the (new) legal writer

Why George Orwell’s Ideas About Language Still Matter to Lawyers, by Judith D. Fischer

In this article, Prof. Fischer examines George Orwell’s famous essay, Politics and the English Language, traces its influence on the plain-language movement, and—most important—reminds us of what Orwell said about the ways language can be abused to mislead people. To download Prof. Fischer’s article, click here. (Hat tip to Law & Humanities Blog.)

If you like Prof. Fischer’s article, then you’ll probably like Prof. Pamela Samuelson’s classic, Good Legal Writing: Of Orwell and Window Panes.

Improving accessibility of legal scholarship

Judges and practicing lawyers rarely read or use law-review articles. When they do cite them, they use them as a drunk uses a lamppost: “more for support than for illumination.” That quip, credited to Second Circuit Judge Robert Sack, is probably true for most practitioners (it’s certainly true for me).

In a recent article for the Connecticut Law Review,¹ Prof. Stephen Vladeck observes this phenomenon, suggests one possible contributing factor (decline of judicial discretion), and proposes a tonic:   on-line law-review companions. Three examples are CONNtemplations, First Impressions, and Pocket Part, respective on-line companions to the Connecticut Law Review, Michigan Law Review, and Yale Law Journal. These on-line companions improve accessibility of law-review articles in two ways. First, they make the content accessible to anyone with Internet access. Second, they provide shorter, more accessible summaries—a valuable service for time-strapped lawyers and judges who, as Prof. Vladeck observes, don’t have time to read dozens of 70-page articles.

Prof. Vladeck points out other advantages of on-line law-review companions. Like blogs, they can be interactive, allowing readers to post comments. And instantaneous publication allows them to be more current than printed law reviews, where the time lag between manuscript submission and publication is usually several months.
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¹ Stephen I. Vladeck, Law Reviews vs. the Courts: Two Thoughts from the Ivory Tower, Conn. Law Rev., Vol. 39, 2007, Available at SSRN: http://ssrn.com/abstract=989521.

This is a test

If all went well, I just added an e-mail subscription feature to this blog. This post is a test of that new feature.

At Your Fingertips: On-Line Resources for Writers

[Click here for PDF version of this article.]

Every writer needs a good bookshelf full of well-used reference books. The lawyer is no exception. If you do a lot of writing (and what lawyer doesn’t?), then your bookshelf probably holds a good English-language dictionary, a comprehensive legal dictionary such as Black’s Law Dictionary, a citation guide such as the Bluebook or the ALWD Citation Manual, Bryan A. Garner’s A Dictionary of Modern Legal Usage, and other valuable reference books.

Today, in the Internet age, many tools for writers are available on the Web. Though there are still no on-line substitutes for many of the books mentioned above, there are many, many valuable Web-based resources to complement your reference-book collection. Here are a few of my favorites:

Making Your Point, by Kenneth F. Oettle

I haven’t finished reading this book yet, but I’ve read enough to recommend it. It is (as the subtitle suggests) a practical guide to persuasive legal writing. Its author is Kenneth F. Oettle, a practicing lawyer who tells us what works in the real world. He drew the material in this book from three years’ worth of legal-writing columns for the New Jersey Law Journal.

If you’re just beginning your legal career, you’ll find Ken’s advice invaluable. But the book has good stuff for legal writers at all levels of experience. My personal favorite (so far) is Weak Arguments are Pellets for the Shotgun Approach, in which Ken explains why throwing in a throw-away argument is a bad idea.

Top 10 impediments to beautiful writing

Charles Halton (the biblical scholar, not the actor) has compiled a list of top 10 impediments to beautiful academic writing. Many items on the list apply to legal writing, such as:

1. Quoting a foreign language and not providing a translation.

2. Jargon.

3. Endless, rambling writing.

4. Being boring.

5. Not using section headings.

(And my favorite) 10. Don’t try to improve your writing.

Charles elaborates on each of these, and on the other four listed items. To get the whole thing, read his post.

Though Charles’s main topic is biblical and Near-Eastern studies, he writes regularly about engaging academic writing. Since writing is writing, many of these posts apply to legal writing too.

Irony of the day

A spelling bee somewhere produces the irony of the day. They probably should have asked the contestant to proofread the sign.

Hat tip trail: my [confined] space, via Suspect Device.

Citing a multi-volume appellate record

This is a topic I’ve written about before, but I think it bears repeating.

We all know that, when referring to the record (or the appendix, or the transcript), we must give a page citation. For instance:

• R. 123.
• App. 456.
• Tr. 789.

I recommend that if the record (or appendix or transcript) is multi-volume, include the volume number too — even if the pages are numbered consecutively from one volume to the next. As with citing the case books or a multi-volume treatise, put the volume number before the abbreviation and the page number after.¹ Thus:

• 1 R. 123.
• 2 App. 456.
• 4 Tr. 789.

Neither the Bluebook² nor the ALWD Citation Manual³ mentions giving the volume number, but I think you should give it anyway. Why? Let’s say you refer your reader to transcript page 3478. If your citation is “Tr. 3478,” you force the reader to figure out which volume contains page 3478. The result: A minute or so of the reader’s time that otherwise would have been spent thinking about your argument will instead be spent searching that voluminous record for the volume containing that page.  Give the poor reader the volume number, and you’ll maximize the time the reader spends thinking about your argument.

Remember, the purpose of a citation is not just to comply with court rules, or to give the bare minimum information needed to find the supporting material. The purpose is to enable the reader to find the supporting material instantly. So if you refer the reader to anything that comprises more than one volume, always give the volume number — even when the pages are consecutively numbered from one volume to the next.

Some people cite a multi-volume record by giving the abbreviation, followed by the volume and page numbers separated by a colon. Thus:

• R. 1:123.
• App. 2:456.
• Tr. 4:789.

The problem with this solution is that it may cause confusion. Generally in a citation, a colon is used between the page number and the line number.⁴ If you use a colon to separate volume number from page number, you may throw off readers who expect a colon to separate page number from line number.

We cite the law books by volume number, abbreviation, and page number. For example: Younger v. Harris is 401 U.S. 37; it’s not U.S. 401:37. Use the same volume-abbreviation-page convention to cite any multi-volume source, including the appellate record.

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¹ See Bryan A. Garner, The Redbook § 8.5 (2002).
² The Bluebook, Practitioner’s Note P.7 and § 10.8.3 (17th ed.).
³ Darby Dickerson, The ALWD Citation Manual § 29.5 (3d ed.)
⁴ See The ALWD Citation Manual § 29.5(b); The Redbook § 8.5(b).

More child’s play

Some people who resist plain-English legal writing think that legal ideas are too complex to be conveyed in simple language. Those people should know about Dr. Yvette Hancock, who found a way to write about quantum physics so that a child can understand:

Translating complex quantum physics theories into simple stories for youngsters is all in a day's work for Dr Yvette Hancock from the School of Physics and Materials Engineering at Monash University.

Dr Hancock began writing children’s books on quantum physics theories [in 2003] after completing her thesis.

She has already completed one children’s story featuring Ellie the Electron  and there are many more in the pipeline.

...

Her first review was from nine-year-old critic Katherine Morgan, who said she loved the story and had brought lead character Ellie the Electron to life with a drawing....

If Dr. Hancock can explain quantum physics so that a nine-year-old can understand, I think we lawyers should be able to explain what we do so that a reasonably intelligent adult can understand.

(Hat tip to Improbable Research.)

Child’s play

What can you learn from a seven-year-old? You can learn to make good use of the stress position—the end of the sentence. Roy Peter Clark explains.