of these samples conflicts with the current version of a rule, follow the rule; don't follow the sample.

• Motion for suspensive appeal. (Probably more verbose than it needed to be.)
• Suspensive-appeal bond. (From same case as motion for suspensive appeal.)

• Brief of appellant filed in Court of Appeal.
• Application to La. Supreme Court for writ of certiorari or review. (From same case as appellate brief.)

• Notice of intent to seek supervisory writ.
• Application for supervisory writ.

Storytelling

Prof. Ruth Anne Robbins has uploaded an interesting-looking paper on the Social Science Research Network. The title is Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story using the Characters and Paradigm of the Archetypal Hero's Journey. Here's the abstract:

This article focuses on the relationship of mythology and folklore heroes to everyday lawyering decisions regarding case theory when the audience is a judge or panel of judges rather than a jury. It proposes the thesis that because people respond — instinctively and intuitively — to certain recurring story patterns and character archetypes, lawyers should systematically and deliberately integrate into their storytelling the larger picture of their clients' goals by subtly portraying their individual clients as heroes on a particular life path. This strategy is not merely a device to make the story more interesting but provides a scaffold to influence the judge at the unconscious level by providing a metaphor for universal themes of struggle and growth.

This is not Prof. Robbins's first paper on storytelling. Five years ago, she and Prof. Brian J. Foley wrote Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections, an article "discuss[ing] ways in which lawyers can tell better stories in briefs by utilizing the fiction writing concepts of character, conflict and resolution." A couple of years ago, she wrote Painting With Print, which today is still the state of the art on typography and document design applied to legal writing.

A layman's perspective on credibility

Times-Picayune columnist Jarvis DeBerry describes his bullshit detector:

There's an easy way to tell when writers don't fully believe their arguments have merit.

They underline words. They italicize others. They put others in all capital letters. In short, they scream for the reader's attention in a way they wouldn't have to if they believed their cases to be inherently compelling.

Woman drops robe; judge drops charges

Yesterday Howard Bashman reported an interesting news item. It seems a judge dismissed an indecent-exposure charge against a woman, because the statute she allegedly violated is, according to the judge, "gender specific." The statute says that "every person who willfully and lewdly exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed" commits a misdemeanor. The judge reasoned, "Usually when a section proscribes conduct, it's 'his or her. This one is not. It's gender specific. It's 'his.'" Howard links to stories by the Press-Enterprise, the AP, and the Californian.

What's a draftsman drafter of legislation to do? For possible answers, continue reading.

Supreme Court splits on a question of utmost importance

How do you form the possessive of a noun ending in s? It is Kansas' statute or Kansas's statute? It seems the Justices of the Supreme Court are not unanimous on this important question. Jonathan Starble files this report for Legal Times:

The issue reached a crescendo in [Kansas v.] Marsh primarily because of two circumstances. First, the statute in question originated from a state with a name ending in s. Second, the majority opinion was written by a justice whose last name ends in s. Given the confluence of these factors, it was inevitable that the justices’ philosophical differences on matters of American usage would be thrust into the spotlight.

For an exegesis of the split among the Justices on this important issue and what it means to the future of our nation, read Starble's analysis.

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A big tip of the sombrero to Nicole Stockdale for this one.

Communicating with juries: How to draft more understandable jury instructions

If you sometimes write or edit jury instructions, then you should read Peter M. Tiersma's article, Communictating with Juries: How to Draft Understandable Instructions, published in 10 Scribes J. Legal Writing 1 (2006). (Hat tip to Trial Ad Notes.) Why is this important? Because jurors can't possibly follow jury instructions if they don't understand them.

Tools, not rules

Every craftsman needs proper tools. If your craft is writing, then Roy Peter Clark's Writing Tools belongs in your toolbox. This is so whether you're a blogger, a briefwriter, a newspaper reporter or columnist, or even an aspiring or accomplished novelist.

Unlike many other books about writing, this one contains tools, not rules. As Clark says in the introduction, the tools "work outside the territory of right and wrong, and inside the land of cause and effect." The 50 tools are divided into four categories:

1. Nuts and bolts: strategies for making meaning at the word, sentence, and paragraph level.
2. Special effects: tools of economy, clarity, originality, and persuasion.
3. Blueprints: ways of organizing and building stories and reports.
4. Useful habits: routines for living a life of productive writing.

You can find a quick list of the tools by clicking here. For elaboration on each, buy the book. And read Writing Tools: The Blog, where, three times a week, Clark offers a new tool or an example of or variation on one of the original 50.