Nowadays most writing by most practicing lawyers consists of e-mail. Most e-mails are intended either to inform or to elicit a response (or both). For tips on making your e-mail more effective at both, read The Well-Structured Email at Dan Brown’s Green Onions. (Hat tip to Tom Mighell.)
When something feels complex or complicated to you, write it out carefully and thoughtfully, several different times if necessary, until it flows smoothly and expresses exactly what you want it to communicate and nothing else.
A few years ago on my other blog, I advised legal researchers to own their downloaded legal authorities. For those who missed that post, here’s the skinny version.
First, when you download cases from Lexis, Westlaw, Fastcase, or whatever, download in a word-processing format (Word or WordPerfect), not PDF. This will enable you to edit them before printing or saving them, which in turn will enable you to do the following things:
- If you find the case difficult to read, re-format it. Change the type face or enlarge the font size.
- Delete all the headnotes having nothing to do with why you downloaded the case, saving only the pertinent headnotes. This simple tip not only saves you the trouble of wading through dozens of useless headnotes; it also saves paper when you print a hard copy.
- While you’re at it, delete the lawyers’ names. Every little bit of clutter-elimination helps. And nobody will mind except the lawyers’ mothers.
- Use Word or WordPerfect to highlight the parts that are most important.
- Instead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy.
- Edit the document header to add all information needed to cite the case. This will later save you the trouble of printing an entire 24-page case when you only need one page with one juicy quotation.
- Here’s a new one I figured out: If the case is part of a quantum study, insert the dollar figure up front, on the first page, in big bold text.
One thing should go without saying: Do not change the substance of the opinion itself. Instead, highlight the important parts, as you would with a hard copy. Whatever part of the case you intend to use, you must see it in its full context.
While researching jury instructions today, I came across this passage:
The fact that the language was borrowed from the reasoning of a written opinion does not uphold the charge. Isolated from its context, or sought to be translated from mere discussion into substantive law, opinion language is apt to become invested with a quality wholly inappropriate for use in instructions. Taylor v. Insurance Company of North America, 263 So.2d 749 (Miss.1972). The mere fact that certain language has been used by a judge in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury. News Leader Co. v. Kocen, 173 Va. 95, 3 S.E.2d 385 (1939).
Source: Trapani v. State Farm Fire & Cas. Co., 424 So. 2d 449, 451–52 (La. App. 5 Cir. 1982).
If you’re telling a story involving many players, how do you help the reader keep the players straight? You might do what Judge John R. Brown did in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969) (copy in Word format here). In a case involving 17 characters, he listed the entire cast in footnote 3, providing each player’s full name and shorthand name used in the opinion. For individuals, he also listed each one’s employer. This technique yielded two benefits. First, it spared readers the dreaded parenthetical accompanying each character’s introduction (e.g. “... Coastal Marine Service of Texas, Inc. (“Coastal”)”). Second, it gave readers one sure and easily accessible place to find who’s who.
Today’s West Headnote of the Day carries a useful lesson:
Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).
My guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file. Later, someone copied the opinion—with marginal notes—for inclusion in the appendix, and no one ever eyeballed the appendix to catch embarrassments like this.
The lesson: Before selecting file materials to be copied for an appendix, inspect them to look for marginal notes, underlining, doodles, etc. If you find any, erase them or cover them up with white tape before photocopying.
A couple of weeks ago, a headline in a law-oriented magazine prompted me to write on the importance of hyphenating phrasal adjectives. Today a different headline teaches the same lesson more vividly, and this time, the headline writer gets it right. From the Onion:
Without the hyphens, diseased and deformed would describe the author. But the hyphens make clear that those words modify animal.
A magazine I’m looking at now has a story with this headline:
401(k) Excessive Fee Litigation
This leaves me to wonder what is excessive: the fee or the litigation? The story reveals that it’s about litigation over excessive fees. A little punctuation removes the ambiguity:
401(k) Excessive-Fee Litigation
“When a phrase functions as an adjective—an increasingly frequent phenomenon in late-20th-century English—the phrase should ordinarily be hyphenated. Seemingly everyone in the literary world knows this except lawyers.” Bryan A. Garner, A Dictionary of Modern Legal Usage 657 (2d ed. 1995).
Here are some tips for more lively briefs, courtesy of Jim McElhaney. The advice is sound, though I’d treat his rules as general rather than absolute.