the (new) legal writer

A lesson from baseball

I feel bad when I lose an appeal. If you feel the same way, consider this reflection by Stephen Seckler, posted at Counsel to Counsel, about lessons learned from baseball:

Baseball teaches us that losing is the norm. A batter who gets a hit one out of every three times he is up at the plate is considered a superstar. A team that wins ten games in a row is on fire. Winners are not individuals who “win” all the time. Winners are individuals who know how to get past failure.

Quotation of the day

Today’s legal-writing quotation comes from Oliver B. San Antonio, a lawyer in Quezon City in the Philippines. Here’s what he says about his law-school experience in the mid-1990’s:

Legal writing ..., the type I was exposed to everyday in the classroom, was cold, verbose and impersonal. Something a robot or a computer program that knew how to piece words together in a passably grammatical manner would have produced.

The rest of the post, titled Skinning Me Alive, recounts a most unkindest cut experienced by Oliver as an eleven-year-old.

For “Bridging the Gap” participants

This afternoon Justice Harry Lemmon (La. Supreme Court, retired) and I are giving a one-hour CLE presentation to newly minted lawyers, as part of the Louisiana State Bar Association’s Bridging the Gap seminar. Below are links to supplemental materials for BTG participants and anyone else masochistic enough to be interested:

• PDF copy of the PowerPoint presentation.


• PDF copy of written materials (same as in the seminar book).


• The Importance of Earnest Oral Argument. This article summarizes some research I did in 1999 into how often oral argument determines the outcome of an appeal (or how seldom, depending on your point of view).


• A Writ in Time. This article, written three years ago, explains how to figure out your deadline to apply to a court of appeal for a supervisory writ. Note that La. Code of Civ. P. art. 1914 has been amended since this article was written, but most of what’s in this article is still good law.


• In Praise of Moot Court — Not! In this article, Chief Judge Alex Kozinski (9th Cir.) explains the differences between law-school moot-court competition and real-life appellate practice.


• How to Write an Appellate Brief. How do you turn a multi-volume record into a 14,000-words-or-less brief? This article shows one way to do it.

Some of you may be looking for appellate-practice forms. While I recommend against over-reliance on forms (see here and here), I have a few documents that you might find useful; just click here and scroll down a bit. If you use them, please check the rules to make sure they still comply. (Note that I uploaded these documents last year, so they could very well be out of date.) And if you’re going to create a form file, please follow this advice and put an expiration date on each form. I recommend a maximum shelf life of one year. 

Storytelling: Learning from the movies

When you see a movie you like, which is your reaction?

1. What a great story!
2. What a great set of facts!

As lawyers, our job is to tell our client’s story. But we’re handicapped by not being trained in storytelling. St. John’s University law professor Elyse Pepper proposes a solution: using the movies to teach legal storytelling. In The Case for 'Thinking Like a Filmmaker': Using Lars Von Trier's Dogville as a Model for Writing a Statement of Facts, she shows how, using the movie Dogville as an example. Even if you’re not a legal-writing professor, you may learn something from reading it.

Shall

Many legal-writing authorities, most notably Bryan Garner, recommend eliminating use of the word shall in legal drafting, due to the word’s overuse and potential ambiguity.¹ Ken Adams disagrees. While he acknowledges that shall is overused, he thinks the better solution is more disciplined use of the word. He outlines his views in a recent article for the New York Law Journal. You can read the article in PDF or (at least for now) in HTML.
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¹ Bryan A. Garner, A Dictionary of Modern Legal Usage 939–41 (2d ed. 1995).

If you must use a form file

A couple of years ago, I wrote a post on my other blog titled Burn your form file. Judging from the comments, it seems this suggestion — an exercise in hyperbole — was controversial. Today I would add that my original advice was meant for litigators only, and particularly for writing that is (or should be) persuasive; I don’t know enough about non-litigation practices to know whether forms are beneficial in those practices.

I bring all this up because a few days ago, Roy Jacobsen posted an excellent bit of advice for writers who find forms useful: Put an expiration date on them. “When it reaches that date,” Roy advises, “stop using it. Take a long hard look at it and ask yourself if it needs cleaning up or revising. And maybe; you’ll decide that you should toss it in the dustbin and start fresh.”

14 writing tips for new lawyers

These 14 tips to lighter, tighter writing are worthwhile for all lawyers, including but not limited to ... oops, let me start over.

These 14 tips to lighter, tighter writing are worthwhile for all lawyers, especially for those just sworn in. My favorite is # 6:

In the words of a Wisconsin judge, “Great legal writing does not sound as though it was written by a lawyer.” Indeed, as attorneys gain confidence and experience, their sentences become lighter and tighter — less “lawyerly” and more refreshing. Here’s the truth: If readers don't understand your sentences, they won't find your prose “interesting” or “complex,” as many associates would hope. Instead, they'll assume you are a poor writer — or worse, a poor thinker. By contrast, if readers feel smart when they read your writing, they’ll think you are smart. No partner or judge has ever said, “Terrific brief. I see the issues clearly and understand how to resolve them. I just wish the attorney had used bigger words and longer sentences.”

Hat tip to Ed. of Blawg Review.

Lessons from a copywriter

Brian Clark defines copywriting as "the process of writing words that promote a person, business, opinion, or idea, with the ultimate intention of having the reader take some form of action." That sounds like what most legal writers are trying to accomplish. It's no surprise, then, that many of Brian's Ten Timeless Persuasive Writing Techniques would serve legal writers well. Go have a look. (Hat tip to Life at the Bar.)