April 30, 2017

Top Ten Law Practice Management Programs and Homestudies

The year is almost over, and with it the compliance period is ending for many Colorado attorneys. As we draw to a close with our review of the Top Ten Programs and Homestudies in several substantive practice areas, we wanted to include something important to practitioners across all fields of law—law practice management and legal writing. Colorado CLE offers law practice management and legal writing programs throughout the year, including classes on how to use Adobe Acrobat in a law practice, analyzing financial statements, conducting online research, and much more. Read on for the Top Ten Law Practice Management Programs and Homestudies.

10. Essential Legal Research Methods and Resources for Colorado Lawyers. Legal research in a university setting often involves analyzing a long-standing legal issue with well-established outcomes. Research in practice, however, can focus on cutting edge and messy legal issues where the law is only starting to emerge, with conflicting and ethical issues. This program provides advanced techniques for finding and analyzing primary and secondary law sources, free legal research, and more. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Drafting Complex Legal Documents with Microsoft Word. This program, taught by nationally renowned speaker Barron Henley, features tips and tricks to create, share, automate, and manage electronic documents. Learn about Word’s style features, simple automation techniques, file organization, keeping documents secure while allowing comments, and more. Seven general credits, including one ethics credit; available as DVD homestudy and Video OnDemand.

8. Legal Writing in the Smartphone Age. Gone are the long, flowing emails messages with pretty graphics and lots of attachments. Today’s communication — almost 100% electronic — is immediate, brief, clear, and powerful. Designed to boost your instant or near-instant message-drafting skills, this practical half-day program will teach you how to draft clearer and more effective emails, court documents, and memoranda. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Accounting and How to Understand and Analyze Financial Statements. There are financial issues involved with every type of law practice and it is your duty to possess the skills and knowledge necessary to handle those issues effectively.  This detailed program will provide you with the financial literacy required to protect yourself and your clients through your understanding of accounting concepts, terminology, and financial statements. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. iPad for Legal Professionals — Basics and Advanced. These two half-day programs provide useful tips for using iPads in a law practice. The first half covers “must-have” apps that should be on every lawyer’s iPad and tackle important security settings and how-to’s on loading documents and printing. The second half answers more advanced questions, like “How can you do legal research on the iPad? How do you give a presentation on the iPad? Do you need to buy a keyboard or stylus?” Four general credits each; available as DVD homestudy (Basics/Advanced) or Video OnDemand (Basics/Advanced).

5. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is designed for lawyers who want to sharpen their skills. It provides a practical overview of various kinds of motions likely encountered in pre-trial civil practice. Specific techniques, skills, and methods for persuading the court and decision-makers are covered. The program will generally reference state and federal rules of procedure and evidence. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. The Art of Communication. Being a lawyer means being an effective communicator. Yet, in an increasingly electronic age, what is effective communication and how do we measure our own effectiveness in keeping our clients informed as to complex issues, guiding them in making difficult decisions, and speaking on their behalf to others? This half-day interactive seminar is designed to explore in depth the art of strategic communication by introducing participants to theories and specific practice tips concerning improved written and electronic communications. Four general credits; available as MP3 audio download and Video OnDemand.

3. How to Become Your Own Cybersleuth: Conducting Effective Internet Investigative and Background Research. In this fast-paced investigative research seminar, you will learn to create more effective Internet searches to locate information crucial to your matters, which you might otherwise miss. We will reveal hidden Google search features and shortcuts to speed up your research. You will also learn to use free public record sites and sites with free “publicly available” information (including social media sites), for discovery, trial preparation, background checks, and for locating missing persons. Discover the advantages (and limitations) of data broker databases. Each homestudy comes with a copy of the book, The Cybersleuth’s Guide to the InternetSeven general credits; available as live Video Replay in Denver on January 5, 2016, or as CD homestudy.

2. Hanging Your Shingle 2015: Hardware. Software. Anywhere You Go. In this intensive two and a half day course, you will get the tools, information and building blocks you need to confidently open the doors to your new firm. If you believe you can’t afford to venture out on your own, is it time to ask yourself if you can afford not to? Eighteen general credits, including 7.9 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Preventing Legal Malpractice. Each year, CLE presents two Preventing Legal Malpractice programs: one directed at transactional attorneys, one directed at litigation attorneys. In addition to the printed materials, each attendee receives a copy of CLE’s book, Lawyers’ Professional Liability in Colorado. For 2016, there will be Preventing Legal Malpractice programs in Denver on March 11 and in Colorado Springs on March 17. Registration is not yet open, but save the dateFour general credits, including four ethics credits. NOTE: This program is repeated annually. Click here for the 2015 programs (transactional/litigation) and click here for the 2014 programs (transactional/litigation).

Associate’s Mind: Book Review — Writing to Win

keith-lee-birmingham-alabama-attorneyEditor’s Note: This post originally appeared on July 12, 2012, on Keith Lee’s blog, Associate’s Mind. Reprinted with permission.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven Stark; see below for registration information.

Roughly a month ago I received a review copy of Steven Stark’s Writing To Win. It’s taken this long for me to get the review up because A) I’ve been busy and B) I always fully read any book I receive and Writing To Win is long and dense – albiet in the all the best ways possible. Writing To Win now sits next to Ross Guberman’s Point Made as one of my favorite books on legal writing.

In my review of Point Made I stated:

Point Made is not an introductory level book. If you’re not familiar with basic legal writing, you might be better off starting somewhere else. But it might be the best technique oriented legal book I’ve ever read . . . Point Made is a tactical book. Point Made provides granular-level advice that can immediately be implemented in your writing.

Writing To Win is the introductory book I would hand anyone looking to learn about legal writing. If I were to design a legal writing course, it would be the course textbook.

Writing To Win’s strength is in its organization and clarity of purpose. Both of which are what Stark emphasizes again and again as fundamental tenant of strong legal writing. The book is broken into four section:

  1. The Fundamentals of Legal Writing
  2. The Fundamentals of Argument for All Lawyers
  3. Writing in Litigation
  4. Writing in Legal Practice

The first section, The Fundamentals of Legal Writing, begins with a focus on organization. It then moves into the actual construction of text. Like every other good book on legal writing in emphasizes core points:

  • Avoid legal jargon
  • Keep it short
  • Keep it simple
  • Write for the reader, not for yourself

But Stark lays it out in a very effective way. Each topic is broken down, examined, then placed into context of the the larger purposes of legal writing. Each topic also flows directly into the next one while building on top of the previous material. It’s masterfully done – the text is a perfect example of the type of writing Stark is discussing.

The second section, The Fundamentals of Argument for All Lawyers, takes a very different approach to crafting legal arguments than I imagine is taught in most law schools. For example this section:

So any time you compose an argument . . . my advice would be to do enough research first to get a general sens of the law. No matter how complex the matter, this research should never take more than an hour or so. Then put all you research aside ask yourself, if I had to explain to a judge, or another lawyer, or a client why we should win without resorting to any precedent or law, what would I say? In laymen’s terms, why are we right? Then write those reasons down. . .

Outline the argument, research it later.

Which I have found to be an excellent tool in my own writing. It’s just a shame that I had to come to it on my own and was not taught it in law school. I was also pleased to see that Stark gave heavy emphasis to the advertising industry. Like I stated in my post about the writing blogs I follow, I think lawyers could gain a lot my studying the techniques the advertising industry uses to persuade consumers. It’s nice to see it echoed in Writing To Win. 

Also, Stark emphasizes the use of narrative in argument. A well constructed narrative is the difference between a slog of a brief and one that pulls the reader along. Stark quotes Chief Justice John Roberts in this section, which makes the point most succinctly:

Every lawsuit is a story, I don’t care if its about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together – that’s a story. And you’ve got to tell a good story.

Sorry lawyers, you’ve got to be good authors too. But most of you probably secretly want to do that anyway.

The last two sections, Writing in Litigation and Writing in Legal Practice, provide detailed strategies for tackling a number of styles of legal writing. From affidavits to appeals, from memos to emails, Stark provides concrete methods for making smooth, organized, flowing language that should make the text easier to parse for readers. The sections are littered with tips like study a cookbook or board game to improve your technical writing (taking a complex set of rules and systems and explaining them in a way that anyone can understand). It’s too much to go into here, but it Stark does an excellent job covering the most common writing scenarios lawyers deal with day to day.

__________________

Earlier I stated that Writing To Win “is the introductory book I would hand anyone looking to learn about legal writing.” This not because the book is simple or a beginner level book – it’s because it is one of the clearest and most well organized books on legal writing I’ve had the pleasure to read. Any law student or new lawyer looking to brush up on their writing skills would do well to pick up this book. Highly recommended.

Worth noting, the Appendix of the book contains 8 General Rules for Professionalism in Legal Writing. The number one rule?

Never lie under any circumstance. 

Sometimes I think lawyers forget that.

Keith Lee is a lawyer in Birmingham, Alabama. He is the founder and editor-in-chief of Associate’s Mind, one of the most popular legal blogs in the US. Associate’s Mind has been linked to by the New York Times, the Wall Street Journal, Above the Law, ABA Journal, dozens of  blogs and websites, and has been featured as an Editor’s Pick at the Browser. It is frequently featured in the national newsletter, Technolawyer, and many of its articles were syndicated to LexisNexis. Associate’s Mind was selected as one of the “Blawg 100″ by the ABA Journal for 2011. Keith also writes a weekly column for Above The Law.

CLE in Colorado is hosting two half-day programs presented by Writing to Win author Steven D. Stark on October 1, 2015: “Legal Writing in the Smartphone Age” in the morning and “Writing to Win” in the afternoon. All attendees of the afternoon program will receive a copy of Writing to Win. To register, click the links below or call (303) 860-0608.

CLE Programs: Legal Writing in the Smartphone Age AND Writing to Win

These CLE presentations will take place Thursday, October 1, 2015 at the CLE offices. Click here to register for “Legal Writing in the Smartphone Age,” click here to register for “Writing to Win,” and click here to register for both programs. These programs are also available as webcasts.

Husch Blackwell Attorneys Win Burton Award for Distinguished Legal Writing

By Husch Blackwell

Two of Husch Blackwell’s Denver attorneys were presented a “Distinguished Legal Writing Award” from the 2013 Burton Awards for Legal Achievement, in a ceremony held at the Library of Congress June 3. Partner David Steefel and Associate Christopher Brady were honored for their 10-page article, “The Hague Convention on the Civil Aspects of International Child Abduction,” published in the April 2012 issue of The Colorado Lawyer.

Now in its 14th year, the Burton Awards is dedicated to rewarding great achievements in law with a special emphasis on writing and reform. The awards are selected by law school professors and judges, including professors from Harvard Law School; the University of Pennsylvania Law School; and the University of California, Irvine School of Law.

Brady noted that a highlight of the event for him was U.S. Supreme Court Justice Sonia Sotomayor’s discussion of her book, My Beloved World. “It was an honor to receive this award and be recognized along with other outstanding lawyers and Justice Sotomayor,” he said. “It is encouraging that our profession continues to recognize and encourage writing that presents complex legal issues in a clear and concise manner.”

Steefel and Brady’s article discusses the elements for establishing and defending a claim under the Hague Convention and the International Child Abduction Remedies Act, as well as various procedural aspects of such a claim — and practical guidance and useful resources for attorneys undertaking their first convention case.

Book Review — “Losing Twice: Harms of Indifference in the Supreme Court”

Losing Twice: Harms of Indifference in the Supreme Court
by Emily M. Calhoun

In Losing Twice, University of Colorado Law School Professor Emily Calhoun argues that the way judicial opinions are written can cause losing stakeholders to suffer additional, unnecessary harms. Given the topic, the book will be of interest to judges and others who write judicial opinions; however Professor Calhoun’s intended audience is “ordinary citizens.”

Calhoun’s thesis is non-ideological. Debates about originalism, minimalism, and activism are refreshingly absent from her book. Instead, Losing Twice focuses on people—most narrowly the non-prevailing parties in Supreme Court constitutional-rights disputes, and broadly, an array of stakeholders affected negatively by court decisions. These stakeholders come to the court in good faith, with much at stake, making the judicial choice to rule against them “essentially [a] tragic choice.”

Judicial opinions can be written in a way that honors losing stakeholders’ status as citizens or that demeans them; that acknowledges their continuing role in constitutional democracy or that shuts them out; or that respectfully articulates their views on an issue or that trivializes those views. For Calhoun, properly honoring losing parties and positions in judicial opinions is more than just a nice thing for judges to do. Opinions that demean losing litigants, that ignore them (willfully or inadvertently), or that hide behind hyper-technical rationality or “the doctrine made me do it” rhetoric create real harms, not only to the immediate parties but also to judicial legitimacy and democracy.

Calhoun offers the judicial opinions for two abortion cases, Roe v. Wade and Gonzales v. Carhart, as examples of opinions causing harm. Although the outcome in the first case is viewed as a pro-choice victory and the outcome in the second a pro-life one, Calhoun argues that both opinions show an indifference to the constitutional stature and autonomy of women.

Held up as an example of a well-written opinion is retired Denver Judge Jeffrey Bayless’s opinion in Romer v. Evans. According to Calhoun, Judge Bayless carefully laid out the arguments of each side and made a “special effort to address all citizen stakeholders,” not just those identified in the parties’ briefs. Judge Bayless also acknowledged the difficulty and impermanence of his decision and “put himself and his judgments about the legitimacy of the decision at the mercy of his audience.”

Calhoun’s claims are not beyond critique. Given how seldom lawyers—let alone “ordinary citizens”—actually read judicial opinions (something Calhoun seems to acknowledge in her discussion of Roe), the composition of opinions may have little effect on our public knowledge of their meaning, or on how their language is paraphrased and summarized by the media or by other instant and historical intermediaries. Nevertheless, judges, lawyers, and armchair Supreme Court enthusiasts will find Losing Twice to be a thought-provoking read that sheds new light on famous constitutional law decisions and that may inform their own written expression.

Derek Kiernan-Johnson is a legal writing professor at the University of Colorado in Boulder. He teaches legal writing, appellate advocacy, and judicial-opinion writing — (303) 492-5863, derek.kiernan-johnson@colorado.edu.Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 114 (August 2011). All rights reserved.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation took place on Monday, October 1. The program will be available as a homestudy in two formats: video on-demand and mp3 download.

Legal Writing Pro: The Apple of Our Eye – Scoring the Apple v. Samsung Openings

One of the greatest patent cases of all time, Apple v. Samsung, just won Apple a stunning billion-dollar verdict.

But did Apple prevail on the writing front as well? Let’s see how many points each party racked up in the opening paragraph of its trial brief.

Apple’s Opening Paragraph

Samsung is on trial because it made a deliberate decision to copy Apple’s iPhone and iPad. Apple’s innovations in product design and user interface technology resulted in strong intellectual property rights that Samsung has infringed. Try as it might, Samsung cannot deflect attention from its own copying by the patents it has asserted against Apple. To the contrary, the trial will expose how Samsung deceived the international body responsible for creating the UMTS wireless standards to slip its patents into the standard and illegally monopolize technology markets. [Apple’s brief]

Points for Apple

  • The first sentence is short and thematic: Samsung is at once lazy and scheming.
  • The client, associated with “innovations,” is portrayed favorably.
  • “Innovation” is backed up by mentions of product design and interface technology.
  • The opponent, associated with “deception,” is portrayed unfavorably.
  • “Deception” is backed up by mentions of slipping patents into standards and monopolizing markets.

Half-Point Deductions

  • The syntax of the third sentence doesn’t work: You’d deflect attention “by” asserting patents or “through” the patents asserted. But you wouldn’t deflect attention “by” the patents themselves.
  • The final sentence tries to do too much at once, and it doesn’t contrast clearly enough with the preceding sentence to justify “to the contrary.”

Samsung’s Opening Paragraph

In this lawsuit, Apple seeks to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits. Android phones manufactured by Samsung and other companies — all of which Apple has also serially sued in numerous forums worldwide — offer consumers a more flexible, open operating system with greater product choices at a variety of price points as an alternative to Apple’s single, expensive and closed-system devices. [Samsung’s brief]

Points for Samsung

  • The first sentence is thematic: Apple is at once greedy and anti-consumer. The Gordon Gekko of technology, it would appear.
  • Apple, with its “serial suits,” is also portrayed as an aggressor, and Samsung as its latest victim.
  • Samsung, by contrast, is portrayed as consumer-friendly (“More Choices, More Price Points”—not quite “Great
    Taste . . . Less Filling!” but effective all the same).
  • Samsung sets up a clean and even memorable contrast (“flexible and open” versus “single, expensive, and closed”).
  • Samsung subtly sounds its legal theme: that the products are much less similar than their outward appearance suggests.

Half-Point Deductions

  • The “to maintain” in the first sentence is confusing. Avoid having “to” twice in the same clause if one “to” means “in order to.” Here, for example, it sounds as if “to maintain” belongs with “stifle.” Maybe we should cut the self-evident “in this lawsuit” and move “to maintain” to the front: “To maintain its historically exorbitant profits, Apple seeks to stifle legitimate competition and limit consumer choice.”
  • The second sentence contains a common typo: the two hyphens after “worldwide” are meant to be a dash. (Hint: When you want to make a dash by typing two hyphens, you need to hit the space bar after the word that follows.)

You Win

Despite Apple’s victory on the merits, then, I’ll call this writing fight a draw. The real winner could be you, however. After all, few attorneys score any points at all in their opening paragraphs, let alone the five we’ve seen for each party here. So whether you prefer an iPhone or a Droid, see how many of these five points you can score in your next opening:

  1. A short, thematic first sentence.
  2. A sense of what the dispute involves.
  3. A key fact that puts your client in a positive light.
  4. A key fact that puts your opponent in a negative light.
  5. A clear and even memorable contrast that you can return to throughout your brief—what former Third Circuit Chief Judge Ruggero Aldisert calls the “flashpoint of controversy.”

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Five Grammar Myths

For scams and urban legends, we have snopes.com. But what about the grammar myths that fill the air at so many workplaces? Are these five myths holding you back—or making you crazy?

If you think you can’t start a sentence with “but” or “because” or would rather get a root canal than split an infinitive, prepare to be liberated.

Myth One: You can’t start a sentence with a coordinating conjunction like and, yet, or but.

What it would mean if true: All nine Supreme Court Justices would be incompetent writers.

Who says it’s a myth:

  • Chicago Manual of Style, 16th ed.: This myth has “no historical or grammatical foundation”; “a substantial percentage [often as many as 10 percent] of the sentences in first-rate writing begin with conjunctions” (5.206).
  • American Heritage Guide to Contemporary Usage and Style: starting sentences with conjunctions is “rhetorically effective” (p. 70).
  • Joseph Williams, Style: “Just about any highly regarded writer of nonfictional prose begins sentences with and or but, some more than once a page” (p. 182).
  • Garner’s Modern American Usage: “It is a gross canard that beginning a sentence with but is stylistically slipshod” (p. 121).
  • Fowler’s Modern English Usage, 2nd ed.: “That it is a solecism to begin a sentence with and is a faintly lingering superstition. The OED gives examples ranging from the 10th to 19th c.; the Bible is full of them” (p. 29).
  • Wilson Follett, Modern American Usage: “A prejudice lingers from a by-gone time that sentences should not begin with and. The supposed rule is without foundation in grammar, logic, or art. And can join separate sentences and their meanings just as but can both join sentences and disjoin meanings” (p. 27).
  • Merriam Webster’s Dictionary of English Usage: “Everybody agrees that it’s all right to begin a sentence with and, and nearly everybody admits to having been taught at some past time that the practice was wrong. . . . Few commentators have actually put the prohibition in print; the only one we have found is George Washington Moon (1868)” (p. 93).

Myth Two: You can never split an infinitive.

What it would mean if true: The Star Trek writers should have rewritten this famous sentence: “To boldly go where no man has gone before.”

Who says it’s a myth:

  • Chicago Manual of Style, 16th ed.: “It is now widely acknowledged that adverbs sometimes justifiably separate an infinitive’s to from its principal verb” (5.106).
  • The Elements of Style, 4th ed.: “Some infinitives seem to improve on being split,” as in “I cannot bring myself to really like that fellow” (p. 113).
  • American Heritage Guide to Contemporary Usage and Style: “[T]he split infinitive is distinguished [by both] its length of use and the greatness of its users . . . noteworthy splitters include . . . Abraham Lincoln, George Eliot, Henry James, and Willa Cather” (p. 441).
  • Barbara Wallraff, Word Court: “Splitting an infinitive is preferable both to jamming an adverb between two verbs . . . and to ‘correcting’ a split in a way that gives an artificial result” (p. 99).
  • Fowler’s Modern English Usage, 2nd ed.: “We admit that separation of to from its infinitive is not in itself desirable,” but “we will split infinitives sooner than be ambiguous or artificial” (p. 581).

Myth Three: You can’t split a verb phrase.

What it would mean if true: You would have to write “he usually will take an extreme position,” not “he will usually take an extreme position.”

Who says it’s a myth:

  • Chicago Manual of Style, 16th ed.: “There is no rule against adverbial modifiers between the parts of a verb phrase. In fact, it’s typically preferable to put them there” (5.168).
  • Garner’s Modern American Usage: “[M]ost authorities squarely say that the best place for the adverb is in the midst of the verb phrase” (p. 23).
  • Wilson Follett, Modern American Usage: “With a compound verb—that is, one made with an auxiliary and a main verb—the adverb comes between auxiliary and main verb (He will probably telephone before starting)” (p. 18).
  • Merriam Webster’s Dictionary of English Usage: “This bugaboo, commentators agree, seems to have sprung from fear of the dread split infinitive” (p. 36).
  • Fowler’s Modern English Usage, 2nd ed.: “It is probably a supposed corollary of the accepted split-infinitive prohibition; at any rate, it is entirely unfounded. . . . There is no objection whatever to dividing a compound verb by adverbs” (pp. 464-65).

Myth Four: You can’t end a sentence with a preposition.

What it would mean if true: You would have to mimic Winston Churchill, who famously mocked the alleged rule by saying, “This is the type of arrant pedantry up with which I shall not put.”

Who says it’s a myth:

  • Chicago Manual of Style, 16th ed.: “an unnecessary and pedantic restriction” (5.176).
  • Garner’s Modern American Usage: The rule is “spurious” (p. 654).
  • Patricia O’Connor, Woe is I: “This idea caught on, even though great literature from Chaucer to Shakespeare to Milton is bristling with sentences ending in prepositions” (p. 183).
  • Fowler’s Modern English Usage, 2nd ed.: “It was once a cherished superstition that prepositions must be kept true to their name and placed before the word they govern in spite of the incurable English instinct for putting them late” (p. 473).

Myth Five: You can’t start a sentence with because.

What it would mean if true: Emily Dickinson made a mistake when she wrote, “Because I could not stop for Death, / He kindly stopped for me.”

Who says it’s a myth:

  • American Heritage Guide to Contemporary Usage and Style: starting a sentence with “because” is “perfectly appropriate” (p. 53).
  • Mark Davidson, Right, Wrong, and Risky: starting a sentence with “because” is “fully accepted” (p. 105).
  • Joseph Williams, Style: “[T]his particular proscription appears in no handbook of usage I know of” (p. 181).
  • Garner’s Modern American Usage: “odd myth [that] seems to have resulted from third-grade teachers who were trying to prevent fragments” (p. 92).
  • Merriam Webster’s Dictionary of English Usage: “This rule is a myth. Because is frequently used to begin sentences,” often “for greater emphasis” (p. 171).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

The Google-Powered Law Office: Quick Tips for Gmail and Word Processing

On June 29, Carole Levitt and Mark Rosch, internationally recognized Internet trainers and authors of five American Bar Association books, will be in the CBA-CLE classroom to show you how super-charging your Google search strategies will assist you in your discovery and trial preparation needs, in addition to locating missing persons and successfully completing transactions.

In anticipation of their presentation, they have provided two quick Google Apps/Docs tips to enhance your email communications and word processing to the next level. Carole and Mark will be discussing these and many more amazing and often untapped Google features and resources on the 29th – click here for registration information or view more options below.

Undo Sending a Gmail Message

At one time or another, just about all of us have inadvertently sent an email message before we’ve actually finished writing it or pressed “Send” on a message that we never actually intended to send. Gmail and Google Apps for Business give users the ability “undo” that mistake.

While not all that new anymore, the ability to recall a message after you’ve clicked the send button, but before it’s actually been sent, is still surprisingly little-known. “Undo Send” lets you set a cancellation period—up to 30 seconds—within which you can pull that message back.

To turn on this feature, click the gear icon in the upper right-hand corner of the Gmail Inbox window and then scroll down, check the “Enable Undo Send” box, and select an amount of time (5, 10, 20, or 30 seconds) in which you can undo sending a message.

After you send an email with “Undo Send” enabled, a blue “Undo” link appears at the top of your screen. Clicking the link pulls the message back from being sent and reopens the message in a composition window so you can edit (or delete) it.

Customizable Styles in Google Docs

One of the complaints we hear most about Google Docs is the lack of sophisticated styles, like those found in packaged commercial word processing software. This is one of the areas where Google Docs has made some of its biggest strides. Now, not only can you set styles using a drop-down menu on the Google Docs toolbar, but you can also customize and automatically update existing styles throughout an entire document.

Previously, if you wanted to update all the text assigned the style Heading 1 in your document to look a particular way, you had to change each of them one at a time. Now you can customize all the Headings, Titles, Subtitles, and regular text in your documents using an intuitive “Styles” drop-drown menu or using your mouse buttons. For example, if you want to change all the text assigned the style Heading 1 in your document to be a 10 point Arial bold, you can select one line of type to which you’ve assigned the style Heading 1, change it to 10 point Arial bold, select it, right click, and choose “Update Heading 1 to match selection.” This will change all the text assigned the style Heading 1 already in your document and automatically update the style for any new text you assign the style Heading 1.

Using the “Options” menu in the styles drop-down, you can also save the current document’s styles as your new default set of styles for new documents.

CLE Program: The Google-Powered Law Office – Search Tricks, Cloud Apps, and Research Tips

This CLE presentation will take place on Friday, June 29. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a DVD homestudy.

Legal Writing Pro: Stop Cutting “That”

When I ask my audiences which words or phrases they like to cut from their drafts, someone often mentions the word “that.”

Not so fast, I suggest.

Read this sentence to see why:

After an evidentiary hearing, the court found Buffalo Wild Wings was not a fast-food restaurant and, hence, was not covered by the restrictive covenant.

I plucked this example from the first pages of an Illinois Court of Appeals opinion on Buffalo Wild Wings and on trailing modifiers in restrictive covenants (don’t ask).

In this sentence, and in millions more just like it, cutting “that” does more harm than good.

After all, the Buffalo Wild Wings restaurant wasn’t lost, so the court didn’t “find” it, despite what the court suggests.

Incidentally, we should also change “hence” to “thus” and cut the pair of commas.

So we end up with something like this:

After an evidentiary hearing, the court found that Buffalo Wild Wings was not a fast-food restaurant and thus was not covered by the restrictive covenant.

Other sentences in the opinion need similar fixes:

The court found the action was to determine the consequences of future action: in the event Reed returned the dozer, would Roland be obligated to accept it and return the purchase price?

The court didn’t find a lost action here; it found that the action had an aim.

Lopax appeals the court’s decisions (1) the restrictive covenant covered only fast-food restaurants serving primarily chicken, (2) the declaratory-judgment action was not barred by the doctrine of nonliability for past conduct, . . .

Lopax, for its part, didn’t appeal a “decision the restrictive covenant covered” (whatever that might mean); it appealed from a decision that the covenant covered a certain kind of restaurant.

Bottom line: give “that” a break. By doing so, you’ll be following the lead of our Supreme Court:

Anthony Kennedy, Citizens United v. Federal Election Commission, opinion:

Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity.

John Paul Stevens, Citizens United v. Federal Election Commission, dissent:

Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms.

We have long since held that corporations are covered by the First Amendment, and many legal scholars have long since rejected the concession theory of the corporation.

And our new Solicitor General:

Donald B. Verrilli, Jr., FCC v. Fox Television Stations, merits brief:

Fox contends that past Commission orders involving those words could not have alerted it that the Billboard Music Awards broadcasts would be considered indecent because the prior orders involved the “repeated[]” use of the expletives.

Moreover, many programs are not rated at all, and even for rated programs, a recent study found that “only 5% of parents felt that television ratings were always accurate.”

While acknowledging that its own standards “generally do not permit” broadcast of the F-Word or S-Word, Fox contends that those standards are “irrelevant to the vagueness analysis.”

Donald B. Verrilli, Jr., HHS v. Florida, merits brief:

In particular, Congress found that without a minimum coverage provision, “many individuals would wait to purchase health insurance until they needed care,” taking advantage of the Act’s guaranteed-issue and community rating provisions, thereby driving up costs in the non-group market (and, indeed, threatening the viability of that market).

And even the Wall Street Journal:

The Georgia Supreme Court’s unanimous ruling concludes that the 1994 state law “restricts speech in violation of the free speech clauses” of the U.S. and Georgia constitutions.1

In congressional testimony on Thursday, Fed Chairman Ben Bernanke acknowledged that low rates penalize savers.2

Just to be clear, I’m not suggesting that you never cut “that.” I’m simply suggesting that confusing the reader even for a second is far worse than including one short four-letter word. So while “The court found the bank” can mislead, “I suggest you call him” cannot.

And that’s enough of “that.”


  1. Wall Street Journal, “Georgia Court Overturns Law Restricting Assisted Suicide,” Feb. 6, 2012.
  2. Wall Street Journal, “Itchy Investors Ramp Up the Risk,” Feb. 6, 2012.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Four Usage Fights

1. Should I use a serial comma?

Some say we should omit the last comma in a series because it takes up space. For lawyers, however, ambiguity is much scarier than an extra comma.

Every authority that matters in the legal world favors the serial comma: Strunk and White, Wilson Follett, the Chicago Manual of Style, and Bryan Garner’s Dictionary of Modern Legal Usage, just to name a few. The few authorities that disagree are all journalism guides.

Still not convinced? All nine U.S. Supreme Court Justices use the serial comma. Here are three examples:

Justice Breyer:

They have no access to newspapers, magazines, or personal photographs.1

Justice Souter:

The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia.2

Justice Kennedy:

The Court’s tripartite structure is something not addressed by the state trial court, the state appellate court, counsel on either side in those proceedings, or the briefs the parties filed with us.3

2. Can I start a sentence with however?

Starting sentences with however is grammatically correct. Many good writers avoid doing so, however, because however is heavier than but. When these writers do use however, they move it into the middle of the sentence to emphasize the contrast:

Smith, however, was unable to compensate Jones.
Smith was unable, however, to compensate Jones.

In the recent Solomon Amendment case, Chief Justice John Roberts uses however six times mid-sentence. At the beginning of his sentences, he prefers but:

In its reply brief, the Government claims that this question is not before the Court because it was neither included in the questions presented nor raised by FAIR. […] But our review may, in our discretion, encompass questions “fairly included” within the question presented, […] and there can be little doubt that granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says.4

3.  Can I start a sentence with and, but, or yet?

Yes, yes, and yes. Note the following sentences from Hamdan v. Rumsfeld:

Justice Stevens:

And that authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.

Justice Scalia:

But they surely gave Congress ample reason to doubt that their application in pending cases would unfold as naturally as the Court glibly assumes.

Justice Alito:

Yet the mere statement that a military court is a regularly constituted tribunal is of no help in addressing petitioner’s claim that his commission is not such a tribunal.

One small point: When you start a sentence with and, but, or yet, don’t use a comma. The purpose of these punchy conjunctions is to force the reader into the rest of the sentence. A comma does nothing but stop the flow.

4.  Can I start a sentence with because?

“You shouldn’t start sentences with because.” Really? It’s true that kids are inclined to say, “I want to stay inside. Because it’s raining.” But great adult writers can—and should—start sentences with because to emphasize cause and effect:

Kathleen Sullivan:

Because each posting of a work is technically a “copy,” each posting is within the reach of the Copyright Act.5

Lawrence Tribe:

Because all the undervotes that will be manually counted will be counted under this same standard, there is nothing to [Bush’s] equal protection claim.6

Walter Dellinger:

Because the team was not afforded funding, equipment, and facilities equivalent to those offered to boys’ teams, petitioner was denied an equal playing field from which to coach.7

Justice Ginsberg:

Because the deadly weapon Recuenco held was in fact a handgun, the prosecutor might have charged, as an alternative to the deadly weapon enhancement, that at the time of the assault, Recuenco was “armed with a firearm.”8

Justice Thomas:

Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses.9

_____

  1. Beard v. Banks (2006).
  2. Clark v. Arizona (2006).
  3. Id.
  4. Rumsfeld v. FAIR (2006).
  5. Petitioners’ brief in Eldred v. Ashcroft (2003).
  6. Respondents’ brief in Bush v. Gore (2000).
  7. Petitioner’s brief in Jackson v. Birmingham Bd. of Educ. (2006).
  8. Washington v. Recuenco (2006).
  9. Kansas v. Marsh (2006).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Five Secret Typography Tips for Lawyers

By Matthew Butterick

Writing a book about typography for lawyers is a little like running a karate dojo — as the master, I have to keep a few secrets for myself. But for Ross, I’ll bend the rules. Here are five of my favorite typography tips that I don’t usually share with people:

1) Extra characters on the iPhone & iPad

Press a key on the iPhone (or iPad) keyboard and hold it down. For many keys, a key palette will appear with alternate characters. Alphabetic characters reveal accented versions. Under punctuation, you’ll find the ellipsis, the em dash, the bullet, the section mark, curly quotes, and other little conveniences.

2) Footnote references in bold

By default, your word processor will set your footnote-reference marks in the same font as your text. But at their reduced point size, those marks can look a bit pale and fragile. Instead, set those marks using a bold font. That way, when the marks get shrunk, they’ll hold up better on the page.

3) ALL-CAPS on stationery and business cards

I advise lawyers not to use CAPS for more than one line at a time, to prevent anyone from setting whole paragraphs in caps. But multiple lines of caps on stationery or business cards can look quite sharp. In fact, at those small sizes, caps are often more legible than standard upper & lower case. My own stationery and business cards are entirely set in caps.

4) Basic Commercial — a great substitute for Arial or Helvetica

Basic Commercial is a sans serif font from the early 1900s that was a precursor to Helvetica (and later, Arial). It has a similar informational look but with more historical flavor. (It was also the original font used for New York City subway signage in the ’70s.) A terrific and underused font. (See http://typo.la/bc)

5) PDF exhibit letters

If you litigate in a district that requires electronic filing, you may have wondered how to put exhibit letters in your PDFs. I’ve gotten documents from lawyers that look like they jammed the plastic exhibit tab through a scanner — not such a great idea. In addition to endangering your scanner, the exhibit letter will be barely visible to someone flipping through the PDF. So I made a special set of extra-large exhibit letters that I can drag & drop into exhibit PDFs. You can download them at http://typo.la/exhib.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Four Motion Mistakes

A federal judge in Florida recently “corrected” dozens of errors in a routine motion.

He mainly fixed typos, but he also marked up several types of errors that many excellent writers make. Here are four examples; the sample sentences are from the judge’s corrected version.

1. Faulty capitalization of Order and Motion

Throughout the judge’s mark-up, he changes “order” to “Order” and “Motion” to “motion.”

What gives?

The convention is to lowercase these words when they are used generically to describe a category of actions or papers:

Defendant in this action has filed a motion to dismiss.

but to capitalize the words when they describe a specific document:

As indicated in Plaintiff’s response to Defendants’ Motion to
Dismiss . . . .

Plaintiff hereby files this Response to the Court’s Order . . . .

2. Faulty capitalization of Plaintiff, Defendant, and Court

This judge knows his capitalization rules.

The rule here is like the rule for orders and motions.

Capitalize Plaintiff, Defendant, and Court if (1) they are the plaintiff, defendant, or court in the case you’re litigating or (2) you are using Court to refer to the U.S. Supreme Court:

Defendant was not Plaintiff’s employer.

The Court subsequently denied Defendant’s motion.

But lowercase plaintiff, defendant, and court if (1) they are the plaintiff, defendant, or court in a case you’re citing or (2) if you’re referring to plaintiffs, defendants, and courts generically.

Plaintiff filed this action against the wrong defendant.

3. Faulty punctuation of quoted material

This judge is no Anglophile. He insists that his lawyers follow American usage rules for punctuating quoted material. And that means you must put periods and commas inside the closed quotation marks.

. . . sought relief against the “Good Samaritan Society,” that being a fictitious name for Defendant.

And no, there’s no exception for a single word—or even a single letter.

See Exhibit “A.”

(Note that here the lawyer didn’t need the quotation marks in the first place.)

4. Faulty use of ordinal numbers

Unless you’re writing a date in the “1st of January, 2010” format, always spell out ordinal numbers.

That’s why the judge objected to “7th Judicial Circuit.” As he suggests, it should be “Seventh Judicial Circuit.”

Click here to view The Marked-Up Motion

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Legal Writing Pro: Are “Indemnify” and “Hold Harmless” the Same?

Drafting reformers hate couplets. They say, for example, that “terms and conditions” means nothing more than “terms.”

But can couplet aversion go too far? Take “indemnify” and “hold harmless.” Double trouble—or a distinction with a difference?

At least one authority claims that “hold harmless” protects against losses and liabilities, while “indemnify” protects against losses alone.1

Yet not all courts agree. Black’s Law Dictionary treats the two as near synonyms. And some experts even suggest cutting “hold harmless” and leaving just “indemnify.”

A Couplet to Love

My advice: Leave “indemnify and hold harmless” intact. If anything, you should add to this phrase, not subtract.

You can include language that clarifies what the indemnifying party promises to indemnify:

Seller shall hold harmless and indemnify Buyer against any losses, liabilities, and claims arising out of or relating to this transaction.

You can also spell out when the seller is obliged to indemnify the buyer: When the buyer incurs a loss or a liability? Thirty days after the buyer gives notice? After the claim is resolved?

Defend Yourself

If the seller intends to defend the buyer against claims, you could also add “and defend.” Thus “Seller shall hold harmless, indemnify, and defend Buyer.”

You Are Hereby Absolved

Some courts suggest that “hold harmless” is broader than “indemnify” because it prevents a seller, for example, from holding a buyer responsible for claims arising out of the buyer’s own negligence.2

But do you really want to rely on this distinction? Just state whether the seller intends to indemnify claims arising from the buyer’s own negligence.

Want More?

For more on indemnification and other key boilerplate provisions, I highly recommend Tina L. Stark’s Negotiating and Drafting Contract Boilerplate (2003).

_____

  1. Mellingkoff’s Dictionary of American Legal Usage 286 (1992).
  2. See, e.g., Rooz v. Kimmel, 55 Cal.App.4th 573, 582 (1997) (explaining that defendant not seeking indemnification but relying on “the general ‘hold harmless’ provision … to prevent plaintiff from directly recovering against defendant for damage he incurred from defendant’s own negligence.”).

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.