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The Fall 2009 issue of JALWD has hit the streets

I haven’t had a chance to read it yet, but I’ve just learned that the latest issue of JALWD (Journal of the Association of Legal Writing Directors) has been released. For those unfamiliar with this publication, I think it’s academia’s finest and most advanced contribution to practicing lawyers. It’s going to take me a while to download and read this issue’s articles. But you don’t have to wait for me.

The theme is “Best Practices in Persuasion.” If your legal practice involves persuading people, then read it—or be left behind.

Pronoun problem

For a long time, people have been searching for gender-neutral singular pronouns. How long? Consider this scene from Monty Python’s Life of Brian:

Judith: Any Anti-Imperialist group like ours must *reflect* such a divergence of interests within its power-base.
Reg: Agreed. (General nodding.) Francis?
Francis: I think Judith's point of view is valid here, Reg, provided the Movement never forgets that it is the inalienable right of every man--
Stan: Or woman.
Francis: Or rid himself--
Stan: Or herself.
Reg: Or herself. Agreed. Thank you, brother.
Stan: Or sister.
Francis: Thank you, brother. Or sister. Where was I?
Reg: I thought you'd finished.
Francis: Oh, did I? Right.
Reg: Furthermore, it is the birthright of every man ...
Stan: Or woman.
Reg: Why don't you shut up about women, Stan, you're putting us off.

The problem is you don’t always know whether your reader is like Stan or like Reg. Use masculine pronouns to refer to both men and women, and you risk offending Stan. Strive for political correctness, and you risk offending Reg.

One solution: Let gender-neutral plural pronouns do double-duty as singular pronouns. Traditionalists don’t like this solution. But they may be surprised to learn that this usage dates back to Chaucer, and that use of masculine pronouns to refer to both sexes is a relatively recent innovation—only a couple hundred years old. Language mavens Patricia O’Conner and Stewart Kellerman explain in this article for the N.Y. Time Magazine.

Benjamin Button on proximate cause

Over the weekend, I became probably the last person in New Orleans to see The Curious Case of Benjamin Button. It moved me in ways I’m still trying to understand. One part that sticks in my head appeals to my litigator’s brain. I offer it here for anyone itching to write a long footnote on the difference between cause in fact and proximate cause. It’s a voice-over by the title character, describing a series of events leading to an accident that ended a dancer’s career:

Sometimes we are on a collision course and we just don’t know it... Whether it’s by accident or by design, there’s not a thing we can do about it...

A woman in Paris was on her way to go shopping ... But she had forgotten her coat... and went back to get it ...  And when she had gotten her coat the phone had rung... and so she had stopped to answer it ... and talked for a couple of minutes ... And while the woman was on the phone; Daisy was rehearsing for that evening’s performance at the Paris Opera House ... And while she was rehearsing ... the woman, off the phone now ... had gone outside ... to get a taxi ... Now a taxi driver ... had dropped off a fare earlier ... and had stopped to get a cup of coffee ... And all the while Daisy was rehearsing ... And the cab driver who had dropped off the earlier fare, and had stopped to get the cup of coffee ... had picked up the lady, who was going shopping ... who had missed getting the earlier cab ... The taxi had to stop for a man crossing the street who had left for work five minutes later than he normally did ... because he forgot to set his alarm ... While the man, late for work, was crossing the street ... making the cab wait ... Daisy, finished rehearsing, was taking a shower .... While Daisy was showering; the taxi was waiting outside a Boutique for the woman to pick up a package ... which hadn’t been wrapped yet because the girl who was supposed to wrap it ... had broken up with her boyfriend the night before and forgot to ... When the package was done being wrapped ... The woman, who was back in the cab ... the taxi was blocked by a delivery truck ... All the while Daisy was getting dressed ... The Delivery truck pulled off and the taxi was able to go ... While Daisy, the first to be dressed, waited for one of her friends who had broken a shoelace ... While the taxi was stopped, waiting for a traffic light ... Daisy and her friend came out of the theater ...

And if only one thing had happened differently ... if only the shoelace hadn’t broken ... Or the delivery truck had moved moments earlier ... Or the package had been wrapped and ready... because the girl hadn’t broken up with her boyfriend ... Or the man had set his alarm and got up five minutes earlier ... Or the taxi driver hadn’t stopped for a cup of coffee ... Or the woman had remembered her coat ... And had gotten into an earlier cab ... Daisy and her friend would have crossed the street ... and the taxi would have driven by them...

But life being what it is ... a series of intersecting lives and incidents ... Out of anyone’s control ... the taxi did not go by ... and the driver momentarily was distracted ... And he didn’t see Daisy crossing the street ... and that taxi hit Daisy ... And her leg was crushed...

Eric Roth, The Curious Case of Benjamin Button 128–33 (2006).

“Well, let me retort.”1

A reader sent me this e-mail request:

I’m wondering if — in the future — you could comment in your blog on the process of preparing a reply brief in an appellate action. As a young attorney, I have been unable to find any guidance with regard to developing an effective reply brief. Are you aware of any resources or literature on writing reply briefs? It seems to be the most vexing part of my practice.

My response: You bet—that’s a great idea for a post. While I don’t have any original material to respond with, I’m happy to offer this collection of articles on reply briefs:

The Art of the Reply Brief, by Michael A. Pollard (from For the Defense, May 2009).

The Anatomy of an Effective Reply Brief, by Steffen N. Johnson (from Certworthy, Summer 2006).

No Reply?, by Thomas D. Hird (from Certworthy, Summer 2005).

Having the Last Word: The Appellate Reply Brief, by Paul J. Killion (from Certworthy, Fall 1998).

1 Quentin Tarantino, Pulp Fiction.

On prototypes and craftsmen

A few weeks ago, Ken Davis wrote an interesting post on Manage Your Writing, comparing the writing of a first draft to the building of a prototype. Ken says that, like a prototype, a first draft doesn’t have to be perfect; its purpose is to enable the writer or builder to test ideas.

I don’t disagree with Ken. In fact, most of my own first drafts of briefs are prototypes, never seen by anyone except me. But I do want to offer a competing metaphor to emphasize a different aspect of building a prototype: what Ken describes as the “elaborate planning process” preceding the prototype.

John, a friend and former next-door neighbor, is a professional art-hanger; his job is to hang works of art on the walls of galleries and rich people’s homes. So seven years ago, when I moved into my new office at my then-new firm, I asked John to hang my diploma, other framed credentials, and artwork on my office walls.

Now, when I hang a picture on a wall, I generally follow the trial-and-error method. I guess where the nail or picture hanger should go, hammer it in, hang the picture, decide that it’s too high or low or too far left or right, remove the picture, move the nail or picture hanger to another location, and repeat until satisfied.

DSCN3375 That’s not how a pro like John does it. When he came to my office to hang my stuff up, the job took around an hour or so. About 90% of the time was spent planning where the nails would go. First, he talked to me about what I wanted. That took only a few minutes. Most of the time he spent measuring stuff: the framed things, the walls, and various intermediate distances on the walls, and toward the end, making one little pencil mark for each nail (two nails for each framed thing). It took just a couple of minutes to tap the nails into the wall. Then we hung up the stuff. The result: perfect. And perfect on the first try.

What does this story have to do with writing? I’ll grant that we shouldn’t expect any piece of writing to be perfect on the first try. But if it’s a brief, we had better think of spending around 90% to 95% of the time pre-writing: studying the record, doing the research, outlining the evidence, and assessing the arguments. That’s what I do, anyway—I spend far more time pre-writing than actually writing the first draft. The resulting first draft is never perfect, but it’s usually good enough to need only moderate revision and editing before presentation to others for review. (The process is described in a couple of articles that you can find here.)

By all means, treat your first drafts as prototypes. But remember that a good prototype is never just slapped together. If you want the prototype to work, you need to plan it carefully.