the (new) legal writer

How to acknowledge and refute counterarguments

Here is an interesting article on how persuasive legal writers—U.S. Supreme Court justices—acknowledge and refute counterarguments. In Crafting Responses to Counterarguments: Learning from Swing-Vote Cases, Stacy Rogers Sharp (U. Tex. Law School) analyzes the justices’ opinions in close cases (the ones decided 5-4), identifies the techniques used by the justices to refute counterarguments, and illustrates the techniques with numerous examples. As she explains, the same techniques can be used by brief-writers to refute an opponent’s arguments. If you want to write killer briefs, her article is a must-read.

(Cross-posted on La. Civil Appeals.)

Notwithstanding ambiguity

This one is for drafters of contracts. At Adams on Contract Drafting, Ken Adams discusses a recent decision involving interpretation of notwithstanding in a contract. It’s a complicated case; Ken does a better job than I could explaining the ambiguity that notwithstanding created (confusion about exactly what notwithstanding trumps) and how the drafter might have avoided the problem.

What can brief-writers learn from movie trailers?

The current issue of Legal Communication and Rhetoric includes an interesting article by Prof. Steven Johansen of the Lewis & Clark Law School. In Coming Attractions: An Essay on Movie Trailers & Preliminary Statements, Steve analyzes how movie trailers entice us to watch the movies they tout, and how brief-writers can apply those same techniques in writing preliminary statements.

A better way to write subheadings?

Every briefwriter should know that the argument subheadings are important. Many judges say that, when they first pick up a brief, they scan the table of contents, where those subheadings should appear. And, of course, the judges come across those subheadings again when they read the argument.

So why belabor the obvious? Because Matthew Stibbe has an interesting post on how to write headlines. His post is geared to journalists. But legal writers can learn a lot from journalists, such as how to grab a reader’s attention.

More on “of”

To augment yesterday’s post about of, I’d like to offer a grammatical analysis.

Of is a preposition, so it invariably introduces a prepositional phrase. Grammatically, a prepositional phrase always functions as a modifier: either an adjective or an adverb. So when you write or are editing an of phrase—or, for that matter, any prepositional phrase—try to think of an adjective or adverb that does the same job and substitute it for the prepositional phrase. For example, “the argument of the defendant” can become “the defendant’s argument.”

Sometimes, as suggesting in the Daily Writing Tip that prompted my original post, the object of the prepositional phrase is a noun that can function as an adjective. For example, “a game of baseball” can become “a baseball game.”

Of course.

Here is a good Daily Writing Tip on reducing the use of of. I like the approach. Of is not an error; it’s just that you can often improve a piece of writing by examining each of and figuring out whether you can rephrase more concisely.

“Whom do you love?”

According to Daily Writing Tips, whom is on its death bed. I blame Bo Diddley.

The lonely only

Be careful, be very very careful, with only. Unless you place it very carefully, it is likely to create ambiguity. John McIntyre explains the problem.

How U.S. 5th Circuit judges read briefs

On my Louisiana Civil Appeals blog, I have a post about something I just learned about how U.S. Fifth Circuit judges read briefs, and how this information should inform our decisions about where we put our citations (text versus footnotes). If you’d like your next Fifth Circuit brief to be judge-friendly, you need to read it. (Hint: It has something to do with hyperlinks, such as in this blog post.)