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May 2010

Why is shorter likely to be more persuasive?

Mister Thorne explains why a shorter piece is more likely to hit the target than a longer one:

Very often, the shortest proposal has a distinct advantage over all others — people tend to read it first. And that’s usually because they’re pressed for time. Sometimes, it’s the only proposal they feel they have time to read.

Although Thorne is talking about proposals, my bet is that the same rule applies to briefs. Your trial-court motion is likely just one of many scheduled for a particular motion day, and your appeal is just one of many on your three-judge panel’s plate. This means that your brief is just one of many in a big stack that some judge or judge’s law clerk has to read. So put yourself in that reader’s place. Faced with that big pile of paper to plow through, and seeing both short ones and long one in the pile, which ones would you read first?

“Shall” means “shall.” Unless it means “may.” And vice versa.

From Comcoa, Inc. v. Coe,  587 So. 2d 474, 477 (Fla. App 3 Dist. 1991):

Of primary importance in this determination is the conclusion that, in a statute such as this one, the term “may,” which indeed ordinarily implies the exercise of choice or discretion, simply does not do so, and must, in contrast, be given a definition equivalent to the mandatory “shall.” It is well-settled that, according to the context and surrounding circumstances, a statutory “shall” is to be read as “may” and vice versa.

Hat tip to West’s headnote du jour.

Sometimes grammar determines a case’s outcome

Knowing the rules of grammar will certainly help the form of your argument. But in cases involving statutory or contractual interpretation, it might help the substance of your argument too. In Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, Prof. Robert C. Farrell surveys several cases in which the outcome was determined by the court’s grammatical analysis. The lesson: When the case turns on statutory or contractual interpretation, knowledge of grammar may help you craft the winning argument.

Judge Kane on jury instructions

Judge John L. Kane (D. Colo.) has written an excellent article on jury instructions. He addresses not only their content (plain English, please), but also the processes for creating and using them. His ideas are not in wide use in the courts I’m familiar with. After reading his article, I hope that changes.

The article is in the Winter 2010 issue of Litigation (ABA Litigation Section), but anyone can download a free PDF copy by clicking here.