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).

What Law Librarians Really Think About Westlaw Next

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In a recent post on the Law Librarian Blog titled “Westlaw Next: Pros and Cons and General Comments from Law Librarians,” Joe Hodnicki details information gathered from an (admittedly) informal survey of law librarians regarding their experience with Westlaw Next.  Hodnicki, County Law Library Director with the Butler County Law Library (OH), writes: “In addition to the … less than stellar general comments, looks like the ‘Cons’ outnumber the ‘Pros’ and do so by highlighting serious search-related flaws.”  Thank you to Mr. Hodnicki and all law librarians involved in the survey for your candor.

Checklists for Legal Writers

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In a recent book review titled “The Legal Writer’s Checklist Manifesto” published in Legal Communication & Rhetoric: JALWD published by the Association of Legal Writing Directors (ALWD), Jennifer Murphy Romig details how Atul Gawande’s book “The Checklist Manifesto: How To Get Things Right” is applicable to lawyers in the process of legal writing. In “The Checklist Manifesto,” Gawande discusses the use of checklists in aviation, medicine, and construction.

In her book review, Jennifer Murphy Romig writes that these types of checklists are useful for new lawyers to check their work and internalize common stylistic practices of legal writing as well as for experienced legal writers to check their work efficiently and change bad habits. Jennifer Murphy Romig states that the use of checklists in legal writing extends beyond completing assignments as “process-oriented” checklists could help teams of lawyers work together more efficiently and produce a better written product.

Thou Shalt Not Use “Shall” in Legal Writing

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In a recent post at Lawyerist.com, “Thy Legal Writing Shall Not Include ‘Shall’“, Andy Mergendahl examines the overuse (and misuse) of “shall” in legal writing. After attending a Bryan Garner legal writing workshop, Mergendahl discovered his intense dislike of the use of “shall” and suggests alternatives to its use in legal writing. Mergendahl writes: “‘Shall,’ due to its multiple meanings, creates ambiguity that greatly increases the likelihood of disputes about what a sentence means. That is exactly what we are paid to avoid.” True. Very true.

“Abraham Lincoln as a Legal Writer”: What modern legal writers can learn from President Lincoln’s “spare, clean” expression

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In a recent article entitled “Abraham Lincoln as a Legal Writer” published in the Fall 2010 edition of the Nevada Law Journal, Judith D. Fischer discusses how President Lincoln developed his writing craft despite only one year of formal schooling. Using the Papers of Abraham Lincoln Project, the article surveys Lincoln’s court documents, speeches, poetry, and other writings.

Fischer posits that President Lincoln’s legal writing, as well as other writing in office, is remarkable for its lack of legalese. While the use of legalese and jargon was popular, Fischer writes: “Instead of falling into similar habits, Lincoln preferred ‘spare, clean’ expression. His legal documents are remarkably free of legalese, considering the time in which he wrote.”

The full article can be downloaded here.