July 15, 2018

Archives for October 20, 2011

Point Made: How to Write Like the Nation’s Top Advocates

Point Made: How to Write Like the Nation’s Top Advocates

by Ross Guberman
338 pp.; $19.95
Oxford University Press, 2011
198 Madison Ave., New York, NY 10016
(800) 451-7556; www.oup.com/us

Reviewed by Charles C. Tucker

Charles C. Tucker is a founding member of Korb Tucker PLLC in Fort Collins, where he represents clients in business, employment, real property, and estate planning matters. He also is The Colorado Lawyer’s Modern Legal Writing columnist—(970) 266-5156, ctucker@korbtuckerattorneys.com. This review was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 79). Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

The legal writer has no shortage of sources to which to turn for advice. The best resources are those that writers can readily put to use. In How to Write a Sentence: And How to Read One,1 law professor Stanley Fish imparts his love of the craft of language with splendid examples from many literary sources. Bryan A. Garner, in The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts,2 uses before-and-after examples to help legal writers cut out the clutter. Judge Aldisert employs a different nuts-and-bolts approach in Winning on Appeal: Better Briefs and Oral Argument,3 and includes many short paragraphs of advice by other federal and state court jurists.

For examples of top-flight writing from actual briefs, though, consult Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman. The book bristles with sentences and paragraphs from appellate documents written by nationally known advocates, including President Barack Obama, U.S. Supreme Court Chief Justice John Roberts, and U.S. Supreme Court Justice Elena Kagan.

Guberman directly tackles brief-writing from the lawyer’s point of view. He identifies fifty techniques for achieving the most persuasive effect at every level, from organizing the brief to the choice of individual words. The techniques are pithy and useful, and therefore memorable:

#3. Why Should I Care? Give the court a reason to want to find for you.

#6. Show, Not Tell: Let choice details speak for themselves.

#21. Interception: Claim that a case your opponent cites helps you alone.

#32. Zingers: Use colorful verbs.

Each of the fifty sections is just a few pages long and includes examples and Guberman’s brisk commentary. Each example is shaded and easy to find. A busy reader can read one or two sections at a time or skip from one example to the next.

In contrast to Judge Aldisert’s systematic method, Guberman’s approach is freewheeling and anecdotal and generally directed at more experienced writers. Some experienced appellate attorneys may question whether briefs ought to have the kind of punch and bite that Guberman advocates. For example, he says that rhetorical questions can be used “to great effect” and to “put the court on the defensive”—though he also warns that they can have a “sarcastic and scathing” effect. A greater flaw, perhaps, is that the examples are not accompanied by citations or a table of cases, which hinders readers who may wish to search for the briefs Guberman praises so highly. The index is thin but does include case names and the names of the writers quoted.

Overall, Point Made is fun to read and a remarkable achievement. The examples alone are worth the book’s modest price.

Notes

  1. Fish, How to Write a Sentence: And How to Read One (Harper, 2011)
  2. Scalia and Garner, Making Your Case: The Art of Persuading Judges (Thomson/West, 2008).
  3. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed., National Institute for Trial Advocacy, 2003).

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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. His legal writing articles are often featured by Legal Connection and can be found here.

Another book written by Ross, The Attorney Toolkit: Standout Legal Writing Every Time, one of the most clear, compact, and concise guidebooks on legal writing in the country, is also available for purchase. Click here for more information.

Bankruptcy Court: No Issue Preclusion to Allow for Nondischargeability

The U.S. Bankruptcy Court for the District of Colorado issued its opinion in Diamond v. Vickery (In re Terry Kenneth Vickery) on Monday, October 17, 2011.

11 U.S.C. §§ 523(a)(2), (a)(4), and (a)(6), and collateral estoppel

Plaintiff judgment creditor’s motion for summary judgment based on issue preclusion was denied. The Court analyzed the preclusive effects of Plaintiff’s two judgments according to the law of the forums in which they were rendered. With respect to the judgment from the federal district court in California, the Court could not determine from the jury verdict that the elements necessary for nondischargeabilty under 11 U.S.C. §§ 523(a)(2), (a)(4), or (a)(6) had been necessarily decided. With respect to the Colorado judgment, issue preclusion did not apply because the judgment was pending on appeal.

Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.

Tenth Circuit: Employment Non-Renewal Hearing Satisfied Due Process Rights and Decision Was Not the Result of Retaliation or Discrimination

The Tenth Circuit Court of Appeals published its opinion in Cypert v. Indep. School Dist. No. I-050 of Osage County on Wednesday, October 19, 2011. The opinion was originally issued unpublished on August 15, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner brought suit against her former employer for failure to renew her employment contracts in violation of her First and Fourteenth Amendment rights. She claimed the decision was made against her due to gender and age discrimination. The district court rejected her claims and determined that 1) her non-renewal hearing satisfied her due process rights, 2) she failed to show her speech was a motivating factor for the decision not to renew her full-time contract, and 3) she failed to show defendants’ reason for not renewing her part-time contract resulted from discrimination.

The Court agreed with the district court’s findings. The four due process violations alleged by Petitioner were groundless; she had alleged that the hearing tribunal was biased, a non-board member improperly attended an executive session, she was not allowed to confront or cross-examine the person whose financial calculations were the asserted basis for not continuing her employment, and that the hearing was a sham because there was no financial crisis to prompt her termination. Also, her free speech was found to not have affected the employment determination; there was no causal link between her call for the investigation by a grand jury into several of the board members and the decision. Lastly, Petitioner failed to establish Respondents’ proffered reason for not renewing her contract was a pretext for gender or age discrimination.

Tenth Circuit: Unpublished Opinions, 10/19/11

On Wednesday, October 19, 2011, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Unpublished

Granite Southlands Town Center, LLC v. Alberta Town Center, LLC

United States v. Dozal

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.