Tips for Writing to Generalist Judges

by

Like doctors, lawyers are increasingly specializing their practices as the law becomes more intricate and dense.  These former lawyer specialists are now sitting on the bench in general jurisdiction courts, routinely making decisions on matters outside their former specialized practice areas.   These judges regularly rely on the bar to inform them on the relevant law.  But, how are specialist lawyers to effectively write and advocate to such generalist judges?  What information and how much information should the specialist lawyer present?

Douglas E. Abrams, author and law Professor at the University of Missouri, wrote a timely article in Precedent for the Missouri Bar Association, reprinted by the Nebraska Lawyer.  Effective Written Advocacy Before Generalist Judges: Advice from Recent Decisions examines the effects of lawyer specialization on the bench consisting of “generalist judges.”   From the beginning of each case, each judge is limited in his or her knowledge of not only the facts, but also the law.  According to the U.S. Court of Appeals for the Seventh Circuit, “courts rely on lawyers to identify the pertinent facts and law.”   And, because trial and appellate courts decide more cases on the written brief than oral argument, such identification of the law and legal issues as well as persuasion depends on the lawyer’s written product.

Abrams presents two strategies for effective written advocacy revealed by recent reported trial and appellate decisions: (1) Orienting the Court and (2) Avoiding Jargon. 

[Read more…]

How To Use An Apostrophe – A Grammar Cartoon

by

The Oatmeal - How to Use an Apostrophe

Grammar and punctuation is SOOOO much easier when the instructions are illustrated! Are you stymied when deciding whether to include the apostrophe? Do you find yourself staring at the word “its” and wondering – “wait, does it need an apostrophe between the t and s or not?”

The Oatmeal has you covered. Now, you can be entertained by The Oatmeal’s witty grammar and punctuation comics AND relearn (or just plan learn) the rules. You’re welcome. (Note the correct use of the apostrophe to form a contraction. Many thanks to The Oatmeal.)

Tips From the Bench: Better Motions to Compel

by

                   

“Even at their best, motions to compel are usually one of the least favorite parts of the job. They are tedious and very fact intensive.”

The Honorable Randy Wilson, a District Court judge in Harris County, Texas, and a seasoned trial lawyer, wrote the above sentiment in “The Motion to Compel.”  Judge Wilson describes “bad” and “good” motions to compel from the Court’s view, which comes down to overall organization, not  poor writing or derogatory language, per se.  In Judge Wilson’s opinion, the best Motions to Compel group the disputed discovery requests by issue instead of methodically listing each request and leaving the judge to sort out which legal issue applies (note: make it easy for your reader).

For example, the “bad” Motion to Compel diligently listed each disputed request, stated the relevant objection, and argued why the requested information is relevant and why it should be produced. This “bad” type of Motion to Compel could have tens or even hundreds of objections and leaves the reader (ahem, the JUDGE who you are asking for help) to sort out the requests for him or herself and find the common denominators.  In other words, the “bad” Motion to Compel focused the judge’s attention on the trees with no direction as to how the trees were relevant to the forest.

[Read more…]

Core Grammar For Lawyers: Not Just For Law Students!

by

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

by

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.