How to Write Bad Briefs

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Dirty Dozen: 12 Ways to Write a Really Bad Brief was recently featured in the June 2011 issue of the ABA Journal.  This article is an oldie, but a goodie.  Jim McElhaney examines everyday bad writing habits and how some attorneys have “developed them into an art form of ineffectiveness.” Indeed.

While these bad habits seem obvious (and obviously bad), why do attorneys continue to use and abuse them? For example, the first of the Dirty Dozen is “Make it a ‘long,’ not a brief.” Really? This seems logical. We know judges (and their clerks) are busy people. So, why bombard them with wordy, lengthy, rambling tomes when concise, to-the-point missives suffice? Seems like greediness or laziness on the attorney’s part to me. Laziness for not properly revising the lengthy, like passive-voice document into something concise and active voice. Greediness for trying to stuff in as much law and persuasion as possible. 

Other notable offenders on the list include: “Be bombastic,” “Lay on the legalese,” “Make unreasonable arguments,” “Throw issues against a wall,” and “Don’t analyze.” Every attorney should read and heed Mr. McElhaney’s advice. Seriously –  read it, print it out and tape it to your wall so you can look at it everyday, email it to your colleagues, whatever it takes. Attorneys are professional writers and we, as a group, can do better.

Core Grammar For Lawyers: Not Just For Law Students!

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Just as well-made cars need belts checked and bolts tightened, every practicing lawyer’s use of grammar, punctuation, and usage needs a periodic tune-up – even if it’s only preventative maintenance!  Core Grammar For Lawyers is just the ticket.  Core Grammar For Lawyers was recently launched and is an “online, self-directed learning tool designed to help law students, pre-law students, paralegal professionals, and practicing attorneys acquire the grammar and punctuation skills that are prerequisites to successful legal writing.”

The subscription fee is low and well worth the $38 for one-year, especially if you have been on the receiving end of harsh criticism from judges, supervising attorneys, or your own colleagues about your poor grammar and punctuation.

On The Light Side: Humor In Judicial Opinions

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A recent article in the Wall Street Journal, “Court Jesting: These Sentences Don’t Get Judged Too Harshly,” discussed a trend in judicial opinions – dare I say it, FUN!  Nathan Koppel reports that some judges attempt to use humor or references to pop-culture to lighten the tone.  Koppel provides examples from all levels of the judiciary, even Chief Justice Roberts of the United States Supreme Court.  In a 2008 opinion involving a drug case, Chief Justice Roberts wrote: “Office Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.” 

Some, including Judge Alex Kozinski of the Ninth Circuit Court of Appeals, find the sprinkling of levity in otherwise dry, dull writing to be perfectly acceptable.  Kozinski is known for not only writing well-reasoned and well-written opinions, but also for including references to pop-culture in his own writing.  However, some take a dim view of such bursts of wimsy, including Bryan Garner, author of The Elements of Legal Style.  Garner finds the use of “pop-judging” to be akin to “people in their 50s [who] talk like teenagers. It’s embarrasing.”

Whatever your opinion of the use of humor in judicial opinions, what about humor and levity in your own writing to the court? Either know your audience well (very, very well) or save it for your stand-up act or your next cocktail party.

Since we’re discussing grammar & punctuation…

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The last post highlighted the perils of apostrophe misuse and poor punctuation in general. To add to our collective understanding of sound writing mechanics, here is a recent post from the Legal Writing Pro, “Five Grammar Myths.”   Ross Guberman, author of Point Made: How to Write Like the Nation’s Top Advocates, is like the MythBuster of Legal Writing.  First Myth Busted: You can’t start a sentence with a coordinating conjunction like and, yet, or but. You can access the full posting and the other four grammar myths that Mr. Guberman takes down here.

I Object – To Opposing Counsel’s Use of Possessives!

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A recent article by Debra Cassens Weiss in the ABA Journal reports that poor use of grammar and punctuation can not only lead to confusion and ambiguity in legal writing, but is also fair game for attack in legal pleadings. The article, “Lawyer’s Motion Objects to Opponent’s Use of Possessives,” discusses a case in Missouri, where a defense attorney’s motion lambasts the plaintiff’s attorney, stating: “This petition is the worst example of pleading that the defendant’s attorney has ever witnessed or read.” Specifically, the defense attorney takes offense with the plaintiff’s attorney’s punctuation.  The plaintiff’s attorney used “defendant’s” and “defendants” interchangeably, making it difficult to understand which defendant she was referring to in a multiple-defendant suit.

The defense counsel wrote: “Defendant does not know whether plaintiff is just not familiar with the use of possessives or whether plaintiff was referring to merely one of the two defendants. … Is this merely the poor usage of the English language by plaintiff’s attorney? We have no earthly idea which is the case.” Hmmmm, if neither the court nor the parties can understand who did what – is that grounds for dismissal for failure to state a claim? Sounds like poor punctuation resulting in ambiguity and confusion can be potential grounds for dismissal (and sanctions and a bar complaint wouldn’t be far behind).