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August 2007
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October 2007

Literary rhetoric and judicial writing

Do literary citations have a place in legal writing? It does, says John M. DeStefano, III. In his recently published article, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (2007), he explores the uses and misuses of literature in written judicial rhetoric. Here’s the synopsis:

This Note surveys the courts’ use of poetry, fiction, and drama to develop substantive law. Combining the premises of legal realism and literary criticism, the Note rejects the position held by Judge Posner and other critics that literature is too subjective to offer the law legitimate substantive guidance. As caselaw examples demonstrate, the subjectivity of great writing can provide judicial opinions with a unique view to the complexity of life.

(Hat tip to Legal Writing Prof Blog.)

Oh, those pesky footnotes

Footnotes. Everybody hates them (or says they do), yet like George Romero’s zombies, they just keep on coming long after they ought to be dead. Now University of Missouri law professor Douglas E. Abrams has at them inThose Pesky Footnotes — Part I, recently uploaded to SSRN. This article addresses the uses and misuses of footnotes by practicing lawyers.

Prof. Abrams divides footnotes into two groups that most of use are familiar with: citation-only footnotes and textual footnotes. Citational footnotes can be useful, Prof. Abrams writes, if they are kept lean. They show the support for the writer’s assertions without cluttering up the text. Textual footnotes, on the other hand, are usually useless to briefwriters for one simple reason: hardly anybody reads them. And anything that is not read cannot persuade.

As the title suggests, this article is Part I. Part II will tackle footnotes in judicial opinions, academic writing, and books.

Counting Each Shot - The Long Version

(A few months ago, I posted Counting Each Shot, contrasting the storytelling techniques of Justices Stevens and Scalia in Atkins v. Virginia. Recently I wrote up a longer version of that post for the DRI appellate newsletter, Certworthy (which I happen to edit). This post is a reproduction of that article. To download a copy of the article in PDF, click here.)


Counting Each Shot

“The difference between direct and indirect writing is the difference between witnessing the murder and finding the body.” Patricia T. O’Conner, Words Fail Me 150 (1999). As writers, we sometimes want to write indirectly, to soften or deflect the harsh facts. Other times, we want to write directly, to confront readers with those harsh facts. For lessons in doing both, let’s compare two passages from Atkins v. Virginia, 536 U.S. 304 (2002), describing the same crime. One is from Justice John Paul Stevens’s majority opinion; the other is from Justice Antonin Scalia’s dissenting opinion.

Continue reading "Counting Each Shot - The Long Version" »


Today’s lesson in what not to do comes from a bankruptcy court in Iowa. The judge there read two briefs filed by the same lawyer, found that they contained “an extraordinary amount of research,” and ordered the lawyer to certify the author or authors of the briefs. The lawyer confessed that he “relied heavily” on an article written by two other lawyers. The judge found the article on the Internet and discovered that “relied heavily” was an understatement:

Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. Mr. Cannon added some introductory material, a one-page section titled “Argument,” and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another.
While Mr. Cannon’s post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief’s text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position.

The lawyer suggested that his punishment consist of a letter of apology to the article’s authors and community service. The court had other ideas, ordering the lawyer to do the following:

  • Take a law-school course in professional responsibility.
  • Refund any fee collected from his client for writing the briefs.
  • Notify the article’s authors of the court’s action and provide the court with a copy of that correspondence.

The court also sent a copy of its order to the Iowa Supreme Court Attorney Disciplinary Board.

Besides drawing sanctions, the lawyer’s conduct disserved his client’s interests, the court wrote. “[P]arroting a scholarly article in this way,” the court advised, “is not an effective type of advocacy.”

The moral of this story: When writing, do what a writer does. Write. Don’t copy. If you borrow someone else’s ideas, give an attribution. (Speaking of which, hat tips to The Volokh Conspiracy, TaxProf Blog, and Legal Writing Prof Blog.)

& so on

When is it proper to substitute an ampersand (&) for the word and? Dan Santow of Word Wise provides these rules:

[T]hough an ampersand is the symbol form of the word “and,” it is not a substitute for the written-out word except in these very specific cases:

• where it is part of a company name (Abercrombie & Fitch)
• if space is very limited (such as in a small advertisement or headline)
• for artistic reasons (such as in a logo)
• in some computer languages (such as in JavaScript)
• in some academic references (Burke & Edison, 2002)

Other than for the reasons above, always write out the word “and.”

I would add that, for legal citations, check your Bluebook or ALWD manual.