Megan Boyd has a good post at Lady (Legal Writer) on the use of forms in legal writing. She does not ban them, but she does offer some wise cautionary advice on using them.
I am not a fan of writing from forms, at least in persuasive writing. See, for example, this old post. I can see their usefulness when the purpose is not persuasion. If you must use them, follow Megan’s advice. And take a look at these old post from 2007 and 2009.
In a recent decision, the U.S. Fourth Circuit reminds us to avoid disrespectful language in our briefs:
Finally, we feel compelled to note that advocates, including government lawyers, do themselves a disservice when their briefs contain disrespectful or uncivil language directed against the district court, the reviewing court, opposing counsel, parties, or witnesses.... Unfortunately, the government’s brief is replete with such language: it disdains the district court’s “abrupt handling” of Appellant’s first case ...; sarcastically refers to Appellant’s previous counsel’s “new-found appreciation for defendant’s mental abilities,” ...; criticizes the district court’s “oblique language” on an issue unrelated to this appeal ...; states that the district court opinion in Jones “revealed a crabby and complaining reaction to Project Exile,” ...; insinuates that the district court’s concerns “require[ ] a belief in the absurd that is similar in kind to embracing paranormal conspiracy theories,” ...; and accuses Appellant of being a “charlatan” and “exploit[ing] his identity as an African-American,” .... The government is reminded that such disrespectful and uncivil language will not be tolerated by this court.
U.S. v. Venable, No. 11-4216 n. 4 (4th Cir. Jan. 18, 2012). The lesson: If you think you have rapier wit, keep it sheathed when writing your brief.
(Hat tip to Martin Stern.)
Dan Simons, of Invisible Gorilla fame, has a useful list of writing tips, including an editing checklist. You can find a link to Dan’s tips here. It’s meant for scientific writing, but it can be adapted to any form of expository prose. Just remember that Dan’s tips are general guidelines, not absolute rules.
For those unacquainted with the invisible gorilla, take this video test.
Legal writers often confuse decedent with descendant. So let’s get these two almost-homonyms straight. The decedent is dead. The decedent’s surviving progeny are descendants. A good way to keep these words straight is to remember that descendant is related to the verb descend.
I regularly read Thy Will Be Done for spiritual inspiration. Today that wonderful blog also provided a little writing lesson. Today’s post included this sentence:
We might accept the Savior as the one who helps, but we’re afraid to mention his name and remain silent.
That last clause, “remain silent,” is ambiguous, or at least can cause a miscue. Does it mean that we remain silent, or that we’re afraid to remain silent? From the context, we can figure out that the former is what the writer means. But for expository prose, a sentence that can be figured out isn’t as good as a sentence that doesn’t need figuring out. To eliminate the need to figure out this sentence, we need to add only one word and one punctuation mark:
We might accept the Savior as the one who helps, but we’re afraid to mention his name, and we remain silent.
Notice what we’re doing here. We use parallel structure to put “remain silent” on the same level as “are afraid.”
How most of us write e-mail:
Maybe we should reverse that order. Jason Bean explains why. (Hat tip to Ken Davis.)
Over at Daily Writing Tips, Mark Nichol has a useful tip for evaluating the coherence of your writing: reverse outlining. Try it, and you’ll find out whether the structure of your brief or memo is sound and whether your thoughts are logically ordered.
Can you put a picture in a legal brief? If the brief is for a U.S. Court of Appeals, you sure can. Federal Rule of Appellate Procedure 32(a)(1)(C) allows photographs, illustrations, and tables to be reproduced in a brief by any method resulting in a good copy of the original.
How do you insert a photograph into a brief? In Word, move the blinking vertical line* to the place you want to insert the photograph. Then click Insert on the menu bar, move your pointer to Picture in the drop-down menu, and follow your nose. Once the photograph is inserted in the brief, right-click on the photo and select Show Picture Toolbar from the little menu. You’ll then get a little toolbar that you can use to edit the photo.
Legal Writing Prof Blog has a nice post today with links to two trial-court briefs incorporating photos. And here is an excerpt from a brief I wrote a few years back, using a photograph illustrate the client's product.
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* I have no idea what the correct term is for that vertical blinking line.
A day or two ago, I was asked to review a draft brief. I was on the road, with a laptop but without a printer, so I reviewed the brief on the computer screen. Today I printed out a copy of the same brief, and noticed some areas where the formatting could be improved—areas that I did not notice when reviewing on the computer screen.
One of these days, all of our legal writing will be designed for reading on the computer screen. But today, much of it is still designed for reading on paper. As was this brief, which will be filed on paper. So if the intended audience will be reading it on paper, then at some point in the editing, you must print it out. This is the only way that you will see exactly what the reader will see. And if you don’t see exactly what the reader will see, you may miss something.
p.s. For prior posts on formatting and typography, click here.
A brief in a U.S. Fifth Circuit appeal must include a statement regarding oral argument. The appellant’s brief must include either a waiver of oral argument or a request for oral argument with reasons supporting the request. The appellee’s brief must include a statement why oral argument is or is not needed.1
I find these statements challenging to write, especially from the appellant’s side. The challenge is to make the statement persuasive without making it overtly argumentative. By “persuasive,” I mean not only persuading the court to grant or dispense with oral argument, but also beginning the task of persuading the court to decide the appeal in my client’s favor—and doing that without the kind of argument that would be inappropriate in this part of the brief.
Today I came across an idea for doing that when representing an appellant and requesting oral argument. The idea comes from the Federal Court of Appeals Manual by David G. Knibb (4th ed.), chapter 32. In it, Knibb offers this form for a motion to restore oral argument after the appellate panel has disallowed oral argument:
Plaintiff-Appellant moves pursuant to F.R.A.P. Rule 34(a) to restore this case to the argument calendar. This case meets the standards in Rule 34(a)(2) for oral argument, in that (a) this appeal is not frivolous, (b) the dispositive issues raised in this appeal have not been recently and authoritatively decided, and (c) as described in the accompanying memorandum, the decisional process would be significantly aided by oral argument.2
Actually Fed. R. App. P. 34(a)(2) lists criteria for disallowing oral argument, but the criteria can be applied in reverse to support allowance of oral argument.
On doing further research, I learned that the federal appellate courts expect lawyers to refer to Rule 34(a)(2) in writing a statement regarding oral argument. For example, Seventh Circuit Rule 34(f) allows “a short statement explaining why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P. 34(a).” And Fifth Circuit Rule 28.2.3 (requiring the statement regarding oral argument) includes a cross-reference to Fed. R. App. P. 34.
So when writing a brief’s statement regarding oral argument, use Rule 34(a)(2) as a framework, offering just a few sentences elaborating on each of the three criteria. Doing that will give the court a taste of the argument to come. Doing that on the first criterion (the appeal is or is not frivolous) will begin the task of persuading the court to rule in your client’s favor.
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1 5th Cir. R. 28.2.3.
2 David G. Knibb, Federal Court of Appeals Manual 608 (4th ed., West Group 2000).