May 21, 2018

Forging New Writing Conventions: Parentheticals (And How We Use Them)

Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future.[1] Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should.

When to Use Parentheticals

Every law student learns to use parentheticals. They take different forms. Often they are incomplete sentences explaining a point about the source, usually starting with a present participle—an “ing” word like “holding,” “finding,” or “concluding.” We use them often. Why?

Any answer includes a need to convey information about the source. But why convey that information in a parenthetical? This is the question you need to answer before using one.

There is a difference between each of the following:

“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.” People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16. (“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.”)

Summary judgment is only appropriate when there are no disputed material facts. People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16 (summary judgment is only appropriate when there are no disputed material facts).

When you include a parenthetical you make a series of choices. First, you choose to include rather than exclude information. Second, you decide how to phrase the information, either quoting, paraphrasing, or a little of both. Third, you determine where to put the information, either in the main text before the citation or in a parenthetical after the citation. That placement has consequences.

Those consequences come from how we read briefs. We all learn to write using parentheticals. But we do not necessarily learn to read parentheticals, or at least not to read them how the writer intends.

Here’s the writer’s perspective. The information is important enough to go in the brief, and belongs at the source’s hip.

But this placement has other consequences to the reader. The parenthetical is separate the main text. Because it stands apart, the reader must connect the main text information and the parenthetical information. A parenthetical placement may also suggest the information is less important than the main text. Indeed, part of Bryan Garner’s argument for putting citations in footnotes is that important authorities should be named and discussed in the main text, and “discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations.”[2] Plus, a parenthetical lengthens the citation, often by several lines. That lengthening causes greater disruption. Remember, main text citations trade readability for credibility. The longer the citation, the less readable the pros, the more unbalanced the trade.

Applying these factors, here are some scenarios that tempt readers to skip or gloss over parentheticals.

The main text suggests the parenthetical is unnecessary: If the main text sentence states an obvious or well-known proposition, a parenthetical seems unnecessary. Readers are always more tempted to skip portions that seem unnecessary. For example:

The statute of limitations for a bad faith tort claim is two years. Brodeur v. American Home Assur. Co., 169 P.3d 139, 151 (2007) (dismissing claim filed over two years and ten months after cause of action arose).

We all know what a statute of limitations is and the consequences of filing a tardy claim. The information in the parenthetical adds nothing. But that’s just the reader’s guess.

The reader’s triage comes before reading the parenthetical. Based on the main text sentence, the reader determines the parenthetical probably adds nothing and therefore is not worth reading. So the takeaway is to make sure the main text sentence preceding the citation sets up the need for a parenthetical. Great information does you no good if the reader never reads it. Secondarily, make sure the parenthetical’s information adds to your brief so when the reader does get to it, the information advances your argument.

The parenthetical is very long: Lengthy parentheticals rarely work. They are too much. They squeeze lists of facts or reasons into a run-on incomplete sentence. At the same time they drag out a citation, which disrupts the main text’s flow and often makes it difficult to find the next sentence. A common example is a parenthetical that tries to single-handedly apply a multi-factor test. For instance, a parenthetical applying People v. Humphrey’s twelve-factor assessment to determine if a Miranda waiver is valid.[3] Or a single parenthetical discussing how Effland v. People found five factors weighing against a finding of custody and fifteen in favor.[4] A parenthetical about one factor may be appropriate. But a discussion of the entire analysis or several factors is too much for one incomplete sentence bracketed by parentheses.

When to use parentheticals, what information to put in them, and how to convey that information requires judgment. But odds are you overuse them. To refine your judgment analyze People v. Brooks, which has over sixty case citations and only one with a substantive parenthetical explanation.[5] People v. Howard-Walker has over one-hundred case citations, only four with explanatory parentheticals.[6]

How to Phrase Parentheticals

An equally valid question is why we start parentheticals with a present participle (those “ing” words). Law school taught us this probably because the Bluebook rule on parentheticals says explanations not quoting the source “usually begin with a present participle.”[7] Why the Bluebook takes this position is unclear. Even if you live and die by the Bluebook, “usually” means not always.

Given the widespread use of “ing” words, would cutting them throw the reader or alter the meaning? See for yourself.

For all these reasons, we conclude that the issue was sufficiently preserved. See People v. Syrie, 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has “adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal”)

. . .

In all of them, the courts considered extrinsic circumstances only to determine whether the images were created to be viewed for sexual gratification. See Batchelor, 800 P.2d at 604 (that the defendant concealed the photos of his naked nine-year-old daughter, took the pictures at night, posed the child, and took the pictures secretly showed that he took the pictures for his own sexual gratification); T.B., ¶ 34 (that the defendant had texted the victims a picture of his erect penis when he solicited nude pictures from the victims showed that the pictures taken by the victims were intended for the defendant’s sexual gratification); Grady, 126 P.3d at 222 (the defendant produced photos of teenage models that he also posted on a website entitled “True Teen Babes”); Gagnon, 997 P.2d at 1284 (in deciding whether pictures taken by the defendant of a teenage girl in sexually suggestive poses and clothing were produced for sexual gratification, the court considered that “the pictures of the victim were found along with a large collection of other material the trial court described as adult pornography”).”

. . .

Images that are otherwise constitutionally protected images could become unprotected based merely on the subjective response of a particular viewer. See Batchelor, 800 P.2d at 602 (pictures depicting nude children for legitimate purposes are constitutionally protected).[8]

This excerpt shows “ing” words are often not needed. Commonly used present participles like “holding,” “finding,” and “concluding” are usually unnecessary because they are implied. In fact, it is difficult to imagine an example where such words make a difference. Take a look:

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (finding statute of limitations barred claim).

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (statute of limitations barred claim).

By contrast, openings like “comparing,” “reaching,” and “distinguishing” add meaning to a parenthetical.

You can decide when a present participle adds to the parenthetical. But omit them when they are unnecessary. Break the habit.


[1] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 132-33 (Thomson/West 2008).

[2] Id. at 132.

[3] 132 P.3d 352, 356 (2006).

[4] 240 P.3d 868, 875 (2010).

[5] 2017 COA 80.

[6] 2017 COA 81M.

[7] The Bluebook: A Uniform System of Citation R. 1.5(a)(i), at 59 (Columbia Law Review Ass’n et al., eds., 19th ed. 2010).

[8] People v. Henley, 2017 COA 76, ¶¶16, 28-29.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Forging New Writing Conventions: A Diplomatic Approach to the War on Adjectives and Adverbs

Perhaps the greatest problem with brief writing is that lawyers start by writing a brief.

We have read hundreds of briefs. So we think we know what a good brief looks and sounds like. That bias impedes us.

Most of what we read is not well written. Professors do not choose cases because they are well written. Westlaw and LexisNexis do not sort cases by writing caliber. And most briefs have mediocre or subpar writing. So our challenge is not mirroring what we spend most of our days reading.

Oddly, writing advice makes writing well harder. We learn writing as a series of rules or convenient lists of “pet peeves” — don’t splint infinitives, avoid the passive voice, never start a sentence with “and,” etc.[1] These rules accomplish their goals in the sense that they avoid egregious errors. But the rules preventing you from writing a horrible brief paradoxically prevent you from writing a great one.

Think For Yourself

Overcoming the impulse to write a formulaic brief requires a unique solution. That solution is more than revising rules. It is rebuilding how you think about writing, what you imagine when you start drafting a brief.

Enter First Principle Thinking. “First principles thinking is the act of boiling a process down to the fundamental parts that you know are true and building up from there.”[2] This concept gained popularity in engineering as a way to innovate.[3] For example, one reporter described Tesla’s chief designer using this concept: “The idea is to avoid thinking by analogy — let’s make this car look like that car, just sort of different or better — and instead deal with problems by stripping them down to the core and working your way up.”[4]

First Principles Thinking can and should apply to brief writing. To start, when trying to write a brief do not think of it as a brief. Think of it as you trying to persuade someone through a written document. Then build from there.

The next series of articles looks at the conventions holding you back. The articles apply First Principles Thinking to the rules limiting your writing. First up, the war on adjectives and adverbs.

Adjectives and Adverbs

If you needed to write a persuasive document, would you start by banning yourself from using whole categories of thousands of words? Of course not. You would, and should, use any words that help. Yet time and again we are told to cut adjectives and adverbs.

Misuses and Concerns

Critics of adjectives and adverbs have good reasons for concern.

The primary concern is the “show don’t tell” principle. Too often briefs assert a factual or legal conclusion without sufficient support. Red flags include sentences that use “clearly” or “obviously” to assert anything is true.[5] Other common violators are “conclusory,” “patently,” “cursory,” “baseless,” “unfounded,” “unsupported,” “frivolous,” “blatant,” and “vague.”[6] Instead of asserting a conclusion, briefs should provide the evidence and let the audience reach the conclusion itself.[7] So under the “show don’t tell” principle a writer replaces “Plaintiff has engaged in dilatory tactics” with “Plaintiff has missed three deadlines for responding to interrogatories.’”[8] And “the defendant brutally, viciously and repeatedly drove an enormous hunting knife into the victim’s chest and then callously left her to bleed to death, slowly and painfully” becomes “the defendant stabbed the victim five times in the chest with a hunting knife and then left her to die.”[9]

Another concern is redundancy. Sometimes briefs couple adjectives and adverbs with a fact. Here’s a simple example: “a gigantic one ton pumpkin won the blue ribbon.”[10] We all know how big pumpkins normally are, so “gigantic” is redundant with “one ton.” If the amount of giganticness is important, include the precise weight. If it is not, then “gigantic” makes the point.

Lastly, readers dislike adjectives and adverbs that mischaracterize the underlying facts by exaggerating or minimizing the truth. Did the defendant really “race home” when he went 56mph in a 55mph zone? Claiming a teacher “repeatedly attempted to sabotage and undermine the principal” goes too far when she only twice asked about budget cuts during faculty meetings. Likewise, stating a defendant got into a “brief scuffle with a bar patron” seems misleading when the defendant broke a bottle over the patron’s head and repeatedly kicked him, breaking six ribs and causing a head wound that needed twenty stiches. The problem here is a combination of the above points. Sometimes the underlying facts, standing alone, make the point. But other times, adjectives and adverbs are useful summaries as long as you choose the right words that do not overstate or understate what happened.[11]

These points are good well-reasoned advice. But none of these concerns warrant an editing manhunt. Just because adjectives and adverbs can be used poorly (as any word can be) does not mean that they always are or that they can never be used effectively.

Using Adjectives and Adverbs Effectively

“Many lawyers lament that legal writing squelches their creativity. It doesn’t need to.”[12] Adjectives and adverbs play critical roles in English; they can play those same critical roles in legal writing too. Take a look.

Example 1

A First Amendment challenge to a conviction for selling videos of animal cruelty did not stop then Solicitor General Elena Kagan from using adjectives and adverbs.

Law enforcement agents purchased several videos from respondent through the mail. The videos contain scenes of savage and bloody dog fights, as well as gruesome footage of pit bulls viciously attacking other animals. Agents searched respondent’s residence pursuant to a warrant and found other videos and dogfighting merchandise, as well as sales records establishing that respondent sold videos to recipients throughout the United States and in foreign countries.

. . .

The videos capture the entire grisly process of the animal’s being crushed to death, and they often show the woman continuing to crush the animal after it has died, until all that is left is a “bloody mass of fur.”[13]

Kagan converts the “show not tell” principle to “show and tell.” Her adjectives and adverbs characterize facts later described. But they are not redundant with the facts, nor are they a blatant appeal to emotion. The legal analysis pivots on a balancing test weighing the government interest against the speech’s expressive value. So these charged words embody the government’s interest: “a societal consensus that, although animals are often used for utilitarian purposes, they are living creatures that should be ‘treated in ways that do not cause them to experience excessive physical pain or suffering.’”[14] The characterizations don’t risk exaggerating the truth. Here, there was no dispute about whether the video content was vile; the dispute was about whether the constitution protected such content.

Example 2

In 2017 the Colorado Attorney General’s office won the Best Brief Award from the National Association of Attorneys General.[15] The winning brief was a Petition For a Writ of Certiorari to the United States Supreme Court. It too used adjectives and adverbs effectively.

Instead, the Tenth Circuit has adopted its own novel approach to the Guarantee Clause. If that approach stands, Colorado will be the first state in the country to be required to prove, to a federal judge’s satisfaction, that it is adequately republican.

. . .

If Guarantee Clause claims are now justiciable, there is no shortage of creative lawyers and academics standing ready to embroil states and federal courts in an endless stream of litigation on questions that, before now, would have been resolved through the political process.

. . .

By drastically shrinking the Raines rule and making it merely an exception to Coleman—rather than vice versa—the Tenth Circuit created a second split, this time with two other federal circuits.

. . .

Whether state legislators are permitted to lure federal courts into disputes like this one is an important question, as the Court recently recognized in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314. As important as that case is, however, the implications here are even more significant.

The Tenth Circuit based its jurisdiction on the alleged injuries of just three of Colorado’s 100 legislators. This is a significant step beyond the situation the Court faces in Arizona State Legislature, where the entire legislature, acting as an institution with one voice, filed a suit to protect its power to draw election districts.

Whatever the outcome in that case, decisive action by this Court will still be needed. Here, the Tenth Circuit extended legislative standing far beyond the facts of Arizona State Legislature, allowing a tiny minority of the Colorado General Assembly to sue the Governor, who is standing in as a surrogate for the voters who enacted TABOR.[16]

Then-Solicitor General Daniel Domenico, and his team, used adjectives and adverbs selectively and effectively. They often appear in topic or concluding sentences. Notably, far from altering the truth, here they often increase a description’s accuracy: not just shrinking but drastically shrinking, not just a legislature’s act but the entire legislature’s act, not just a minority but a tiny minority. Other times they are fair and shorter characterizations of the facts: “an unpredictable but likely large amount of litigation” becomes an “endless stream of litigation.”

Example 3

Ross Guberman found several briefs using adjectives and adverbs effectively:

Indeed, [Calvin Klein International] was delighted to enjoy the business of Wal-Mart, the biggest discounter of them al.

Sunbeam intentionally played fast and loose with its accounting numbers to hoodwink Wall Street.[17]

Conclusion

When people tell you to strip all the adjectives and adverbs from your brief, what they are really saying is they do not trust your judgment to use adjectives and adverbs effectively. Prove them wrong.

Adverbs and adjectives are where great advocacy lives.


[1] See George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 3-7 (Person Education Inc. 2004) (use tools not rules). See also id.at 149-55 (chapter titled “‘Write the Way You Speak’ and Other Bad Pieces of Advice”).

[2] See James Clear, “First Principles: Elon Musk on the Power of Thinking For Yourself,” https://jamesclear.com/first-principles (last visited February 17, 2018).

[3] See Mayo Oshin, “Elon Musks’ ‘3-Step’ First Principles Thinking: How to Think and Solve Difficult Problems Like a Genius,” The Medium, August 30, 2017, https://medium.com/the-mission/elon-musks-3-step-first-principles-thinking-how-to-think-and-solve-difficult-problems-like-a-ba1e73a9f6c0.

[4] Matthew DeBord, “The secret to how Tesla gets its cars to look absolutely fantastic,” Business Insider, December 29, 2017, http://www.businessinsider.com/how-tesla-designs-cars-to-look-so-good-2017-11/#it-was-holzhausen-not-musk-who-was-the-budding-superstar-back-in-the-late-2000s-1.

[5] See Charles Bird & Webster Kinnaird, “Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court,” 4 J. App. Prac. & Process 141, 153 (2002) (“Readers notice and are bothered by . . . use of adverbs such as ‘clearly’ and ‘obviously’ in place of logic or authority.”); Roger J. Miner, “Twenty-Five ‘Dos’ for Appellate Brief Writers,” 3 Scribes J. of Legal Writing 19, 21 (1992) (“Eliminate adverbs such as clearly and obviously. If things are so clear or obvious, why do we still have a legal dispute on our hands?”).

[6] “Let nouns and verbs make your argument. Clearly, patently, obviously, literally, and egregiously make your points seem muddled, uncertain, unclear, nervous, and defensive.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[7] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 57-67 (Oxford University Press 2d ed. 2014).

[8] Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[9] Daniel Klau, Appealingly Brief: The Little Book of Big Appellate Tips (Or How to Write Persuasive Briefs and Excel at Oral Argument) 41-42 (2015).

[10] See AnneClaire Stapleton, “What it takes to grow a massive prize-winning pumpkin,” CNN, October 7, 2013, http://www.cnn.com/2013/10/07/living/massive-pumpkin-tricks/index.html.

[11] For example, replace “Plaintiff makes numerous amorphous and conclusory arguments” with “Although Plaintiff insists that X, Y is the law.” Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/articles/five-resolutions-litigators/.

[12] Guberman, supra n.7 at 191.

[13] Brief for the United States at 4; 17-18, United States v. Stevens, 559 U.S. 460 (2010) (internal record citations omitted) (underlining added). This example is courtesy of Ross Guberman, “Five Resolutions for Litigators,” Legal Writing Pro Blog, https://www.legalwritingpro.com/pdf/elena-kagan.pdf.

[14] Id. at 22 (quoting Congressional report).

[15] Erin Lamb, “Colorado Attorney General Cynthia H. Coffman and Solicitor General Frederick Yarger Accept 2015 “Best Brief Award” From the National Association of Attorneys General,” June 18, 2015, https://coag.gov/press-room/press-releases/06-18-15.

[16] Petition For A Writ of Certiorari at 3; 20-21; 29; 31-32 , Hickenlooper v. Kerr, 135 S.Ct. 2927 (2015) (record citations omitted) (underlining added).

[17] Guberman, supra n.7 at 191-99.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Why Everyone Needs a Long-Term Care Plan

In my previous blog I explained why I began, at age 26, a career in helping people plan for one of the biggest risks in life: needing chronic care for an extended period of time. Now, twenty-one years into my profession, I can absolutely say that everyone needs a plan for extended care, not necessarily LTC insurance!

According to the most recent data from the U.S. Department of Health and Human Services, 52.3% of persons turning 65 will need long-term care. Certainly, some care needs are just a few weeks or months. In other cases, the care event can last 10 years or more. In fact, 29.2% of those incurring LTC expenditures are expected to spend more than $250,000. The Alzheimer’s Association reports that caregivers for people with Alzheimer’s or other dementias provided approximately 18.2 billion hours of informal, unpaid assistance in 2016 valued at $230 billion – nearly 50% of Walmart’s revenue in 2016! Who are these caregivers? 80% of home care for people with Alzheimer’s and other dementias is provided by unpaid caregivers, most often family members. In my experience, family caregivers overwhelmingly agree that the emotional and physical consequences they experience are far more devastating than the financial costs.

Without planning, you or your client’s loved ones may be forced to make tough decisions. Do we make a placement into a nursing home or is someone willing and able to provide informal home care? Can we afford the best facility in the area or can we bring in 24/7 home care? Planning for extended care helps to mitigate the devastating emotional, physical and financial consequences of a long-term care event. Critical components of a long-term care plan include:

  • Who will be my caregiver if I am to remain at home? Will this person be physically and emotionally able to take care of me? Will he/she leave a career to be my caregiver? Sometimes the bigger question is who do I not want to set aside his or her life to care for me.
  • What type of care might I need? Care at home, an assisted living facility or a skilled nursing facility?
  • Where might I receive care? Will my children living in another community or state wish to move me closer to them? Would one of my adult children want me to move in with them, or would one of my adult children care to move in with me?
  • When is it likely to happen? What if I need care in my 50s, 60s, or 70s? Might I avoid dreaded diseases such as Alzheimer’s or Parkinson’s but live long enough to become frail and fragile and need help as a normal part of aging?
  • Why might I need extended care? Are there reasons to believe that I am more likely or less likely to need help than the average person? How much can I rely on family history?
  • How will I/we finance and coordinate care needs? If retirement funds and income are diverted to pay for care, how will our ability to meet ongoing obligations to loved ones be affected? Who will make decisions on my behalf?

LTC Planning Goals

I find that my clients’ planning goals often align nearly perfectly with my own personal reasons for owning some form of insurance against chronic care:

  1. If I need extended care, keep me at home for as long as possible without destroying the lives of my loved ones around me. Let them be my care manager, not my 24/7 caregiver.
  2. Preserve the retirement plan and other assets for my spouse and children and other worthwhile charitable pursuits.
  3. Keep intact our other planning devices such as the estate plan, charitable giving plan, tax avoidance plan, business succession plan, the special needs of a disabled child, etc.

What about those who are single, divorced, or widowed? Most wish to stay at home without running out of money. And if an assisted living facility or nursing necessary, who wouldn’t want the best facility possible?

Without a plan for care, someone, not just the person needing care, will suffer the consequences. Often times the person in charge of making decisions may become confused and frustrated regarding options and choices. Someone in the family may feel that there is no choice but to get involved to make sure the loved one is safe and getting good care. And because the children typically do not contribute equally physically, emotionally, or financially, resentment and hard feelings can erupt.

The Role of Insurance

Simply put, the myriad insurance products on the market today (life insurance with accelerated benefits, hybrid asset-based policies, traditional LTC insurance, short-term care insurance, hybrid LTC annuities) provide funds to help meet the planning goals detailed above. In other words, proceeds from the insurance policy provide cash flow so that a loved one can stay at home as long as possible or afford the best facility around. Because a third party is helping to pay for care, the spouse/partner/family has the freedom to make the best choices for all concerned. And if there is a surviving spouse or partner, the money provided by the insurance policy means more money to live on and a better lifestyle.

My next blog will focus on why affluent clients need a plan for care, and local care costs. Until then, if there is anything I can do for you or your clients, please visit www.AaronEisenach.com or call 303-659-0755.

Thank you,

Aaron R Eisenach, CLTC

AaronEisenach.com

 

Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of AaronEisenach.com and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.

Enhance Your Brief With Visual Aids

Have you ever tried to describe a fence in a brief? How about a photo lineup, a property line, a crime scene, a trademark, a scientific process, a patent, a timeline, a trail of money, a web of subsidiaries, or a comparison under a multi-factor test? You have options. A picture is worth a thousand words. So use a picture and lower your word count.

Rarely used yet always appreciated are visual aids like charts, maps, diagrams, and pictures.[1] Some concepts are easier to understand pictorially.

Simple visual aids are best. Remember, visual aids are substitutes for less effective main text. They should be simple and self-explanatory. If they need explaining, they are not working. For example, do not describe a scene and then include a map that matches the description. Just use the map.[2]

If you are new to visual aids, do not fear. You do not need to be an artist or computer wizard. Although you must use care when designing the aid, it need not be elaborate or artistic. As you will see below, many are basic and occasionally even hand drawn.

Finally, even if the visual aid is part of the record, include it in the brief rather than just citing to the record. Keep the brief a cohesive unit with all the information a court needs to decide a case.

Here are some opinions that use visual aids effectively. They show courts using them for three reasons: (i) to orient a reader or visualize the scene, (ii) to make a comparison, and (iii) to summarize facts. Each example includes the paragraph introducing the visual aid.

Using Visual Aids to Orient a Reader/Visualize the Scene

Example 1: [3]

Busch also concluded that the trajectory of the bullet holes caused by the initial shots to both Baldwin and Turley were consistent with a shooter being located by the barstools and that the shots could not have been made by someone coming out of the men’s restroom. First, the bullet that caused Turley’s wound was found in the tavern’s east door. Had the bullet been fired by someone by the men’s restroom or walking along the south wall (as Ogryzek testified), the bullet would have had to change its course almost 90 degrees after striking Turley to end up in the east door. The diagram below reflects the tavern’s layout and locations of Marcia Woolley, Turley, and Baldwin at the time of the shootings.

Example 2: [4]

The following diagram shows the approximate relative relationship of the properties that we have described above. This diagram is for illustrative purposes only, and it is not drawn to scale.

Example 3: [5]

The court ordered that a deed transferring a right-of-way for a road from Digor to the county be reformed and that the defendants among others be permanently restrained and enjoined from interfering with the county’s or the public’s use and possession of the property described in the reformed deed. We affirm.

On December 1, 1953, defendant Digor filed a plat signed by him in which a proposed road across his land, represented by the segments A, B, C, and D in the diagram below, was designated ‘Digor Drive.’

Example 4: [6]

This writ of error presents a rather knotty problem and arises from the fact that a house was so constructed as to encroach about 2 feet on an adjoining lot. To aid in an understanding of the entire matter, there is set forth below a diagram, not to scale, which when considered in connection with the balance of this opinion will hopefully bring the dispute into focus.

 

Using Visual Aids to Compare

Example 1: [7]

¶ 42 And even if (1) defendant’s identity as the perpetrator of the crime had been at issue; or (2) modus operandi evidence were admissible in cases other than sexual assault or domestic violence cases to prove the crime’s actus reus, we would nonetheless conclude that evidence of the February drug deal was not admissible to prove defendant’s modus operandi. When we compare the February drug deal with the May drug deal in the chart below, we see that, although the two drug deals were similar in some respects, they lacked the striking similarities and distinctive methodology that the law requires to show that both drug deals were the handiwork of one perpetrator. . . .

Example 2: [8]

Figure 2 compares the Hawg sealed bearing pack (Figure 2a) and the Newsco sealed bearing pack (Figure 2b).

. . .

Fifth, a defense expert compared the Hawg design to designs that had been publicly available at that time. One of these was illustrated by U.S. Patent Application Pub. No. 2003/0015352 fig. 1 (filed July 17, 2001), which we compare to the Hawg design in Figure 3.

Example 3: [9]

When Baig saw a billboard advertisement for Diet Sprite Zero in September 2004, he contacted Coca-Cola to threaten litigation over its purported infringement of his mark. Below are pictures of “Diet Sprite Zero” and “Naturally Zero.”

 

Summarizing Facts With Timelines, Charts, or Flow Charts[10]

Example 1: [11]

The facts of the petitioner’s brutal sexual assault and murder of 25-year-old LaTausha Curry on January 21, 1999 have been set forth in detail in our earlier opinion and the opinion of the Texas Court of Criminal Appeals. We will not repeat them here. Some of the relevant dates have been set forth above. We repeat these dates and others in the timeline set forth below:

November 19, 1999: Johnson sentenced to death.
October 22, 2001: Johnson files state petition for writ of habeas.
January 30, 2002: Tex. Court of Criminal Appeals (“TCCA”) affirms Johnson’s conviction on direct appeal.
June 20, 2002: U.S. Supreme Court issues Atkins.
October 8, 2003: TCCA denies habeas relief.
February 11, 2004: TCCA modifies the “two-forum rule,” which required dismissal of a state writ or successive writ if a federal proceeding was pending, even if that proceeding was stayed. Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.Crim.App.2004).
May 17, 2004: Johnson files first federal writ.
September 18, 2007: Federal writ denied by district court.
December 2, 2007: District court denies motion for new trial.
April 7, 2008: Johnson seeks COA from Fifth Circuit.
October 2, 2008: Fifth Circuit denies COA.
January 16, 2009: Execution date set for April 30, 2009.
March 9, 2009: U.S. Supreme Court denies cert to Johnson’s challenging the Fifth Circuit’s denying his COA.
April 28, 2009: Johnson attempts to file successive writ with TCCA based on Atkins claims.
April 29, 2009: TCCA denies subsequent writ because Johnson failed to make a prima facie case of mental retardation. Johnson files the current motion.

Example 2: [12]

On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made:

Example 3: [13]

The ownership genealogy of the ‘236 and ‘578 patents is documented in the chart below.

Example 4: [14]

JWR operates four coal mines west of Birmingham, Alabama. The parties refer to the mines as Mines 3, 4, 5, and 7. Mine 3 is located in Jefferson County, Alabama, near Adger, Alabama. Mines 4, 5, and 7 are located in Tuscaloosa County, Alabama. The number of layoffs at each mine and the percentage of workers affected are reflected in the chart below:

 

How to Create Visual Aids

Here are helpful resources on creating visual aids.

Designing charts and graphs

  • Gene Zelazny, Say It With Charts: The Executive’s Guide to Visual Communication (4th ed. 2001).

Creating flowcharts, charts, and graphs in Microsoft Word

  • Add A Drawing To A Document, https://support.office.com/en-us/article/Add-a-drawing-to-a-document-348a8390-c32e-43d0-942c-b20ad11dea6f (last visited August 23, 2017).
  • Saikat Basu, How to Create Stunning Flowcharts With Microsoft Word, http://www.makeuseof.com/tag/create-stunning-flowcharts-microsoft-word/ (last visited August 23, 2017).
  • Insert A Chart From an Excel Spreadsheet Into Microsoft Word, https://support.office.com/en-us/article/Insert-a-chart-from-an-Excel-spreadsheet-into-Word-0b4d40a5-3544-4dcd-b28f-ba82a9b9f1e1 (last visited August 23, 2017).
  • How to Add A Graph to Microsoft Word, http://www.wikihow.com/Add-a-Graph-to-Microsoft-Word (last visited August 23, 2017).

[1] “Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.” Hon. Richard Posner, Effective Appellate Brief Writing, A.B.A. Litigation News (Spring 2010), https://apps.americanbar.org/litigation/litigationnews/trial_skills/appellate-brief-writing-posner.html. See also Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 293-94 (2d ed. 2014).

[2] Unlike brief writing, during a trial you might decide such repetition is useful to the jury.

[3] Woolley v. Rednour, 702 F.3d 411, 418 (7th Cir. 2012).

[4] Graham v. Jules Inv., Inc., 2014 COA 136, ¶ 13 (Colo. App. 2014).

[5] Bd. of Comm’rs of Grand Cty. v. Baumberger, 513 P.2d 1075, 1075–76 (Colo. App. 1973).

[6] Emery v. Medal Bldg. Corp., 436 P.2d 661, 662–63 (Colo. 1968).

[7] People v. Williams, 2016 COA 48, ¶ 42-43 (Colo. App. 2016).

[8] Hawg Tools, LLC v. Newsco Int’l Energy Servs., Inc., 2016 COA 176M, ¶¶ 27, 33 (Colo. App. 2016).

[9] Baig v. Coca-Cola Co., 607 Fed. Appx. 557, 558–59 (7th Cir. 2015).

[10] See also Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 127-30 (Practicing Law Institute 3d ed. 2008) (discussing use of lists and bullet points); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 295-300 (2d ed. 2014) (same); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 73-77 (2015) (discussing same in an opinion’s Statement of Facts).

[11] In re Johnson, 325 Fed. Appx. 337, 339 (5th Cir. 2009).

[12] United States v. Newman, 490 F.2d 139, 144 (3d Cir. 1974).

[13] Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1333 (Fed. Cir. 2011).

[14] Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 724 (11th Cir. 1993).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Introduction, and Lessons from Alzheimer’s Disease

Editor’s Note: CBA CLE Legal Connection welcomes Aaron Eisenach to the blog. Aaron Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. Read more below.

I am very excited to submit my first blog on CBACLELegalConnection.com! Some of you will recognize me from recent Elder Law and Estate Planning Retreats. Others may have heard me lecture at Senior Law Day or provide CLE courses on long-term care planning. Or perhaps you have read my chapters in Elder Law in Colorado and Senior Law Handbook. But in case our paths have never crossed, please allow me to further introduce myself.

I am a long-term care planning specialist representing myriad insurance companies and products that help people protect their family and finances from the greatest risk left in life: needing extended care.  I wear three hats in my professional life. First, I assist other advisors and agents that do not specialize in long-term care insurance and choose to trust me with their clients.  Second, I serve as a wholesaler of LTC planning products to agents in Colorado and many other states. And third, as an educator I am certified by the Colorado Division of Insurance to teach state-mandated continuing education courses that all resident agents must complete in order to offer LTC coverage. Whichever hat I’m wearing my goal is to help families mitigate the emotional, physical and financial consequences of an extended care event.  My steadfast belief is that everyone deserves a serious conversation about the potentially devastating emotional, physical and financial consequences needing long-term care can cause.

My passion for this niche in the insurance industry stems from witnessing my father’s and grandfather’s battles with Alzheimer’s disease and the lasting impact on family and finances. I remember occasionally visiting my grandfather, usually after Sunday morning church services, in the skilled nursing facility in which he lived for 10 years. I can still breathe the smells and hear the groans from residents in the hallways of the facility. I could hardly wait to get in the car and escape the image of the man that I only knew as a prisoner to a crippling, horrific disease.

Imagine the heartbreak when we started to realize that my father was beginning to show symptoms of the same condition. Thankfully, before signs of dementia crept in to rob him of his cognition, he took my advice and purchased long-term care insurance. Because of his familial experiences, my father realized that the coverage was not for him per se. It was for my mom, and his children and grandchildren more than it was ever for him. When dad resigned from a prestigious job, a few newspaper articles, banquets and receptions honored him while he was still mostly aware of his surroundings. When dad could no longer be left alone, my mom also quit her job and began her new vocation: full-time caregiver.

Dad’s long-term care insurance policy was structured to cover care at home, in an assisted living or skilled nursing facility, adult day care or hospice. Its benefits were unlimited: the coverage could never be exhausted regardless of how long he might have needed care.  Mom resisted turning on the benefits for many months (it seems she held sacred the “…for better or worse, for richer or poorer, in sickness and in health” part of the wedding vows) until she finally realized that she needed help in caring for dad. Eventually a home care agency was hired to help take care of him a few hours per day, freeing her to go to the grocery store, the doctor’s office, or see a grandchild’s piano recital. In other words, the long-term care insurance gave her some of her life back.

Eventually the combined care provided by mom and the agency wasn’t enough. After a health scare of her own, mom called me and wanted to know my feelings about placing dad in a nursing home permanently. Realizing that my dad’s chronic care needs were making my mother chronically-ill herself, I told her that she had my absolute encouragement to do so. At that point she said that she had already talked to the other children and that they also agreed. A facility was chosen that was close to the homes of three of the four children. Mom and dad’s house was sold, allowing mom to live closer to the facility so that she could be there every day possible as his loving wife and his personal care advocate, which is so vitally important regardless of the quality and reputation of the facility in which your loved one resides. As an example of her compassion, after dad had passed away in the very early morning hours she fed his roommate breakfast later that morning. All but $20 per day of dad’s 18-month stay was paid-for by his insurance policy. In fact, not a single penny of mom or dad’s retirement plans was spent on care.

These experiences and God’s hand led me to my passion for, and career in, telling others about the importance of planning ahead for the possibility of needing extended care services. For more than 20 years I have listened to clients tell me of their own stories of caregiving. The stories lead to similar conclusions: the emotional and physical strains and pressures of being a caregiver are devastating, adult children often do not contribute equally to the care needs of the parent(s) which can lead to resentment and in-fighting, the lifetime savings of the care recipient was depleted much quicker than ever imagined, relying on Medicaid should be avoided, the lack of planning leads to chaos, and more.

My next blog will focus on the premise that everyone needs a plan for care (not necessarily insurance), the components of a care plan, and common planning goals. I will also present the latest cost of care data for Colorado. Until then, if there is anything I can do for you or your clients, please visit www.AaronEisenach.com or call 303-659-0755.

 

Aaron R. Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. His passion for this topic stems from losing both his father and grandfather to Alzheimer’s Disease. As an insurance wholesaler, Mr. Eisenach represents ICB, Inc., the nation’s first general agency specializing in LTC insurance. As an educator, he provides workshops to consumers and teaches state-mandated continuing education courses to Colorado insurance agents selling LTC products. As a broker, Mr. Eisenach is the proprietor of AaronEisenach.com and partners with financial advisors and agents who trust him to work with their clients. He is the immediate past president of the Producers Advisory Council at the Colorado Division of Insurance, serves as president of the nonprofit LTC Forum of Colorado, Inc, and has appeared on 9News and KMGH Channel 7. He recently served as an expert witness in a court case and was a contributing author to the American College curriculum on long-term care insurance.

Show Me The Way: Using Headers More Effectively

Headers are helpful. Use them.[1]

Use Headers in a Statement of Facts

Think of all the good reasons you use headers in your argument section. Those same reasons apply to the Statement of Facts section. So use headers there too.[2]

When you do come across the rare Statement of Facts that uses headers, it often contains ones like these:

  1.  The December 22, 2010 Common Interest Agreement.
  2.  Defendant’s Negligence.

These are useless. The date and title of the document are probably irrelevant.[3] The header does not engage the reader because none of us want to read about common interest agreements. Neither header provides a fact essential to a court’s ruling. In fact, the second header is a legal conclusion (not a factual one). They are neither memorable nor relevant. In short, they say nothing about your case.

But it does not have to be this way. Ross Guberman provides a helpful example.[4] Watch how the government used headers in a Statement of Facts section to defend convictions in the Martha Stewart case.

  1.  The Government’s Case
    1.  “Get Martha on the Phone”
    2.  “Peter Bacanovic thinks ImClone is Going to Start Trading Downward”
    3.  Stewart Sells Her ImClone Stock
    4.  “Something is Going On With ImClone And Martha Stewart Wants To Know What”
    5.  Stewart’s Conversation With Mariana Pasternak
    6.  The Investigations Begin
    7.  The Tax Loss Selling Cover Story
    8.  January 3, 2002: Faneuil Lies to Investigators
    9.  Bacanovic Changes The Cover Story
    10.  January 7, 2002: Bacanovic Lies to Investigators
    11.  Stewart Alters Bacanovic’s Telephone Message
    12.  February 4, 2002: Stewart Lies to Investigators
    13.  February 13, 2002: Bacanovic Lies in Sworn Testimony
    14.  March 7, 2002: Faneuil Lies to Investigators Again
    15.  April 10, 2002: Stewart Lies to Investigators Again
    16.  Stewart’s False Public Statements
    17.  Faneuil Reveals The Truth[5]

When you read these headers, a story emerges. Not just any story, a story helpful to the prosecution.[6]

Let’s consider a simpler example. When you glance at a Table of Contents you see the following:

  1.  Farm Inc. Agreed to Deliver One Hundred Eggs to Pie Corp. Every Sunday.
  2.  One Sunday, Without Notice, Farm Inc. Delivered No Eggs.
  3.  Without Eggs Pie Corp. Could Not Bake or Sell Any Pies That Week.
  4.  That Week Pie Corp. Lost $1,000.

From these headers you can predict this lawsuit probably contains a breach of contract claim. The headers track the elements without using any legal terms, like “breach” or “causation.” More importantly, these four headers match the four factual findings needed to succeed on the claim.  If the court remembers nothing else except these four factual conclusions, the plaintiff’s statement of facts has done its job.

Phrase Argument Section Headers Persuasively

Frequently headers state a legal conclusion without any reasoning. For example,

  1.  The Complaint Fails to State a Claim Upon Which Relief Can be Granted.
  2.  The Existence of a Disputed Material Fact Precludes Summary Judgment.
  3.  Defendant’s Negligence Caused Damages.

These headers could appear in any brief for any case involving these types of motions or claims. They are weak and add little. Remember, when your reader gets to these headers, the reader already knows what you want. The caption page and opening said what you want and why. So the reader knows you think the complaint does not state a claim when the reader gets to the header saying the complaint does not state a claim. Add something new and helpful.

Make your headers stronger by stating why you win:[7]

  1.  Because the Complaint Does Not Allege the Third and Fourth Elements of Negligence, It Fails to State A Claim for Negligence.
  2.  Conflicting Expert Testimony About Whether The Landfill Continues to Cause or Threaten Environmental Damage Creates a Disputed Material Fact.
  3.  When the Driver Became Distracted While Texting on Her Phone, She Crashed Into the Car.

The Integrated Header: Visual Cues For The Reader

Usually we think of headers as an indented sentence prefaced with an outline-symbol like a roman numeral. So headers are abrupt and obvious. Not quite.

Some briefs integrate headers into the main text. They use portions of headers to start paragraphs. These integrated headers are not in the Table of Contents. Weaker but also less disruptive than traditional headers, they function as helpful visual cues and transitions.[8] These headers are neither better nor worse than traditional headers. They are an option. Use them when you deem appropriate.

Former United States Solicitor General Seth Waxman has a knack for these. Take a look.

Example 1:

Summary of Argument

I.  Implied dedication requires two elements: (1) the property owner’s unequivocal intent to dedicate land for a particular public use; and (2) and acceptance of that land for that use by the public. Only the first element, the landowner’s intent, is at issue here. . . .

[several paragraphs]

II. Appellants have not come close to establishing that the City intended—much less unequivocally intended—to irrevocably dedicate the four parcels at issue as parkland. . . .[9]

The roman numerals are not part of a traditional header. They introduce full main text paragraphs. In doing so, they visually break up points for the reader. They function as transitions without a transition word or phrase.

Example 2:

3. Appellants’ rule is singularly inappropriate in this case where the
landowner is the City and the property at issue is a street.

Finally, Appellants’ bid to jettison owner intent in favor of public use as the north star of the implied dedication analysis . . .

a. By elevating long continued public use to the ‘main determinant’ of dedication, Appellants’ rule would eviscerate the distinction between prescriptive rights—those acquired through . . .

[another paragraph]

b. Appellants acknowledge that their vision of implied dedication rests not on the City’s actual intent regarding the status of the DOT Strips, but instead on . . . [10]

Here Waxman uses letters to achieve the same function as the roman numerals above. Rather than including a full sub-header, he uses each letter to start a new point and a new series of paragraphs.

Example 3:

8. Social Science Does Not Support Any Of The Putative Rationales For Proposition 8.

Proponents of laws like Proposition 8 have advanced certain social-science arguments that they contend support the exclusion of same-sex couples from civil marriage. The proponents’ main arguments are (1) deinstitutionalization: that allowing same-sex couples to marry will harm the institution of marriage by severing it from child-rearing; (2) biology: that marriage is necessary only for opposite-sex couples because they can procreate accidentally; and (3) child welfare: that children are better off when raised by two parents of the opposite sex. Each of these arguments reflects a speculative assumption rather than a fact, is unsupported in the trial record in this case, and has in fact been refuted by evidence.

Deinstitutionalization. No credible evidence supports the deinstitutionalization theory on which petitioners heavily rely. . . .

[multiple paragraphs]

Biology. There is also no biological justification for denying civil marriage to same-sex couples. . . .

[multiple paragraphs]

Child Welfare. If there were persuasive evidence that same sex marriage was detrimental to children, amici would give that evidence great weight. But there is none. . . .[11]

The introduction establishes three counterarguments in a numbered list. The brief assigns each counterargument a title using an italicized word. Those italicized titles later serve as visual transitions.


[1] For more information on using headers effectively see Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 121-25 (Practicing Law Institute 3d ed. 2008); Bryan A. Garner, Legal Writing In Plain English 20-22 (2d ed. 2013); Ross Guberman, Point Made, How to Write Like the Nation’s Top Advocates 73-80 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 108-11 (2015) (discussing use of headers and sub-headers in opinions).

[2] See Ross Guberman, Point Made, supra n. 1 at 73-76 (discussing use of headers in Statement of Facts section).

[3] “Lawyers love narrative – and they adore dates and places. . . . And when, pages later, [the date] turns out to be wholly irrelevant, the judge will feel duped – a feeling that often leads to irritability and impatience. I would consider that a less-than-desirable start for one’s case.” Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614; Ross Guberman, Point Made, supra n. 1 at 69-71 (discussing alternatives to dates in a Statement of Facts).; Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 44-56 (2015) (discussing cutting irrelevant facts from court opinions).

[4] Ross Guberman, Free Martha? Not with these Headings!, Legal Writing Pro, https://www.legalwritingpro.com/articles/free-martha-not-headings/ (last visited August 3, 2017).

[5] Brief For the United States of America at 6-17, United States v. Martha Stewart and Peter Bacanovic, 433 F.3d 273 (2d Cir. 2006).

[6] Query whether the dates in these headers are needed. They might suggest several significant events in a short period.

[7] “The old test is still the best. Could a judge skim your headings and subheadings and know why you win?” Ross Guberman, Point Made, supra n. 1 at 93. For more advice on using headers in your argument section see id. at 93-106. See also Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 89 (2008) (describing Table of Contents as “primarily a finding tool” but also noting “many judges look at it first to get a quick overview of the argument. That’s one reason you should make your section headings and subheadings full, informative sentence.”)

[8] Ross Guberman, Point Made, supra n. 1 at 73 (giving examples of integrated headers in Statement of Facts).

[9] Brief for Necessary Third-Party Appellant-Respondent New York University at 38-40, Deborah Glick, et al. v. Harvey, et al., 25 N.Y.3d 1175 (N.Y. 2015).

[10] Id. at 59-60.

[11] Brief of Amici Curiae Kenneth B. Mehlman et al. Supporting Respondents at 10-12, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Good Advice, Better Advice: Rethink How You Use Authority

Briefs are too long. Some cases warrant lengthy briefing. Most do not. Shorter briefs are more than judicial preference.[1] Brevity strengthens your writing, clarifies your points, and pleases your audience.[2]

A rarely addressed problem is citing too much authority. When proofreading, many attorneys check a citation’s format and confirm it supports a proposition. But few assess whether to cut the citation or replace it with a better one.

Citations are about judgment. Consider these points.

String Citations Are Not a Problem; They Are a Symptom of a Problem

Nearly every legal writing CLE has a PowerPoint slide dedicated to the irredeemable brutality of string citations. Usually the presenter provides an exaggerated illustration like this:

Parties cannot waive the defense of lack of subject matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 382 (1998); Lightfoot v. U.S., 564 F.3d 625, 627 (3d Cir. 2009); American Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1st Cir. 2004); Gardner v. U.S., 211 F.3d 1305, 1310 (D.C. Cir. 2000); Douglas v. E.G. Baldwin & Associates, Inc., 150 F.3d 604, 608 (6th Cir. 1998); Harris v. U.S., 149 F.3d 1304, 1308 (11th Cir. 1998); Chernin v. U.S., 149 F.3d 805, 812-13 (8th Cir. 1998).

Then the presenter condemns string citations for two to three minutes, with a verbal footnote that they are acceptable in rare circumstances like to survey multiple jurisdictions or to show a trend (or consistency) over time.

This advice is not wrong, but it can lead to wrong conclusions.

Astute attorneys hear the advice, return to the office, and dutifully apply it. They scan briefs for precisely what the presenter mentioned: a paragraph with a single sentence followed by a horde of citations spanning multiple lines. If they find a string citation, they cut it down or determine an exception applies. If they find no string citation, hurray! Either way, in the end the attorneys feel confident the number of citations used to support all the propositions is fine because there are no unhelpful string citations. That conclusion is a problem.

Worse, that conclusion misunderstands the problem. The CLE advice frames the problem as string citations. But the absence of unhelpful string citations only means there are no unhelpful string citations. It does not mean the number of citations is acceptable.

The problem is attorneys cite too much authority. Whether that authority appears in a string citation is irrelevant. After all, when does a series of citations become a string citation? After two? Three? Four? Do you restart the count after a new signal word? I do not know and I do not care because it does not matter. You must justify every citation, whether solitary or in a series.

Cutting one string citation from a brief fixes one spot and shortens your brief by a handful of lines. But editing all of your citations improves dozens of sections and can shed pages.

Less is More: Choose the Appropriate Type and Number of Authority

Shed your collegiate habits. Briefs are not a way to show how much research you did, or how smart you are. I understand the hours you spent researching the intricacies of replevin were tiring and frustrating. I understand how few people have the command of replevin you now possess. And I understand that this hard won mastery of replevin should go towards something. Fine, but not your brief.[3]

Your brief has one goal: persuade your audience.[4] If a citation does not help this goal, cut it. Have a reason for every citation you include.[5] Tie that reason to how the citation persuades your audience.

Not using every citation is counterintuitive. If you have the space you want to use every arrow in your quiver.  But too much authority weakens a brief.[6] Citations add length which means more time for your audience to lose focus and patience. You may lose credibility as your audience wonders why the brief is citing unnecessary authority. Too much authority also drowns substance in waves of citations.[7]

Consider a few examples.

Example 1:

A party must file an action for negligence within two years after the cause of action accrues. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

One proposition, two citations. Why cite two sources? Both are direct citations, meaning there is no signal (e.g. “see also”). The absence of a signal tells the reader the citations directly support the entire proposition. If they both support the entire proposition, you do not need two sources.

Choose one. If the General Assembly chooses a statute of limitations, it codifies this selection in statutes. These statutes bind courts. Here, the statute is clear. When Colburn states the statute of limitations, it is paraphrasing but not interpreting the statute. So the case adds nothing you do not get from the statute. The statute is the strongest authority. It is clear. Cut the case cite.

Example 2:

Courts dismiss negligence claims raised after the two year statute of limitations expires. Section 13-80-102(1)(a), C.R.S. 2017; Colburn v. Kopit, 59 P.3d 295, 296 (Colo. App. 2002).

Again one proposition, two citations. But the proposition is different. It speaks about the remedy courts apply to a tardy claim. The statute does not discuss (although perhaps it implies) the remedy. The case cites the statute, states the statute of limitations, and shows the remedy. It covers all the propositions you need.

Whether to also cite the statute is a judgment call. Although the case is probably sufficient, the statutory citation may help if a court wants to check for amendments or ensure Colburn correctly interprets the statute. This is a strategic decision and may depend on what your opponent contests.

Example 3:

A plaintiff may only succeed on a claim of denial of procedural due process if a state government injured or revoked a constitutionally protected property interest without proper procedural protections. U.S. Const. amend. XIV, §1; Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

Only the case citation is necessary. The constitutional citation adds nothing. Case law, not the Constitution, establishes the contours of procedural due process. Unless your argument hinges on a textual analysis of the Due Process Clause (unlikely), there is no need to cite the clause.

Example 4:

The Due Process Clause prohibits state governments from depriving any person of life, liberty, or property without due process. U.S. Const. amend. XIV, §1. See also Schanzenbach v. Town of La Barge, 706 F.3d 1277, 1283-84 (10th Cir. 2013).

The citation to the Fourteenth Amendment without any signal tells the reader the Amendment directly states the proposition. The use of “see also” tells the reader the case supports the proposition, but does not directly state it. But a reader cannot tell why the case citation exists. It might add something; it might not. If you have a direct citation followed by a signal word with more authority, you will usually need to state why you included that new authority. Here, either add a parenthetical or cut the case citation.

Example 5:

A complaint must state with particularity the circumstances of a fraud.  F.R.C.P. 9(b).  Courts dismiss claims that fail to meet this heightened pleading standard. See, e.g., Rodriguez v. Bar-S Food Co., 539 F. Supp. 710, 720 (D. Colo. 1982). This requirement protects defendants’ reputations and puts them on notice so they can form a defense. Tatten v. Bank of Am. Corp., 912 F. Supp. 2d 1032, 1041 (D. Colo. 2012). Conclusory allegations are insufficient; the complaint must allege the time, place, and contents of the false representation. Conrad v. The Educ. Res. Inst., 652 F. Supp. 2d 1172, 1182-83 (D. Colo. 2009). The failure to identify the party who made the false statements requires dismissal. Id.

Five citations from four sources. This paragraph explains the general law on pleading fraud. A trial court is probably already familiar with these propositions and does not need a full backstory. Even so, surely one case supports all of these propositions. Do not cite five different sources when one suffices.[8]

Showing several courts have dismissed complaints that plead fraud adds little. After all, what if the other side could cite more cases where courts did not dismiss such complaints? This is a fact-specific analysis. What matters is how the law applies to the complaint in your case. If the complaint’s allegations are close to a case you found, great. If not, more cases will not make a difference.

The ideal authority is one case that supports all these propositions and dismisses a complaint with the most analogous allegations to your case. Next best is one case that supports all these propositions and dismisses a complaint for the reason you advocate (e.g. not identifying who made the false statements) even though the allegations are very different.

Meaningfully Choose Your Authority

If the answer to “Why is this citation here?” is “Because it supports the proposition” then you have not thought it through. This answer explains why you have a citation (as opposed to no citation). But it does not answer why you included this citation. Consider the same question rephrased: of the universe of all authority that supports the proposition, why have you chosen this one?

Step 1: Choose the Appropriate Type of Authority. Often multiple authorities lend support: constitutions, statutes, regulations, case law, legislative history, treatises, dictionaries, articles, etc. Have a reason why you chose one type of authority over another. Why cite a statute and not a case? Why a case and not a treatise?

Step 2: Choose the Appropriate Source. Once you decide on the type of authority, choose a particular source. For example, after you decide to cite case law you must decide which case to cite. Why cite this case instead of that case when both support the proposition? Potential answers include:

  • It is the most recent high court decision which makes it the most authoritative case law on point.
  • It is the seminal case that all the other cases cite.
  • We rely heavily on this case later in the brief so it will make the court’s life easier by having fewer cases to examine.

No one answer is better than the other and this list is not exhaustive. Attorneys may differ. Bottom line: have a reason for everything you do.


[1] “With the docket the way it is—and growing (federal court appellate filings went up again last year)—we judges can only read briefs once. We cannot go back and re-read them, linger over phrases, chew on meanings. Your main points have to stick with us on first contact—the shorter and punchier the brief the better.” Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 10 (1999). See also Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614 (estimating judges may only spend thirty minutes on the first reading of a brief).

[2] “Repetition, extraneous facts, over-long arguments (by the 20th page, we are muttering to ourselves, ‘I get it, I get it. No more for God’s sake’) still occur more often than capable counsel should tolerate. In our court counsel get extra points for briefs they bring in under the 50-page limit. Many judges look first to see how long a document is before reading a word. If it is long, they automatically read fast; if short, they read slower. Figure out yourself which is better for your case.” Wald, 1 J. App. Prac. & Process at 9-10.

[3] “You do not write for publication. You do not write to show your colleagues how smart you are, how well you know the subject matter, or how stupid you believe the judges to be. All this may well be true. But the name of the game is ‘persuade the judge.’ You don’t score points for anything else.” Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument, 24 (National Institute of Trial Advocacy, 2d ed. 2003). “You’re not writing a treatise, a law-review article, or a comprehensive Corpus Juris annotation. You are trying to persuade one court in one jurisdiction. And what you’re trying to persuade it of is not your (or your junior associate’s) skill and tenacity at legal research. You will win no points, therefore, for digging out and including in your brief every relevant case. On the contrary, the glut of authority will only be distracting. What counts is not how many authorities you cite, but how well you use them.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 125-26 (2008).

[4] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 59 (2008) (“The overarching objective of a brief is to make the court’s job easier. Every other consideration is subordinate.”)

[5] “Conciseness doesn’t mean fewer words; it is the omission of needless words.” Eich, supra n. 1.

[6] “A brief that is readable and to-the-point will make it much easier for the judges to understand and quickly grasp your points, and they will be encouraged to spend more time with your arguments. Unnecessary length, on the other hand, will often result in your strongest points getting lost in the shuffle.” Eich, supra n. 1.

[7] See Alex Kozinski, The Wrong Stuff, 1992 BYU L. Review 325, 326 (1992) (“Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.”); Patricia Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 9 (1999) (“The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes.”)

[8] “As for governing authority, if the point you are making is relevant to your reasoning but is neither controversial nor likely to be controverted, a single citation (the more recent the better) will suffice. Anything more is just showing off to an unappreciative audience.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 126 (2008).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

The Lawless Landscape of Legal Writing

Editor’s Note: CBA-CLE Legal Connection is pleased to present a new series of legal writing columns authored by Michael Blasie. Michael Blasie began his career as a commercial litigator for Cooley LLP in New York City. He recently moved to Denver, where he is a Law Clerk to Hon. David Richman of the Colorado Court of Appeals. Welcome, Michael!

Think. That’s the key. Good legal writing is not about following rules. Good legal writing is good judgment.[1] Test and improve your judgment with these two guidelines.

Have A Good Reason For Everything You Write

Many attorneys stop thinking about legal writing after a few years of practice. They form habits. They think they know what certain briefs should look like. They stop choosing and begin defaulting.[2] This is a problem.

Although you might not “always” or “never” write a brief a certain way, you should always have a good reason why you wrote a brief a certain way. Why did you write it this way instead of that way?

The reason may be responsive; e.g., at a recent CLE the judges of this court said they find it helpful when briefs do [x]. Or it may be pragmatic; e.g., the court’s rules require [y]. Or perhaps the reason comes from judgment; e.g., this citation warrants a fuller multi-sentence explanation rather than a parenthetical because [z]. All fine. Just have a reason, and make it a good one.

“Because that is how it is done” or “Because that is how [name of other attorney/institution] does it” are not good reasons. Here’s why.

Consider this standard introduction to a brief:

Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”).

I see this introduction in almost every brief. Why does it exist? You might say it identifies who wrote the document, what the document is, and what relief the authors’ seek. But I don’t think that is why people include it. That reasoning is engineered after-the-fact. Instead people probably write this paragraph because they always have. They saw it in every template they received as a young attorney and they have seen it in most briefs since. So we all do it, for no reason.

Reexamine this introduction in its full context:

 

County Court, Denver County, Colorado
1437 Bannock Street, Room 100
Denver, Colorado 80202, 720-865-7840
____________________________________________________________
Plaintiffs: HARMED CORP. and XYZ, INC.,

v.

Defendants: PROFITABLE, CORP. and NOT ME, INC.
____________________________________________________________

Charisma Genius, Esq.
All We Do Is Win, LLP
123 Main Street
Denver, CO 80204
____________________________________________________________

DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ C.R.C.P. 59(e) MOTION TO AMEND THE JUDGMENT

____________________________________________________________

Defendants Profitable, Corp. (“Profitable”) and Not Me, Inc. (“Not Me”), (collectively “Defendants”), respectfully submit this brief in opposition to the motion filed by plaintiffs Harmed Corp. (“Harmed”) and XYZ, Inc. (“XYZ”) (collectively “Plaintiffs”), pursuant to C.R.C.P. 59(e), to amend the judgment filed herein on January 1, 2017 (“Judgment”).

 

Recall the purported purposes of the paragraph: to identify who wrote the document, what the document is, and what relief the authors’ seek. I’ll accept it does that. Now explain why we have captions.

The same reasons.

This introduction is wholly redundant with the caption. I know who the authors are, what the document is, and the relief sought because it is in giant capital letters one inch above the introduction.[3]

Approach this introduction from a different angle. If you cut this paragraph what would happen? For starters, most readers would not notice because they reflexively glance over the paragraph anyway. It certainly would not confuse your readers. After all, you have never read an opinion that started with “This is an opinion by Chief Justice Roberts in the case of Smith v. Jones.” Level of confusion: zero. But cutting the paragraph would reduce your word count and provide a chance to hook your audience.

Although this introduction does not hurt your brief, it fails to strengthen it. It blows the opening. Liken it to comedians who open with “How is everyone doing tonight?” Wasted words, wasted time, wasted opportunity. You could have hooked your audience and you didn’t.

True, this introduction could be helpful in some cases. For example, if you represent a third party intervener, this opening could introduce the party and explain its relationship to the case. Or perhaps you use it to avoid confusion when several motions have been filed with similar titles. Use this introduction when you have a good reason.[4]

Lastly, a few stylistic points. Many attorneys compulsively define terms with quoted phrases inside parentheticals. Stop. Unless you have a good reason. Here, there is no need to define all the defendants in the case as “collectively ‘Defendants.’” Obviously the term “Defendants” refers to all the defendants in the case. Such a definition might be useful if you are referring to some, but not all, of the defendants (e.g. “the Colorado Defendants”). Similarly, you can shorten party names (“Not Me” and “XYZ”) throughout the brief without “defining” them and without any risk of confusion. Likewise, if there is only one judgment, then “Judgment” refers to it. This habit is one we think helps readers, but often causes more harm than good. [5] It is a tool that works sometimes. Use it when you have a good reason. Don’t when you don’t. Good writing is good judgment.[6]

Tie Your Reason to How You Will Persuade Your Audience

A good reason is not enough because not all good reasons persuade. You must tie that reason to how it persuades your audience.

For example, legal writing guru Bryan Garner advocates putting citations in footnotes. Garner cites benefits like increasing readability, exposing poor writing, and enhancing the main text discussion of authority.[7] These are good reasons.

But do not neglect your audience. Few judges sanction this practice. Most judges despise footnotes, or at least view them skeptically. Reading a brief with dozens of footnotes will certainly breach expectations and could cause intense frustration.

Suppose you are appealing a criminal conviction. In a lengthy but carefully compelling narrative you weave together the defendant’s unique circumstances, understandable actions, and unfair treatment during the case. Then you a raise a single issue about whether the trial court erred by denying a challenge to a juror who had difficulty understanding voir dire questions and difficulty communicating. Your compelling narrative may elicit sympathy and reflect a mastery of storytelling, but your reader will likely see it as wholly divorced from the legal issue. And a judge may view it as an appeal to emotion without arguing the applicable law.

Finally, most legal writing advice assumes a single audience—the court. But practitioners often have multiple audiences, like senior attorneys and clients. Consider all of these audiences when choosing a writing strategy.

 


[1] See Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 59 (2008) (“But whenever you are convinced that departing from any of our recommendations, or from any convention, will make the court’s job easier, depart.”)

[2] See Robert M. Russel, Rhetoric for Appellateers 19 (Handout, March 2015).

[3] See id. at 92 (“Whatever you do, don’t allow this section [the introduction] to duplicate what is written elsewhere. Repetition bores, and boredom invites skimming.”)

[4] For ideas on other ways to start a brief, see Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 149-73 (Practicing Law Institute 3d ed. 2008); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 3-11 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 3-39 (2015) (discussing introductions to opinions).

[5]“There also are lawyers who are singularly devoted to what I call double-identification. They love unnecessary parentheses; and the more unnecessary the better – even if the only sure result is the reader’s total loss of interest in what’s being said.” Judge William Eich, Writing The Persuasive Brief, Wisconsin Lawyer (Feb. 2003), available at www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=76&Issue=2&ArticleID=614.

[6] For advice about how to reference parties and when to define terms, see Bryan A. Garner, Legal Writing In Plain English 57-62 (2d ed. 2013); Alex Kozinski, The Wrong Stuff, 1992 BYU L. Review 325, 328 (1992); Guberman, Point Made, supra n. 4 at 288-89; Scalia & Garner, supra n. 1 at 120-22.

[7] Scalia &. Garner, supra n. 1 at 132-33.

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

The Addicted Lawyer: Is Alcoholics Anonymous For You?

Editor’s Note: This article originally appeared on Above the Law on October 14, 2016. Reprinted with permission.

If you or someone you know is struggling with addiction, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

April 2007. I walk up to the door of the building where area Alcoholics Anonymous (AA) meetings are held. My family is pushing hard for in-patient treatment but I refuse. My psychiatrist feels that a trip here is the first step to long-term sobriety. Lucky for me, the building is right next to his office. If it hadn’t been convenient, I might have just made excuses to not go at all. For an addict, excuses are often more plentiful than reasons for recovery. The present is more important than the future — the present of the high.

After pacing around outside the doorway for a long time, I finally peer down the long hallway into the room where people are gathering. I’m afraid of being recognized. My ego is still paramount in my worries. “I’m a lawyer. There are no lawyers in in AA or treatment. My one client left needs me!”

My mind flashes back to one of my favorite childhood movies, Willy Wonka & the Chocolate Factory. I suddenly imagine that as soon as I enter the meeting room, I’ll be carried away by a team of chanting Oompa Loompas determined to punish me for my bad habits. I have no desire to meet the Oompa Loompas on the other side of that door.

I finally walk down the hall into the meeting room, and I can smell the fumes of stale cigarette smoke and day-old coffee. My eyes lock onto the 1950s tile floor, ingrained with the dirt of countless feet. There are other people milling around in room. Are these the people with whom I was supposed to share my darkest secrets? Would I be made fun of, teased, or insulted? Who are these people? Skid row bums? That’s my perception of AA. I think of Nick Cage’s character, Ben, living in the sleazy “no-tell motel” as he drinks himself to death in Leaving Las Vegas. Dick Van Dyke’s character, Charlie, drunk, alone on the beach with no future in The Morning After.

Deep breath. Don’t look around. Eyes down at the floor. That fixed point. Watch the feet move forward. One baby step at a time to a waiting chair. It’s the way I’m able to accomplish things in life. It’s how I was able to finish eight marathons. Facing any difficult task, my best self is that part of me that can place one foot in front of the other until a goal is accomplished. Don’t look left. Don’t look right. Don’t think about the finish line. I sit down. I listen. I cry. At the end of the meeting, I take a desire chip. The most important journey in my life begins.

As you have probably figured out, I got sober in Alcoholics Anonymous. I know I am irritating some who believe we should not talk publicly about being in AA. I believe we should be empowered to share all aspects of our personal journey if we choose to. I find it perplexing that we as attorneys in recovery, who spend our lives engaged in critical thought and using data, will exclude AA from that process as if there is some magical healing power to not discussing both its benefits and flaws when there is no empirical data to support the notion that talking publicly about being in AA, then relapsing publicly, will cause someone to not enter the program.

Certain aspects of AA have worked for me to date. I completely disregard other aspects. The sober connections I found in group were, and are, important to me. The people. The stories that tell me I am not alone. I, however, have never been as keen on the spiritual aspects and certain rituals of the program. That’s just me. You may like that. You may need that. Those issues however, have never been a deterrent to me in my program like they are for some who reject AA as their mode of recovery.

In speaking to law students and other lawyers about recovery, while some embrace the program, some would rather find others ways to long-term sobriety and have. Through their church. Through non-12-step-based programs such as Smart Recovery. Through both 12-step-based and non-12-step-based residential treatment. Through collegiate recovery programs. Through informal local attorney support groups. I know a few lawyers who have gotten sober on their own, although I would never recommend that path to start. There are many paths to recovery available today that were not available in 1935 when AA was founded.  AA has also not been my only mode of therapy. I have been seeing a psychiatrist for over a decade. I take anti-depressant medication daily. Cognitive Behavioral Therapy (CBT) and Acceptance and Commitment Therapy (ACT) have been important in my recovery. Let’s not lose sight of the goal: To be a person in long-term recovery regardless of the path chosen. The most important decision of your life should be one of reflection and critical thought. It’s your journey. If it’s AA, that’s great. If it’s another path, get on it. Recovery awaits.

  1. http://www.americanbar.org/groups/lawyer_assistance.html
  2. http://collegiaterecovery.org/programs/
  3. http://www.aa.org/
  4. http://www.smartrecovery.org/
  5. http://www.celebraterecovery.com/

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

The Addicted Lawyer: Silence is Deadly

Editor’s Note: This article originally appeared on Above the Law on September 16, 2016. Reprinted with permission.

September is Suicide Awareness Month. If you or someone you know is struggling with addiction or suicidal thoughts, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

July 2005. A dark room. Table, desk, chairs. I’m with a staff psychiatrist of the Green Oaks Psychiatric Facility in Dallas, Texas. My brothers, Mark and Jeff, are sitting at the table across from me. I have a vague recollection of my younger brother rousing me from my bed. My .45 automatic lying on my nightstand.

The residuals of cocaine, Xanax, and Jack Daniels are still coursing through my veins. Questions from the attending psychiatrist pierce my fog and anger like tracer rounds. “What drugs have you taken? How are you feeling? Do you want to hurt yourself?”

In the back of my mind, what’s left of the lawyer takes over. I know that my family can’t commit me, but he can. Proceed with caution. I don’t mention that I had been “practicing” sticking the barrel of the gun in my mouth and dry-firing the gun.

Ripped back to reality. Voices in the room. The doctor is talking to me again. When was the last time I used cocaine? I’m pretty sure it has been recently, since it was all over the room when my brothers showed up. I had become the consummate liar in hiding the obvious cocaine habit and drinking problem from my family.

More questions. Do I think I need help? Will I go to rehab? Sure, whatever will get me out of here? I lash out again. They have no right to do this. I yell across the table. “You have no right to control my life! I am an adult! Mind your own business!” They quietly let me rant.

Blaming them for the darkness is so much easier than seeing the light. The doctor is asking calm, focused questions, to ascertain whether I am a danger to myself. At times I am calm in my answers. At times I am crying, angry at him, then at my brothers. Quit asking the same questions! I know your game! Quit treating me like an idiot!

An hour has passed. The room is getting brighter. The love and calm of my brothers soothes me. Quiets me, softens my edges. It’s always been there, but I wasn’t present enough to sense it. I was thinking only of myself: My next high. My next drink. Without the drugs, what am I going to see in the mirror each morning? The thought terrifies me. My brothers calm me, and I begin to focus on my love for my family. Arms are around me. Holding me. I begin to feel the love penetrating my shell. They are not the enemy. Should I go to rehab? What about twelve-step? I’m still on the defensive, but at least for the moment I can listen. Have to grab those moments. They don’t come often.

Sitting in that room during my first of two trips to a psychiatric facility seems so long ago. Today I am closing in on ten years of long-term recovery from addiction. I still deal with clinical depression and take medication daily. I see a psychiatrist weekly. I am also a lawyer. I am part of profession with an alarmingly high suicide rate. An alarmingly high rate of substance use, particularly alcohol. I’ve been there. I get it. I also talk to many in the profession weekly who are currently struggling. Some have contemplated suicide. I ask them what they are afraid of. What’s holding them back from taking that first step forward towards the light. It’s almost always about loss. Loss of license. Loss of job. Loss of family. Interestingly however, the fear of loss is generally attached to disclosure of the problem and not the possible consequences of the problem itself. That is what we know as the “stigma of addiction.” A problem that cuts across demographics but is particularly powerful in the legal profession. We are strong. We are hard chargers. We are “thinkers” who can problem solve our way out of any situation without disclosure. We are not vulnerable.

I am here to tell you that that emotional vulnerability is a good thing in taking that first step to get help. Reaching out is not weakness, it’s courage. Asking questions as a friend or family member is not intrusive, it’s compassionate.

September is Suicide Prevention and Awareness Month. Be vulnerable. Be compassionate. Ask questions. Provide resources. Learn what your state Lawyers Assistance Program (LAP) has to offer. Learn what your local bar association has to offer.  Above all, talk! Talking is healing. Silence can be deadly.

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Social Media Abuse of Elders

Editor’s Note: This post originally appeared on Barbara Cashman’s Denver Elder Law Blog on August 10, 2016. Reprinted with permission.

CashmanBy Barbara Cashman, Esq.

I recently came across this horrifying article published Monday in ProPublica, entitled “Federal Health Officials Seek to Stop Social Media Abuse of Nursing Home Residents.” It seems that some staff members of nursing homes are publishing photos, audio and video recordings of some residents in the social media like Snapchat, Facebook or Instagram, or sent in text messages as multimedia attachments. These pictures, audio, and video files often depict elder residents of the facilities in demeaning and humiliating ways so as to result in mental abuse. The Centers for Medicare and Medicaid Services has recently sent out a memorandum concerning this to the State Survey Directors.

Do the skilled nursing facilities have prohibitions against such intrusions in place? Some evidently did not, but there can be little doubt that nearly all will have such protections in place soon in light of these disturbing developments. Here’s an article about such violations in Ohio nursing facilities.

The CMS memo referred to above defines mental abuse as that abuse which:

[M]ay occur through either verbal or nonverbal conduct which causes or has the potential to cause the resident to experience humiliation, intimidation, fear, shame, agitation or degradation.  Examples of verbal or nonverbal conduct that can cause mental abuse include but are not limited to: nursing home staff taking photographs or recordings or residents that are demeaning or humiliating using any type of equipment (e.g., cameras, smart phone, and other electronic devices) and keeping or distributing them through multimedia messages or on social media networks.  Depending on what was photographed or recorded, physical and/or sexual abuse may also be identified.

ProPublica has been following this following these developments for many months; this article from December 21, 2015 details some of the incidents this mental and physical abuse of incapacitated elders perpetrate by the nursing home staff members. In a case in New York where a nurse aide took photos of an incontinent resident’s genitals covered in fecal matter and shared them with another staff member on Snapchat, he was fired and pleaded guilty to a misdemeanor count of willful violation of health laws. What I found particularly disturbing was the comment of one home’s administrator to ProPublica that “[t]echnology is a problem for us, for everybody, these days… The resident involved was not harmed but certainly it was a serious incident.” Are incapacitated nursing home residents not entitled to any human dignity and to be free from such exploitation for someone’s entertainment?

One of the incidents described by ProPublica is from August 2015. It occurred in a rural area of Colorado and involved a youth volunteer at a nursing home who took a selfie which showed a 108-year-old resident urinating. The volunteer apparently shared the photo with her friends at school and the facility did not learn of the offending photo until months later. The volunteer was not monitored by the facility but did report to the local police, and was later charged with invasion of privacy.

What is human dignity when it cannot be defended by an incapacitated elder? What is human dignity when it is not readily apparent or recognized in places where people are institutionalized for the paramount concern of their safety?

Dignity, as in the legal right, is not easily defined. In fact, you would be hard pressed to find many references to it in our laws. International law, specifically the international law of human rights, has much more to say about human dignity, but that is another blog post!

I will close with just a couple observations and questions.

If humiliation is the opposite of being treated dignity and respect, is our system of laws really equipped to deal with this type of new frontier of the rights of incapacitated persons to be free from intrusions by others who humiliate them for sport or humor?

Is the dignity of or respect for elders a right in this context or is it overshadowed by our concerns for safety, and how does an incapacitated elder’s diminishing bailiwick of autonomy factor into this equation?

On this note, here is a link to an interesting article about the dignity of elders. More to come on this very challenging topic.

© 2016 Barbara Cashman  www.DenverElderLaw.org

 

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is a past chair of the Solo/Small Firm section. She is a CAMP mentor and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Let’s Raise Awareness About Elder Abuse!

Editor’s Note: This post originally appeared on Barbara Cashman’s Denver Elder Law blog on June 29, 2016. Reprinted with permission.

CashmanI wanted to circle back on the importance of raising awareness of elder abuse. You can read the Presidential Proclamation on June 15, 2016, for World Elder Abuse Awareness Day right here and if you’re curious about the language of the Elder Justice Act, passed as part of the Affordable Care Act (as Title VI subtitle H, §§ 6701, et seq.), read this link.

In Colorado, as in nearly all other states, adult protection units are responsible for the reporting and investigation of elder abuse (along with law enforcement agencies). The Elder Justice Act is federal legislation that requires the U.S. Department of Health and Human Services “to oversee the development and management of federal resources for protecting out seniors from elder abuse.” Additionally, the U.S. Department of Justice is charged with taking action to prevent elder abuse.

The effective coordination of these county, state, and federal efforts is of course a work in progress. What we do know about raising awareness of elder abuse and exploitation is that it will lead to more reporting of such abuse. Here is a link to a recent article in the Sacramento Bee which links the raised awareness of such abuse to a dramatic increase in reports to local law enforcement. This is important to bear in mind as the baby boomers begin to become a greater proportion of the cohort affected by elder abuse and exploitation. In my practice, I have unfortunately become familiar with national and international internet scams which relieve elders of their hard-earned retirement money. This is a particular area in which the federal government might play a unique role as so much of our law of the internet is based in federal law.

Another tragic side effect of the victimization of elders, besides the shame, victimization and impoverishment which results from financial exploitation is that these elders, along with elder victims of all types of elder abuse — including physical and sexual abuse — are likely to die much sooner than their peers who were not victimized. But many pieces of this puzzle remain unidentified due to the lack of long term studies which collect valuable statistics about elder abuse of various types! This is of course another aspect of the importance of raising awareness. Because so much of elder abuse still remains unreported, this is a major quality of life challenge not just for elders and their loved ones and community, but also for those of us of “a certain age” who might be looking forward to a safe and meaningful elderhood. How can we make things better for elders at risk now and in the future?

What is elder abuse and who are its primary victims of such elder abuse? By the numbers, they are largely women and the “old” of the elder population — meaning folks over 80. Sadly, the vast majority of the abusers are family members of the elder or trusted friends or advisors. Because most elders live in the community — not in institutions — this is a particular challenge for all of us who are community members to become familiar with the signs so that we can report concerns about safety, suspicious behaviors and the like to local law enforcement.

First — what are the kinds of elder abuse that we’re talking about? Here is a helpful listing from the U.S. government’s Administration on Aging website, which also has many helpful resources:

  • Physical Abuse—inflicting physical pain or injury on a senior, e.g., slapping, bruising, or restraining by physical or chemical means.
  • Sexual Abuse—non-consensual sexual contact of any kind.
  • Neglect—the failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
  • Exploitation—the illegal taking, misuse, or concealment of funds, property, or assets of a senior for someone else’s benefit.
  • Emotional Abuse—inflicting mental pain, anguish, or distress on an elder person through verbal or nonverbal acts, e.g., humiliating, intimidating, or threatening.
  • Abandonment—desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.
  • Self-neglect—characterized as the failure of a person to perform essential, self-care tasks and that such failure threatens his or her own health or safety.

And what about the warning signs of elder abuse of which we can be more aware?

  • Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
  • Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
  • Bruises around the breasts or genital area can occur from sexual abuse.
  • Sudden changes in financial situations may be the result of exploitation.
  • Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
  • Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
  • Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
  • Changes in the elder’s personality or behavior, especially if the elder becomes withdrawn or despondent, questions to her or him can be very important in identifying a situation which may be the cause of the elder’s silent suffering.

Lastly, here is another helpful self-help resource specifically for Colorado residents – from Colorado Legal Services.  That’s all for now – but don’t forget . . . . Denver’s Senior law Day is coming up on Friday July 29, 2016 and will be held at the Denver Police Protective Association’s Event Center.  More details later.

© Barbara E. Cashman 2016   www.DenverElderLaw.org

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is a past chair of the Solo/Small Firm section. She is a CAMP mentor and blogs weekly on her law firm blog, where this post originally appeared. She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.