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January 2009
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March 2009

Judge John Brown on the importance (or lack thereof) of oral argument

If you’re a briefwriter who, for whatever reason, rarely gets the opportunity to present oral argument, take heart in this quotation by a Fifth Circuit legend:

Oral argument, as such, is rarely, if ever, so essential to elemental fairness as to orbit to a constitutional apogee. Indeed, the practice of Courts of disposing of cases in a variety of situations on the papers, reflects the experience of mature judges that oral argument in many, many cases adds nothing to the process of enlightenment.

Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969) (Brown, J.).

Owning your downloaded legal authorities

A few years ago on my other blog, I advised legal researchers to own their downloaded legal authorities. For those who missed that post, here’s the skinny version.

First, when you download cases from Lexis, Westlaw, Fastcase, or whatever, download in a word-processing format (Word or WordPerfect), not PDF. This will enable you to edit them before printing or saving them, which in turn will enable you to do the following things:

  • If you find the case difficult to read, re-format it. Change the type face or enlarge the font size.
  • Delete all the headnotes having nothing to do with why you downloaded the case, saving only the pertinent headnotes. This simple tip not only saves you the trouble of wading through dozens of useless headnotes; it also saves paper when you print a hard copy.
  • While you’re at it, delete the lawyers’ names. Every little bit of clutter-elimination helps. And nobody will mind except the lawyers’ mothers.
  • Use Word or WordPerfect to highlight the parts that are most important.
  • Instead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy.
  • Edit the document header to add all information needed to cite the case. This will later save you the trouble of printing an entire 24-page case when you only need one page with one juicy quotation.
  • Here’s a new one I figured out: If the case is part of a quantum study, insert the dollar figure up front, on the first page, in big bold text.

One thing should go without saying: Do not change the substance of the opinion itself. Instead, highlight the important parts, as you would with a hard copy. Whatever part of the case you intend to use, you must see it in its full context.

The lawyer’s moral obligation to write well

Do lawyers have a moral obligation to write well? Jack Lee Sammons thinks so. In an essay you can download here, he explains his position. By “writing well,” he does not mean elevating rules of usage to moral status. Rather, “the language of the law is used well when it is used honestly to persuade another person, when the identification between writer and reader that persuasion seeks is an accomplishment of the conversation itself rather than a recognition of a shared identity formed prior to it, and when the language is, in James Boyd White’s term, the ‘living speech’ of a fully human person, a real self at work behind the words.” Jack Lee Sammons, The Lawyer’s Moral Obligation to Write Well (January 20, 2009). The Complete Lawyer, February 2009. Available at SSRN:

First Arrow

Roy Jacobsen was kind enough to tag me with the Premio Dardo Award, which “acknowledges the effort of a particular blogger to transmit cultural, ethical, literary and personal values in his or her writing.” The rules require me to pass the award on to 15 other bloggers. I’m usually not one for chain blog posts, but I’m happy to oblige here. Besides being good writers, many bloggers I’ve come to know are also good people. And for a while now, I’ve wanted to write a post or two about some of them. The following blogs are just a few that fit the criteria for the Premio Dardo Award:

  • Adams Drafting. I’ve never met Ken Adams, but I’ve come to know him through e-mail and blog posts. He is the pre-eminent expert on contract drafting. In his writing, he reveals himself as a meticulous person.
  • Bad Language. Matthew Stibbe is an Englishman and a freelance writer who evidently enjoys his work. He’s figured out how to blog for fun and profit.
  • Business Writing. Lynn Gaertner-Johnston teaches lawyers and others how to handle the kinds of writing we do most often: e-mail, letters, interoffice memos. She urges us to write like human beings, and she leads by example.
  • Manage Your Writing. Each Monday, Ken Davis gives us one tip to work on during the week to improve our writing. He comes across as a kind, gentle teacher, more interested in encouraging good habits than red-inking bad ones.
  • Party of the First Part, subtitled Adventures in Legalese, is Adam Freedman’s playground. Check out his Hall of Shame, where he skewers bad writing and translates it into something a human being might understand.
  • Writing Tools. Roy Peter Clark doesn’t need a plug from the likes of me. He is a successful journalist and author who shares what he knows about making your writing matter. (If you don’t have his book Writing Tools, get it.)
  • You Don’t Say! John McIntyre is a copy editor for the Baltimore Sun. He describes himself as a “veteran drudge” who “writes about language, usage, journalism, and arbitrarily chosen subjects.” Lately he’s taken to posting videos of himself telling enjoyably corny jokes. 

My remaining seven awards will be bestowed on my other blog, Minor Wisdom.

A word on jury instructions

While researching jury instructions today, I came across this passage:

The fact that the language was borrowed from the reasoning of a written opinion does not uphold the charge. Isolated from its context, or sought to be translated from mere discussion into substantive law, opinion language is apt to become invested with a quality wholly inappropriate for use in instructions. Taylor v. Insurance Company of North America, 263 So.2d 749 (Miss.1972). The mere fact that certain language has been used by a judge in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury. News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385 (1939).

Source: Trapani v. State Farm Fire & Cas. Co., 424 So. 2d 449, 451–52 (La. App. 5 Cir. 1982).