the (new) legal writer

Why Johnny can’t write

I had occasion today to peruse the web sites of two law schools, just to see what their legal-writing programs look like and who teaches them. At both, it appears that 100 percent of the teaching is done by fellows. A fellowship is a one-year contract typically extended to someone who is just embarking on an academic career, and whose main interest is in an area other than legal writing. It appears that teaching legal writing is part of their initiation into the academic world—something they have to go through before moving on to whatever field really interests them. If you ask any of them what they hope to be doing two years from now, the answer will not be “teaching legal writing.”

The result of this system: no law student receives teaching in legal writing from anyone who has more than minimal teaching experience or who wants to make a career of teaching legal writing.

[Paragraph deleted from original post.]

Comments are open. Fire away.

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p.s.  Please read the thoughtful comments by Wayne Schiess and Alan Childress.

I have deleted the second-to-last paragraph of this post, because as originally written, it was unfair to the fellows in these systems. My point is to question the system, not to criticize the people in the system. Unfortunately the deleted paragraph could fairly be read as criticizing the people, which was not my intention.

Cheryl Stephens, Plain Language Legal Writing

Cheryl Stephens, of Building Rapport, the plain-language blog, is a leader in the field of plain language communication, and provides training and workshops to clients all over North America. She is making a guest appearance today promoting her new book, Plain Language Legal Writing. Take it away, Cheryl.

Transparency can be beautiful

There’s a lesson for legal writers in these photos of glasswing butterflies: Transparency can be beautiful.

Transparency in writing means that nothing in the writing obstructs the message, as a clean picture window does not obstruct the view. Writing that does that can be exquisite.

Okay, I’ll admit that this post is a stretch. I’m just looking for an excuse to share the photos.

Cast of characters

If you’re telling a story involving many players, how do you help the reader keep the players straight? You might do what Judge John R. Brown did in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969) (copy in Word format here). In a case involving 17 characters, he listed the entire cast in footnote 3, providing each player’s full name and shorthand name used in the opinion. For individuals, he also listed each one’s employer. This technique yielded two benefits. First, it spared readers the dreaded parenthetical accompanying each character’s introduction (e.g. “... Coastal Marine Service of Texas, Inc. (“Coastal”)”). Second, it gave readers one sure and easily accessible place to find who’s who.

Wayne’s document-design cheat sheet

Wayne Schiess has posted an excellent summary of basic document-design principles for lawyers and other writers. If you’re interested in the scientific research supporting Wayne’s principles, read Painting With Print by Ruth Anne Robbins. If you just want a one-minute how-to, read Wayne’s post.

Tip of the day: Proofread appendices

Today’s West Headnote of the Day carries a useful lesson:

Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).

My guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file. Later, someone copied the opinion—with marginal notes—for inclusion in the appendix, and no one ever eyeballed the appendix to catch embarrassments like this.

The lesson: Before selecting file materials to be copied for an appendix, inspect them to look for marginal notes, underlining, doodles, etc. If you find any, erase them or cover them up with white tape before photocopying.

Prolixity is the soul of witlessness.

Federal Rule of Civil Procedure 8(a) requires a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief ....” So what happens when you file a complaint that is 465 pages long, that has a caption 8 pages long, that uses 8 pages to name the six defendants, and that is inflated with paragraphs like this:

Plaintiffs, for a Fifty-Fourth Claim for Relief, reallege and incorporate herein Paragraphs 1 through 105, including the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty- First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty- Sixth, and Twenty-Seventh Claims for Relief alleged under the federal Racketeer Influenced and Corrupt Organizations Act of 1970 [“RICO”][Title 18 U.S.C.A. §§1961 et.seq.], and the Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty- Third, Thirty-Fourth, Thirty-Fifth, Thirty-Sixth, Thirty- Seventh, Thirty-Eighth, Thirty-Ninth, Fortieth, Forty-First, Forty-Second, Forty- Third, Forty-Fourth, Forty-Fifth, Forty-Sixth, Forty-Seventh, Forty-Eighth, Forty- Ninth, Fiftieth, Fifty-First , Fifty-Second, and Fifty-Third Claims for Relief.

If you file such a complaint, you may be met with an order like this, which concludes with this limerick:

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Hat tip to my friend and erstwhile colleague Bob Markle for this lovely.

The dumbass defense

[Post-post note: The pleading talked about in this post was a practical joke that had me fooled when I wrote this. It was never actually filed, and the lawyer who purportedly signed it was the object of the joke, not the originator. For details, read the comments. — Ray]

Here’s an interesting pleading filed by a member of the Texas State Bar, asserting the dumbass defense. I quote:

Defendants assert that Plaintiff’s damages were caused in whole or in part by his own contributory negligence. Specifically, the plaintiff is a dumbass who failed to unlock a twist lock causing his own injury—fucking idiot. Thus, a jury should also consider the negligence of the Plaintiff and defendants assert the dumbass defense.

...

Wherefore, premises considered, Defendants ... prays [sic] for a take-nothing judgment and that the case be dismissed because the plaintiff is a malingering dipshit, for all costs, and for all other just relief.

A tip of the hat and a thousand thanks to Betsy McKenzie for this gem. Betsy notes that the pleading ironically ends with the complimentary closing “Respectfully submitted.”

Another lesson in hyphenating phrasal adjectives

A couple of weeks ago, a headline in a law-oriented magazine prompted me to write on the importance of hyphenating phrasal adjectives. Today a different headline teaches the same lesson more vividly, and this time, the headline writer gets it right.  From the Onion:

I’m a Diseased- and Deformed-Animal Lover

Without the hyphens, diseased and deformed would describe the author. But the hyphens make clear that those words modify animal.

Richard A. Posner, How Judges Think

A better title for this book might have been What Makes Judges Tick. In it, Judge Posner explores not only the various non-legalistic ways that judges decide cases, but also the things that motivate the behavior of Article III judges, who—unlike most employees (or in Judge Posner’s words, labor-market participants)—don’t have the carrot of pay raise or promotion, and don’t fear the stick of getting fired. Reading this book will increase your empathy with judges. And if you can explore the inside of judges’ heads¹, you should have a better idea how to persuade them.

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¹ Or should that be “head”?