Professional Documents
Culture Documents
By
Daniel U. Smith
TABLE OF CONTENTS
Page
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
A.
B.
1.
The core principles of persuasive legal writing. . . . . . . . . . . . . . . . . . . . .
A.
B.
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3
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6
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2.
Brevity, simplicity, clarity, and honesty. . . . . . . . . . . . .
C.
D.
Brevity. . . . . . . . . . . . . . . . . . . . . . .
1.
Advocates of brevity. . . . . . . . . .
2.
How to achieve brevity. . . . . . . . .
a.
Delete the noise (clutter))what
implicit. . . . . . . . . . . . . . .
b.
Delete hollow modifiers. . . .
c.
Omit needless words. . . . . . .
d.
Condense clauses to phrases. .
e.
Use only the core word. . . . .
3.
Judicial advice for shorter briefs. . .
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is unnecessary, redundant, or
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10
12
13
14
15
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Simplicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.
Advocates of simplicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.
Simplicity is the trend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
i
3.
4.
E.
Clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1.
Advocates of clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.
How to achieve clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
F.
Honesty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1.
Enhance your credibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.
Ethical requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
G.
H.
1.
2.
3.
Drafting and editing. .
Drafting. . . . . . . . . . . . . . . . . . . . . . . . .
Editing. . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Advocates of editing. . . . . . . . . . . . . .
b.
Match thought and expression. . . . . . . .
c.
Tips for editing your own writing. . . . .
d.
Tips for editing the writing of others. . .
e.
Editing exercise: U.S. v. Microsoft Corp.
ii
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31
31
32
32
32
35
35
36
1.
2.
3.
4.
5.
6.
1.
2.
3.
4.
5.
6.
1.
2.
3.
4.
5.
6.
7.
4.
Headings. . . . . . . . . .
Assert a complete point, using key terms and details.
Be brief (two lines or less). . . . . . . . . . . . . . . . . .
Use parallel structure. . . . . . . . . . . . . . . . . . . . .
In text after the heading, use the heading' s key terms.
Format: Bold (only) and lower case. . . . . . . . . . . .
Exercises. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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5.
Paragraphs. . . . . . . . . . . . . . . . . . . . .
Limit the paragraph to one point, stated in the topic sentence. . . . . . .
a.
Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maintain a clear train of thought. . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In drafting, put extra space between the paragraphs. . . . . . . . . . . . . .
Intensify with a short sentence or one-sentence paragraph. . . . . . . . . .
a.
Short topic sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Short second sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Short sentence at paragraph' s end. . . . . . . . . . . . . . . . . . . . .
d.
One-sentence paragraph. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Replace paragraphs with visuals) photos, charts, diagrams, lists, tables,
and graphs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other paragraph structures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
State your adversary' s point and refute it. . . . . . . . . . . . . . . . .
b.
Start with striking facts. . . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Start with a quote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d.
Start with a question. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.
Sentences. . . . . . . . . . . .
Start with a link to prior text when needed. . . . . . . . .
End with the point of emphasis. . . . . . . . . . . . . . . . .
Put the subject at or near the start. . . . . . . . . . . . . . .
a.
Avoid long introductory clauses. . . . . . . . . . . .
b.
Avoid introductory clauses modifying the subject.
c.
Avoid throat clearing. . . . . . . . . . . . . . . . . . .
Use a strong subject and verb. . . . . . . . . . . . . . . . . .
Keep subject, verb, and object close together. . . . . . . .
Use parallel structure. . . . . . . . . . . . . . . . . . . . . . .
Keep sentences short. . . . . . . . . . . . . . . . . . . . . . .
a.
Tips for shorter sentences. . . . . . . . . . . . . . . .
b.
Omit "that" and "who is/which is." . . . . . . . . . .
c.
Condense "of" constructions. . . . . . . . . . . . . . .
d.
Refer to cases by one name only. . . . . . . . . . . .
e.
Exercises to shorten sentences. . . . . . . . . . . . .
iii
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39
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42
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44
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52
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53
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56
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65
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8.
9.
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67
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70
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75
76
77
77
77
. . . . 78
. . . . 78
. . . . 79
. . . . 79
. . . . 80
n.
10.
1.
2.
3.
4.
5.
6.
7.
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81
81
82
82
83
84
88
90
7.
Structuring briefs and motions. . . . . . . . . . . .
Universal structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Issues presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . .
d.
Cite to the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e.
Create a theme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statement of facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Be complete. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Structure the facts to match the legal arguments. . . . . . . . . .
c.
Persuade, within the bounds of honesty. . . . . . . . . . . . . . . .
d.
Use frequent headings and subheadings. . . . . . . . . . . . . . . .
Procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Understand the syllogism. . . . . . . . . . . . . . . . . . . . . . . . .
b.
Select and organize arguments from strongest to weakest. . . .
c.
State the standard of review. . . . . . . . . . . . . . . . . . . . . . .
d.
An argument' s five parts. . . . . . . . . . . . . . . . . . . . . . . . .
(1) Road map) orient the reader. . . . . . . . . . . . . . . . . . .
(2) Rules) discussed neutrally. . . . . . . . . . . . . . . . . . . .
(3) Apply rules to facts. . . . . . . . . . . . . . . . . . . . . . . . .
(4) Anticipatory refutation. . . . . . . . . . . . . . . . . . . . . .
(5) Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Footnotes: Minimize substantive footnotes. . . . . . . . . . . . . . . . .
Citing cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Note the precedent' s similarity (or dissimilarity) to your case.
b.
Hierarchy of authority. . . . . . . . . . . . . . . . . . . . . . . . . . .
c.
Citations belong in the text) but minimize clutter. . . . . . . . . .
d.
Help the reader. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Avoid repetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reply briefs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix to the brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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92
92
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100
100
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106
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and fairness.
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1.
2.
3.
8.
Memos.
Clarify the assignment. . . . . . . . . .
Format. . . . . . . . . . . . . . . . . . . .
Citing cases. . . . . . . . . . . . . . . . .
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108
108
108
108
9.
Letters. . . . . . . . . . . . . . . . . . . . . . . . . 109
10.
E-mails. . . . . . . . . . . . . . . . . . . . . . . . 112
11.
Future work and study. . . . . . . . . . . . . . . . . . . 113
12.
Humor: Self-cancelling advice. . . . . . . . . . . . . . . . . 114
13.
List of shorter words and phrases. . . . . . . . . . . . . . . 116
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
vi
PREFACE
"Persuasive Legal Writing" answers the question facing every lawyer: What writing
style will best persuade the busy judge?
The answer is: brevity, simplicity, clarity, and honesty.
To achieve these style qualities, this manual offers over 70 tips, allowing you to:
!
Write shorter briefs more easily and more quickly.
!
Enhance your stature in the eyes of the court.
!
Please your client.
!
Increase your chance of winning.
This manual is based on research with judges on the Ninth Circuit Court of Appeals
and on California' s Courts of Appeal. I extend my deep appreciation to the many judges
who have shared their views on legal writing and in many instances have co-presented this
seminar. Those judges include:
Ninth Circuit Court of Appeals: Hon. Marsha Berzon, Hon. Alex Kozinski.
California Supreme Court: Hon. Carol A. Corrigan.
California Courts of Appeal: Hon. Barton Gaut, Hon. Zerne P. Haning (ret.), Hon.
Earl Johnson (ret.), Hon. Eileen C. Moore, Hon. Fred K. Morrison, Hon. Stuart R.
Pollak, Hon. Rick Sims, Hon. William D. Stein, Hon. Gary E. Strankman (ret.),
Hon. Paul Turner, Hon. Jim Ward (ret.).
California Superior Courts: Hon. David A. Garcia (ret.) and Hon. John Zebrowski
(ret.).
Mr. Smith presents this seminar for California' s Continuing Education of the Bar
(CEB), the Bar Association of San Francisco, the Los Angeles County Bar Association,
and major law firms throughout California.
A. What others say about this manual.
Law professors and senior partners:
"A serious effort to improve one of lawyers' most vital skills."
Prof. Jesse H. Choper, Former Dean,
U.C. Berkeley School of Law (Boalt Hall)
"This manual should be required reading for every lawyer in America. The
examples are terrific!"
Gerald F. Uelmen, Professor and Former Dean
Santa Clara University School of Law
"No book better presents how to write with the clarity and vigor demanded of the
successful practitioner."
Robert M. Westberg, Pillsbury Winthrop Shaw Pittman, LLP, San Francisco
vii
Participant evaluations:
"The best CLE course I have ever taken."
"Most helpful MCLE event ever attended. A must for success as an
attorney."
"The best seminar on legal writing I have ever taken; as enjoyable as it
was informative."
"Truly educational) both for the novice and savvy veteran lawyers."
"Excellent. I' ll put these tips to use tomorrow!"
"Marvelous) colorful, passionate, interesting. Great balance in
explaining how and why to write well."
"Absolutely fabulous"; "Outstanding."
"Incredibly helpful."
"Superb course; superb teacher."
"Patient, sophisticated, storytelling teacher. Invaluable!"
"Excellent program by a well-qualified speaker."
"Of my first brief after the seminar the judge said: ` excellent,'
` succinct,' ` to the point,' and ` very helpful.' A first! Thanks for your
excellent course."
"I will highly recommend this session to everyone I speak with."
"Excellent. Tremendously clear and easy to follow."
"Extremely well done. I will refer to this booklet often."
"Fantastic. I will be keeping this on top of my desk."
B.
viii
ix
1.
1
2
3
4
5
B.
A brief or motion must cover factual history, procedural history, and law, and
apply the law to disputed facts.
2.
Judges work under severe time limits. One law and motion judge reports
spending just seven minutes on each principal brief. Many California appellate
judges write 10 opinions per month and concur (or dissent) in 20 other opinions per
month, totalling 30 opinions per month. Each appeal has three briefs, totalling 90
briefs per month. Yet for this workload, judges have only 20 working days per
month (two days are allocated to oral argument). This limited time requires
appellate judges to process 1. 5 appeals per day. :
"Clearly the most serious problem facing the California justice system is
overload, which is adversely affecting the delivery of justice at all levels. In
both the trial and appellate courts, the primary goal appears no longer to be
justice for the litigants, but disposing of the crush of cases as fast as
6
possible. "
"We are in the midst of a law explosion as a result of which court time has
7
become an increasingly scarce and valuable, if not an endangered, resource. "
3.
Your writing style must command the judge' s attention because judges are
often interrupted by phone calls, clerks, and meetings. Judges sometimes read
briefs in difficult settings)while commuting or while their spouse is driving.
Hon. Marcus Kaufman, Associate Justice of the California Supreme Court, California
Lawyer (August 1990) p. 28.
7
County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d
776, 780-781 (Presiding Justice Robert Gardner).
3
5.
Though "[l]awyers are the highest paid writers in the world, " they are "the
8
worst. "
Academic writing. In college and law school, we acquired the academic
style)verbose, complex, and dense. The academic style assumes that difficulty for
the reader shows excellence in the writer. We mistakenly imitate college
professors)even though they are hard to understand:
"[I]n college . . . articulate people used big words, which impressed
me. [My] philosophy professor . . . sounded so smart to me simply
because I didn' t understand him. . . . The way someone writes)the more
difficult the writing style)the more intellectual they sound. . . . Ideas are
supposed to be written in such a fashion that they are difficult for
untrained people to understand. This is scholarly writing. And if you
want to be a scholar, you need to learn to reproduce this way of
9
writing. "
Jonathan Franzen explains the difference between "status" writing)promoting
the writer' s "status")and "contract" writing. The "status" writer believes:
"difficulty tends to signal excellence; it suggests that the novel' s author
has disdained cheap compromise and stayed true to an artistic vision.
Easy fiction has little value, the argument goes. Pleasure that demands
hard work, the slow penetration of mystery, the outlasting of lesser
readers, is the pleasure most worth having; and if . . . you can' t hack it,
10
then to hell with you. "
By contrast, the "contract" style "represents a compact between the writer and
11
the reader, " where "difficulty is a sign of trouble. "
Judicial writing. The style of judicial opinions often burdens the reader. The
purpose of such writing appears not so much to persuade a busy reader, but to
display the writer' s command of complex details. Such writing is often
cluttered)dense prose, fancy words, elaborate constructions, detours (off-message
excursions) and excess detail (overparticularizing). These maladies obscure the
point.
A bad example:
Pennoyer v. Neff, 95 U. S. 714 (1877).
This is an action to recover the
possession of a tract of land, of the
alleged value of $15, 000, situated in the
State of Oregon. The plaintiff asserts
title to the premises by a patent of the
United States issued to him in 1866,
under the act of Congress of Sept. 27,
1850, usually known as the Donation
Law of Oregon. The defendant claims to
have acquired the premises under a
sheriff' s deed, made upon a sale of the
property on execution issued upon a
judgment recovered against the plaintiff
in one of the circuit courts of the State.
The case turns upon the validity of this
judgment.
It appears from the record that the
judgment was rendered in February,
1866, in favor of J. H. Mitchell, for less
than $300, including costs, in an action
brought by him upon a demand for
services as an attorney; that, at that time
the action was commenced and the
judgment rendered, the defendant
therein, the plaintiff here, was a nonresident of the State, that he was not
personally served with process, and did
not appear therein; and that the judgment
was entered upon his default in not
answering the complaint, upon a
constructive service of summons by
publication. (201 words)
Possible revision
Plaintiff, a non-resident of Oregon,
challenges the sheriff' s sale of his
Oregon property. The sale enforced a
default judgment in a debt collection
action where plaintiff was served only by
publication.
We hold that service by publication
did not give personal jurisdiction over
plaintiff because he was not an Oregon
resident, he was not personally served,
his property was not attached, and he did
not appear. (78 words)
12
Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 867 fn. 2 (9th Cir. 1977).
A Ninth Circuit Brief quoted by Hon. Alex Kozinski, "The Wrong Stuff," 1992
Brigham Young University L.R. 325, 328. Judge Kozinski added: "Even if there was a
winning argument buried in the midst of that gobbledygook, it was DOA." Ibid.
14
Kearney v. Standard Ins. Co. (9th Cir. 1999) 175 F.3d 1084, 1105.
15
J. Barzun, supra, pp. 4-5.
13
2.
59.
A. Scalia and B. Garner, Making Your Case: The Art of Persuading Judges" (2008) p.
17
24
2.
Possible deletions:
Plaintiff was standing on a platform of defendant' s railroad after buying a
ticket to go to Rockaway Beach. A train stopped at the station, bound for
another place. Two men ran forward to catch it. One of the men reached the
platform of the car without mishap, though the train was already moving. The
other man, carrying a package, jumped aboard the car, but seemed unsteady as
if about to fall. A guard on the car, who had held the door open, reached
forward to help him in, and another guard on the platform pushed him from
behind. In this act, the package was dislodged, and fell upon the rails. It was
a package of small size, about fifteen inches long, and was covered by a
newspaper. In fact it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell
exploded. The shock of the explosion threw down some scales at the other end
of the platform many feet away. The scales struck the plaintiff, causing injuries
for which she sues. (16 lines)
Possible revision:
Palsgraf was standing on the railroad' s platform when a man carrying a
small package wrapped in newspaper ran to catch a departing train. As two
guards helped him board the moving car, the package) containing
fireworks) fell and exploded. At the other end of the platform, many feet
away, the explosion' s shock dislodged some scales, injuring Palsgraf. (5 lines)
Exercise #2:
When the Continental Congress edited the Declaration of Independence to Jefferson' s
dismay, Franklin consoled Jefferson with a story about a young hat seller who wanted to
open his business with this sign:
John Thompson, Hatter, makes
and sells hats for ready money.
[with the figure of a hat]. 30
30
H.S. Brands, The First American) The Life and Times of Benjamin Franklin (2000) pp.
511-512.
10
b.
Delete hollow modifiers.
Voltaire: "The adjective is the enemy of the noun." 31
In speech intensifiers create emphasis and vitality, but in writing they deaden the impact.
Ask your staff to help you root them out.
absolute(ly)
eventual
in this case
needless to say
(in a) sense
actively
(it is) evident
in turn
no doubt
seriously
actual(ly)
that
incidence of
not only . . .
(a) significant
and/or
exactly
inevitably
but also
degree of
almost
extremely
inherently
obviously
situated
(it is) apparent
(as a matter of)
interestingly
ongoing
so ("so great")
that
fact
it appears (is
on the one
somewhat
(it) appears
(the) fact
apparent) that
hand
sort of
that
remains
it can be stated
order of
(by any)
arguably
(the) fact that
with certainty
magnitude
standard
as far as ~ is
first and
that
over time
straightconcerned
foremost
it goes without
overall
forward
as can be seen
for the most
saying that
own (adj.)
strictly speaking
assuredly
part
it is important
per se
successfully
as such
frame of
to note (worth
plainly
Suffice it to say
basically
reference
noting; should
(the) point is
surely
both . . . and
framework
be noted)
that
systematically
certainly
frankly
it would
practically
tend to
(it is) clear in
fundamentally
appear that
precise(ly)
thankfully
this case that
greatly
kind of
proper
that is (are)
clearly
having said
largely
purely
(for one) thing
completely
that
literally
quite
thorough(ly)
(of) course
highly
(a) little
rather (adj.)
total(ly)
decidedly
historically
mainly
real(ly)
truly
definitely
hopefully
meaningful
relative(ly)
undue (unduly)
dimension
in depth
more or less
reportedly
unfortunately
doubtless(ly)
in particular
mostly
respective(ly)
utterly
effectively
in question
namely
(that) said
various
eminently
in the final (last) naturally
(having) said that very
entire(ly)
analysis
nearly
(it would) seem
virtually
essential(ly)
in that regard
necessarily
Never modify absolutes: equal, essential, fatal, final, identical, matchless, perfect,
pregnant, supreme, unique, universal. "To form a more perfect Union" is correct
politically but not grammatically.
31
c.
Omit needless words.
Make these phrases as short and simple as possible. You may want a word that does not
appear in the original phrase.
evidence in this case
the fact that
testified at trial
Prior to the commencement of trial
said in his testimony
With respect to the
reprehensibility prong
The evidence in the record in
this case showed that he said
imposed restrictions precluding the use of
in pertinent part
call your attention to the fact that
in the instant case
the fact that he had not succeeded
in many cases the engines were
in a hasty manner
defective
regarded as being
at this point in time
on the ground that
for the duration of
by means/reason/virtue of
check in the amount of
has been involved in the investigation of
in the majority of instances
have knowledge of
in the event that
in accordance with
a large number of
prior to
pursuant to the provisions in the policy
subsequent to
with the exception of
did not in any way
until such time as
The medical expert was of the
for the purpose of
opinion that
referred to as
was able to draw conclusions as to
the question as to whether
would have been sufficient to
this is a subject that
along the same lines
the reason why is that
in connection with
despite the fact that
an excessive number of
due/owing to the fact that
in order to
is based on
acts of a hostile character/nature
this case is a difficult one
on the basis of
in circumstances when
at the time that
There is a substantial body of case law
making it clear that
There is ample evidence to support
12
d.
Condense clauses to phrases.
A subordinate clause (subject-verb-object) can often be shortened to a phrase or
word:
1.
Replace the clause' s subject and verb with an adverb or adjective:
Earl Warren, who had been formerly Governor of California, became
Chief Justice of the Supreme Court.
He was represented by an court-appointed attorney who had been
appointed by the Court.
2.
Turn the clause into a prepositional phrase:
While she was traveling on business On business trips, her supervisor
sexually harassed her.
3.
Turn the clause (starting with "that" or "so that") into an infinitive or gerund phrase:
The witness examined the document so that he could to refresh his
recollection. [or: "examined the document, refreshing his recollection."]
4.
Turn the clause into an adjective or adverb:
The construction site was littered with rusty nails that had rust on them.
She drove onto the picnic area in a reckless manner recklessly.
13
e.
Use only the core word.
Using the word that reveals the core of your point allows you to delete the helping words.
David Lambuth: "If you have a nail to hit, hit it on the head." 32
Mark Twain: A writer must "say what he is proposing
to say, not merely come near
it." "Use the right word, not its second cousin." 33
Mark Twain: "The difference between the almost right word and the right word is
really a large
matter ) ' tis the difference between the lightning bug and the
lightning." 34
Example #1:
Compare the bold phrases in Virginia' s Declaration of Rights to the equivalent
phrases in the Declaration of Independence. Note how Jefferson focuses on the key word
or concept, allowing him to eliminate needless words.
Virginia's Declaration of Rights35
Declaration of Independence
1.
That all men are born equally free
that all men are created equal; that they are
and independent, and have certain
endowed by their creator with certain
inherent natural rights, of which they
unalienable rights; that among these are
cannot, by any compact, deprive or divest life, liberty, and the pursuit of happiness;
their posterity; among which are the
that to secure these rights, governments are
enjoyment of life and liberty, with the
instituted among men, deriving their just
means of acquiring and possessing
powers from the consent of the governed;
property, and pursuing and obtaining
. . . . (48 words)
happiness and safety.
2.
That all power is vested in, and
consequently derives from the people;
that magistrates are their trustees and
servants, and at all times amenable to
them. (77 words)
32
14
36
Modified from E.E.O.C. v. Luce, Forward, Hamilton & Scripps LLP, 345 F.3d 742
(9th Cir. 2003).
15
3.
Judicial advice for shorter briefs.
The California Court of Appeal, Fourth Appellate District, Division Two
(Riverside), has offered these tips to shorten a brief:
1. Make the Statement of Facts a summary, reserving details to the specifically
related arguments.
2. State only the facts that directly relate to, or give necessary background for, an
argument in the brief.
3. Reduce explanations of well known principles of law and cite the court to such
explanations, when necessary, in cited cases.
4. Avoid recitations of the facts of cases cited when there is no question that the
principle of law stated in the cited case applies to this case.
5. Avoid quotations from the record or case law when a paraphrase and citation
would be shorter. [Beware of this suggestion) paraphrasing rather than quoting can
diminish your credibility.]
16
D.
Simplicity.
The most persuasive construction is the simplest. The writer' s job is to reduce
complex ideas and constructions to their essence.
1.
Advocates of simplicity.
Abraham Lincoln: "I was not satisfied . . . until I had put [the idea] in language
plain enough . . . for any boy I knew
to comprehend. This was a kind of passion
with me, and it has stuck by me." 37
E.B. White: "The approach to style is by way of plainness, simplicity . . . ." 38
Aristotle: 39
"Clearness is secured by using the words . . . that are current and
ordinary."
George Bernard Shaw: "In literature the ambition of the novice 40
is to acquire
the literary language; the struggle of the adept is to get rid of it."
Walt Whitman: "The art of art, the glory of expression is simplicity. Nothing
is better than 41
simplicity . . . nothing can make up for excess or for the lack of
definiteness."
Jacques Barzun: "Prefer the short word to the
long; the concrete to the
abstract; and the familiar to the unfamiliar." 42
George Orwell: "Never use a foreign phrase, a scientific
word or a jargon word if
you can think of an everyday English equivalent." 43
Bryan Garner: "If the same idea can be expressed in a simple way or in a complex
way, the simple way is better ) and, paradoxically,
it will typically lead readers to
conclude that the writer is smarter." 44
Scalia and Garner: "[S]hun[] puffed-up, legalistic language." 45
Ockham's razor: The best solution is the simplest. 46
37
17
Judge Alex Kozinski: Judge Alex Kozinski of the Ninth Circuit Court of Appeals
believes "simple, direct language is more persuasive," and that "simplifying" is "the
essence of advocacy":
I don' t like simple language just out of aesthetic preference. Rather, I
find that simple, direct language is more persuasive than convoluted language.
This is so for a number of reasons.
First, simple language is more easily grasped. The more abstract the
language, the more the mind has to work to grasp the concepts. The very
process of understanding then distracts from the real point of the exercise,
which is to change the reader' s mind.
Second, abstract language has a tendency to be soft and ambiguous. The
process of translating it into concrete examples during the drafting process
reveals fuzzy thinking. Because concrete, simple language is much easier to
grasp, it becomes very clear when the language used does not really make the
point the writer hopes to make. This forces the writer to focus his thinking and
sharpen the argument.
Third, abstract language can be easily waved aside by someone who is
leaning the other way. The very fuzziness of the concepts allows the reader to
maintain his current thinking, because there is direct conflict between that
thinking and the argument being made. It' s much more difficult to remain
immune to an argument that' s made in concrete terms) the contradictions
become immediately apparent and the reader has to find some way of
reconciling them. This may, of course, result in an adverse decision, but at
least the reader must come to grips with the argument on its merits.
I can understand why lawyers may resist simple writing: It' s much harder
to do than convoluted, abstract writing. Often, the attempt to simplify and
clarify reveals weaknesses in your own argument, weaknesses that have to be
addressed and shored up. But then, at least, you' re aware of those weaknesses
and can deal with them while you have the leisure of thinking about it in your
office. If you don' t do it then, they will probably come back to bite you at oral
argument and, not having been aware of them, you won' t be able to address
them. Worse, the judges may not be aware of them until they themselves sit
down to write an opinion and, at that point, you' ll have no input into the
process at all.
So simplifying and clarifying is not just a nice thing to do to be kind to
the judges. It' s really the essence of advocacy.
Lawyers who refuse to do it
are simply suffering from mind-sloth. 47
47
Email from Judge Kozinski to author, April 25, 2002 (emphasis added).
18
2.
Simplicity is the trend.
Simplicity is the trend in professional writing. The SEC' s "A Plain English
Handbook" requires "plain English," "at a level the audience can understand." 48 SEC
Rule 421 requires disclosure documents to use "definite, concrete, everyday words."
In 2003 the California Judicial Council published new civil jury instructions, offering
"a plain-English explanation of the law. 49
BAJI 2.21
CACI 107
Failure of recollection is
People often forget things or make
common. Innocent misrecollection
mistakes in what they remember.
is not uncommon.
3.
Replace long, fancy words with simple, common words.
Replace long or fancy words with simple, common substitutes.
accompany
endeavor
obtain
append
establish
occasion (v.)
apprise
expedite
place (v.)
approximately
expend
portion
argument
expiration
possess
assertion
facilitate
present (v.)
assistance
forthwith
preserve
attain
gasoline
proceed
attempt
henceforth
provide
cease
implement
purchase
commence
inaugurate
receive
complete
indicate
relate
contention
individual
remain
currently
initial
remainder
depart
initiate
request (v.)
desist
inquire
retain
demonstrate
institute
secure (v.)
discover
interrogate
terminate
donate
intimate (v.)
transmit
effectuate
manner
transpire
elucidate
necessitate
utilize
employ (a tool or
numerous
vehicle
argument)
48
U.S. Securities and Exchange Comm' n, "A Plain English Handbook: How to create
clear SEC disclosure documents" (1998), p. 7. www.sec.gov/pdf/handbook.pdf.
49
CACI Judicial Council of California, Civil Jury Instructions (2007), Preface, p. v.
19
2.
Use short, colorful words that depict physical activity, often invoking a
sound or image that reinforces their meaning.
Avalanche: The rule will produce an "avalanche of litigation. " 50
Blunder: "The criminal is to go free because the constable has blundered." 51
Bob: "the book bobbed 52
up again in my life when Macmillan commissioned
me to revise it . . . . "
Cascade: "a cascade of exceptions that would engulf the rule . . . ." 53
Choked: "The streets were choked with protesters."
Dazzle: "This may . . . serve to dazzle with the original' s music . . . ." 54
Erupt: A55"dispute erupted . . . between the Chippewa and the lumbermen
. . . ."
Fathom: "When we try to fathom the difference between 56
the two cases, it is
clear that they did not go in different directions . . . ."
Ferret: Free speech would be chilled if "state officials and courts
[could]
scan the publication to ferret out" beliefs in a divine being. 57
Fetch: "[T]he
power to ` control' a corporation will fetch a substantial
premium." 58
Foil: "and thus foil the Legislature' s intent . . . ." 59
Hatch: (to embark on a plan leading to mischief)
Mangle: "McKinney didn' t exactly mangle Burg and Fuenning . . . . 60
Pluck: "Not only does the ` significant possibility'
standard conflict with the
61
APA, but the Court plucks it out of thin air."
Ploy: "a mere ploy to create further delay." 62
Pry: "And before we could pry into the phrase ` anything like that' ) which
we felt it our duty
to do) our young friend had blithely answered no, and
it was all over." 63
Scuttle: He feared "` foreign
enemies' would attempt to scuttle the
Constitution . . . . " 64
50
n.1.
De Buono v. NYSA-ILA Medical and Clinical Services Fund (1997) 520 U.S. 806, 809,
51
20
65
Lunding v. New York Tax Appeals Tribunal (1998) 522 U.S. 287, 315.
Graham v. Collins (1993) 506 U.S. 461, 475.
67
Carey v. Saffold (2002) 536 U.S. 214; 122 S.Ct. 2134, 2146 (dissent).
68
Laurence H. Tribe' s Brief for Appellants in Hawaii Housing Authority v. Midkiff, 467
U.S. 229 (1984), p. 22, reprinted in S. Stark, "Writing to Win," The Professional Education
Group, Inc. (1992).
66
21
E.
Clarity.
Create a clear train of thought to create a tight connection between headings and
text, between paragraphs, and between sentences.
1.
Advocates of clarity.
Scalia and Garner: "Literary elegance, erudition, sophistication of expression)
these and all other qualities must be sacrificed if they detract from clarity. This
means, for example, that the same word should be used to refer to a particular key
concept, even if elegance of style would avoid such repetition in favor of various
synonyms. It means that you must abandon interesting and erudite asides if they
sidetrack the drive toward the point you are making. It means that you should never
use a word that the judge may have to look 69up. It means that nothing important to
your argument should appear in a footnote.
C.S. Lewis: "I sometimes think that writing is like driving sheep down a road.
If there
is any gate to the left or right, the readers will most certainly go into
it." 70 [Stay on message; don' t distract the reader.]
Joseph Williams: "Readers may understand individual sentences, but if they cannot
see how that series of sentences ` hangs together,' then no matter how clear
individual sentences
are, readers will not feel that they add up to a cumulatively
coherent passage." 71
Hemingway:
"The indispensable characteristic of a good writer is a style marked by
lucidity." 72
F.L. Lucas: "And how is clarity to be achieved? Mainly
by taking trouble; and by
writing to serve people rather than to impress them." 73
69
70
71
72
73
2.
74
F.
Honesty.
Lapses in honesty occur in many ways: exaggeration, misstatement, omission, or
disregarding the standard of review. Avoid these pitfalls. As strategies they are
ineffective and they can be costly to you and your client.
1.
Enhance your credibility.
Aristotle: "Persuasion is achieved by the speaker' s personal character when the
speech is so spoken as to make us think him credible. . . . [The speaker' s] character
may almost be called the most effective means of persuasion he possesses." 75
"Aristotle believed that the greatest speakers don' t just76persuade audiences to accept
an argument) they get people to trust their judgment."
Zinsser: "Credibility is just as fragile for a writer as for a President. Don' t
inflate an incident to make it more outlandish than it actually was. If the
reader catches you in just one bogus statement that you are trying to pass off as
true, everything you
write thereafter will be suspect. It' s too great a risk, and
not worth taking." 77
Scalia and Garner: Be mindful of "[t]he human proclivity to be more receptive to
argument from a person who is both trusted and liked.
* * * *
"Your objective in every argument, therefore, is to show yourself worthy
of trust and affection. Trust is lost by dissembling or conveying false
information)not just intentionally but even carelessly; by mischaracterizing
precedent to suite your case; by making arguments that could appeal only to the
stupid or uninformed; by ignoring rather than confronting whatever weighs
against your case. Trust is won by fairly presenting the facts of the case and
honestly characterizing the issues; by owning up to those points that cut against
you and addressing them forthrightly;
and by showing respect for the
intelligence of your audience." 78
Toulmin: "The words of some . . . are trusted simply on account of their
reputation for caution, judgment and veracity. . . . [W]e are confident that any
claim they make weightily and seriously will in fact prove to be well-founded,
to have a79sound case behind it, to deserve) have a right to) our attention on its
merits."
75
R. McKeon, ed., The Basic Works of Aristotle, Rhetoric, Bk. I: Ch. 2 (1941) p. 1329.
Aristotle wrote that the writer' s character ("ethos") was one of the three methods of
persuasion. The other two are reason ("logos") and emotion ("pathos").
76
David Brooks, "The Happy Populist," The New York Times (Jan. 27, 2004) p. A27.
77
Zinsser, supra, p. 78.
78
A. Scalia and B. Garner, supra, pp. xxiii-xxiv (2008).
79
S. Toulmin, The Uses of Argument p. 11 (2005).
24
2.
Ethical requirement.
Fed.R.Civ.Proc. 11(b).
An attorney, by signing a filed document, "certifies to the best of the person' s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing law or
for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on belief or a lack of information."
ABA Model Rules of Professional Conduct: Rule 3. 3, "Candor Toward the
Tribunal."
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel[.]
* * * *
(c) The dut[y] stated in paragraph[] (a) continue[s] to the conclusion of the
proceeding . . . .
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision,
whether or not the facts are adverse.
California Rules of Professional Conduct: Rule 5-200. Trial Conduct.
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the
member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice
or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book,
statute, or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been
overruled or a statute that has been repealed or declared unconstitutional[.]
25
26
G.
80
Justice Holmes' s father, Oliver Wendell Holmes, Sr., was a well-known writer and
literary figure, whose circle included Henry James, William James, John Ruskin, Henry
Wadsworth Longfellow, and Ralph Waldo Emerson. M. Coper., The Path of the Law: A
Tribute to Holmes, 54 Ala. L. Rev. 1077, 1080 (2003).
81
"The Speech of Judges: A Dissenting Opinion," 20 Va. L. Rev. 625, 631 (19421943)(written by Jerome Frank; see Frank, "Some Reflections on Judge Learned Hand," 24 U.
Chi. L. Rev. 666, 672, n. 18 (1957).
82
Schenck v. United States, 249 U.S. 47, 52 (1919).
83
Oliver Wendell Holmes, Jr., The Common Law 1 (1881).
84
Stack v. New York, N.H. & H. R. Co. 58 N.E. 686 (Mass. 1900).
27
2.
Cardozo.
Though law students may admire the ornate writing style of Justice Benjamin
Cardozo, his style resembles 18th century British English more than contemporary
American idiom. As a result, his writing often creates difficulty for the reader. Consider
these examples:
"The decree under review protects85the petitioner with sedulous [constant] forethought
against an oppressive inquisition."
"A trustee is held to something stricter than the morals of the market place. Not
honesty alone, but the punctilio [a nice point86 of conduct] of an honor the most
sensitive, is then the standard of behavior."
"I find no better organon [method] where the subject matter of discussion is the
construction of a will with all the filigree [delicacy] of tentacles, the shades and
nuances of differences, the slender and fragile
tracery [ornamental interlacing] that
must be preserved unmutilated and distinct." 87
85
Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 697 (1933)
(emphasis added).
86
Meinhard v. Salmon (N.Y. 1928) 164 N.E. 545, 546 (emphasis added).
87
Benjamin N. Cardozo, Law and Literature, 52 Harv. L. Rev. 472, 481 (1939)
(discussing the "refined" style of writing) (emphasis added).
28
H.
88
Attributed to U.S. Supreme Court Chief Justice John G. Roberts, Jr. Kornblut, In Re
Grammar, Roberts' s Stance is Crystal Clear, New York Times (Aug. 29, 2005) p. A13
(National Edition).
89
T. Rambo and L. Pflaum, Legal Writing by Design, 225 (2001).
90
William Safire, quoted in J. McQuain, Power Language (1996) p. 149.
91
I. Younger, Persuasive Writing (1990) p. 2.
29
3.
3.
Use the Introduction as your roadmap) draft it early and keep revising it.
4.
Find a pattern of research and writing that motivates you and stick to it. Some tackle
the most difficult argument first; others start with the point they feel most strongly
about; some revise a paragraph until it is perfect; others cover as much ground in the
first draft as possible, leaving revisions for later. Write during the time of day that
works best for you. Allow no interruptions.
To speed drafting, use these keyboard macros. Your goal is avoid the mouse.
Instead, keep your fingers on the keyboard with macros.
Macro for headings at every level.
alt + b = indented bullet with blocked paragraph.
alt + c = Cal.App.
alt + d = dash () )
alt + e = (emphasis added).
alt + i = Italics
alt + n = Page number command (centered; arabic numerals)
alt + q = Blocked quote (left and right indent; 1.25 spacing)
alt + s =
alt + x = single space
alt + y = 1.5 space
alt + z = double space
Cures for writer' s block:
Handwrite the roadmap for the entire section.
Move to a new location.
Write other sections first.
Revise the outline for that section.
Edit what you have already written.
Exercise.
Get some fresh air.
Do more research.
Write the hardest section first.
Put the project aside for a day or two.
5.
6.
30
2.
Editing.
a.
Advocates of editing.
Writing experts advocate vigorous and repeated editing to make your writing
concise, simple, clear, and fresh:
William Zinsser: "Rewriting is the essence of writing well; it' s when the game is
won or lost. . . . The newly hatched sentence almost always has
something wrong
with it. . . . [C]lear writing is the result of a lot of tinkering." 92
Samuel Johnson:
"What is written without effort is in general read without
pleasure." 93
Isaac Babel: "I work like a pack mule, but it' s my own choice. I' m like a galley
slave who' s chained for life to his oar but loves the oar. . . . I go over each
sentence, time and again. I start by cutting all the words it can do without. You
have to keep your eye on the job because words are very sly, the rubbishy ones go
into hiding and you have
to dig them out) repetitions, synonyms, things that simply
don' t mean anything." 94
Hemingway rewrote the last page to "A Farewell to Arms" 39 times because he had
trouble "[g]etting the words right." 95
b.
Match thought and expression.
Repeated editing will help you to match the thought to the expression.
For example, the most famous line in Pres. Kennedy' s inaugural address) "And so,
my fellow Americans, ask not what your country can do for you; ask what you can do for
your country" ) went through seven revisions:
The New Frontier "sums up not what I intend to offer the American people,
but what I intend to ask of them." (July 15, 1960).
"[T]he call of the New Frontier . . . is not what I promise I will do; it is what I
ask you to join me in doing." (September 3, 1960)
"The New Frontier is not what I promise I am going to do for you. The New
Frontier is what I ask you to do for our country." (September 3, 1960)
"We do not campaign stressing what our country is going to do for us as a
people. We stress what we can do for the country, all of us." (September 20,
1960)
"So ask not what your country is going to do for you. Ask what you can do
for your country." (November 24, 1960)
"My fellow Americans, ask not what your country will do for you, ask rather
what you can do for your country." (January 10, 1961)
92
31
96
32
Declaration of Independence
100
33
c.
Tips for editing your own writing.
1.
Edit the hard copy (editing on screen is less effective).
2.
Edit headings in the table of contents.
3.
Edit away from the office) at home, a restaurant, or library.
4.
Ask a colleague unfamiliar with the case to edit.
5.
Read important parts aloud (especially the introduction).
6.
Edit one level at a time (all the headings, all the roadmap paragraphs; all the topic
sentences).
7.
Complete the project early, then leave it for a day before the final edit.
d.
Tips for editing the writing of others.
When editing someone else' s writing, minimize the writer' s feeling of being
criticized (and maximize the writer' s opportunity to learn) by following these steps:
1.
Ask permission: "Would this be a good time to review your document?"
2.
State your positive intention: "Let' s discuss ways to make your document more
persuasive."
3.
Praise what the writer did well.
4.
Refer to objective standards (e.g., your firm' s requirements or the principles in this
manual) so the writer does not feel he or she is losing a power struggle based on
seniority or your personal preferences.
5.
Thank the writer for receiving your feedback.
6.
If you and the writer are not face-to-face, send a cover letter or e-mail that
incorporates steps (3), (4), and (5), above.
34
e.
Editing exercise: U.S. v. Microsoft Corp.
Apply the goals of brevity, simplicity, and clarity to Microsoft' s Opening Brief on
appeal from the judgment in United States v. Microsoft Corp., 97 F.Supp.2d 59 (D.D.C.
2000).
INTRODUCTION
This case arises out of Microsoft' s competition with Netscape from 1995 to
1998) the so-called "browser wars." In competing with Netscape to satisfy
increasing demand for Internet functionality, Microsoft (i) developed new versions
of its Windows operating system that included Internet technologies, (ii)
distributed those technologies widely, and (iii) encouraged third parties to design
their software products to take advantage of those technologies. Consumers
clearly benefitted from this competition. As the district court found, Microsoft' s
conduct contributed significantly to (i) improving the quality of Web browsing
software, (ii) lowering its cost, and (iii) increasing its availability. Microsoft' s
inclusion of Internet technologies in Windows also benefitted the thousands of
software developers that create applications that run on the operating system. At
the same time, nothing Microsoft did limited Netscape' s ability to compete:
Netscape' s Web browsing software remained "fully interoperable" with Windows,
and Netscape had unimpeded access to "every PC user worldwide." In fact,
Netscape' s customer base grew dramatically during the period in question. To
sanction Microsoft for improving its products and promoting and distributing them
vigorously) as the district court did) would stifle innovation and chill competition,
contrary to the purposes of the antitrust laws.
35
Trouble spots:
INTRODUCTION
This case arises out of from Microsoft' s competition with Netscape from
1995 to 1998 [dates not important yet]) the so-called "browser wars." [jargon]
[first sentence fails to lead with the point] In competing with Netscape
[redundant of "competition" in first sentence] to satisfy increasing demand for
Internet functionality [jargon], Microsoft (i) [use Arabic] developed new versions
of its Windows operating system that included Internet technologies, (ii)
distributed those technologies widely, and (iii) encouraged third parties to design
their [implicit] software products [redundant] to take advantage of [wordy] those
technologies. Consumers clearly [hollow intensifier] benefitted from this
competition [assertion needs authority]. As the district court found, Microsoft' s
conduct contributed significantly to [hollow intensifier] (i) improving the quality
of Web browsing software, (ii) lowering its cost, and (iii) increasing its
availability. Microsoft' s inclusion of Internet technologies in Windows also
benefitted the thousands of software developers that create applications that run
on [wordy] the operating system. At the same time [weak connector obscures
logic of text to come], nothing Microsoft did limited Netscape' s ability to
compete: Netscape' s Web browsing software remained "fully interoperable"
[cite?] with Windows, and Netscape had unimpeded access to "every PC user
worldwide." [cite?] In fact, Netscape' s customer base grew dramatically [vague;
give specific numbers] during the period in question [end with point of
emphasis]. To sanction [skunked term; opposite meanings] Microsoft for
improving its products and promoting and distributing them vigorously [omits
that Microsoft did not impair Netscape's ability to compete]) as the district
court did [long intro clause; misplaced modifier; weak subject]) would
[conditional is weak] stifle innovation and chill competition, contrary to the
purposes of the antitrust laws [shorten to possessive construction].
36
Possible Revision:
INTRODUCTION
The judgment below erroneously punished Microsoft for competing with Netscape to
improve consumer access to the Internet) even though the competition benefitted consumers
and did not impair Netscape' s ability to compete.
During this competition (1995-1998) Microsoft:
(1) Put new Internet technologies (Web browsing software) in its Windows operating
system;
(2) Distributed those technologies widely; and
(3) Encouraged third parties to design software for those technologies.
By these competitive strategies, Microsoft benefitted consumers (as the district court
found):
(1) Improving the quality of Web browsing software;
(2) Lowering its cost; and
(3) Increasing its availability. [Cite to district court opinion.]
Also, Microsoft' s inclusion of Internet technologies in Windows benefitted thousands
of software developers that create applications for the operating system. [Cite.]
Moreover, Microsoft did not limit Netscape' s ability to compete. Netscape' s Web
browsing software remained "fully interoperable" with Windows, and Netscape had
unimpeded access to "every PC user worldwide." [Cite.] Indeed, during this period
Netscape' s customer base grew by ??? [Cite.]
In short, Microsoft improved Internet access for consumers without impairing
Netscape' s ability to compete.
Yet Microsoft was punished by the judgment below, a judgment that stifles
innovation and chills competition, thus violating the antitrust laws' purposes. Accordingly,
the judgment must be reversed.
37
4.
Headings.
Before writing:
1.
Brainstorm possible arguments.
2.
Put the arguments in logical order.
3.
Create headings (formatted for the Table of Contents).
Summary for persuasive headings:
1.
Assert a complete point, using key terms and details.
2.
Be brief (two lines or less).
3.
Use parallel structure.
4.
Follow the heading with a sentence using the heading' s key terms and details.
5.
Format: Bold and lower case.
6.
Edit headings repeatedly in the Table of Contents.
1.
Assert a complete point, using key terms and details.
Scalia and Garner: "[M]any judges look at [the Table of Contents] first to get a
quick overview of the argument. That' s one reason you
should make your section
headings and subheadings full, informative sentences." 102
Headings should assert a complete point rather than a topic or category (e.g.,
"Damages"). For example, plaintiff' s attorney should describe a plaintiff' s post-accident
recovery favorably) not "Brown' s recovery" ) but:
Brown's recovery was long and painful.
Defendant' s attorney should advocate what favors defendant:
Brown's recovery was complete.
Don' t just say a ruling was erroneous or proper. Give enough detail to sell the point:
Because plaintiff failed to object, his objection to admission of the evidence was
waived.
102
Example:
A.
B.
2.
Be brief (two lines or less).
A persuasive heading is a snapshot, not a discussion. Eliminate what is unnecessary,
redundant, or implicit. Don' t repeat information from the prior heading level.
A wordy example (with possible deletions):
A. Collateral estoppel barred plaintiff' s claims.
1.
Collateral estoppel bars relitigation of claims that were litigated and
determined.
2.
Plaintiff is barred because his claims were litigated.
3.
Plaintiff is barred because his claims were determined.
3.
Use parallel structure.
Parallel structure makes headings easier to grasp.
Example:
A. Collateral estoppel barred plaintiff's claims.
[text: road map paragraph]
1.
Claims that were litigated and determined are barred.
[text: discussion of rules]
2.
Plaintiff's claims were litigated.
[text: application of rule]
3.
Plaintiff's claims were determined. 103
[text: application of rule]
103
In points 2 and 3, the preference for the active voice is less important than putting the
point of emphasis at the end and achieving parallelism with first subheading.
39
4.
In text after the heading, use the heading's key terms.
For a clear train of thought in the text after the heading, expand on the point in the
heading, using the heading' s key terms.
A bad example (starting by quoting a statute):
A. Former Civil Code section 3601 entitles the Bank to summary judgment.
When this transaction occurred, the original version of former Civil Code
section 3601 (in effect from January 1, 1977 to December 31, 1996) provided:
(a) Where a depositor agrees that objections to a forged signature must
be lodged with the bank within seven days of the mailing of the
depositor' s statement for the month in which the item was negotiated . . .
.
A possible revision:
A. Former Civil Code section 3601 entitles the Bank to summary judgment.
Former Civil Code section 3601 supports summary judgment by
requiring depositors to object to forged signatures within 30 days of mailing
the bank statement. Plaintiff' s objection) made after the 30-day period
expired) was not timely.
5.
Format: Bold (only) and lower case.
Make headings easy to read) use only bold and lower case. Don' t use initial caps,
underline, or all caps: "[W]ords consisting of only capital letters present the most difficult
reading)
because of their equal height, equal volume, and, with most, their equal
width." 104
A heading at the bottom of a page should be followed by at least three lines of text (if
not, put the heading at the top of the next page). Separate headings from prior text by
putting extra space above the heading.
For past events, don' t use the present tense in an attempt to create tension or
immediacy) e.g.: "Johnson runs the red light." Because the text must use the past tense,
using the present tense in headings creates a distracting switch in tense.
104
6.
Exercises.
Make these headings shorter, simpler, and clearer.
Exercise # 1: From U.S. v. Philip Morris USA, Inc (2006 D.D.C.) 449 F.Supp.2d 1.
V. DEFENDANTS DEVISED AND EXECUTED A SCHEME TO
DEFRAUD CONSUMERS AND POTENTIAL CONSUMERS OF
CIGARETTES IN MOST, BUT NOT ALL, OF THE AREAS ALLEGED
BY THE GOVERNMENT
A. Defendants Have Falsely Denied, Distorted and Minimized the
Significant Adverse Health Consequences of Smoking for Decades.
B. Defendants Publicly Falsely Denied that Nicotine is Addictive and
Continue to Do So.
C. Nicotine Manipulation: Defendants Have Falsely Denied that They Can
and Do Control the Level of Nicotine Delivered In Order to Create and
Sustain Addiction.
D. The Government Has Failed to Prove by a Preponderance of the
Evidence that Defendants Deliberately Chose Not to Utilize or Market
Feasible Designs or Product Features that Could Produce Less Hazardous
Cigarettes.
E. Defendants Falsely Marketed and Promoted Low Tar/Light Cigarettes as
Less Harmful than Full-Flavor Cigarettes in Order to Keep People Smoking
and Sustain Corporate Revenues.
F. From the 1950s to the Present, Different Defendants at Different Times
and Using Different Methods, Have Intentionally Marketed to Young
People Under the Age of Twenty-One In Order to Recruit "Replacement
Smokers" to Ensure the Economic Future of the Tobacco Industry.
41
42
5.
Paragraphs.
Summary:
1.
Start with a topic sentence, stating one point.
2.
Limit the paragraph to the one point in the topic sentence.
3.
Keep a clear train of thought.
4.
In drafting, put extra space between the paragraphs.
5.
Use visual alternatives) photos, charts, diagrams, lists, tables, graphs.
6.
Intensify with a short sentence or one-sentence paragraph.
1.
Limit the paragraph to one point, stated in the topic sentence.
Limit each paragraph to one point, stated forcefully in a concise topic sentence.
Example:
Johns-Manville contributed to plaintiff' s cancer in three ways. First, it issued false
public denials of the link between asbestos and cancer. Second, it concealed
evidence that asbestos caused cancer. Third, it influenced industry groups to set a
dangerously high threshold for permissible asbestos exposure.
Or:
Johns-Manville contributed to plaintiff' s cancer in three ways:
!
Issuing false public denials of the link between asbestos and cancer.
!
Concealing evidence that asbestos caused cancer.
!
Influencing industry groups to set a dangerously high threshold for permissible
asbestos exposure.
43
a.
Exercise.
Revise the topic sentences in the memo below. Limit each paragraph to one point, stated
in a topic sentence.
The Insurer's Extra-Policy Obligations
It is well-established that a covenant of good faith and fair dealing is implied in every
insurance policy. Frommoethelydo v. Fire Ins. Exch., 42 Cal.3d 208 (1986). It was held
in Communale v. Traders & Gen. Ins. Co., 50 Cal.2d 654 (1958), that this implied
covenant mandates that an insurance carrier refrain from doing "anything which will injure
the right of the [insured] to receive the benefits of the agreement."
A carrier must give the interests of the insured at least as much consideration as it
gives its own interests. If it does not, then its conduct "may not only breach the implied
covenant of good faith and fair dealing but also can be treated for tort purposes for a basis
for exemplary damages where it occurs in a context of malice, fraud or oppression." Betts
v. Allstate Ins. Co., 154 Cal.App.3d 688 (1984).
Malice will be deemed to exist if a carrier acts with a "willful and malicious"
disregard of an insured' s rights. See College Hosp. Inc. v. Superior Court, 8 Cal.4th 704
(1994). A carrier will be deemed to have acted with such a "willful and conscious"
disregard if it was aware of the probable harmful consequences of its conduct and willfully
and deliberately failed to avoid those consequences. See Taylor v. Superior Court, 24
Cal.3d 890 (1979).
Notwithstanding these established standards, many carriers have argued that they
need not consider the interests of the insured other than as to those claims that are covered
by a policy. For example, many carriers contend that they need not consider the potential
negative impact upon an insured' s business reputation of not settling a potentially covered
claim against the insured.
However, this argument ignores the fact that an insurance carrier may be liable when
its conduct causes harm to an insured' s business. Indeed, even if an insurance carrier
ultimately pays for a covered judgment against an insured, it is not immunized from
liability for other damage that it may cause by how it investigates or handles a claim.
As one court of appeal has explained: "There may be cases in which the insurer' s
delay in paying the claim or other misconduct causes special harm to the insured even
though the claim is ultimately paid or settled. Such payment fulfills the insurer' s
contractual obligations. However, under appropriate circumstances, tort liability may still
be imposed for the insurer' s misconduct apart from performance of its contract obligation."
Dalrymple v. United States Auto. Ass' n, 40 Cal.App.4th 497 (1995).
The classic situation in which courts have found that insurance carriers must consider
their insureds' interests in how they handle claims against their insureds is in the context of
rights that the insured might have against a claimant. For example, courts have long ruled
that an insurance carrier cannot, in settling the claim against an insured, compromise the
insured' s claim against the claimant. See Barney v. Aetna Cas. & Sur. Co., 185
Cal.App.3d 977 (1986)(an insurer has "a duty of good faith and fair dealing, by virtue of
its fiduciary relationship, to do nothing to interfere with [an insured' s] rights" against a
party who has sued the insured).
44
47
2.
Maintain a clear train of thought.
After the topic sentence, support the topic sentence with a clear train of thought:
1.
Arrange supporting information according to its logic or its importance (e.g.,
strongest to weakest, chronology, or cause and effect).
2.
Highlight the paragraph' s structure with signals, numbered sentences, or
bullets.
3.
Maintain continuity and cohesion. Eliminate gaps) develop the discussion step
by step, point by point, sentence by sentence. Eliminate detours) delete everything not
essential to supporting the paragraph' s main point. The second sentence should flow from
the topic sentence in an obvious way.
a.
Exercise.
This paragraph seeks U.S. Supreme Court review of an award of punitive damages against
Ford Motor Co. Revise the sentences after the topic sentence to create a clear train of
thought. Where and how did the writer stray from supporting the topic sentence?
Because Ford believed, reasonably and in good faith, that its roof design met
federal safety standards and industry custom, the $290 million punitive damage
award violated BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). In BMW
the jury found that defendant' s policy with respect to the disclosure of factory repairs
constituted "` gross, oppressive, or malicious' fraud" even though that policy was
consistent with statutes defining disclosure obligations in about 25 states. 517 U.S.
at 565. Alabama had no such disclosure statute, and this Court "accept[ed] . . . the
jury' s finding that BMW suppressed a material fact which Alabama law obligated it
to communicate." 517 U.S. at 579-80. Nevertheless, this Court recognized that
BMW, in attempting to determine what it was required to disclose, "could reasonably
rely on [other] state . . . . statutes for guidance." Id. at 579. The Court also noted
that the "diversity" of state laws "demonstrates that reasonable people may disagree
about the value of a full disclosure requirement." Id. at 570. The Court concluded
that a failure to disclose is "less reprehensible . . . when there is a good faith basis
for believing that no duty to disclose exists," id. at 579-80, and when "a corporate
executive could reasonably interpret" the law to allow nondisclosure. Id. at 578. 105
105
Based on Petition For A Writ of Certiorari, Ford Motor Co. v. Romo, 02-1097, pp. 11-
12.
48
3.
In drafting, put extra space between the paragraphs.
In drafting, put extra white space between the paragraphs to ensure that each
paragraph is limited to one point, and that the body of the paragraph supports the one point
made in the topic sentence.
4.
Intensify with a short sentence or one-sentence paragraph.
A short sentence or a one-sentence paragraph catches the reader' s attention. The
short sentence is highlighted in bold for teaching purposes only.
a.
Short topic sentence.
Jones did all she could to stop the discrimination and harassment. She
appealed the denial of her promotion. She complained to Human Resources.
She complained to her union representative. She told her supervisor to stop
"hitting" on her and got an unlisted home phone number.
But nothing worked. Her appeal was rejected, Human Resources
refused to investigate, the union did nothing, and her supervisor retaliated by
assigning her to the night shift.
b.
Short second sentence.
In 1998 Johnson learned the asbestos manufacturers had concealed a fatal
risk. He developed mesothelioma.
c.
Short sentence at paragraph's end.
A short sentence at the paragraph' s end can reinforce the paragraph' s point.
Examples:
1.
Phyllis Brown suffered discrimination and harassment from her
supervisor and his paramour. Brown lost a promotion to the less-qualified
paramour. The paramour criticized Brown in front of Brown' s subordinates
and cut back Brown' s responsibilities. When Brown complained, the paramour
assaulted Brown verbally and physically, and the supervisor called
Brown a
"cry baby" and "not a team player." Devastated, Brown quit. 106
2.
The terrorists' ability on 9/11 to seize control of four planes raises the
question why cockpit doors had not been retrofitted with locks. The answer is
that airlines determined the cost of one plane blowing up was cheaper than
overhauling the entire fleet. After 9/11, this cost-benefit analysis was
reinforced when courts ruled airlines were not responsible for injury
to persons
on the ground, only for the passengers. Negligence is cheaper. 107
106
49
3.
After World War II, Walter Reuther, national president of the United
Auto Workers, and Charlie Wilson, president of General Motors, negotiated on
whether health and retirement benefits would be borne by each company (as
Wilson wanted), or shared by a large and diverse group of companies (as
Reuther wanted). Wilson' s plan was adopted. But as American' s mature
companies became more efficient, reducing their workforce, retirees vastly
outnumbered workers. In 1962 General Motors had 11 workers for every
retiree; today, for every GM worker there are three retirees (453,000 retirees
in all). By contrast, Toyota has just 258 retirees. With the benefits risk placed
on the individual company, many companies are moving toward bankruptcy.
But if the risk of retirement benefits were shared by all employers, companies
could succeed or fail based on performance, not on the number
of retirees.
Charlie Wilson was wrong; Walter Reuther was right. 108
d.
One-sentence paragraph.
Susan Thornton' s future with the company looked bright. After
graduating first in her business school class, she was hired from a pool of 200
applicants, became employee of the year for 2001, and was promoted faster
than any regional vice-president in company history.
But when Thornton refused the president' s demand to have sex with him,
her career was ruined.
108
Based on M. Gladwell, "The Risk Pool," The New Yorker, August 28, 2006.
50
109
For a judicial opinions using a list, see California Concrete Co. v. Beverly Hills
Savings & Loan Assn. (1989) 215 Cal.App.3d 260, 268-269 (listing the complaint' s 14 causes
of action).
110
E. Tufte, Visual and Statistical Thinking: Displays of Evidence for Making Decisions
(1997) (www.edwardtufte.com) (See Tufte' s chart linking low temperature to O-ring failure
that could have predicted the 1986 Space Shuttle Challenger explosion.)
111
E. Tufte, The Visual Display of Quantitative Information (2d. ed. 2001), Epilogue.
112
S. Dubner and S. Levitt, "Selling Soap: How do you get doctors to wash their hands?"
The New York Times Magazine (Sept. 24, 2006) pp. 22-23.
51
52
away as "75 feet," the air contained 0.1 fibers/cc) 10,000 times rural
background.
53
54
c.
Example:
"[T]he patient' s right of self-decision is the measure of the physician' s duty to
reveal." Cobbs v. Grant (1972) 8 Cal.3d 229, 245. Accordingly, physicians must
disclose all material information that a reasonable patient needs to give informed
consent to a particular treatment.
d.
Start with a question.
An opening question sparks the reader' s interest. Follow the question with a
focusing comment, or with your answer (immediately or at the paragraph' s end), or with
your opponent' s answer and then your answer.
Examples:
1. Question followed by a focusing comment:
When does a salary reduction become intolerable, constituting a constructive
discharge? That is the issue raised by defendant' s $1,500 reduction in Ms. Jenkins' s
monthly salary.
2. Question answered immediately:
Was Dr. Malcolm qualified to state the cause of Thompson' s disease? Yes. The
doctor had 15 years experience diagnosing lung diseases, and he had published 18
peer-reviewed articles on lung disease.
3. Question answered at the end (preceded by details supporting the conclusion that the
reader might otherwise resist):
Did the trial court abuse discretion in allowing Dr. Malcolm to state the cause of
Thompson' s disease? Dr. Malcolm has diagnosed and treated lung diseases for 15
years. And in peer-reviewed journals he has published 18 articles on lung disease.
In light of these qualifications, the order permitting his testimony was not an abuse of
discretion.
4. Question followed by opponent' s answer, then by your answer:
Was it error to grant summary adjudication on Brown' s claim of age discrimination?
Defendants say "no," arguing that (1) Brown was never terminated, (2) her salary
reduction matched her reduced duties, and (3) her vacated position was never filled,
let alone by a younger employee. But substantial evidence showed age
discrimination: (1) Brown was constructively terminated because the salary reduction
left her with an unlivable wage; (2) her salary reduction was not matched by a
reduction in job duties; and (3) she was replaced by a much younger employee.
Hence, to bar Brown' s age discrimination claim before trial was error.
55
6.
Sentences.
Summary for persuasive sentences:
1.
Start with a link to prior text when needed.
2.
End with the point of emphasis.
3.
Put the subject at or near the start.
4.
Use a strong subject and verb.
5.
Keep subject, verb, and object close together.
6.
Put parallel ideas in parallel structure.
7.
Keep the sentence short.
8.
Punctuate for brevity and emphasis.
9.
Make your prose vivid.
Paradigm of persuasive sentence structure:
Short clause or signal* strong subject (familiar)* point of emphasis (new).
1.
Start with a link to prior text when needed.
For a clear train of thought, you may need to start a new sentence or paragraph with
a link to the prior sentence or paragraph. A link is needed if the reader might otherwise
miss the connection between sentences or paragraphs. The link makes the connection
explicit. Linking is achieved in three ways:
a.
Echo links. Start the new sentence with key words from the prior sentence.
Example:
Appellant challenges the refusal to instruct on comparative negligence. But
comparative negligence is not a defense to an intentional tort.
b.
Pointing words. Start the new sentence with "this . . .. that . . ., these . . .,
those . . .," referring back to prior text.
Example:
Appellant asserts error in several trial court rulings) denying defendant' s
motions in limine, excluding defendant' s evidence, and rejecting defendant' s
instructions. But these rulings were not error.
56
c.
57
Short
Though
But
So, Thus, Hence
So, Thus, Hence,
Further, And
Because
Yet, Still, Even so, But
Despite
Though
Later
2.
End with the point of emphasis.
The most emphatic position is the sentence' s end. The sentence builds to a climax,
and the period creates a pause, driving the point home. Moreover, the end position is
where the reader expects to find the point, so don' t squander the end position on a date,
case name, party name, or qualifying phrase unless that is the point. "In phrasing
sentences, try to put the punch word at the end. Instead114of writing ` She held a knife in her
hand,' write ` What she held in her hand was a knife.' "
113
114
Incorrect
Yesterday a 15th-century statue of
Adam by Venetian sculptor Tullio
Lombardo shattered after falling at
the Metropolitan Museum in New
York. (From NY Times, Oct. 9,
2002, p. A1)
Correct
Yesterday at New York City' s
Metropolitan Museum, a 15thcentury statue of Adam by Venetian
sculptor Tullio Lombardo fell and
shattered.
Exercise: Revise these sentences to put the point of emphasis at the end.
Incorrect
The court affirmed his conviction,
rejecting many constitutional and
statutory arguments.
Correct
Correct
Simpson received outstanding
reviews ("exceeded expectations")
for his work in the field, later as an
apprentice in the plant, and finally
as an engineer under Jones, Brown,
and Martin.
3.
Put the subject at or near the start.
The reader wants to know the sentence' s subject as soon as possible. Hence, put the
subject at or near the start, the sentence' s second most emphatic position.
a.
Avoid long introductory clauses.
Limit introductory clauses to three or four words.
Incorrect
In determining whether to transfer
venue to a more convenient forum
under 1404(a), the court may
weigh and balance a variety of
factors.
Correct
When courts determine whether to
transfer venue to a more convenient
forum under 1404(a), they may
weigh and balance a variety of
factors.
59
b.
Avoid introductory clauses modifying the subject.
A clause modifying the subject burdens the reader, who does not yet know who or
what the clause modifies. Use an introductory clause to modify the subject only if the
subject is obvious in context.
Incorrect
Correct
If not thoroughly prepared, a
Witnesses who are not thoroughly
witness will give a poor deposition.
prepared give poor depositions.
Aware the statute of limitations
would be an issue, the attorney
urged plaintiff to settle.
115
4.
Use a strong subject and verb.
A strong subject and verb depict a person or thing taking action. Avoid weak
subjects such as "There is [was/will be] . . ." or "It is [was/will be] . . ." or "The reason
that . . . is . . . ."
Incorrect
Correct
It was the defendant' s viceDefendant' s vice-president
president who approved the false
approved the false press releases.
press releases.
There is testimony from Dr.
Johnson that Dr. Brown should have
given steroids.
Exercise: Revise these sentences to start with a strong subject and verb:
The reason that the accident happened was the flat tire.
There is agreement among the parties on this point.
5.
Keep subject, verb, and object close together.
The muscle that gives a sentence power is the subject acting through the verb on the
object. Make this action obvious by keeping subject, verb, and object close together
deleting clutter and dividing a long sentence in two.
Incorrect
Correct
The company, having conducted
The company' s tests showed that
tests linking smoking and cancer,
smoking causes cancer. Yet for the
disseminated for the next 40 years
next 40 years, the company misled
to politicians, teachers, and doctors
politicians, teachers, and doctors by
the false claim that whether smoking
claiming that smoking' s causation of
causes cancer is an open question.
cancer was still an open question.
61
6.
Use parallel structure.
6.1 Parallelism adds power to a point the reader might resist.
Examples:
"The life of the law has not been logic; it has been experience."
Oliver Wendell Holmes, Jr.
"[G]ive me liberty or give me death."
Patrick Henry
"He [George III] has plundered our seas, ravaged our coasts, burnt our towns,
and destroyed the lives of our people."
Thomas Jefferson
"As I would not be a slave, so I would not be a master."
Abraham Lincoln
"[A]sk not what your country can do for you; ask what you can do for your
country."
John F. Kennedy
"Let every nation know, whether it wishes us well or ill, that we shall pay any
price, bear any burden, meet any hardship, support any friend, oppose any foe
to assure the survival and success of liberty."
John F. Kennedy
"I have a dream that my four little children will one day live in a nation where
they will not
be judged by the color of their skin but by the content of their
character." 116
Dr. Martin Luther King, Jr.
6.2
Correct
Whites and blacks are murdered in
about equal numbers. Yet the
execution of their murderers is not
racially proportional. Since 1976,
killers of whites constitute 80
percent of executions, while killers
of blacks constitute 13 percent.
116
The correlative expressions "not by" and "but by" should be placed consistently just
before the phrase they modify: "will be judged, not by the color of their skin, but by the
content of their character."
62
6.3
63
Correct
117
7.
Keep sentences short.
Aim for 10 to 20 words (one to two lines) because shorter sentences are easier to
comprehend. A sentence fragment
is permissible: "Not so." "On the contrary." "Just the
opposite." "True enough." 118
a.
Tips for shorter sentences.
1. Delete what is unnecessary, redundant, or implicit.
2. Condense clauses into phrases and phrases into words.
3. Eliminate adjectives and adverbs; use stronger nouns and verbs.
4. Eliminate introductory clauses or limit them to three words.
5. Use simple sentences, each limited to a single point. Or contrast two points with
a subordinate clause and an independent clause.
Example:
Though plaintiff' s expert testified to a design defect, the jury exonerated the
manufacturer.
6. Avoid compound sentences (two independent clauses joined by "and").
Example:
Plaintiff' s expert admitted plaintiff would regain full use of his left leg, and the
rehabilitation doctor said plaintiff can now walk and run normally.
7. Divide a long sentence into two or more sentences.
Example:
In spite of the pleadings in the underlying action, which were sufficient to
demonstrate a potential for coverage under the homeowner' s policy issued to
Jones, the trial court determined, on the insurer' s demurrer, that there was no
coverage under the policy and that the stipulated judgment agreed to by Jones
and Brown was "contrived." (54 words)
Possible revision.
Though Brown' s complaint showed a potential for coverage under Jones' s
homeowner' s policy, the trial court found no coverage and rejected the stipulated
judgment between Jones and Brown as "contrived." (29 words)
118
b.
Omit "that" and "who is/which is."
Omit "that":
"That + verb" can be replaced with "verb + ing." E.g.: Instead of "authority that
holds," write "authority holding."
Omit "that" where it is unnecessary: "He knew that the spraying destroyed the
crop."
But retain "that" if its omission creates ambiguity) e.g,: "He knew that the
defendants' cost-cutting practices violated industry standards."
Omit "who is" and "which is":
Incorrect
Correct
His brother, who is a member of the
His brother, a member of the
same firm,
same firm,
Soule, which was the Supreme
Soule, the Supreme Court' s most
Court' s most recent decision on
recent decision on instructional
instructional error,
error,
c.
Condense "of" constructions.
1.
Use the possessive form) e.g.: Not "decisions of the court," but "the court' s
decisions."
2.
Eliminate redundancy) e.g.: Not "The Corporations Code requires directors of
a corporation . . . ," but "The Corporations Code requires directors . . . ."
3.
Replace a prepositional phrase with an adjective) e.g.: not "a study of the
statutes of California," but "a study of California statutes."
4.
Create a more forceful construction) e.g.: not "The attorney told the client of
the lack of a legal basis for the claim," but "The attorney told the client the claim lacked a
legal basis."
5.
Eliminate nominalizations) e.g.: not "He worked for the elimination of fraud,"
but "He worked to eliminate fraud."
d.
Refer to cases by one name only.
After giving the full cite, refer to the case by one name only. Omit "court," "case,"
"decision," or "opinion."
Incorrect
In the Barker decision
The Barker court held that
Correct
In Barker
Barker held that
66
e.
Exercises to shorten sentences.
Delete what is unnecessary, redundant, or implicit:
A cause of injury, damage, loss or harm is something that is a substantial
factor in bringing about an injury, damage, loss or harm. [BAJI 3.76]
A plethora of federal and state courts have adopted inconsistent rationales and
reached conflicting results as to whether state claims are preempted by federal
copyright law.
The proper analysis of this issue is relatively straightforward.
It is important to note that this issue was addressed in Jones v. Smith.
8.
Punctuate for brevity and emphasis.
Punctuation can promote brevity (by replacing text) and create emphasis by showing
graphically the logical relation between pieces of information.
a.
Dash.
The dash emphasizes a point that expands, contrasts with, or summarizes other
points.
Example:
In the 1950s, that asbestos caused lung disease was known by asbestos manufacturers
and medical authorities) but not by the public.
Format: Use the dash symbol; a dash is not two hyphens. Don' t leave a space on either
side of the dash (newspapers leave a space only to allow the line to wrap in narrow
columns). If a line of text breaks at the dash, attach the dash to the end of the upper line,
not the start of the new line.
67
b.
Colon.
The colon emphasizes a point or series to follow. Just before the colon put the noun
that corresponds to the information after the colon.
Example:
Johnson' s liability for the ex-employee' s shooting rests on Johnson' s knowledge of
four facts: the firing made the ex-employee angry; he was armed; he had a felony
record for using a weapon; and an "angry" caller sounding like the ex-employee had
warned of the shooting.
Incorrect
Correct
The employee devised a new
To oppose his supervisor' s
strategy to oppose his supervisor' s
mistreatment, the employee devised
mistreatment: file an agea new strategy: file an agediscrimination complaint with the
discrimination complaint with the
Department of Fair Employment
Department of Fair Employment
and Housing.
and Housing.
c.
Bullets.
Bullets forcefully state key points in parallel phrases or sentences. Bullets are
appropriate for the Introduction and in the "roadmap" that introduces an argument.
Example:
The statute of frauds fails to support reversal because:
!
The statute was waived by Johnson' s failure to assert it at trial; 119
!
The statute does not apply because of Brown' s part performance;
!
The statute does not apply to employment agreements;
!
The statute (if applicable) was satisfied by Johnson' s journal entry.
In the Declaration of Independence, Jefferson' s charges against the King resemble
bullet points (here revised with bullets):
!
He has obstructed the administration of justice by refusing his assent to laws
for establishing judiciary powers.
!
He has made judges dependent on his will alone for the tenure of their offices
and the amount and payment of their salaries.
!
He has erected a multitude of new offices and sent hither swarms of officers to
harass our people and eat out their substance.
!
He has kept among us, in times of peace, standing armies without the consent
of our legislatures.
119
David Boies used bullets to advance his claim that Bush v. Gore (2000) 531 U.S. 90,
"abandoned virtually every rule the Court ordinarily follows" by:
!
Disregarding a state supreme court' s interpretation of state law;
!
Barring Florida from recounting ballots before a decision on the merits;
!
Intervening before the Florida process was complete and a record fully
developed;
!
Deciding issues not fully and fairly litigated in the courts below;
!
Allowing appellant to raise arguments not made below and contrary to
arguments made below;
!
Ignoring normal requirements for record evidence and findings to support
factual determinations;
!
Ignoring appellant' s admissions and concessions in the courts below;
!
Assuming that Florida' s procedures for uniformity, including judicial
supervision and single-judge review of disputed interpretations,
would not
work (without waiting to see whether they in fact worked). 120
One Court of Appeal used bullet-like paragraphs to summarize evidence supporting
punitive damages against a car maker that intentionally designed a weak fiberglass roof,
which crushed in a rollover, killing three occupants:
However, other evidence permitted a reasonable trier of fact to conclude
that defendant' s decision to put the unreinforced fiberglass roof was despicable
because defendant knew that:
) unlike convertible passenger cars, the high center of gravity of truck-based
utility vehicles made them more likely than passenger cars to roll over;
) defendant' s safety engineers previously had concluded unreinforced fiberglass
should never be used for a part of a vehicle intended to enclose the passenger
compartment and had concluded no utility vehicle should be produced without a roll
bar ) and that the original design for the 1978 Bronco, in fact, included a roll bar as
standard equipment;
) the competitor' s removable fiberglass roof did contain metal reinforcement;
) defendant' s own testing conducted after production and delivery of the 1978
Bronco (testing defendant consciously decided not to undertake in order to bring the
product to market more quickly, despite such testing as a routine part of product
development for other vehicles) showed the roof failed to meet defendant' s safety
standards and led defendant to include steel reinforcement in the 1980 Bronco.
Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1144-1145.
d.
Italics.
For emphasis, use italics, but sparingly. In a block quote, use italics to highlight the
key words.
e.
Semicolon.
A semicolon shows that two points are closely connected.
Example:
The drug company' s failure to warn of fatal side effects was not negligent; after
reports of 83 deaths, it was intentional.
120
D. Boies, Courting Justice, pp. 253-254 (2004)(revised by this author for brevity,
simplicity, and clarity).
69
f.
Parentheses.
Parentheses present incidental facts with a minimum of interruption.
Examples:
The cigarette manufacturers mailed to people of influence (doctors, teachers,
editors) pervasive denials of the link between asbestos and lung disease.
Summary judgment is barred where (as here) a triable fact issue exists.
g.
Minimize commas.
The comma creates a stop, impeding the reader. Hence, avoid the comma where no
ambiguity results, such as after an introductory phrase of three words or less) e.g.: "In
deposition Jones said . . . ."
Avoid full dates and omit commas in abbreviated dates: "In December 1941" or "On
December 7."
But in a series, put a comma before the last item to prevent ambiguity) e.g.: "His
symptoms included low back pain, neck stiffness, and immobility of the knee."
Use commas to separate a nonrestrictive clause (providing nonessential
information)) e.g.: "The witness, who was not deposed, was difficult to impeach." The
phrase "who was not deposed" is incidental and could be deleted without loss of meaning.
Omit commas with a restrictive clause (making a distinction that is essential)) e.g.:
"The witness who was not deposed was difficult to impeach." Here the phrase "who was
not deposed" distinguishes this witness from one or more witnesses who were deposed.
h.
Minimize hyphens.
Use hyphens only to aid clarity, as in joining words for a single concept (e.g.,
fraud-on-the-market). Omit hyphens if a compound modifier is well known ("new trial
motion") and where the modifier follows the noun ("the phrase was well known").
Unfamiliar compound modifiers require hyphens if, without the hyphen, the first word
could misleadingly modify the noun) e.g.: "unfair-practices charge."
Join prefixes to the main word without a hyphen, except where ambiguity would
result (pre-judicial career; re-sign the contract) or to separate the same vowel
(pre-existing).
70
i.
Minimize ellipses.
Because lawyers' credibility low, beware of ellipses, which can create in the judge' s
mind a suspicion that the lawyer has deleted adverse information. An alternate method for
shortening a quote while maintaining full disclosure is to insert a concise paraphrase in
brackets.
9.
Use vivid prose.
Vivid prose keeps the reader' s interest.
a.
Concrete details.
Facts stimulate emotions, driving the reader to your conclusion. So the most
persuasive part of your document is the facts, not your conclusions. Use specific facts to
imply the correct conclusion: "Suggestion is powerful, since people believe a conclusion
more readily if they think they have helped to reach it or have reached it themselves." 121
Abstract
Concrete
No Swimming. Dangerous
Don' t Swim Here. In 2002 the
Undertow.
undertow caused Susan Parks, Tom
Sims, and Jennie Lucas to drown.
The change made the employees
discontented.
This is not, as State Farm would
have it, a case about a state court' s
overzealous attempt to impose an
idiosyncratic moral code on the
nation by punishing a company for a
scattering of mostly lawful and
unrelated instances of sharp dealing
throughout the country. This is,
rather, that rare specimen: a case
about a company caught red-handed
using a previously well-concealed
fraudulent policy whose very
existence the company steadfastly
and disingenuously denied.
121
Abstract
Objective consideration of
contemporary phenomena compels
the conclusion that success or
failure in competitive activities
exhibits no tendency to be
commensurate with innate capacity,
but that a considerable element of
the unpredictable must inevitably be
taken into account.
Concrete
I returned, and saw under the sun,
that the race is not to the swift, nor
the battle to the strong, neither yet
bread to the wise, nor yet riches to
men of understanding, nor yet favor
to men of skill; but time and chance
happeneth to them all.
122
123
Spencer and Orwell are quoted in Strunk and White, supra, p. 23.
D. Lambuth, The Golden Book on Writing (1987) p. 18.
72
c.
Put the "because" clause (the cause) before the effect.
Multiple effects. If a "because" clause is placed after two possible effects,
ambiguity or misreading results) which effect does the "because" clause refer to? For
clarity, put the "because" clause before and next to the effect it relates to.
Incorrect
Correct
Plaintiff waived the claim of denial
Plaintiff waived his claim) that
of due process because the judgment
because the judgment rested on
rested on defendant' s false
defendant' s false declaration,
declaration.
plaintiff was denied due process.
The court erred in awarding Jones
Because attorney fee awards require
attorney fees because the award
statutory support, the award of
required statutory support.
attorney fees was error.
Negative effect. If a "because" clause is placed after a negative effect, ambiguity
results. Revise to put the negative term into the phrase about the cause.
Incorrect
Correct
Waters was not fired because she
Waters' s firing was not caused by
had an affair with a supervisor.
her affair with a supervisor.
[Did the affair prevent the firing?
Or was she fired, but not because of
the affair?]
d.
Replace nominalizations with verbs.
Avoid nominalizations, which are nouns made from verbs by adding a suffix: -tion,
-sion, -ing, -ment, ) ity, -ence, -ance. The verb is the better choice because the verb is
shorter, more vigorous, and depicts people taking action.
Incorrect
placed reliance on
are in violation of
make a decision
make a distribution
provide appropriate
information
draw a comparison between
ordered the reversal
Correct
relied on
violate
decide
distribute
inform
compare
reversed
73
e.
Use the same word for the same concept.
Avoid "elegant variation." Using different words for the same point is a burden,
setting the reader to "wondering124
what the significance of the change is, only to conclude
disappointedly that it has none."
But change the word:
(1) To avoid using the same word with different meanings. Don' t write: "At the
meeting they passed their time passing resolutions."
(2) To avoid applying the same idea to different objects. Don' t write: "The board
regretted the regrettable outbreak of violence."
f.
Describe court filings by the action, not the title.
Avoid stating the full title of filed documents) e.g.: "Jones filed a motion for
summary judgment or, in the alternative, for partial summary adjudication." Instead,
describe the action) e.g.: "Jones sought summary judgment or partial summary
adjudication" (or "opposed, objected, agreed, answered, disclosed, amended, stipulated").
g.
Use the active voice.
The passive voice depicts something being acted upon without identifying the
actor ) e.g.: "Mistakes were made." The active voice) depicting a person or thing taking
action) is stronger, is often shorter, and supplies thoughts in the order the reader expects.
Incorrect
Correct
During repairs on asbestosWhile Jones repaired asbestoscontaining motorcycle brakes in the
containing motorcycle brakes in his
garage, asbestos dust was generated
garage, he inhaled asbestos dust.
that was inhaled by Jones.
There is no evidence that any
No evidence shows that Thomas
improper influence was sought to be
tried to influence any official
exercised by Thomas over any
decision.
official decision.
Exceptions: The passive voice may achieve an offsetting benefit by starting the sentence
with a link to prior text, putting the point of emphasis at the end (by reversing the word
order), or achieving parallelism. To spare the reader hardship, use the passive voice only
if the actor is understood, unimportant, or unknown.
124
h.
Refer to parties by name.
Parties have names) use them. "To make briefs clear," Fed.R.App.P. 28(d)
encourages using parties' names or designations in the lower court or a descriptive term,
such as "employee" or "taxpayer" or "stevedore." At the start, establish each party' s
status) e.g.: plaintiff, defendant, appellant, respondent, petitioner, real party in interest.
Then refer to adult parties by last name only (without Mr./Mrs./Ms.). If parties have the
same last name, then use Mr./Mrs./Ms. or first names. Refer to minors by first name.
But if your opponent is more sympathetic than your client, then refer to the parties
by their procedural title (e.g., plaintiff and defendant).
i.
Use positive constructions.
Use positive constructions because negative constructions burden the reader:
(1) They are difficult to understand) the reader must cancel the negatives to uncover
what is asserted.
(2) They say what something is not, rather what something is.
(3) They feign intellectual understatement, alienating the reader (implying the writer
is too sophisticated to write directly, leaving us lesser mortals to unearth the meaning for
themselves).
Incorrect
Correct
There is not a medical school in
Every medical school in American
America that cannot increase its
can increase its enrollment without
enrollment without lowering its
lowering its standards.
standards.
A bad example: When English Professor Donald Foster was shown to be wrong in
attributing to Shakespeare the poem, "A Funeral Elegy," he responded with this double
negative:
No one who cannot
rejoice in the discovery of his own mistakes deserves to be
called a scholar. 125
The positive construction is clearer:
Only those who rejoice in discovering their mistakes deserve to be called
scholars.
125
76
k.
Avoid block quotes.
A block quote slows the reader down, burying the point in dense, single-spaced text
not tailored to your case. Instead of a block quote, incorporate the key phrase in a
sentence.
If a block quote is needed, help the reader, as follows:
1.
Before the block quote, state its point or effect and quote the key words.
2.
Make the quote as short as possible.
3.
In the quote, italicize key words.
4.
Make the quote easy to read by using at least 1.25 spacing.
5.
After the block quote, apply the quote to your case, again quoting key words.
Example:
Defendant ignores the test for causation) a "reasonable medical probability" that the
asbestos product contributed to the injury:
[T]he standard [of causation in asbestos cases] should be the same
as used in other negligence cases: is there a reasonable medical
probability based upon competent expert testimony that the
defendant' s conduct contributed to plaintiff' s injury. [Citation.]
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416 (emphasis
added). Here, a "reasonable medical probability" was created by Dr. Thompson' s
testimony that exposure to defendants' products was a substantial factor in causing
Johnson' s disease.
l.
Avoid vague or ambiguous constructions.
Vagueness and ambiguity burden the reader, who must scour the context to discern your
meaning.
(1) Use specific terms to refer back.
Referring back) Don' t refer back to a prior point by using a vague phrase such as:
"the first prong"; "the latter" (or "former"); "the second element"; "Barker' s test"; "the
statute' s requirement"; "the test in section 6304.5." These vague references make the
reader go back to prior text to recall what you are referring to. Hence, when discussing
the point the first time, summarize it with a specific phrase. Then, when referring back to
that point, use that specific phrase.
Incorrect
The product violated Barker' s first
prong.
Correct
The product violated Barker' s
consumer expectation test.
77
To refer back to elements in a document (e.g., a settlement), create a defined term for each
element, then use that defined term to refer back.
Example (defined terms in bold):
Under the settlement with the New York Attorney General, Merrill
Lynch must disclose four facts that could influence research recommendations:
1. Past compensation: Merrill must disclose compensation paid by the
subject company to Merrill or the analyst in the prior year.
2. Future business: Merrill must state that the investor should assume
Merrill will seek the company' s investment banking business.
3. Other companies: Merrill must disclose its recommendations on all
stocks in the subject company' s industry and all corporations in the industry
that Merrill worked for in the past year.
4. Termination of coverage: Merrill must report its decision to stop
covering a company and its rationale.
(2) For words with multiple meanings, use just one
meaning consistently.
Since) Use it for "from the time when"; for causation, use "because."
While) Use it to mean "during"; to introduce opposites, use "though."
(3) Avoid the restrictive/nonrestrictive modifier dilemma.
That v. Which) For essential modifiers, delete "that" and use the "-ing" form of the verb.
For nonessential (nonrestrictive) modifiers, delete them as not essential.
Essential modifier
Delete "that" clause
The document that bore the
The document signed by the
employee' s signature contradicted
employee contradicted him.
him. [distinguishing this document
from others]
Nonessential modifier
The document, which bore the
employee' s signature, contradicted
him. [The signature is not an
essential fact.]
78
126
79
80
n.
Use the right tone.
Adopt a tone that is respectful, neutral, and informal (not stuffy; not chatty). Adopt
the calm, analytical tone of most judicial opinions. Because the judge wants to identify
and resolve the issues, it is neither helpful nor persuasive to attack the opposing party or
counsel, to conceal, to exaggerate. or to trumpet your opinions and emotions.
Scalia and Garner: "[Y]ou show yourself to be likable by some of the actions
that inspire trust, and also by the lack of harsh and combativeness in your
briefing and oral argument, the collegial attitude you display toward opposing
counsel, your refusal to take cheap shots or charge misbehavior, your
forthright but unassuming manner and bearing128at oral argument) and, perhaps
above all, your even-tempered good humor."
(1) Show respect.
Respect for the court. Show respect for the court' s important responsibility and
empathy for the difficulty of its task. Writing concisely, simply, and honestly is a big step
in this direction. Show "[r]espect for the court . . . by the nature of your argument129(by
avoiding repetition, for example, and by refraining from belaboring the obvious)." Be
less of an advocate and more of a helpful consultant. Avoid a dogmatic or assertive tone,
which implies that the court is passive, needing only to be told what to do. Avoid a formal
tone, which creates distance between you and the reader. When challenging a prior
judge' s ruling, be respectful of that judge. Explain sympathetically how your adversary
misled the judge into error.
Respect for the subject. If you are seeking to remedy (or prevent) an injustice,
don' t show anger or outrage, which damage your credibility. A more trustworthy tone is
bewilderment at the inexplicable circumstance that requires the court' s attention. If you
are the responding party, defending the status quo, don' t show arrogance, which also
damages your credibility. A more trustworthy tone is matter-of-fact, showing that existing
principles (or their logical extension) support your position.
Respect for your opponent.
"The lawyer' s duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal process
with courtesy and respect." Commentary to ABA Model Rule of Prof. Conduct 1.3.
Avoid sarcasm, scorn, accusations, anger, and their allies. Criticizing opposing
counsel distracts the judge from the information needed to resolve the issues. As Judge
Kozinski writes, when the lawyers are fighting, "[p]retty
soon I [find] myself cheering for
the lawyers and forg[e]t all about the legal issues." 130 Castigating opposing counsel also
damages your credibility, implying that you are ignorant of the court' s needs. Instead of
criticizing the lawyer, criticize the argument.
Hon. Harry Pregerson: "Generally, you injure yourself and your client' s case if, in
your brief or at oral argument, you vilify or belittle your opponents or their legal
positions. A shrill tone in a brief diminishes its persuasive force. The reader
wonders why disparagement is necessary. Is it a device to divert attention from a
vulnerable position? If your position is strong and your client' s cause just, there is
128
129
130
131
132
133
83
134
E.g., Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 556, fn. 14 ("Or, in
plain English, ` if you have to do a lot of work to make a second unit, you might as well add
on a parking space while you' re at it.' ").
135
Modern stylists allow splitting infinitives. B. Garner, Dictionary, pp. 616-617; Texas
Law Review, Manual on Usage & Style (1995) p. 4; T. Bernstein, The Careful Writer (1975)
pp. 424-427; H.W. Fowler, A Dictionary of Modern English Usage (1926) p. 558. On this
once-contentious point, the old guard has relented: "[T]he intelligent and discriminating
[splitting of infinitives is] a legitimate form of expression . . . . [I]n many cases clarity and
naturalness of expression are best served by a judicious splitting of infinitives." The Chicago
Manual of Style (14th ed. 1993) p. 76, n. 9.
84
Example:
Instead of "to prepare better effective experts," write "to better prepare
effective experts."
(c) To preserve a term of art.
Example: "to sexually harass."
2.
Put prepositions at the end to avoid awkwardness.
E.B.White: "[T]he preposition [is] acceptable at the end . . . ." 136
End with the preposition if the alternate construction would be awkward, formal, or
would diminish the impact.
Incorrect
Correct
"This is the sort of English up with
This is the sort of English I cannot
which I cannot put." (Churchill)
put up with.
Jones failed to identify any
fraudulent statement he heard and
upon which he relied.
136
85
"don' t," 144 "isn' t," 145 "it' s," 146 "wasn' t," 147 and "won' t." 148 But avoid complex or ugly
contractions) e.g.: "would' ve" or "it' d."
4.
Start sentences with "And," "But," or "Because."149
Sentences may start with a conjunction. 150
Examples:
Genesis: "And151
God saw the light, that it was good; and God divided the light from
the darkness."
Churchill: "Now this is not the end. 152
It is not even the beginning of the end. But it
is, perhaps, the end of the beginning."
Declaration of Independence: "But when a long train of abuses and usurpations . . .
evinces a design to reduce them under absolute despotism," mankind has a right to
institute a new government."
U.S. Constitution: "But in all such cases the votes of both houses shall be
determined by yeas and nays," with a record of each vote. U.S. Const., Art I, 7.
California Supreme Court:
"[S]ome tourist use lawfully existed prior to the 1982 and 1987 zoning restrictions.
But the lawful temporary rental of vacant residential 153
units . . . was not authority to
use the hotel' s rooms full time for tourist use . . . ."
"Because the plaintiff had not offered any evidence that her obesity resulted from [a
disorder affecting] a154
body system . . . she did not meet the FEHA' s definition of
physical disability."
144
A. Kozinski & S. Reinhardt, "Please Don' t Cite This! Why We Don' t Allow Citation
to Unpublished Dispositions," Cal. Law., June 2000, at 44.
145
In re Bassett (9th Cir. 2002) 285 F.3d 882 ("the fallacy that language not in capitals
isn' t conspicuous.").
146
S. Gross, "Update: American Public Opinion on the Death Penalty) It' s Getting
Personal" (1998) 83 Cornell L. Rev. 1448.
147
Baker v. Gourley (2002) 98 Cal.App.4th 1263, 1270 ("McKinney didn' t exactly
mangle Burg and Fuenning, but loose language in the opinion would impliedly extract from
those cases a proposition that wasn' t in them.").
148
Carey v. Saffold (2002) 122 U.S. 2134, 2140, 122 S.Ct. 2134, 2140 ("Won' t our
interpretation of the federal tolling rule [apply to] other states . . . ?").
149
But is a contrasting conjunction that may connect sentences: "There is a widespread
belief) one with no historical or grammatical foundation) that it is an error to begin a sentence
with a conjunction such as and, but, or so. In fact, a substantial percentage (often as many as
10 percent) of the sentences in first-rate writing being with conjunctions. . . . To sum up,
then, but is a perfectly proper way to open a sentence, but only if the idea it introduces truly
contrasts with what precedes. For that matter, but is often an effective way of introducing a
paragraph that develops an idea contrary to the one preceding it." The Chicago Manual of
Style (15th 3d. 2003) pp. 193-194; see also, B. Garner, Dictionary, p. 39, 631-632.
150
The Chicago Manual of Style, p. 193-194 ( 5.191) (2003).
151
Genesis 1:4 (New King James Version).
152
Winston Churchill, Speech at the Lord Mayor' s Day Luncheon, November 10, 1942.
153
San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 660
(court' s emphasis omitted; italics added).
154
Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1028.
86
On "but": "there is no stronger word at the start. It announces total contrast with
what had gone before, and the reader is primed for the change." B. Garner, "On
Beginning Sentences with But," Michigan Bar Journal (October 2003), p. 43 (quoting
William Zinsser). "But" is preferable to "however." At the start, "however" is formal
and may be misread for its second meaning: "However you get there, be on time." In the
sentence' s middle, "however" delays the change in direction, to the reader' s detriment.
5.
"Who" versus "whom."
Use "who" (not "whom") when it is the subject of its own clause) e.g.: "The
defendant, who the jury decided was lying, was convicted." Compare: "He conspired with
his employer, whom he had known for 30 years." A simple test for "who" (nominative) or
"whom" (objective) is to recast the phrase in a declarative manner and substitute a personal
pronoun for "who" or "whom." The foregoing examples
would become "he was lying"
(nominative) and "he had known him" (objective). 155
6.
"Will" versus "shall."
Use "will" (not "shall") for the first person simple future tense. 156
7.
"Whose" versus "of which":
"Whose" serves as the possessive pronoun for animate and inanimate objects) e.g.:
"The testimony, whose relevance was doubtful, was admitted anyway." This avoids the
formal "of which" construction:
"The testimony, the relevance of which was doubtful,
was admitted anyway." 157 Don' t feel skittish about using "whose" to refer to an inanimate
object; this usage is "an idea whose time has come."
8.
Past Perfect Tense:
The past perfect tense is unnecessary where it is obvious that one event occurred
before another ) e.g.: "He ran [not "had run"] out of gas before the car stalled." 158
(6) Avoid word gaffes.
affect, effect. Affect is most often used as a verb ("to influence" or "have an effect on").
Effect as a verb means "to create" or "bring about"; as a noun, it means "consequence or
result."
actual, actually. Misused when modifying something that could exist only in reality, e.g.:
the actual facts.
as, because, since. To show causation, use because. It is stronger than "since" and will
not be misread as referring to the passage of time, thus avoiding ambiguity.
Examples:
Not: "Since he was released from prison, he stole a car." (causation or time?)
Not: "He drove onto the sidewalk as the pedestrian was crossing the street."
(causation or time?)
Instead: "Because the pedestrian was crossing the street, he drove onto the
sidewalk."
155
87
as to. As to is either an awkward substitute for a simple preposition (e.g., "on") or may
be deleted.
between, among. Between denotes one-to-one relationships between specific things (can
be more than two). E.g., "a treaty between three nations." Among denotes a vague or
collective relationship. E.g., "disagreement among scholars"; "The three couples had 25
grandchildren among them."
both . . . and. This construction is overused. Reserve "both . . . and" for instances
where the coexistence of two qualities or facets is truly surprising, and so warrants
emphasis.
compare. Compare with means "note differences and similarities." Compare to means
"like" or "note only the similarities." E.g., "this frost compares to the winter of 1907."
comprise, include, compose. Comprise and include mean "consist of" or "contain." Use
comprise when you are listing all components; if not, use include. The phrase is
comprised of is wrong; instead use is composed of or comprises.
damages, damage. Damages is the noun; damage is the adjective) e.g., "the damage
award."
different from, different than. Different from is preferred.
ensure, insure, assure. These all mean to make certain. But in American English, a
contractual guarantee of indemnification insures; assure usually requires a person as its
direct object.
even, only, just. Put these words next to the word or words they limit. A different
placement changes the meaning.
farther, further. Use farther to refer only to distance. Use further in all other contexts.
forego, forgo. Forego means "to precede," as in "the foregoing analysis." Forgo means
"to voluntarily relinquish."
however. Avoid however; instead use "but." At the start, "however" is formal and may
be misread for its second meaning: "However you get there, be on time." In the sentence' s
middle, "however" delays the signal of changing direction, to the reader' s detriment.
impact. Avoid as a verb; instead use affect, change, influence, or shape. As a noun,
impact means "effect" or "significance," as well as "collision."
imply, infer. Imply means "to suggest indirectly." Infer means "to derive a conclusion
from." These words are not interchangeable.
less, fewer. Less means "not as much." Fewer means "not as many." Use less when
referring to large amounts of money or units of time.
oral, verbal. Oral means "spoken." Verbal includes both oral and written expressions.
plead, pleaded, pled. The preferred past tense and past participle is pleaded.
principle, principal. A principle is a truth, rule, or standard. A principal is a primary
actor, or corpus of a fund. Principal as an adjective means "primary" or "main."
proved, proven. The preferred past participle of prove is proved. Proven is an adjective.
sanction. Its opposite meanings) "to punish" and "to approve" ) create ambiguity. Hence,
sanction is a skunked term; avoid it.
such. Avoid such in the sense of "before-mentioned." That usage is formal and vague.
Limit its use to "of this kind." E.g., "Court papers should not be filed late. Such a
mistake is costly."
88
who, that, which. Who (and whom) refer to persons; which and that refer to places and
things.
while. For clarity, limit while to "during" and "whereas." Do not use while as a substitute
for "although."
who, whom. Who acts as the subject of a verb. Whom acts as the object of a verb or
preposition. E.g., "Here is the baby whom I heard crying."
whose. Whose can refer to both animate and inanimate objects. E.g., "The car, whose tire
exploded, crashed."
89
10. Exercises.
Make these sentences short and simple, with a clear train of thought. Follow these steps:
(1) Identify the sentence' s central point.
(2) Delete everything not essential to that point.
(3) Revise as suggested in this chapter.
An insurer justifies terminating disability benefits:
First and foremost, it should be noted that by plaintiff' s own admission, she not only
operated her chiropractic business, Stockton Chiropractic, in the latter half of 1997
and 1998 after she went on disability, but also took a draw of $18,000 from the
business in 1998.
Where plaintiff claimed sexual harassment by Mr. Jones:
Mr. Jones admitted in deposition that as vice-president, the Director of Human
Resources moved him from store to store in response to allegations of
harassment.
Explaining why statutory fees should be enhanced.
It has long been recognized, however, that the contingent and deferred nature
of the fee award in a civil rights or other case with statutory attorney fees
requires that the fee be adjusted in some manner to reflect the fact that the fair
market value of legal services provided on that basis is greater than the
equivalent noncontingent hourly rate.
Seeking affirmance of an attorney fee award as sanctions.
The trial court' s order granting plaintiff Susan Johnston her attorney' s fees based on
defendant Tommy Simpson' s unreasonable refusal to admit basic facts about his
liability and Johnston' s damages should be affirmed.
90
159
160
7.
92
The jury found the firing lacked good cause and breached the contract. The
jury awarded damages to Johnston. From the ensuing judgment, Black Corporation
appeals, raising the following issues.
b.
Issues presented.
Next, state the "issues presented." The court wants to know the issues it must
decide. A statement of the "Issues Presented" is required in federal appellate courts and
the California Supreme Court, and is good practice in state appellate courts. Mark the
"Issues presented" for the Table of Contents, so that judge can see the issues at first
glance.
Scalia and Garner: "[B]ecause seasoned legal readers are always impatient to find
out what the case is about, opening a brief with the deep issue satisfies a real need."
* * * *
"You want to state the issue fairly, to be sure, but also in a way that supports your
theory of the case. A well-framed issue statement suggests the outcome you desire."
* * * *
"The most persuasive form of an issue statement) the so-called deep issue161) contains
within it the syllogism that produces your desired conclusion."
Consider this "issue presented" by an ex-wife seeking to retain past support
payments:
Under Louisiana law, a husband is presumed to be the father of his
wife' s child and must support the child unless he denies paternity within
one year of the child' s birth. Rousseve did not deny paternity until five
years after Aleigha' s birth. [Issue]: Was he
obligated to support Aleigha
until he proved that he was not her father?162
The ex-husband' s "issue presented" might read as follows:
Under Louisiana law, a husband who is not the father of his wife' s child is not
obliged to pay support for that child. Five years after Aleigha' s birth, blood
tests showed that Rousseve is not Aleigha' s father. Issue: Is he entitled to
recover past support payments from Aleigha' s mother?
A short example:
Did the trial court properly exclude plaintiff' s damages expert simply because her
report was submitted late (30 days before trial), though still in time for her
deposition by defendant?
In complex cases, a longer "Issue Presented" may be needed. Don' t use one long
sentence starting with "whether." Instead, first provide the relevant facts or procedural
history in short sentences, then state the issue in 75 words or less.
161
162
See Garner, The Winning Brief, pp. 53-97 (2d ed. 2004).
Scalia and Garner, Making Your Case, pp. 83-88 (2008).
93
A complex example:
Defendant' s drug label gave no dosage for infants or warning that an overdose could
cause liver damage. Hence, plaintiffs unknowingly gave their baby repeated
overdoses, destroying her liver. The mother and a doctor declared that if the
warnings had been adequate, they would have prevented the overdose. Issue: Did
these declarations raise a triable issue whether the lack of warnings contributed to the
overdose?
c.
Summary of argument.
For each issue presented, show briefly why the court should rule for your client.
d.
Cite to the record.
Even in the introduction, briefs must "support any reference to a matter in the record
by a citation to the record." Cal. Rules of Court, Rule 8.204, subd. (a)(1)(C). City of
Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 (claims lacking record
citations will be disregarded). If the Introduction' s assertions are not documented by cites
to the record, some judges will simply skip the Introduction.
e.
Create a theme.
A theme unites the major elements of your argument into a single rationale. The
theme should be restated in all sections of the brief.
Sample themes:
Because the court excluded [name of defendant]' s relevant evidence and
admitted [name of plaintiff]' s irrelevant evidence, the jury was prevented from
learning that the product did not perform safely.
Because the insurer conducted an adequate investigation and reasonably
relied on two doctors' reports that Brown was not disabled, the insurer cannot
be liable for bad faith.
94
3.
Statement of facts.
The Statement of Facts is often the most persuasive part of a brief because:
(1) The judge is more open your facts than to your recitation of the law.
(2) The facts are the only legitimate way to elicit favorable emotions.
(3) The facts often answer the question, "who should win?"
The Statement of Facts is so important that in "doubtful cases" U.S. Supreme Court
Justice Brandeis wrote the facts himself, letting his clerks write the law. Shannon & Luchs
v. Mellon Bank (W.D.Pa. 1988) 690 F.Supp. 419, 420, n. 3. He found that "by preparing
a careful and comprehensive statement of the facts . . . the controlling principles of law
will gradually emerge and become discernible." Ibid.
a.
Be complete.
The Statement of Facts must "provide a summary of the significant facts" (Cal. Rules
of Court, Rule 8.204, subd. (a)(2)(C)) under the applicable standard of review. Appellant
must present the evidence and inferences supporting the adverse judgment. Appellant' s
failure to fairly and completely state the evidence may lead to rulings of waiver and
sanctions. Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97 (waiver); Alicia T. v.
County of Los Angeles (1990) 222 Cal.App.3d 869, 884-886 (sanctions). Don' t hold back
key facts only to discuss them later in the argument.
b.
Structure the facts to match the legal arguments.
Organize the facts according to your legal argument. For example, in an appeal
challenging a will on the ground of incompetence and undue influence, organize the facts
under separate headings on (1) competence and (2) undue influence, rather than
chronologically.
c.
Persuade, within the bounds of honesty.
Persuade "by your terminology, by your selection and juxtaposition of the facts, and
by the degree of prominence you give to each. Rhetorically speaking, you' ll be putting
some facts in high relief and some in low relief) and you' ll be omitting others altogether.
You' ll be engaging in what Aristotle called amplification and diminution. You will
amplify the163
facts that suggest your desired outcome by placing them prominently in the
narrative." Maintain fairness by including "relevant facts adverse to your case," 164 but
soften the impact of bad facts by surrounding them with good facts.
163
164
d.
Use frequent headings and subheadings.
Help the reader with frequent headings and subheadings. If you don' t have at least
one heading on each page, ask yourself if the reader will recognize the point made on that
page without the assistance of a heading.
Sample headings in the Statement of Facts:
A. Fibreboard' s concealment was a cause of Johnson' s asbestos disease.
1.
Fibreboard' s intentional concealment.
a.
Fibreboard knew the risk of lung disease.
b.
Fibreboard concealed the risk of lung disease.
2.
Effect on the public: Purchasers and workers were ignorant of the risk.
3.
Effect on Johnson: Unaware of the risk, Johnson worked with and around
asbestos without protection, later developing mesothelioma.
4.
Procedural history.
The judge needs to know the key procedural events that led to the current motion or
appeal. State that procedural history here, and later revisit it where relevant to particular
arguments.
5.
Argument.
a.
Understand the syllogism.
Understand your argument' s syllogism) major premise; minor premise; conclusion.
The major premise is usually a rule of law. The minor premise is usually a fact that
invokes the rule. For example:
Major premise: All men are mortal.
Minor premise: Socrates is a man.
Conclusion: Socrates is mortal.
Major premise: Suits must be filed within two years of an accident.
Minor premise: This suit was filed more than two years after the accident.
Conclusion: This suit is time-barred.
Motions and briefs can be about (1) what the rule is, or should be (major premise),
or (2) whether the facts invoke one rule or another (minor premise)) or (3) both. 165 You
can help the court by explaining which disputes your case presents.
165
O.C. Jensen, The Nature of Legal Argument 20 (1957) (cited in Scalia and Garner,
supra, p. 42).
96
b.
Select and organize arguments from strongest to weakest.
Put your strongest point first) while the reader still has interest and an open mind.
Then present your next-strongest point. This principle (from strongest to weakest) applies
to arguments, to points within each argument, to points within a paragraph, and to lists.
Deciding which point is strongest requires your judgment: one argument may have the
strongest factual basis; another the strongest legal basis; another may support the broadest
relief; another may be easiest for the reader to agree with.
Use your judgment to select and organize arguments. "Select the most easily
defensible
position that favors your client. Don' t assume more of a burden than you
must." 166
Weak arguments are risky: "[A] weak argument does more than merely dilute your
brief. It167
speaks poorly of your judgment and thus reduces confidence in your other
points."
On the other hand, the law is what a majority of judges say it is) so an
argument you consider weak may provide a basis for forming a majority.
State your affirmative points first, then refute any of your opponent' s points not yet
addressed.
c.
State the standard of review.
Hon. Harry Pregerson: "The standard of review is the keystone of appellate
decision making. Many brief writers fail to realize how seriously judges take the
standard of review. When 168
I start to read the briefs, the first question I ask is ` What
is the standard of review.' "
Scalia and Garner: "When the standard of decision favors your side of the
case, emphasize that point at the outset of your discussion of the issue) and
keep it before the court throughout. Don' t let the discussion slide into the
assumption that you and your adversary are on the level playing field when in
fact the standard of review favors you.
* * * *
"When the standard of decision is against you, acknowledge the difficulty
but demonstrate concretely why the standard is met. . . . Cite
a case in which
an appellant met that standard and compare it to your own." 169
The standard of review guides the court in evaluating evidence and applying the law.
For example, on summary judgment, the court looks for a dispute over material facts. On
appeal, the standard of review determines whether the appellate court defers to the trial
court (e.g., "substantial evidence" or "abuse of discretion") or decides the matter afresh
("de novo review"). In federal court, stating the standard of review is required.
FRAP 28(a)(9)(B); Ninth Circuit Rule 28-2.5. In state court, citing the standard of review
is a best practice.
166
97
d.
An argument's five parts.
Each argument should have five parts:
Road map (a one-paragraph nutshell or preview)
Rules
Apply rules to facts
Anticipatory refutation
Conclusion.
(1) Road map) orient the reader.
After each argument' s main heading, provide a "road map" to orient the reader by
summarizing that argument' s syllogism) the rules, the application of the rules to the facts,
and the conclusion. If needed, remind the reader of the procedural context that raises the
issue.
Example # 1:
I.
The parents' ignorance about Tylenol's risks created a triable issue
whether their consent was informed.
A triable issue of fact bars summary judgment. Defendant Dr. Nelson' s failure
to disclose the known risks of Infant Tylenol raised a triable issue whether the
parents' gave informed consent to that drug. Because of this triable issue, the
summary judgment must be reversed.
Example # 2:
I.
The award of attorney fees was unsupported by contract or
statute.
The order that Jones pay Turner' s attorney fees violated Cal. Code Civ.
Proc. 1021. Under this "American Rule," each party must pay his or her
attorney fees. But the trial court violated this rule by awarding Turner attorney
fees as "part of the cause of action for legal malpractice." Hence, the fee
award must be reversed.
98
171
172
173
Correct
In sum, because Dr. Nelson
admittedly failed to disclose the
safer alternative treatment, a triable
issue of fact exists whether Dr.
Nelson obtained informed consent.
This triable issue requires the
summary judgment to be reversed.
6.
Footnotes: Minimize substantive footnotes.
Forcing the reader to look to the bottom of the page to parse a footnote creates a
strain on the reader. Hence, Garner urges: "Put no substantive
point in a footnote) none,
at least, that you consider important to your argument." 174 Scalia agrees: 175
"It is assuredly
true that nothing really important to the decision should be in a footnote."
Hence,
footnotes are not the place to refute your adversary' s argument.
Use footnotes only to fully quote statutes or testimony, to cite a string of cases (e.g.,
out-of-state authority), to explain minor procedural complications, and to address
arguments that your adversary never made but the court might think up.
7.
Citing cases.
Cite the most recent authority and the highest authority in the jurisdiction.
Do not cite a case you have not read. Cases cited in other cases or commentaries
may not be cited accurately, may be subject to later criticism, and may not be the latest or
highest authority on point.
Do not cite a case based only on what you see on the screen; the text on screen may
not reflect the case' s holding.
174
175
a.
176
177
"If in this respect legal-writing style differs from other writing style, it is only
because lawyers must evaluate statements not on the basis of whether they 178
make sense but on the basis of whether some governing authority said so."
Indeed, the Court of Appeal in Riverside (Fourth Appellate Dist., Div. Two) warns
lawyers that "a brief will be rejected if citations are regularly placed in footnotes."
(Bold in original.) So don' t put citations in footnotes,
even though that is the practice of
law reviews, treatises, and a few judicial opinions. 179
In internal memos or client communications, your audience will not be researching
your cases. Hence,
you may put citations in footnotes to unclutter the text and clarify your
train of thought. 180
To minimize clutter from citations in the text, employ these techniques:
1. Put the citation at the end of the sentence. If you need to identify the court, start
with: "As the Supreme Court ruled, . . . ."
Incorrect
It was held in State Farm Mut. Auto
Ins. Co. v. Campbell, 538 U.S. 408
(2003) that . . .
Correct
As the Supreme Court ruled, . . . .
State Farm Mut. Auto Ins. Co. v.
Campbell, 538 U.S. 408 (2003).
178
103
them "to remove and replace" them "at will" (Mardula v. Rancho Dominquez
Bank, supra, 43 Cal.App.4th at p. 793), in order to "maintain" their "stability"
(Alegria v. Idaho First Nat. Bank., supra, 111 Idaho at p. 316), all with an eye
toward securing and preserving the "public trust" (Mackey v. Pioneer Nat.
Bank, supra, 867 F.2d at p. 526). (See Wells Fargo Bank v. Superior Court,
supra, 53 Cal.3d at p. 1089.)
Peatros v. Bank of America (2000) 22 Cal.4th 147, 161.
Use bullets:
Today, over 100 years later, courts embrace Westervelt' s statement that current
section 24, Fifth, allows national banks:
!
To have the "greatest latitude possible to hire and fire their . . . officers"
(Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526);
!
"[T]o remove and replace" officers "at will" (Mardula v. Rancho
Dominquez Bank, supra, 43 Cal.App.4th at p. 793);
!
To "maintain" their "stability" (Alegria v. Idaho First Nat. Bank., supra,
111 Idaho at p. 316);
!
To secure and preserve the "public trust" (Mackey v. Pioneer Nat. Bank,
supra, 867 F.2d at p. 526). (See Wells Fargo Bank v. Superior Court,
supra, 53 Cal.3d at p. 1089.)
Peatros v. Bank of America (2000) 22 Cal.4th 147, 161.
104
3. To create a clear train of thought, draft and edit with citations in footnotes. Then
in the final draft restore citations to the text.
Example: Putting citations in footnotes reveals clutter in text:
Today, more than 100 years later, the statement of the Westervelt court on the
purpose of what is now section 24, Fifth, remains current. 181 The provision' s object
is "to give"
national banks the "greatest latitude possible to hire and fire their
...
183
officers," 182 indeed, to allow them "to
remove
and
replace"
them
"at
will,"
in
184
order to "maintain" their "stability,"
all
with
an
eye
toward
securing
and
preserving the "public trust." 185
Revised to eliminate the clutter (at the end restoring citations to the text):
After 100 years, Westervelt' s statement of the statute' s purpose remains
current: "to give" national banks the "greatest latitude possible to hire and fire their
. . . officers" "at will" to "maintain" their "stability," thus securing and preserving
the "public trust." (Footnotes omitted for this example.)
4. If a sentence has two citations, put them at the end with parentheticals.
Incorrect
Correct
Though we give the Board' s
Though we give the Board' s
interpretation of workers'
interpretation of workers'
compensation statutes "significant
compensation statutes "significant
respect," Avalon Bay Foods v.
respect," we review the Board' s
Workers' Comp. Appeals Bd. (1998)
rulings of law de novo. Avalon Bay
8 Cal.4th 1165, 1174, we review
Foods v. Workers' Comp. Appeals
the Board' s rulings of law de novo.
Bd. (1998) 8 Cal.4th 1165, 1174
Barnes v. Workers' Comp. Appeals
("significant respect"); Barnes v.
Bd. (2000) 23 Cal.4th 679, 685.
Workers' Comp. Appeals Bd. (2000)
23 Cal.4th 679, 685 (de novo
review).
181
See, e.g., Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089; Mardula
v. Rancho Dominguez Bank (1996) 43 Cal.App.4th 790, 793-794; Aalgaard v. Merchants Nat.
Bank, Inc. (1990) 224 Cal.App.3d 674, 689; Mackey v. Pioneer Nat. Bank (9th Cir. 1989)
867 F.2d 520, 526; Alegria v. Idaho First Nat. Bank (1986) 111 Idaho 314, 316.
182
Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526.
183
Mardula v. Rancho Dominquez Bank, supra, 43 Cal.App.4th at p. 793.
184
Alegria v. Idaho First Nat. Bank., supra, 111 Idaho at p. 316.
185
Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526). (See Wells Fargo Bank v.
Superior Court, supra, 53 Cal.3d at p. 1089.
105
d.
Help the reader.
Avoid string cites. A case from the highest court and the most recent case will
1.
suffice.
2.
Avoid long parentheticals. Instead, turn a long parenthetical into a declarative
sentence before the citation.
Incorrect
Correct
Zhang v. American Gem Seafoods,
One court affirmed a 7:1 ratio of
Inc. (9th Cir. 2003) 339 F.3d 1020
punitive damages to $360,000 in
(affirming a 7:1 ratio of punitive
compensatory damages for racial
damages to $360,000 in
discrimination, without citing a
compensatory damages for racial
pattern of misconduct. Zhang v.
discrimination, with no mention of a
American Gem Seafoods, Inc. (9th
pattern of misconduct).
Cir. 2003) 339 F.3d 1020.
3.
Except for a hornbook rule of law, give more information than just the cite.
Explain enough about the cited case to show the reader why the cited case is (or is not)
analogous to your case.
4.
In arguing from precedent, make your analysis of the cited case and the instant
case parallel.
Example:
State Farm, by invoking substantive due process, resurrected the
discredited "substantive due process" rationale of Lockner v. New York, 198
U.S. 45 (1905). Lockner applied due process to abrogate legislative
protections for workers. State Farm applied due process to abrogate judicial
protections for consumers.
5.
Quote, don' t paraphrase. Quotes are more credible.
8.
Avoid repetition.
Don' t start a section, paragraph, or sentence by repeating the previous point. Such
repetition obscures your new point. Instead, make each point just once, in the most telling
way. Then link the old point to the new point with a signal or a signal plus a short phrase
referencing the prior point) e.g.:"In addition, . . . "; or "In addition to the statute' s plain
meaning, the legislative history shows that . . . ."
9.
Reply briefs.
Special attention should be given to the reply brief) it is the most important, and the
most difficult to draft.
The reply brief is the most important because (1) it is the last word before oral
argument, and (2) many judges read it first ("retro-reading")) to learn what are the
appellant' s best arguments. Because judges may read the reply brief 186
first, it must be a
self-contained document, to avoid sending the judge187
to earlier briefs.
If you fail to file a
reply brief, judges will infer you have a weak case.
The reply brief is the most difficult to write with a clear focus because it must show
concisely why the respondent' s arguments in defense of the trial court' s asserted errors are
186
187
wrong and why the appellant' s affirmative points are right despite the respondent' s
attempted refutation) all without sounding repetitive.
10. Appendix to the brief.
If your case depends on documents that cannot be readily summarized and cited in
the text) e.g., statutes, regulations, contracts, exhibits, texts) then put these in an appendix
at the end of your brief. "If the statutory or other material is lengthy, put it in an appendix
to the brief. (Placing some or most of it in a Joint Appendix is not enough; judges are
distracted and annoyed 188
by having to flip back and forth between volumes for material that
is central to the case.)"
188
8.
Memos.
1.
Clarify the assignment.
1. What issue (or issues) are you to address?
2. Is the research limited to one jurisdiction?
3. What facts give rise to the issue or issues?
4. Alert the assigning attorney at once if your research shows (1) that facts not
discussed (or not yet available) will be critical, and (2) that the issues are different, more
complicated, or more time-consuming than they first appeared.
5. Address your memorandum to all attorneys on the case (unless directed otherwise)
in order of seniority.
2.
Format.
Orienting paragraph(s)
Issue(s) presented
Summary ) Brief answer for each issue presented
Procedural history (if relevant)
Facts (flag for future discovery facts not yet developed but potentially relevant)
Rules
Application of rules to facts
Conclusion
3.
Citing cases.
Give ample information about the cited case' s procedural posture, facts, holding,
rationale, and result, so an another attorney may rely on your presentation without have to
read the cases. If a few cases are key, attach them to the memo.
Be candid about a case' s possible weaknesses.
Acknowledge contrary authority, and show how it might be distinguished, limited, or
criticized.
Put citations in footnotes.
108
Letters.
Use
1.
2.
3.
4.
5.
6.
109
189
See, Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 648; Kids' Universe v. In2Labs
(2002) 95 Cal.App.4th 870, 874, n. 2.
190
Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236; see also, City of
Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 783-784.
191
Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419.
192
Sambrano, 94 Cal.App.4th at 229, 235.
110
111
10.
E-mails.
1.
Subject line:
Avoid all caps (all caps is "yelling").
Start with the client name or case name first (to facilitate retrieval).
When the subject changes, create a new subject line and consider deleting
the past e-mail chain.
2.
Text:
Start by stating your purpose) to inform? to elicit a decision or action?
Keep sentences and paragraphs very short.
Compose in full screen.
Use lists or bullets.
For lengthy analysis, use an attachment (easier for drafting and reading).
Use a large font (14 pt).
At the bottom put all your contact information (even in replies).
Attachments) remember to attach them.
Consider the possible misuse of your e-mail by others.
3.
Protocol:
Activate spell check.
Review the list of recipients before hitting "send."
112
11.
193
12.
115
13.
expenditure = cost
expiration = end
extend = give
(the) extent of ~ = the ~
extinguish = put out
D
decrease [n. or intransitive v.] = drop, fall
decrease [transitive v.] = cut, reduce
demonstrate = show
depart = go, leave
desist = stop
despite the fact that = although
detain = hold
discover = find
donate = give
E
(may have the) effect of increasing = may
increase
effectuate = carry out
(in an) effort to = to
employ (an instrument) = use
employment = job, work
encounter = meet
encourage = urge
endeavor = try, attempt
engage in = do, work on
ensue = follow
enter into = enter
espouse = hold
establish = show
(in the) event that = if
evince = show
evolve = change, develop
exacerbate = sharpen, make worse
(in) excess of = over, more than
existing = current
exit = leave
expedite = hasten
expend = spend
I
impact (noun) = effect (reserve "impact"
for its literal use: "the stone' s impact on
the ground")
(have an) impact on = affect, influence
implement = start, adopt, carry out
(is of) importance = is important
(located) in = in
in accordance with = by, under
in addition = and, also
in addition to = besides
in an effort to = to
inasmuch as = because
inaugurate = begin
in cases in which = if, when
included in = in
in connection with = on, for, about
increase (n. or i.v.) = rise
indebtedness = debt
indicate = say, show, mean, suggest
indication = sign
(is) indicative of = indicates
indicia = signs
individual = person
F
facilitate = ease
(despite the) fact that = though, although
(due to the) fact that = because
fell by $48 = fell $48
(in the) field of = in
first of all = first
firstly = first
following (prep.) = after
for the purpose of = to
for the reason that = because, since
forthwith = now, promptly
117
H
half of all the ~ = half the ~
have an effect/impact on = affect
he himself = he
help make evident = make evident
henceforth = from now on
(by) herself = alone
limited = few
linkage = link
locate = find
located at (or in) = at, in
lots of = much, many
M
(decisions) made by = decisions by
made up out of = made of
magnitude = size, extent
(the) magnitude of ~ = the ~
(the) majority of = many, most, most of
make changes = change
manage to (do so) = do so
(in a ~) manner = ~ly
manner = way
maximize = raise, increase
minimize = lower, reduce, decrease
minimum = least, lowest, smallest
mode = way, method
must inevitably/necessarily = must
N
(is of a ~) nature = is ~
necessitate = need, require
not the same = different
not un~ = ~
notwithstanding = despite
(a) number of = many, several,
numerous = many
O
objective (n.) = end, aim, goal, purpose
obtain = get
occasion = cause
off of = off
on a regular basis = regularly
on an annual basis = yearly, annually
on the basis of = by, on, because of
On the other hand = Yet, But
on the part of = by, of, from
(the list is a long) one = the list is long
opt for = choose
optimal = best, most, greatest
optimum = best
on the order of = about
originate from = come from
other than = except
(starting) out with = starting with
outside of = outside
(when the ~ was) over = after the ~
(the) over ~ = the ~
owing to = caused by, because of
owing to the fact that = because
P
parameter = limit, boundary
(a large) part of = much, many
(on the) part of = by, of, from
partially = partly
(in the) past was = was
pending = until
(over a) period of three years = over three
years
period of time = period, time
pertaining to = about
place (v.) = put
plays a major role = contributes to, is
important
(at this) point in time = now, at this point, at
this time
point of view = view, viewpoint
(from the) point of view of ~ = for ~
portion = part
possess = own, have
(is) predicated on = rests on
(is) preliminary to = precedes
(is) prepared to = is ready to
(is a) prerequisite to = is needed for
present (v.) = give
(at) present = now
(the) present ~ = the ~
presented in this ~ = in this ~
preserve = keep
prevalent = common
previous to = before
previous(ly) = before, earlier
primarily = mainly
principal(ly) = main(ly), chief(ly)
prior (adj.) = earlier
prior to = before
prioritize = set priorities for
proceed = go
procure = get
pronounced (adj.) = great
(the greater) proportion of = most
(a large) proportion of = much, many
(a small) proportion of = some
proves to be = is
provide = give, say
provided (providing) that = if
(in close) proximity to = near, close to
purchase (v.) = buy
(for the) purpose of ~ = to ~
Q
(the ~ in) question = the ~
(the) question of whether = whether
quite a few = many
119
R
ranging from . . . to = including
rapidity = speed
(the conclusion) reached = the conclusion
(the) reason is because = the reason is that
(by) reason of = because of
(for the) reason that = because, since
(the) reason why = the reason
receive = get, have
(is the) recipient of = got
reduce (reduction) = cut
(with) reference to = of, on, for, about
reflect = show
(in) regard to = of, on, for, about
regarding = on, for, about
(as) regards = in, on, for, about
(in the) region of = near, about, close to
relate = say, tell
(in) relation to = on, about
remain = stay
remainder = rest
render = give, make
replicate = copy, reproduce
represents = is, makes up
request (v.) = ask
require = need, want, call for
requirement = need
requisite (adj.) = needed
reside = live
(in, with) respect to = on, for, about
result in (v.) = lead to
(as a) result of = from, because of
retain = keep
reveal = show
rose by ~ = rose ~
S
(not the) same = different
secure (v.) = get
seek = try, look for
semi(weekly, monthly, annually) = twice a
week, month, year
serve to ~ = ~s
set forth = give
shall = will
since = because (reserve "since" for time)
(a) single ~ = one ~
(a) small part, percentage, proportion of =
some
so as not to ~ = to ~ (the words filling the
blanks must be opposites)
so as to = to
(in) spite of = despite
(in) spite of the fact that = (al)though
120
the manufacture/production of =
manufacturing, producing
There are ~ reasons for = The ~ reasons
for
thereafter = then, after that
therefor = for it
therefore = so, thus
therefrom = from it
therein = there, in it
thereof = its, of it
thereto = to it, about it
this means that = so
this type of = such
those ~ that = ~ that
those people who = those who, people who
(at that point in) time = then, at that time
(at this point in) time = now, at this time
(changes over) time = changes
(at the) time when = when
to a large extent = largely
to what extent = how much
together with = with
toward = to
transmit = send
transpire = occur, happen
typically = often, usually
U
ultimate = last, final
ultimately = finally, in the end
unless and until = unless
(high) unlikely = unlikely
unnecessarily = needlessly
until such time as = until
upon = on
utilize = use
V
(a) variety of = many, several, different
vast majority of = most
(in the) vicinity of = near, about, close to
(in) view of = because
(in) view of the fact that = because
(with a) view to ~ing = to ~
virtually = nearly, almost
virtually all = most
(by) virtue of = by
visualize = see, think of, imagine
(the) volume of demand for ~ = the demand
for ~
W
(in the) way of = in
(by) way of ~ = to ~
when and if = if [possibility], when [time]
121
Bibliography
Essential references:
B. Garner, A Dictionary of Modern American Usage (2d ed. 2003).
D. Lambuth, The Golden Book on Writing (1987)
Hon. H. Pregerson, The Seven Sins of Appellate Brief Writing and
Other Transgressions, 34 UCLA L.Rev. 431 (1986).
Antonin Scalia & Bryan A. Garner, Making Your Case (2008).
W. Strunk & E.B. White, The Elements of Style (4th ed. 2000)
W. Zinsser, On Writing Well (6th ed. 2001)
Other useful resources:
J. Barzun, Simple & Direct, A Rhetoric for Writers (1985)
G. Block, Effective Legal Writing (1981)
N. Brand & J. White, Legal Writing: The Strategy of Persuasion (1976)
W. Burton, Legal Thesaurus (Reg. ed. 1981)
B. Christensen, Notes Toward a New Rhetoric (2d ed. 1978)
E. Corbett, Classical Rhetoric for the Modern Student (2d ed. 1971)
B. Garner, The Winning Brief (2d ed. 2004)
B. Garner, The Elements of Legal Style (2d ed., 2002)
B. Garner, Legal Writing in Plain English (2001)
G. Gopen, Writing from a Legal Perspective (1981)
E. Gressman, Winning on Appeal, Criminal Justice (Winter 1987) p. 10.
D. Hacker, Rules for Writers (2d ed. 1988)
C. Hoving, "The Art of the Appellate Brief," 72 ABAJ 52 (Jan. 1986)
Hon. A. Kozinski, "The Wrong Stuff," 1992 B.Y.U. L. Rev. 325.
P. Maier, American Scripture, Making the Declaration of Independence
(1998)
D. Mellinkoff, The Language of the Law (1963)
M. Moskovitz, Winning an Appeal (Rev. ed. 1985)
L. Payne, The Lively Art of Writing (1969)
E. Re, Brief Writing and Oral Argument (4th ed. 1974)
B. Ross-Larson, Effective Writing (1999)
B. Ross-Larson, Edit Yourself (1996)
R. Stern, Appellate Practice in the United States (1981)
A. Tate, "The Art of Brief-Writing: What a Judge Wants to Read,"
ABA Section of Litigation, The Litigation Manual (1983)
Texas Law Review, Manual on Usage and Style (10th ed. 2005)
J. Venolia, Write Right! (1982)
H. Weihofen, Legal Writing Style (2d ed. 1980)
J. Williams, Style) Ten Lessons in Clarity and Grace (6th ed. 1999)
F. Wiener, Briefing and Arguing Federal Appeals (1967)
R. Wydick, Plain English for Lawyers (5th ed. 2005)
I. Younger, Persuasive Writing (1990)
122