the (new) legal writer

Looking it up

When construing a statute, lawyers and judges often resort to dictionaries to show the “plain meaning” of the text. But with a multitude of dictionaries to choose from, which one should you use? In this article, Kurt X. Metzmeier recommends a scientific approach to that choice:

First, a researcher should consult several of the respected unabridged dictionaries. Second, the dictionary selected should be relatively contemporaneous with the text interpreted. Third, when a term of art for a particular trade, profession or industry is under analysis, an advocate should also consult specialized dictionaries. Finally, when citing a dictionary definition, an attorney must be prepared to defend the chosen source, just as he or she would for any other secondary source.

Kurt X. Metzmeier, You Can Look it Up: The Use of Dictionaries in Interpreting Statutes, Louisville Bar Briefs, pp. 14-15, July 2007. Available at SSRN: http://ssrn.com/abstract=1005653.

Conjunctions and the Constitution

I’ve posted before that it’s okay to start a sentence with a conjunction. In case anyone out there is thinking, “That’s fine for colloquial writing but not for dignified legal writing,” I offer a few selections from the United States Constitution:

• Art. I §7: “But in all such Cases the Votes of Both Houses shall be determined....”
• Art. II §1: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each.... But in chusing the President, the Votes shall be taken by States.... But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.”
• Art. IV §1: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
• Amendment XII: “And if the House of Representatives shall not choose a President....”

So if it’s good enough for the U.S. Constitution, it’s good enough for that brief you’re working on.

Visual rhetoric

Good document design makes your brief not only more visually appealing, but also more persuasive. In Visual Rhetoric in the Appellate Brief, Linda Morkan explains why.

Intuitive fallacies

What you think you know—but don’t really know—can hurt you. If you’re a lawyer, what judges or juries think they know but don’t know can hurt your client. In Using Research Into Intuitive Fallacies to Guide Advocacy, John J. Bursch explores the psychology of mistakes and suggests ways to persuade by overcoming those mistakes. He leads with a discussion of the “Monty Hall Paradox”:

You are a contestant on a game show with three doors. Behind one door is $10,000 cash; behind the other two are goats. The host asks you to choose the door you want, and you select door number one. The host opens door number three, revealing a goat, and then gives you the opportunity to keep what's behind door number one or switch to door number two. What do you do? (Stop and think about this problem for a moment before continuing.)

For the answer to the problem, read John’s article. (If you’re not convinced by the answer, play this game, and remember to keep score.)

A useful weapon

“Good writing ... is a useful tool. Or to use a metaphor more in keeping with the litigator’s image, it is a useful weapon. The more powerful the weapon, the more formidable the advocate who commands it. A litigation team with a good writer has more tactical options because maneuvers that depend on clear, forceful writing have a greater chance of success....”

Kenneth F. Oettle, Law Firm Writing Programs Are a Challenge, 181 N.J. Law J. 839 (9/5/05),  reprinted in Making Your Point 348 (2007).

Suggestions on style

Here is a chapter on writing style that I contributed to a 2004 DRI publication, A Defense Lawyer’s Guide to Appellate Practice. The ideas are not original, but I hope the presentation is.

Download Style (PDF, 131K). Copyright © 2004 DRI and Raymond P. Ward.

DRI still sells the book in CD and paperback forms; you can find it by visiting the DRI bookstore, searching for appellate, and scrolling down the page a little bit. To view the list of contributing authors and the table of contents, click here.

Alliteration

Here are some passages from Rogers v. Weiser Detectives & Security Services, Inc., 378 So.2d 502 (La. App. 4 Cir. 1979), by the late Judge William Redmann. They’re fine examples of alliteration in judicial writing:

Our view that $22,500 exceeded the jury’s discretion is not, we concede, rationally defensible in any scientific sense. There is no rational basis for transmogrifying dolor into dollars....

....

The jury’s award was over four times what we would have awarded as reparation. We therefore deemed the award abusive in the light of our experience with other awards notwithstanding that there is not now, never has been, never will be, and never can be a rational yardstick for measuring misery with money.

Effective academic writing

No, the title of this post is not a contradiction in terms. Academic writing can be readable, interesting, even enjoyable. For guidance on how to make it so, read this article by Joan Ames Magat.

Speaking of God ...

... should you capitalize a pronoun referring to God? According to yesterday’s installment of Garner’s Usage Tip of the Day, you shouldn’t.

When referring to God, most professional writers and editors don’t capitalize the pronouns — e.g.: “God is a spirit. I have had tremendous messages from him, which are from the Bible; it’s not something I've dreamed up or had a vision of. It’s important to study the Bible on a daily basis so he can speak to me.” Billy Graham, as quoted in “Of Angels, Devils and Messages from God,” Time, 15 Nov. 1993, at 74.

Is Time bowing to secularism? No. As The Chicago Manual of Style points out, “in few areas is an author more tempted to overcapitalize or an editor more loath to urge a lowercase style than in religion.” ([§ 7.77], at 265 [14th ed. 1993]).

But in fact the Bible itself — both the King James Version and the Revised Standard Version — doesn’t capitalize he or him in reference to God. Thus, while members of the clergy might capitalize these pronouns in letters to the congregation, other writers should make them lowercase.

Garner is right about the King James Bible. See, e.g., Genesis 1:5. The New American Bible follows the same convention. On this question, I suppose whatever is good enough for the Bible is good enough for the rest of us.

Wordiness is far from godliness

“Wordiness in the divine office counts for almost nothing before God.”

— Hildegard of Bingen (Source: God’s Politics).