December 11, 2017

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 currently works as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals. Michael also serves as a volunteer firefighter for the City of Golden.

How Did We Get Here From There?

We got nudged, that’s how.

Economic news is a media mainstay, but I’ve always felt that real people don’t live in “The Economy.” Instead, I think we live in a world forged from our outlook on life, which is derived from personal biases and cultural norms, so that economics is only news when our internal outlook (“I can afford that”) clashes with external reality (“No I can’t”).

Turns out somebody just won a Nobel Prize for thinking along those lines (well, sort of), except he took it much further and figured out how policy-makers who know better than we do can come to our rescue by nudging us ahead of time in the direction we really ought to go.

Richard H. Thaler is an economist at the University of Chicago, and Cass R. Sunstein is a Harvard Law School Professor. Together, they wrote Nudge: Improving Decisions About Health, Wealth, and Happiness (2009). Their concept of “nudging” super-sized behavioral economics and spawned a lucrative new consulting field. (Google “nudge” and you’ll see what I mean.) Prof. Thaler was awarded the Nobel Prize not only for Nudge, but for a body of work the The Economist summarized as follows in an article earlier this week:

Not long ago, the starting assumption of any economic theory was that humans are rational actors who maximise their utility. Economists summarily dismissed anyone insisting otherwise. But over the past few decades, behavioural economists like Richard Thaler have progressively chipped away at this notion. They combine economics with insights from psychology to show how heavily economic decisions are influenced by cognitive biases. On September 9th Mr. Thaler’s work was recognised at the highest level when the Nobel Committee awarded him this year’s prize in economics. Mr. Thaler thus becomes one of very few behavioural economists to win the prize.

That started to change when Mr. Thaler and Cass Sunstein, a legal scholar at Harvard University, co-authored a book, “Nudge”, in 2008. The book attacked the assumption of rational decision-making in economic models and showed how context could be changed to “nudge” people to make better choices. In 2010 Mr. Thaler advised the British government on the creation of the Behavioural Insights Team, a unit that sought to put their ideas into practice. The wildly successful government unit has since been spun out into a quasi-private company and now advises governments around the world.

“The Nobel In Economics Rewards A Pioneer Of “Nudges” — Richard Thaler becomes one of very few behavioural economists to receive the discipline’s highest honour,” The Economist, October 9, 2017.

Vox also summarized Thaler’s work earlier this week:

Richard Thaler, one of the founders of modern behavioral economics and the winner of the 2017 Nobel Memorial Prize in Economic Sciences, is obsessed with how people make decisions — not just investors or policymakers but everyday consumers and taxpayers. He’s tried to explain why people won’t sell wine they own for more than they paid for it, why people take out big loans even when they have plenty of savings, and how to encourage people to sock away more of their paychecks toward retirement.

“This Headline Is A Nudge To Get You To Read About Nobel Economist Richard Thaler — Okay, it’s not a very good nudge, but his work is really important!” Vox, October 9, 2017.

I confess, I read Nudge and could never quite silence my own biased subtext of resentment over the idea that politicians, think-tankers, captains of industry, and other members of The Illuminati know what’s best for my health, wealth, and happiness, and are deliberately nudging me to carry out their own agendas. I’ve made liberal use of my human right to make dumb mistakes, thank you very much, and prefer to keep it that way. On the other hand, I respect the scholarship that went into theorizing something we all probably realize but try not to admit: that we decide subliminally before we act, and then rationalize what we’ve done after the fact.

Turns out that, like it or not, “The Economy” actually does run on ideas that come down from the top. Next time, we’ll look at some of the most famous economic nudgers of all time.

By the way, there’s an Illuminati website. Watching the greeting video, I think this has got to be a parody in the same league as This is Spinal Tap. If it’s not, then it’s it just plain creepy.

 

 

 

 

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

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 currently works as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals. Michael also serves as a volunteer firefighter for the City of Golden.

Why We Can’t Talk About Economic Inequality

It is not just the super-rich who don’t like to talk about rising income inequality. It can be an ideologically uncomfortable conversation for many of the rest of us, too. That’s because even — or perhaps particularly — in the view of its most ardent supporters, global capitalism wasn’t supposed to work quite this way.

That’s from Plutocrats: The Rise of the new Global Super Rich and the Fall of Everyone Else, Chrystia Freeland (2012). The book reads like an extended academic version of People Magazine meets CNN meets The New York Times, and could only have been written by someone who logged years on the insider track and took lots of notes.

Turns out that’s precisely who Chrystia Freeland is. She’s a Canadian writer, journalist, and politician. She worked in a variety of editorial positions at the Financial Times, The Globe and Mail, and Thomson Reuters, was elected to the Canadian Parliament in 2013 (the year after the book came out), and was appointed Canada’s Minister of Foreign Affairs earlier this year. She’s a Harvard grad, a Rhodes Scholar, and was named one of Toronto’s 50 most influential people by Toronto Life Magazine in 2015.

The book takes names and tells stories, and is awash in dates and times and statistics. Reading it all the way through can be a bit of a slog, and I wonder how many people actually do — I confess, I skimmed a lot. I quote it here because it does a great job of capturing the lessons of my last two posts: 1) most of us haven’t updated our understanding of economics since Econ 101, and 2) we don’t like talking about economic inequality. Beginning with the quote above, the book provides a useful overview of how those two things are related. (These quotes are particularly re: income inequality, but apply to capital inequality as well.)

Until the past few decades, the received wisdom among economists was that income inequality would be fairly low in the preindustrial era—overall wealth and productivity fairly small, so there wasn’t that much for the elite to capture— then spike during industrialization, as the industrialists and industrial workers outstripped farmers (think of China today). Finally, in fully industrialized or postindustrial societies, income inequality would again decrease as education became more widespread and the state played a bigger, more redistributive role.

(This theory was articulated by Nobel Prize winning economist Simon Kuzmets, and can be plotted in what has become known as the Kuzmets curve. According to Wikipedia, Kuzmets won the award in 1971 “for his empirically founded interpretation of economic growth which has led to new and deepened insight into the economic and social structure and process of development.”)

Continuing with Plutocrats:

Until the 1970’s, the United States… was also an embodiment of the Kuzmets curve. The great postwar expansion was also the period of what economists have dubbed the Great Compression, when inequality shrank, and most Americans came to think of themselves as the middle class.

But in the late 1970’s, things started to change. The income of the middle class started to stagnate and those at the top began to pull away from everyone else. The shift was most pronounced in the United States, but by the twenty-first century, surging income inequality had become a worldwide phenomenon, visible in most of the developed Western economies, as well as in the rising emerging markets.

The switch from the America of the Great Compression to the America of the 1 percent is still so recent that our intuitive beliefs about how capitalism works haven’t caught up with the reality. In fact, surging income inequality is such a strong violation of our expectations that most of us don’t realize it is happening.

We’ll look at some inequality stats next time.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

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 currently works as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals. Michael also serves as a volunteer firefighter for the City of Golden.

But Isn’t Legal Work Essential?

“The most common complaint expressed within the legal profession
is a lack of meaning or sense of fulfillment from work.”

The above quote is from an article published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning.

Andrew Russel, Dean and Professor in the College of Arts & Sciences at SUNY Polytechnic Institute in Utica, New York, says this in his Aeon Magazine article, “Hail the Maintainers: Capitalism excels at innovation but is failing at maintenance, and for most lives it is maintenance that matters more” (April 7, 2016):

Innovation is a dominant ideology of our era . . . As the pursuit of innovation has inspired technologists and capitalists, it has also provoked critics who suspect that the peddlers of innovation radically overvalue innovation. What happens after innovation, they argue, is more important. Maintenance and repair, the building of infrastructures, the mundane labour that goes into sustaining functioning and efficient infrastructures, simply has more impact on people’s daily lives than the vast majority of technological innovations.

Maybe so, but the maintainers themselves aren’t buying their own importance. This Huffington Post article from May 11, 2017, reported a study by Britain’s Office of National Statistics that found that workers in “maintainer” jobs — manual labor, construction, building trades, processing plants, factories, agriculture — had the highest rates of suicide in the U.K. A 2016 Center for Disease Control and Prevention study reported similar results in the U.S., with rates highest among lumberjacks, farmworkers, fishermen, carpenters, miners, electricians, construction trades, factory and production workers, and others who build, install, maintain, and repair things.

Other noteworthy findings of both studies were that suicide rates were three times higher among men than women; the highest female suicide rate was among police, firefighters and corrections officers; the second highest female suicide rate was in the legal profession; and among the professions, lawyer suicides were in third place after doctors and dentists.

The CDC study speculated that the principle causes behind these statistics include job-related isolation and demands, stressful work environments, and work-home imbalance, all of which are endemic in the legal profession. The British Columbia LAP piece quoted above states flatly that:

From a health perspective it is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.

The article reports that a sense of meaningless is expressed differently by older vs. younger lawyers:

[A sense of meaningless about their work] is stated more directly by older practitioners as boredom, lack of job satisfaction, just getting through each day, turning out work without time to contemplate, turning out product for clients like a machine, and lack of connection to clients, which is often expressed as lack of client loyalty. Legal professionalism has been eroded by the need for volume, speed and uniformity of work product.

The younger practitioners . . . ask, “What good am I doing?” They express a lack of control over work or life. They worry about the demands of clients, and that there is little opportunity for them to utilize creative thinking. They also ask if they can have a life and practice law. . . . [T]hey do not get a sense of fulfillment from practicing law. They do not get a sense of meaning from it and it seems to be valueless.

We’ve been looking at books, articles, surveys, and academic research from business, academia, the professional world, and even the United Nations. All agree that meaningless malaise in the workplace is worldwide and afflicts both men and women across a full range of occupations from the “maintainers” to professionals. Money doesn’t help, neither does living in a “happy,” first world country. Striving after wealth and income growth only makes things worse. Meanwhile, rates of self-destruction are alarmingly on the rise, especially in this century.

More next time.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Preventing Legal Malpractice: Preservation and Spoliation of Evidence

At what point in litigation does a duty arise to preserve evidence? If your client deletes electronic files, can you be held responsible? What sanctions arise from failure to preserve evidence? These questions and more are addressed in the Colorado CLE handbook, Lawyers’ Professional Liability in Colorado: Preventing Legal Malpractice and Disciplinary Actions. Anna Martinez, a litigation attorney at Franklin D. Azar & Associates, PC, is the author of Chapter 29, “Preservation and Spoliation of Evidence”:

Learn about preservation issues and more at the Colorado CLE program, “Preventing Legal Malpractice 2016.” Two half-day programs will be offered for Preventing Legal Malpractice. On March 11, 2016, in Denver, CLE will host “Staying Above the Line,” where topics to be discussed will include Top Ten Ethics Complaints, Trends in Legal Malpractice, Intra-Firm Privilege, and Preservation and Spoliation of Evidence. Register here or call (303) 860-0608. On March 17, 2016, in Colorado Springs, CLE will present “Managing Risks.” Topics to be addressed at “Managing Risks” include Avoiding an Accidental Attorney-Client Relationship, Tech Traps, Trends in Legal Malpractice, and the Top Ten Ethics Complaints. Register here or call (303) 860-0608.

As an extra incentive, ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado. Additionally, HUB International is the endorsed broker for the CBA. HUB can help attorneys secure professional liability insurance in order to run a successful practice.

 

CLE Program: Preventing Legal Malpractice 2016 — Staying Above the Line and Managing Risks

Staying Above the Line — This CLE presentation will take place Friday, March 11, 2016, in the CLE Large Classroom in Denver. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 AudioVideo OnDemand.

Managing Risks — This CLE presentation will take place Thursday, March 17, 2016, at the Double Tree Hotel in Colorado Springs. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law

The breakneck speed at which technology is advancing presents both extraordinary opportunity and unprecedented risk to you and your clients. As data breaches and cyber attacks increase, so do the costs associated with preventing and dealing with them when — not if — they happen.

This practical seminar provides guidance on the state of the law on data security and privacy, as well as sound practices on how to minimize risk of a breach. Learn about data security and privacy issues with the European Union and Changes to the Safe Harbor Act, as well as the status of negotiations over the General Data Protection Regulations. Learn the reasonable measures to take in case of a breach, as well as best practices for advising your board and executives. Discover the latest challenges in employment law, as well as ethical dilemmas.

 

CLE Program: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation will take place Friday, January 22, 2016, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.