the (new) legal writer

For appellate lawyers, reversal rates in U.S. courts of appeals

This post isn’t about legal writing, but those of you who are appellate lawyers may find it useful.

Earlier today I was asked the reversal rates for the U.S. Fifth Circuit. Those numbers, and many others for all the U.S. courts of appeal, are on web site of the Administrative Office of U.S. Courts, on the statistics page (which you can reach by clicking the “Statistics” tab on the home page). Once you’re on the statistics page, scroll down and look in the left-hand column for “Statistical Tables for the Federal Judiciary,” and click on the time period you’re most interested in (probably the most recent, but for a more accurate study you’ll want to look at a range of dates). When you click on a time period, you’ll be presented with a screen full of links to various tables. Look for “Table B-5, Appeals Terminated on the Merits, by Circuit.” Click there, and you’ll download a tidy PDF file like this one dated December 2009.

By the way, the most recent reversal rate in the U.S. 5th Circuit for “other private civil” (my usual practice area) was 15.4%.

Mark Herrmann names names.

Mark Herrmann (hereinafter “Herrmann”), not to be confused with the other Mark Herrmann (the Purdue quarterback, hereinafter “the other Mark Herrmann” or “OMH,” sometimes also referred to hereinafter as “the Boilermaker Mark Herrmann” or “BMH”), but the one who used to work for Jones Day (hereinafter “JD”) and now is chief litigation counsel for Aon (hereinafter, what?, how about “A”) — Oh, hell! Let me start over.

Mark Herrmann has written a fine piece for Above the Law on naming people and things. It boils down to writing like a human being and giving the reader credit for having a modicum of intelligence. So please read Mark’s piece and promise to never again write something like the first paragraph of this post.

Issue statements: Different strokes for different folks and different situations

There are many ways to write an issue statement. Which one should you use? That depends on the purpose of and the audience for whatever you’re writing. In Issue Statements – Different Kinds for Different Documents, Wayne Schiess and Elana Einhorn show many ways an issue statement may be written and recommend which kind to use for various situations and audiences.

Besides teaching legal writing at the University of Texas Law School, Wayne blogs at Legalwriting.net. If Wayne’s blog isn’t already on your reading list, it should be.

“It is axiomatic that ...” No, scratch that.

I’m reading Stanley Fish’s new book, How to Write a Sentence. It’s good. Stanley takes a structural approach to sentence-writing. It’s like the approach the C. Edward Good takes in his books, except that where Ed approaches structure grammatically, Stanley approaches it rhetorically.

Anyway, the reason for this post is for me to remember a thought on pp. 46–48 of Stanley’s book. There, Stanley analyzes this sentence from Pride and Prejudice by Jane Austen:

“It is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.”

Here is the part of Stanley’s commentary on this sentence that I want to remember:

The terms for this kind of sentence are many: aphorism, proverb, adage, dictum, apothegm, sententia, maxim. The name is less important than the form, which is the pithy pronouncement of wisdom in a manner that does not invite disagreement. Austen’s sentence does not quite fit the pattern: it’s a bit too long, and because attention is called to the absoluteness of the claim, that claim is ever so slightly undermined; “must be” in combination with “truth universally acknowledged” is a bit too insistent and allows us to suspect an author mocking her own absolute pronouncement. It may seem counterintuitive, but you’ll have a better chance of persuading readers that what you are about to say is universally acknowledged as a truth if you don’t actually use the phrase “It is a truth universally acknowledged.”

Quotation of the day — The importance of practice

“What we hope ever to do with ease, we must learn first to do with diligence.”

—Samuel Johnson. (Hat tip to What About Clients/Paris?)

Let it snow. Not.

Words are like snow—something to remember the next time you’re tempted to unleash a blizzard of words.

Contractions ain’t so bad.

The notion that contractions are undignified is relatively recent. So don’t shy away from them just because an apostrophe is involved. Let your writing relax. Maybe as a result, the reader will relax too.

One (1) habit to avoid

Years ago, I heard Mike Fontham riff against writing numbers in both numerals and prose, such as “fifty-seven (57).” Said Mike, “Which one can’t they read?” Kendall Gray riffs on the same subject at his blog. So read Kendall’s post. And read his stuff regularly, because it’s good. And for our sake, pray that his head doesn’t explode.

Brainless writing

Says here that “[t]here’s a new advance in the effort to write prose without any direct involvement of a human brain.” As a reader of legal writing since 1986, I’d say the legal profession is way ahead of that curve.

The second thing you should do when writing an appellate brief

The first thing you need to do when writing an appellate brief is, of course, to get your hands on the record. Once you’ve done that, the next thing you should do is write the jurisdictional statement for your brief. I don’t mean some generic, blah-blah-yada-yada such as “This Court has jurisdiction under Article III of the U.S. Constitution.” I mean a jurisdictional statement that specifically answers two questions, with legal authorities and record citations in support: (1) Is this an appealable judgment? (2) Is the appeal timely and otherwise procedurally proper?

Do this before you do any other work on the brief. Why? Because if the appellate court doesn’t have jurisdiction, any effort on the merits of the appeal is wasted. You don’t want to waste your time or your client’s money. Also because the appellate court wants these questions answered before it expends any time or effort on the merits—appellate judges and their law clerks are not interested in wasting their time or the taxpayers’ money. And you’re going to have to write the jurisdictional statement eventually, so you might as well write it when it will do you the most good: before you dive into the merits.