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!
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).
“Abraham Lincoln as a Legal Writer”: What modern legal writers can learn from President Lincoln’s “spare, clean” expression
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.
A Practice Perspective on Effective Legal Writing: Get to the Point, think a “Hemingway-like approach”
A recent article from the Chicago Lawyer Magazine highlights the value of legal writing in law practice and the changing needs in law practice from trial-oriented to disposition-oriented. The article discusses the growing need for skilled legal writers as more and more cases are settled by way of written products (i.e., motions and briefs), rather than in court lawyering (i.e., oral arguments or jury trials).
Everyone in practice knows that more cases settle than go to trial. More and more, these settlements are based on the strength of motions (i.e., effective legal writing). Because the high costs of litigation disincentives going all the way to jury trial, effective legal writing is more critical than ever.
In appellate practice, the appellate courts rely more on well written briefs (the parties’ written appeals to the courts for you non-lawyers out there) to decide the case than the parties’ oral arguments. In fact, more appellate courts are moving towards deciding cases WITHOUT oral argument and ONLY on the written briefs.
In this article, judges recommend that attorneys summarize their case right away and make sure the summary includes the most important points. Judges want a well-organized written product that presents the controlling authority and applies it to the factual situation concisely without inflamatory language or derrogatory comments about the opposing party. The judges even discussed the importance of writing in the active, rather than the passive, voice to clearly communicate.
Perk Up Your Pens! Podcasts about Legal Writing
I stumbled upon the Perk Up Your Pens series on legal writing earlier in the year and wish I had found it so much earlier. Perk Up Your Pens is a fantastic series of legal writing podcasts by Rachel H. Smith and Shaina Feinberg and funded by an ALWD Teaching Grant.
These podcasts are entertaining and informative. While more geared for students in law school, these podcasts would be great tools for practicing attorneys to brush up on legal writing skills. Each podcast focuses on a specific legal writing skill – writing like a lawyer, thesis and topic sentences, analogizing & distinguishing, proofreading, etc. As Perks Up Your Pens tells you, “Happy IRACing!”
