Previous month:
October 2008
Next month:
December 2008

The elephant in the room

Here is an excellent essay by Linda Morkan on confronting bad facts: No Room for Elephants. Linda compares bad facts or adverse law to “the gray elephant in the corner buffing her nails,” which the lawyer pretends not to notice. Trouble is, the lawyer’s opponent sees the elephant. So does the judge. The better persuasive strategy, says Linda, is to acknowledge the elephant and either escort her from the room or find a way around her.

For other articles by Linda, click here.

Issue statements in the real world

How do practicing lawyers write issue statements in appellate briefs? Professor Judith Fischer set out to answer that question by analyzing samples of 50 sets of briefs from each of six states. The results are in her new article, Got Issues? An Empirical Study About Framing Them, available on SSRN. Though she does not concludes that any one format is mor effective than another, she does draw from her study some hints for writing more effective issue statements:

  • Restrict the number of issue statements to a manageable few. Her article cites Judge Aldisert’s advice to raise no more than three issues in a brief.
  • If the issue statement appears before the statement of facts, then refer to parties by their roles rather than their names, e.g. “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.” Fed. R. App. P. 28(e). But if the issue statement appears after the statement of facts, you can use the parties’ names.
  • Unless the issue is a purely legal question, incorporate some legally relevant facts.
  • Make the issue statement subtly persuasive but not overtly argumentative.
  • Ask a question that commands a “yes” or “no” answer.
  • If court rules conflict with these hints, follow the court rules.

Miscellaneous links

  • The New Cicero, in which Charlotte Higgins examines rhetorical devices used by Barack Obama, giving the rest of us lessons in how to reach others’ hearts and guts. (Hat tip to Peter Friedman.)
  • Illinois Bell Telephone Co. v. Box, in which Judge Posner, having endured “206 pages of briefs, brimming with jargon and technical detail,” reminds counsel that “Clarity, simplicity, and brevity are underrated qualities in legal advocacy.” (Hat tip to Howard Bashman.)
  • Needless Words, in which Jan Freeman reminds us that we sometimes go too far in pursuit of brevity, and that sometimes a bit of verbal padding is a good thing.

CLE opportunities

If you’re a procrastinator still in need of some 2008 CLE hours, then consider signing up for Persuasive Legal Writing, a two-hour webcast seminar scheduled for December 10, 2008 from noon to 2 p.m. EST. The speaker is Prof. Timothy Terrell of Emory University Law School. Recently I saw Prof. Terrell give a presentation at the DRI Annual Meeting in New Orleans. It was excellent. Prof. Terrell is co-author of Thinking Like a Writer, which sells for a mere $25 on Amazon. (Someone apparently forgot to tell him that law books are supposed to be ridiculously expensive.)

If you’re an anti-procrastinator who likes to plan CLE way in advance, then you may want to block out May 29–31, 2009 for the Appellate Practice Institute, to be held at Northwestern Law School in Chicago. This program is being put on by the ABA Council of Appellate Lawyers. This is a hands-on CLE, sort of an appellate version of NITA. Several weeks before the seminar, participants receive a case problem and must write a brief. At the seminar, they must deliver oral argument, and both the brief and the oral argument are critiqued. I participated in this program several years ago when it was held in New Orleans. It was well worth the time and the money. It’s still too early to register, but if you visit the CAL web page, you can subscribe to the e-mailing list to receive future announcements about the seminar.

How to draft a judgment

In Louisiana, the winner at a hearing or trial usually gets to draft the judgment. But most lawyers have little to no training in that task. Filling that void is Gail Stephenson’s new article in the Louisiana Bar Journal, Drafting Lucid, Unmistakable (and Valid) Judgments. It’s written mainly for Louisiana lawyers, but lawyers from other states may find some useful lessons in it.

Why Johnny can’t write

Many have opined that the writing skills of law-school graduates are deteriorating. Why is that? Here are three theoretical answers:

  1. No one learns how to do old-school legal research anymore—the kind of research that begins in treatises, legal encyclopedias, and digests. Carolyn Elefant. (Hat tip to Evan Schaeffer and Dan Hull.)
  2. Law schools give short shrift to legal writing. Scott Greenfield.
  3. Johnny never could write. Tracy McGaugh.