November 15, 2018

Search Results for: Good Advice, Better Advice

Good Advice, Better Advice: Rethink How You Use Authority

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

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

Citations are about judgment. Consider these points.

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

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

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

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

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

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

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

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

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

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

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

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

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

Consider a few examples.

Example 1:

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

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

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

Example 2:

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

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

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

Example 3:

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

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

Example 4:

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

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

Example 5:

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

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

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

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

Meaningfully Choose Your Authority

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

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

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

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

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


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

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

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

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

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

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

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

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

 

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

Point / Counterpoint: Initiative 300 Is a Good Law that Provides for a Healthier Denver

Editor’s Note: this Point/Counterpoint series will focus on Initiative 300, which appears on the November 2011 ballot in Denver. The initiative aims to provide paid sick and safe time for Denver workers. Click here to read Initiative 300 for yourself. The Colorado Bar Association CLE also welcomes your comments on the issue. No matter what type of law you practice or how you come down on the issue, please feel free to continue the discussion in the comments section below.

The other side of this Point/Counterpoint can be found here.

Denver voters have the opportunity to make Denver a healthier place to live, stabilize working families, make businesses more productive, and strengthen the local economy by supporting Initiative 300. This measure will allow all workers employed in Denver to earn paid sick days to care for themselves or a family member when sick without jeopardizing their financial security.

Paid sick days will make Denver a healthier place to live and work.

There are 107,000 lower-wage workers in Denver who don’t have access to paid sick days – most have lots of interaction with the public at their jobs in restaurants, childcare centers, and nursing homes – and that puts everyone’s health at risk.   When they’re sick, they have to choose whether to go to work sick and risk spreading contagion or struggle paying the bills at the end of the month.  Especially in this tough economy, that’s a choice no one can afford to make.

Three out of four restaurant workers in Denver have no paid sick days and face this decision every time they get sick.  Laura, a Denver coffeeshop barista, knows she shouldn’t have reported to work with a severe cold last winter, but she did anyway to pay that month’s rent.  And Laura isn’t alone.  A national survey of restaurant workers found that nearly two-thirds have cooked or served food while sick, and that’s unhealthy for them and their co-workers – and you, their customers.

When workers are able to earn paid sick days, it makes a healthier community for all of us to live in. That’s why more than 160 Colorado public health groups, faith leaders, community organizations, labor groups, elected officials, and businesses are asking Denver voters to support Initiative 300.

Paid sick days make working families more secure.

Workers can take care of themselves, get preventive care, and help their children and other family members recuperate when they’re sick.  With paid sick days, workers don’t have to choose between being good employees and good parents.

Stronger, more secure families mean better schools for our children.  Parents with paid sick days are less likely to send a sick child to school.  When their parents are able to care for them at home, sick children get well sooner and reduce the risk of spreading illness to their classmates and teachers.  And they do better in school.

Paid sick days are good for businesses.

Businesses benefit because paid sick days decrease the spread of illness in the workplace, increase worker productivity, and protect customers, far outweighing the modest cost of implementing the policy.  In fact, paid sick days will save Denver businesses nearly $600 per year for each full-time worker by improving productivity and reducing turnover.

Paid sick days strengthen the economy by helping workers keep their jobs.

Economists say that job retention policies like paid sick days help reduce unemployment and strengthen the economy.  In San Francisco, which adopted a similar paid sick days law in 2007, two in three businesses now support the law; six in seven report no negative impact on profitability – including the restaurant association which at first opposed the law.  Since then, job growth in San Francisco has outpaced surrounding counties and the city was just named one of the top three in the world to do business.

Initiative 300 is easy to implement.

Business lobbyists have a long list of complaints about Initiative 300 – not one of which has been a problem in other cities with similar laws.  Paid sick days laws have passed legal scrutiny and challenge, and have proven easy to implement, easy to track, and haven’t led to problems for employers.

Some specific legal points about Initiative 300, which is patterned on laws passed in other cities:

  • Ordinance enforcement is in the Agency for Human Rights and Community Relations because it ALREADY has authority to conduct all aspects of enforcement – taking complaints, conducting investigations, holding hearings, providing conciliation, issuing orders, and imposing fines.
  • Municipal laws routinely apply to all businesses doing business within a city.  Initiative 300EXCLUDES employees working less than 40 hours in Denver, those with just a casual connection to the city.  This provision was added to protect business on the advice of those implementing San Francisco’s law, which also exempts workers with minimal contact with the city through regulation.
  • The commonplace 90-day non-retaliation protection ONLY applies to process, protecting those using legal remedies or cooperating with legal procedures.
  • Initiative 300 is clear that leave already provided by employers counts for purposes of the ordinance, as long as the leave is the same amount, and can be used for the same purposes.
  • State law already requires employers to offer unpaid leave for domestic violence reasons.  Under Initiative 300, employees can use paid time they accrue to get safe, but the ordinance doesn’t add leave for those purposes.
  • Initiative 300, like San Francisco regulations and other paid sick days laws, allows employers to require documentation after absences of 3 days.
  • Initiative 300, like the San Francisco and most other paid sick days laws, allows employers and unions to do something different or opt out of the ordinance through collective bargaining.
  • Nothing in Initiative 300 prevents employers from requiring employees to call in when sick, disciplining bad employees, or allowing shift-swapping.

The benefits of paid sick days far outweigh the cost.

The modest city investment – estimated by independent analysts at $277,000 – to implement Initiative 300 is small compared to the costs of not having paid sick days, including public health costs of sick workers on the job, increased emergency room usage, increased public assistance costs, and educational costs.

Who wants workers to be forced to work sick and spread contagion while they’re cooking and serving our food in restaurants, and taking care of our children and grandparents in schools, child care centers, and nursing homes?  Initiative 300 will make Denver a healthier city for all of us.

Linda Meric is the Denver-based Executive Director of 9to5, National Association of Working Women, a membership organization of low-wage women working to improve policy on workplace issues. 9to5 Colorado is one of the 160+ organizations in the Campaign for a Healthy Denver. Click here for more information.

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

Domestic Violence Awareness Month: Serve Your Clients Better by Screening Them for Domestic Violence Issues

October is Domestic Violence Awareness Month. Are you aware of whether domestic violence affects your clients?

You may be asking yourself, “Why should I be?” Let me endeavor to convince you.

I have witnessed the prevalence of domestic violence and have seen how it intersects with almost every practice area in the law. After laboring on the problem of domestic violence for twelve years, in both a legal advocacy and a public policy capacity, I still marvel at the complexity of the matter and the myriad of other issues with which it traverses. But, that is not just my own professional reality. Given that 1 in 4 women will experience domestic violence in her lifetime, and given that domestic violence impinges on people from all walks of life, chances are good that some of your clients are, or have been, in abusive relationships.

It is vital that you screen your clients for domestic violence. Here’s why:

Shame, self-blame, fear, embarrassment, thinking it is irrelevant to the legal advice she is seeking, or not identifying herself as a victim of domestic violence – these are all very valid reasons why a survivor may not disclose abuse to you. Survivors have limited occasions within which to disclose abuse safely and confidentially. Telling an attorney whose communications with her are privileged is one such opening. If you don’t ask questions to uncover potential abuse, you may miss a significant opportunity to provide life-saving referrals to local community resources and to reinforce that the abuse is not her fault, not to mention enhance your legal representation.

For reasons of efficacious and ethical representation, and to avoid the “M” word (malpractice, of course), it is critical to know whether your client is a survivor, and to consider how the context of domestic violence impacts your legal strategizing and advice. A complete picture of the risks and an understanding of the needs arising from your client’s experience are necessary in order to best represent them and to avoid the unintentional harm that can result from uninformed representation.

Of equal importance are safety considerations: your client’s and yours. There are many steps you can take to help increase the safety of survivor clients who continue to be at risk and to manage your own potential risks. The first step is being aware of the domestic violence and whether your client’s physical safety is an ongoing concern. However, risk management and enhanced safety for survivors is far more complicated than seeking solutions to address physical safety alone. For example, without economic security there can be no safety for survivors. With an understanding of the financial risks a survivor client is facing, you are in a position to increase your client’s safety and personal agency by weaving economic justice tactics throughout your legal strategizing and representation.

This Domestic Violence Awareness Month I am advocating for several things. Include domestic violence screening as a standard part of your intake process. Take the time to become familiar with local resources. Learn how to safety plan with your client and for yourself. And become aware of available legal remedies to domestic violence. All are essential for follow-up when domestic violence is disclosed. The tools to get you started are out there, such as this one from the American Bar Association’s Commission on Domestic Violence.

So, I ask you: Why not take action this October (and beyond)?

Amy Miller is the Public Policy Director at the Colorado Coalition Against Domestic Violence. Visit their website for further information and resources or join the discussion on their Facebook page. Amy can be reached at amiller@ccadv.org.

Jordan Furlong: The Best Pricing Advice Ever

So it was the summer of 1983 and I had reached that particular stage of adolescence when your parents have finally managed, after a long succession of hints, to get across the idea that this would be a good time to secure gainful summer employment.

Off I went to the local employment office to check out the job board. It turned out that when you’re 15 years old,  there’s not a whole lot you’re qualified to do (which always comes as a mild surprise to the burgeoning teenage ego). However, for people of my age and utter lack of qualifications, there was the “Odd Job Squad,” which allowed you to paint fences or rake leaves or do some other task where you couldn’t break anything that couldn’t be inexpensively replaced. In my case, that turned out to be mowing lawns.

So I signed up and was sent out to my first client: an aging couple living in a tidy bungalow that was probably once at the edge of town, but was now thoroughly suburban.

The couple had one of those push mowers that ran solely on the user’s effort. After a solid 45 minutes of serious labor (during which I mistakenly ripped out and threw away what I later realized was a series of tulip bulbs), I knocked on the door to receive payment.

The older gentleman at the door asked me, “How much is that?” and I realized with a sudden shock of apprehension that I had no idea. No one at the employment office had suggested rates or fees, and what did I know about the market for mowing lawns?

So I replied, “I don’t know … how much do you think it should be?”

He fixed me with a look that can only be delivered down a two-generation staircase and said, “I can’t be buyer and seller both.”

I don’t think I’ve ever received better advice about pricing than that. The seller’s job is to know how much his or her services are worth, and the buyer’s job is to decide, after as much or as little negotiation as desired, whether that price matches the value of the service to the buyer.

I’ve used that approach during job interviews, when the interviewer asks the inevitable cap-the-compensation question, “What kind of salary range are you looking for?” I’ve replied, “I’m looking to earn as much the job is worth, and only you know how much that is,” which is a nicer way of saying, “You’re the seller and I’m the buyer, and I’m not about to set your price for you.”

I’ve used that approach when setting professional fees, too, where I’m the seller and the potential client is the buyer, when they ask, “What do you charge for a speaking engagement?” I say that price is what I set after finding out every last detail of what the engagement would require, and if that price is too high, then we can negotiate some of the details. But I know what my work is worth. So what I don’t do is quote a price and then say, “Is that Okay?” because then I’m letting the buyer help determine the price, and that’s not going to end well for me.

Know what your time and effort and experience and ingenuity are worth before you think about setting price. If you want to negotiate that price up or down depending on the conversation with the buyer, that’s fine, because price is ultimately a conversation about value and opportunity between buyer and seller and it rarely ends up at the same destination twice.

But remember that you enter that conversation with a responsibility to know what you’re worth. If you let the buyer decide that, you will always end up underselling your services. Or almost always.

“Five dollars?” I hazarded, and he opened his wallet, pulled out a five and thanked me for my work. If I could go back and find him now, I’d thank him for giving me far more that day than I returned in kind. Not just for the advice, but also because I really wasn’t very good at mowing lawns, and five bucks was generous.

As a partner with Edge International, Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America. He also helps law firms that want a stronger online presence through blogs and social media with content, messaging and strategy as a Senior Consultant with Stem Legal. He writes the award-winning blog Law21: Dispatches from a Legal Profession on the Brink and can be reached at jordan@law21.ca. Jordan also contributes to the Attorney at Work blog, where this post originally appeared on August 22, 2011.

A Systematic Approach to Editing

Great writing is misleading. It’s misleading because you see only the final product. The real work happens in drafts. Great writers are not great at writing, they are great at editing.

The same applies to legal writing. “Briefs are not written—they are re-written.” [1]

Yet most of us never learned how to edit. Here’s how most people edit: they start at the beginning and read to the end; along the way they improve the brief in any way possible. That asks a lot from yourself. This approach relies on mistakes “jumping” out at you or you being an impressive multi-tasking editor. It is a massive burden to just read and find everything that could be improved. Also, no one else does it this way.

By “no one” I mean other industries. For example, pilots don’t eyeball a plane’s appearance or just rev the engines; rather, they go through a checklist to see if a plane is ready to fly. In nearly every industry, quality control is a systematic process with multiple steps that look for particular issues. The same logic should apply to editing.

So let’s start learning how to edit. Start by separating drafting from editing. Avoid doing both simultaneously. Often we try to perfect a section before moving on. Instead, write the brief. Then move to editing. When editing, try using a system to make you more effective and more efficient.

Common Imperfect Editing Advice

Let’s begin by acknowledging the limits of common editing advice.

Read Your Brief Aloud

This common advice jives with the push for “conversational” writing. The theory relies on you “hearing” errors you might not “see,” like a clunky sentence. Intuitively, it makes sense. And it may help you find typos, unintended repetition, grammar errors, and awkward rhythms.[2]

But in practice it has limited use. You do not speak the same way you read. Your writing has no volume, pitch, inflection, pauses, or gestures.[3] More importantly, you probably do not speak the same way your audience reads.[4] For an illustration, look no further than American sweetheart Tom Hanks describing how he read the same line dozens of different ways in Toy Story.[5]

This approach can help, but usually does not lead to significant edits.

Fresh Eyes: Put it Down and Come Back in a Few Days

Many suggest finishing a brief, not tinkering or thinking about it for a while, and then returning with fresh eyes. Presumably the method brings you closer to your reader, who might only read your brief once and who lacks your legal and factual background of the case. In a perfect world, this makes sense.

But we don’t work in a perfect world. Few attorneys complete drafts days or weeks before a deadline. Even if you did, your memory outsmarts this method. As you start to read the draft, you start to remember. You may not remember every word you wrote, but you start to remember the facts, the law, the organization, etc. Every bit you remember undermines this method.

This approach has value, but circumstance limits its usefulness.

Have a Non-Lawyer or Someone Not Involved in the Case Read It

The logic seems to be that if someone with no knowledge of the case can easily read the brief and understand your points as you intended them to be understood then the brief is well-written. The principle is sound and there is always value to a second set of eyes (or third, fourth, or fifth for that matter). But be cautious of attorney-client privilege and work product issues. And keep in mind you write for a particular audience. In some ways judges are like most people, in other ways they are not.

Computer Programs

Most word processing programs have writing tools. For example, Microsoft Word has the Flesch Reading Ease test and the Flesch-Kincaid Grade Level test.[6] Both tests measure the numbers of words in each sentence and syllables in each word.[7] A similar test is the Gunning Fog Index. [8] The premise is shorter words and shorter sentences are easier to read. The drawback is shorter words and shorter sentences are not always easier to read. And making something shorter is not always the most effective technique. Still, the tests can help identify sections that need reworking.

Other computer tools identify passive voice.[9] This could be useful if you commonly misuse passive voice. But there is nothing wrong with passive voice; it is neither inferior nor superior to active voice, and there are many times when it is highly effective. So unlike spell check, this tool does not identify an error that needs correction.

Numerical Benchmarks and Other Rules of Thumb

“Cut 10% of your words,”[10] “don’t let your sentences stretch longer than twenty-five words or two lines,”[11] “break up sentences if you have to breathe in the middle of them,”[12] etc. Editing is not this easy.

These shorthands are well-intentioned poorly crafted advice. Besides being arbitrary, they force edits without explanation. They don’t teach you anything and risk you overshooting or undershooting. And they deprive you of judgment. If you think your sentences are confusing because they are “too wordy,” figure out where and why they are “too wordy.” Odds are your sentences are confusing because there is information between the subject, verb, and direct object, not because there are too many words.[13]

An Editing System

As common as the above techniques are, many legal writing books don’t contain them. Rather, they encourage using an editing system. These systems ensure you check for certain types of edits. Here are two systematic approaches to editing.

Multi-Stage Methods

When you have time for thorough editing, multi-stage methods use multiple rounds to create polished briefs. Each round looks for different types of edits. Generally, each stage has a theme. Here are a few examples.

Professor Betty Flowers proposed a breadth-to-depth method sometimes abbreviated as “Madman, Architect, Carpenter, Judge.”[14] The approach begins with freestyle unrestricted writing without any thought of editing (Madman).[15] Then revise by identifying chunks of relevant material and arranging them into a general argument; focus on organizing sections and paragraphs (Architect).[16] The next round is sentence-by-sentence editing, which includes checking the logic of your argument and transitions (Carpenter). Then a word-by-word check for aspects like spelling, grammar, and tone (Judge).[17]

Bryan Garner supports a two-round method. One level focuses on “basic edits” like cutting legalese, using stronger verbs, making active/passive voice decisions, checking use of the word “of,” and checking punctuation.[18] The second level focuses on “edits to refine,” like checking whether the brief states the main point quickly and clearly, adequately addresses counter arguments, has an informative lead-in to long quotations, uses memorable phrasing, uses bullet points when helpful, and employs the right tone.[19]

Tom Goldstein and Jethro Lieberman propose another variation. They suggest editing in five steps. The first round looks for structural issues like road maps, conclusions, paragraph structure, and transitions.[20] The second step edits for length by cutting unnecessary discussions and redundancies. [21] The third step improves clarity by analyzing nominalizations, active/passive voice, phrasing, and openings. [22] The fourth step checks for continuity issues like logical order and transitions. [23] The last step proofreads for typos, capitalization, and punctuation. [24]

Stephen Armstrong and Timothy Terrell put it nicely: “Editing should be methodical.”[25] Their process has the following stages:

  • Editing for the audience by checking the tone, length, and basic approach
  • Editing for clarity of organization
  • Editing for the coherence of paragraphs and smoothness of transitions between and within them
  • Editing for the clarity of sentences
  • Editing for correctness of grammar and punctuation
  • Proofreading[26]

Try one of these multi-stage methods. They are helpful reminders of the many issues worth checking during editing. Although time-intensive, they often yield a much stronger final product.

Checklist Methods

If you have a tight deadline or prefer more direct instructions, checklists are powerful editing tools. Make a list of edits you want to always check for, or edits that you frequently miss.

For example, Daniel Klau provides this list of issues worth checking:

  • In the beginning state why you wrote what follows
  • Shorten your sentences
  • Avoid legal and technical jargon
  • Avoid overusing abbreviations and acronyms
  • Cut irrelevant information
  • Use familiar terms and concrete examples
  • Logical argument
  • Transitions
  • Avoid inserts and clauses that break flow
  • Active/passive voice[27]

A checklist based off the articles in this writing series looks like this:

  • Introductions
  • Citations
  • Headers
  • Quotations
  • Visual aids
  • Storytelling strategy
  • Adjectives and adverbs
  • Parentheticals
  • Active and passive voice

Conclusion

For everyone. “Good editing requires the right attitudes, not only the right technique.”[28] Be humble. Not everything you write is gold. And the best writers you admire probably edited their works dozens of times. Be willing to change your words.[29] Be willing to change how you edit.

For editors who are not the primary author. Editing is a superb teaching tool, but only when the other attorney understands why you made the edits.[30] It is very hard to distinguish between edits that make your writing better, and edits that just make your writing different. So when editing someone else’s work, show or explain why the edits are more than stylistic preference. Along the same lines, when editing for someone else, sometimes identifying the problem is enough. Let the primary authors use their creativity and knowledge of the case to solve the problem.[31]

For primary authors who are not the primary editor. There is always value to an edit. If you disagree with an edit, great. That means you have an informed opinion about how and why you wrote a particular way. Even if the edit is wrong—it creates a grammatical error or does not fix the problem—there is still something to learn from the edit. Something about your writing caused at least one reader to lose focus. It is easy to dismiss an edit as a stylistic dictatorship; e.g., this attorney always thinks “however” should never start a sentence. But maybe “however” is the wrong transition. Maybe another word or phrase would be a better transition. Or maybe what precedes and follows the “however” do not connect. Find value in every edit.


[1] Daniel J. Klau, Appealingly Brief: The Little Book of Big Appellate Tips 4 (2015)

[2] See George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 151 (2004).

[3] Id. at 150-51; George Gopen, “The Importance of Stress: Indicating the Most Important Words in a Sentence,” 38 Litigation 1, 1-2 (Fall 2011), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_2_stress_position.pdf (last visited August 8, 2018).

[4] Gopen, supra n. 2 at 150-51.

[5] Inside the Actors Studio, “Tom Hanks Talks About Toy Story,” YouTube (May 31, 2010), available at https://www.youtube.com/watch?v=SwWrSdm81Z4.

[6] “Test your document’s readability,” Microsoft, https://support.office.com/en-us/article/test-your-document-s-readability-85b4969e-e80a-4777-8dd3-f7fc3c8b3fd2 (last visited August 8, 2018). See Ross Guberman, “Can Computers Help You Write Better,” Legal Writing Pro, available at https://www.legalwritingpro.com/articles/can-computers-help-write-better/; Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 79-80 (2d ed. 2014).

[7] Microsoft, supra n. 6.

[8] See Klau, supra n. 1 at 22.

[9] See Guberman, “Can Computers Help You Write Better,” supra n. 6; Guberman, Point Made, supra n. 6 at 79-80.

[10] See Guberman, “Can Computers Help You Write Better,” supra n. 6 (cut 10%). See also Bryan Garner, Legal Writing in Plain English 163 (2d ed. 2013) (cut each sentence by 25%).

[11] Bruce Ross-Larson, Stunning Sentences: The Effective Writing Series 18 (1st ed. 1999); See also Garner, supra n. 10 at 27-29 (average sentence length of twenty words); Klau, supra n. 1 at 21-22 (average sentence length of 15 to 18 words).

[12] Bruce Ross-Larson, supra n. 11 at 18.

[13] See Garner, supra n. 10 at 31-32; Gopen, supra n. 2 at 18-20. See also George Gopen, “Ensuring Readers Know What Actions Are Happening in Any Sentence,” 38 Litigation 2, 1-2 (Winter 2012), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_3_actions_and_verbs.pdf (last visited August 8, 2018).

[14] Betty S. Flower, “Madman, Architect, Carpenter, Judge: Roles and the Writing Process,” available at http://www.ut-ie.com/b/b_flowers.html (last visited August 8, 2018).

[15] Id.

[16] Id.

[17] Id.

[18] Garner, supra n. 10 at 162-63.

[19] Id.

[20] Tom Goldstein & Jethro K. Lieberman, The Lawyers Guide to Writing Well, Revising and Editing 164-76 (2016).

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing 310 (3d ed. 2009).

[26] Id. at 312.

[27] Klau, supra n. 1 at 21-26.

[28] Armstrong & Terrell, supra n. 25 at 313.

[29] Id. at 313-14.

[30] Id.

[31] See id. at 315-30.

 

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

A Needed Response to 9News’ Misguided Story on Long-Term Care Insurance

Happy Summer everyone! This blog post features a rebuttal from the LTC Forum of Colorado, Inc., in response to a news story on 9News KUSA claiming that long-term care insurance is no longer a valid option for the middle class. The fact is that traditional LTC insurance is best-suited for the middle class!

The 9News story also ignores some of the newest solutions on the market, including life insurance that allows the death benefit to be used for care and hybrid life or annuity policies. Watch for more information on these solutions in my next blog or visit www.AaronEisenach.com for videos explaining these solutions. I can be reached at (303) 659-0755.

On June 12, 2018, 9News KUSA aired a story, “The Death of Long Term Care for the Middle Income Earners,” full of dangerous advice that may lead Coloradoans to costly conclusions based on myths and misunderstandings. The LTC Forum of Colorado, Inc., a non-profit advocacy group that supports and encourages long-term care planning in Colorado, is responding to claims in the story and wishes to set the record straight.

Claim:  Middle income earners (those who earn $87,500 per year) have been priced out of the long-term care market. Average premiums are $6,000 per year, which may be the low end.

Fact:  The annual premium for coverage from the best-selling company in the United States for a 60-year old single female is $3,273.17 per year.  A single male would pay $2,005.51 per year. Assumptions include a $5,000 monthly benefit, a 3-year benefit period, a $180,000 maximum benefit, a 90-day elimination period (similar to a deductible), preferred health rates, and a 3% compound annual inflation protection rider. Note that the inflation rider causes the monthly benefit and the $180,000 maximum benefit to grow each year by 3% of the previous years’ amount. The result is that by age 84, the monthly benefit will provide approximately $10,000 per month for care at home, in an assisted living facility or a nursing home, and the maximum benefit is worth approximately $360,000.

Claim: Premiums could go as high as $9,000 per year because insurance companies are telling current owners they could face a 50% hike at any point just because no one knows where healthcare is going.

Fact: Premiums cannot simply go up at any point. The Commissioner of the Colorado Division of Insurance has the responsibility of approving, denying, or modifying requested increases. Premiums cannot increase due to any one individual’s age, change in health, or due to use of the policy. Premiums can change if the insurance company makes the same change for all person of the same class.

True, long-term care insurance companies have increased premiums on policies sold in the past, mainly due to increasing longevity, low policy lapse rates, and historically low interest rates. To put this into perspective, let’s assume someone purchased a policy 15 years ago, in 2003, for $150 per month and that the premium has doubled to $300 per month. This is still affordable for folks making $87,500 per year. And this is a far cry from the claim that policies are increasing to $9,000 per year, which is equivalent to $750 per month.

In addition, companies offering LTC insurance policies today are including assumptions for low interest rates, very low policy lapse rates, and longevity. And because Colorado is one of more than 40 states that have adopted the National Association of Insurance Commissioners’ LTC Insurance Rate Stability Regulation, Coloradoans have much more regulatory protection from the type of rate increases we have seen in the past.

CLAIM: No one knows where healthcare is going.

FACT: Surely everyone believes that healthcare costs will continue to escalate. However, long-term care costs do not increase nearly at the same rate as health insurance and medical expenses. LTC costs are largely driven by personnel costs and the cost of building brick and mortar facilities. The good news is that more people will stay at home for extended care, often at lower cost than being in a facility, by taking advantage of a growing number of home care agencies and advancing technologies such as robots and sensors.

Claim: Benefits no longer cover all daily expenses.

Fact: People purchasing LTC insurance today can purchase policies with benefits up to $500 per day or $15,000 per month.  Because policies cost more today than in the past, it is now commonplace for consumers to design coverage to cover some, but not all, of the cost of care. For example, if an insured is receiving memory care in an assisted living facility at $7,000 per month, a policy with a $5,000 monthly benefit would cover more than 70% of the cost of care, leaving the policyowner $2,000 out-of-pocket, which is obviously better than $7,000 out-of-pocket. What’s more, a $5,000 monthly benefit would also cover more than five hours of home care every day for a month.

Claim: Many policyholders, because of financial decline or cognitive issues in their later years, let the policies lapse and then they lose everything – the future benefits they were paying for and then all the money they have put in over the years.

Fact: Regarding financial decline: First, only about 1% of LTC insurance policyholders let their policies lapse. This fact is one of the primary reasons premiums have increased.  Fortunately, if an insurance company files and receives approval from Colorado Division of Insurance for a premium increase, policyowners are able to trim benefits in order to lessen a rate increase or avoid the increase altogether. This opportunity is explained to the policyowner so that he or she can make an informed decision.

For nearly two decades now, policies include a built-in Contingent Nonforfeiture Benefit, which allows clients to drop coverage if rate increases exceed pre-prescribed amounts. If coverage is let go, premiums paid over time will be used to pay for future long-term care expenses. In other words, the policy is converted into a paid-up policy.

Regarding the claim that policyowners lapse their coverage due to cognitive issues, there are strong consumer protections against such a situation. The NAIC Long-Term Care Insurance Model Act requires the following:

[A] long-term care insurance policy or certificate shall include a provision that provides for reinstatement of coverage in the event of lapse if the insurer is provided proof that the policyholder or certificate holder was cognitively impaired or had a loss of functional capacity before the grace period contained in the policy expired. This option shall be available to the insured if requested within five (5) months after termination and shall allow for the collection of past due premiums, where appropriate. The standard of proof of cognitive impairment or loss of functional capacity shall not be more stringent than the benefit eligibility criteria on cognitive impairment or the loss of functional capacity contained in the policy and certificate. 

Claim:  A short-term care policy should suffice because most need care in a facility less than seven to nine months.

Fact:  Claims data for 2014 from Genworth Financial, which has more LTC insurance policyholders than anyone in the industry, dispels the idea that policies covering up to nine months leaves a gaping hole in one’s plan for extended care. First, 50% of claims last more than one year, and of those lasting more than one year, the average length of claim lasts 3.9 years. Note also that 71% of claims started with home care; only 16% started in nursing homes. No doubt, long-term care insurance helps people stay at home where they want to be. Yes, the LTC Forum of Colorado, Inc., recommends short-term care insurance coverage to those not healthy enough to purchase LTC insurance or who cannot afford such a policy. But LTC insurance should be the choice for those who can qualify and afford $2,000 to $3,000 per year. In addition, only long-term care insurance can qualify policyowners for the Colorado Partnership Program which allows insureds to protect assets from Medicaid spend-down. For every dollar the Partnership policy pays for care, one dollar in assets is disregarded, allowing the middle class policyholder to leave assets to a spouse, partner, or children.

The story omits other attractive insurance-based planning solutions that are growing in popularity. For example, many life insurance companies now allow the death benefit provided by a life insurance policy to be used or “accelerated” for LTC services. Any remaining death benefit not used for care is paid to the beneficiaries. Premiums may be guaranteed, most offer cash surrender values if the insured cancels coverage, and some allow the monthly benefit received to be used for care from anyone such as family and friends.

Claim: The best solution is a reverse mortgage. No premiums, guaranteed income, and you don’t lose your home. If you are able to age in place at home, you have your house as your insurance policy and that’s the best route to go.

Fact: A home is not an insurance policy. While the LTC Forum endorses and recommends reverse mortgages, such a tool is not for everyone. First, the proceeds from a reverse mortgage may not provide enough income to cover the cost of extended care. Second, the common goal of keeping the house in the family may be compromised. Third, fees and other closing costs can be high.  Lastly, if the home is no longer the primary residence for 12 months, such as needing care in a nursing home or assisted living facility, the loan comes due. Even with these concerns, a very good idea would be to use some of the proceeds to purchase long-term care insurance.

The Forum applauds programs like “Perfect Homecoming” through Lutheran Medical Center and the Senior Resource Center. Certainly, these caring people and institutions play a significant role in discharge, care coordination, meals, and other services. However, the Forum is concerned that Colorado consumers might be led to believe that such programs negate the need for long-term care insurance, or even short-term care insurance. The story simply left out the fact that the patient returning home still needs to pay for home health care services, which is the role of insurance. And if the patient cannot transition back to home and needs care in a facility, the patient and the family will either be thankful for having quality long-term care insurance in place or will desperately wish they had the coverage!

Simply put, needing long-term care is the greatest uninsured risk left in life – more than 50% of people who reach 65 are expected to need care someday. Without any coverage, the caregiver, usually a spouse or child, will often go through severe emotional and physical consequences. For most, the retirement plan and other savings will be depleted to pay for care instead of providing lifestyle and keeping continuing commitments to loved ones. The members of the LTC Forum of Colorado strongly believe that some coverage is better than no coverage!

We would very much welcome the opportunity to visit with 9News about the issues above and additional insurance-based solutions.

Thank you,

The Members of the LTC Forum of Colorado, Inc.

Aaron R Eisenach, CLTC, President
Tammey Sullivan, CLTC, Vice President
Christine Crowley, CLTC, Treasurer
Janet Van Dorn, CLU, CLTC, Secretary
James Eby
Joyce Fowler, CLTC
Paul Hallmark, CLTC
Ralph Leisle, CLU, ChFC, CASL
Tom Rasmussen, CLTC
Don Rhoades
Ray Smith, CLU, CLTC, MBA

For contact information, please visit www.LTCForumColorado.org/members

 

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

Forging New Writing Conventions: Treat Active and Passive Voice Equally

Seemingly everyone loves critiquing passive voice. Haters have to hate.

The common advice to “avoid passive voice” is wrong. Actually, it’s worse than wrong. It’s a pyramid of wrongs. The advice, as a conclusion, is wrong. So are its premises. Most advice-givers misunderstand what passive voice is. And they misunderstand its advantages and disadvantages. Much of the time, people heard this advice before, never thoughtfully considered it, and repeat it without much thought. So it’s closer to being a rumor than it is to being good writing advice. Open your mind for the next five minutes and let’s fix this.

Even if you know nothing about passive voice, “avoid passive voice” facially makes little sense. It can only have two effects. Some listeners apply it wholesale without discretion, mechanically searching and destroying passive voice. For them, the advice strips away judgment and any notion passive voice could ever help. To other listeners the advice makes no sense. You don’t have to be an evolutionary linguist to know the passive voice must exist for a reason, and we use it when we speak without any problems. These listeners ignore the advice, never develop judgment, and never learn when passive voice helps and when it hurts. Both outcomes are unfortunate and avoidable.

The best advice is much more complicated. Fortunately, as lawyers we specialize in complicated.

What is Active Voice and Passive Voice?

If you are confident you know the difference between active and passive voice then you should be equally confident you are probably wrong. Let’s start with the easy part.

English has two voices: active and passive. In the active voice, the subject performs the verb’s action.[1] In the passive voice, the verb’s action is performed on the subject.[2] These definitions are more clear when you compare sentences written in each voice:[3]

 

Active Passive
The teacher told us to use the active voice. We were told to use the active voice.
The police questioned the suspect. The suspect was questioned.
I made a mistake. Mistakes were made.

 

Critically, the passive voice is not the use of particular verbs. Many people try to spot the passive voice by looking for variations of the verb “to be” like “was,” “were,” “is,” “would,” or “had been.” Wrong. This sentence uses active voice: “He was unhappy the provision of services had been so slow.”[4] Don’t feel bad. Everyone does it. Take this example from the New Yorker describing Bernie Madoff’s sentencing:

Two sentences later, Madoff said, “When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.” As he read this, he betrayed no sense of how absurd it was to use the passive voice in regard to his scheme, as if it were a spell of bad weather that had descended on him.[5]

Where precisely is the passive voice here? “It would end” and “I would be able to” are active voice.

The best way to find the passive voice is to track the definition above: when the verb does not modify the doer. If you want to be more specific, look for variations of “to be” “to get” or “to have” plus a past-tense verb (a past-participle to be precise). [6]

The Classic “Advantages” of the Active Voice

Card-carrying members of the active voice fan club praise it as more concise, concrete and not abstract, lively, and the default expectation of readers.[7] None of these are always true. As a simple example “The motion was denied”(passive) is four words when “The court denied the motion” (active) is five.

What is true is that the active voice is, by definition, clear about who the actor is. When that feature is important to you, use it.

Which is Better: Active or Passive?

Neither. Neither is superior or inferior to the other. There is no rule favoring one, with delineated exceptions permitting the other. There is no presumption or preference.

Passive voice and active voice are two options. They serve different purposes. Use whichever serves your purposes.

When to Use Passive Voice

“If you always avoid the passive, you sacrifice one of the subtlest, most versatile tools the English language affords us.”[8] Sometimes passive voice is helpful, like in these somewhat overlapping scenarios:[9]

The actor is obvious: [10]

“The motion was denied.” We know a court denied it. “Defendants are entitled to summary judgment when . . .” We know the law is what entitles a party to summary judgment under certain circumstances. No one is confused.

The actor is irrelevant or distracting:[11]

“The subpoena was served January 19th.” By who? Phil, Barbara, Subpoena Services Inc.? Does it matter? If what matters is when the subpoena was served then there is no need to introduce a new and irrelevant character to your story.

The actor is unknown:[12]

“Stonehenge was built around 2200 BCE.” Or, if your defense is that the crime occurred but the defendant did not do it, “The victim was murdered later that night.”

To emphasize the action over the actor/To tell the story of the recipient of actions:[13]

In a suppression motion you write “Mr. Smith was ordered to freeze and hand over identification, then his suitcase was searched, and then he was handcuffed.” Who did these things? Government actors. Which government actors? The defense does not care. Whether it was Officer Jones or Agent Smith is irrelevant. The defense neither needs nor wants the court to keep track of that. Passive voice keeps the focus on the defendant and things being done to him.

For the same reason a tort plaintiff’s story might read “Stevens was told it was safe by the defendant. Stevens was told it was legal by the defendant. Stevens was told he could trust the defendant. Stevens was lied to by the defendant.”[14]

This concept can be a bit tricky. But it is perhaps the most important voice decision an author makes. Passive voice emphasizes different actors in your story than active voice. George Gopen provides this helpful illustration:

Smith had notified Jones on the morning of April 7 concerning the lost shipment. (emphasizes Smith’s actions)

On the morning of April 7, Jones had been informed of the lost shipment by Smith. (emphasizes Jones’s knowledge)

The lost shipment had been disclosed by Smith to Jones on the morning of April 7. (emphasizes moment of lost shipment)[15]

This principle can also help when one subject is the recipient of multiple unrelated actions. “Securities agreements are sophisticated contracts. They are usually drafted by specialized attorneys. They are subject to particular regulations. They should only be signed after a careful read.” The passive voice keeps the focus on securities agreements.

To connect one sentence with the next sentence:[16]

“The committee presented the award to Tom. Tom was arrested the next day.”[17] In this couplet the direct object of the first sentence becomes the subject of the next.

To emphasize the end of a sentence.

“When he walked through the door, the victim was already dead.”[18]

To create abstraction:

“In the eyes of the law, all persons are created equal.”[19]

For irony:

“The passive voice should not be used.”

Conclusion

Don’t prefer or avoid passive voice. Don’t prefer or avoid active voice. They have different effects. Choose the voice that suits your needs.


[1] “Active,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/active (last visited May 15, 2018).

[2] “Passive,” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/passive (last visited May 15, 2018).

[3] These examples are from “5 Writing Rules Destroyed By The Dictionary,” Merriam-Webster Dictionary (last visited May 15, 2018), https://www.merriam-webster.com/words-at-play/5-writing-rules-destroyed-by-the-dictionary/never-use-the-passive-voice.

[4] Ross Guberman, “Are You Passive-Aggressive?,” Legal Writing Pro (last visited May 15, 2018), https://www.legalwritingpro.com/articles/are-you-passive-aggressive/.

[5] Nancy Franklin, “The Dolor of Money,” The New Yorker (March 23, 2009), https://www.newyorker.com/magazine/2009/03/23/the-dolor-of-money. See Jan Freeman, “What We Get Wrong About the Passive Voice,” The Boston Globe (March 22, 2009), http://archive.boston.com/bostonglobe/ideas/articles/2009/03/22/active_resistance/ (pointing out error in New Yorker article).

[6] Guberman, supra n. 4; “Active and Passive Voice,” Wheaton College (2009), https://www.wheaton.edu/academics/services/writing-center/writing-resources/active-and-passive-voice/.

[7] See Bryan Garner, Legal Writing in Plain English 36 (2d ed. 2013); Richard Wydick, Plain English For Lawyers 27-31 (5th ed. 2005).

[8] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 153 (2004).

[9] See also id.; George Gopen, “Who Done It? Controlling Agency in Legal Writing- Part I,” 39 Litig. 2 (Spring 2013), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_7_controlling_agency_pt2.pdf; “Active and Passive Voice,” supra n. 6.

[10] See generally Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 144 (3d ed. 2016).

[11] Wydick, supra n. 7 at 31. Accord Goldstein & Lieberman, supra n. 10 at 144.

[12] Goldstein & Lieberman, supra n. 10 at 144.

[13] George Gopen, “Why the Passive Voice Should be Used and Appreciated- Not Avoided,” 40 Litig. 2 (Winter 2014), available at https://www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_10_why_the_passive_should_be_used.pdf; Goldstein & Lieberman, supra n. 10 at 144-45.

[14] Gopen, supra n. 13.

[15] Id.

[16] Goldstein & Lieberman, supra n. 10 at 144-45; Gopen, supra n. 8 at 65-70.

[17] See Wydick, supra n. 7 at 31 (using a variation of this example).

[18] Id. (using a variation of this example).

[19] Id.

 

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

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

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

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

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

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

Think For Yourself

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

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

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

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

Adjectives and Adverbs

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

Misuses and Concerns

Critics of adjectives and adverbs have good reasons for concern.

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

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

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

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

Using Adjectives and Adverbs Effectively

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

Example 1

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

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

. . .

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

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

Example 2

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

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

. . .

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

. . .

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

. . .

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

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

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

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

Example 3

Ross Guberman found several briefs using adjectives and adverbs effectively:

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

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

Conclusion

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

Adverbs and adjectives are where great advocacy lives.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

A New Approach to Writing Facts, Part I

We are told fact sections should tell a story, as if such advice is self-executing. No one explains how to tell a story. Yes, we tell stories everyday. But when we do, they come out naturally and may not be very good. Writing a fact section is not natural and needs to be good.

Put aside storytelling. Consider a different approach: filmmaking. Think of any scene from a movie you enjoy. Let’s use TOPGUN, because as someone of intelligence and great taste you were probably thinking of it anyway. Why is the main character’s call sign Maverick? Why not Renegade or Creampuff? It’s Maverick because screenwriters chose that name. Just like a costume designer chose aviator sunglasses. And not just any aviators, dark lens aviators instead of silver lens. A set designer chose which planes and how many to have in the background. The director chose to have Tom Cruise on the left and shoot the scene from a high angle. And we are all indebted to the music director for hiring Kenny Loggins to play Danger Zone.

In every scene dozens of people made decisions. Those decisions shaped the audience’s perception and told the story. Those decisions are why Darth Vader’s cape is not yellow, why the ending of the Usual Suspects surprised you, and why you knew Scar was a villain before he killed Mufasa.

In a fact section you are the cast and crew. You control every decision. It’s empowering; you don’t need a special effects budget and there is no producer to answer to. Yet most attorneys fall short because most attorneys have no training in storytelling.

Part I of this article is Directing 101 For Attorneys. It explains what stories can do in a brief and how to create them. Part II (to debut next month) applies this advice to examples.

Rethink What Fact Sections Can Do For You

“If you let me state the facts, I will let you argue the law—and I will win.”[1]

Before you write a story you need goals: (1) Identify the facts a court needs to decide in your favor, (2) provide the relevant procedural background, (3) preempt facts that favor the other side, and (4) for appeals, discuss the lower court’s ruling. Most fact sections have these goals. Most fact sections achieve these goals. And most fact sections stink.

Why they stink is less clear. When discussing fact sections, judges often advise attorneys to give them a reason to turn the page; “it is not unconstitutional to be interesting.”[2] Fair enough. But with large caseloads and billing concerns, writing entertaining briefs for an audience paid to read briefs is not a priority for most attorneys. A more compelling reason is that these four goals do not advance your argument.

A good fact section gives context and focuses on the relevant facts so “the legal analysis and result look inevitable.”[3] “From the reader’s perspective, your legal analysis seems the only possible means of reaching a just result on the basis of the facts.”[4] The four goals above do not accomplish this. You need more. Fact sections should prime a judge to favor an argument or side. They can elicit sympathy for a character or raise questions about behavior. This is where stories come in.

How to Craft A Story

If you have not been to film school, creating stories is daunting. Below is the best explanation I have come across, which comes from Stephen Armstrong’s and Timothy Terrell’s Thinking Like a Writer.[5]

The basic elements of a story are characters, the opening situation, the closing situation, and the movement from the opening to the closing.[6] “With each [element], your job is to create inferences that point towards favorable conclusions about the nature of the acts and actors that make up the story.”[7] These inferences are powerful. The power of fact sections is that “[t]hese very different stories were created from the same facts by making different decisions about which to use and how to organize them.”[8]

Like a film crew, four choices shape these elements into a story:

  1. The Start: Where does the story begin?
  2. The End: Where does the story end?
  3. Perspective: Through whose eyes do we see the events unfold?
  4. Details: Which details do we include and where do we include them? Which details do we omit?[9]

The Start

Beginnings are critical.

Sometimes stories begin by introducing a character, the world from his or her perspective, and that character’s motives for later actions. Han Solo, James Bond, Willy Wonka, George C. Scott’s General Patton, Indiana Jones, and Full Metal Jacket’s Gunnery Sergeant Hartman all have memorable introductions that prime the character’s later actions. The same principles apply to legal briefs. For example, a criminal trespass case might start with the defendant desperate, starving, and shivering, or with a family returning home to find a broken window.[10]  A trade secrets case might begin with a company introducing a revolutionary product for sale only to watch its chief scientist go to a competitor that introduces a similar product six months later. But the opposing brief might start years earlier with the competitor’s research and development team, and end with the new employee coming on board during the final stages of a product set for launch.

Other times effective stories start with context, not characters. Science fiction and fantasy movies do this all the time. There is no alien in the opening to Alien. Rather we see a giant ship with a skeleton crew floating in the void of space. The introduction establishes isolation, the last place you would want to encounter an alien with acid for blood. Lord of the Rings opens with a history of alliances and conflicts between humans, elves, and orcs; it introduces the ring but most of the main living characters come later. Bring this to your brief. Although we write about the real world, often it is a foreign world. Whether it is life in a gang-controlled neighborhood, a regulatory landscape, or how an industry works, there is a unique context. Armstrong and Terrell describe the case of a corporation accused of violating environmental regulations controlling pollutants released under certain weather conditions. Most writers would lead with what happened on the day of the violation. But a stronger opening might begin by describing how difficult it is to predict the weather.[11]

In most cases a story’s start should differ between sides. Imagine a car accident. Depending on who is being blamed, the story might begin with a description of the driver and his behavior (a character-based introduction), or a description of the intersection and weather (a context-based introduction).[12]

The End

The end of a story should reinforce the point. The criminal trespass case could end with a frightened defendant hiding in the bushes and being arrested, or with an intruder running out of a home.[13]

The end may go beyond the events that led to the lawsuit. It could lay the foundation for damages. So a trade secrets plaintiff might describe the plummeting sales or number of lost customers.  A victim’s hardships, the environmental impact, or reputational damage are all ways to end. Another option is the case’s effect on the client’s industry or the legal landscape.

Perspective

Conveying a perspective has two parts: who and how.

Who. Choose whose perspective to tell the story from. Often we choose one of the classic main characters like the plaintiff, defendant, or victim. But you don’t have to. The perspective could be from someone uninvolved with the events, like an expert witness or a detective. And it could be from someone on the other side of the case. In a case pivoting on intent, a prosecutor might tell the story from the defendant’s perspective to highlight the time he had to plan his actions; a plaintiff might do the same to show the warning signs before the negligent behavior.

Or the perspective could be from no person. You might adopt the legislature’s perspective to discuss a statute’s intent, or an agency’s perspective to describe a regulatory scheme. You could use a god’s-eye-view of the world to describe context, like a corporation’s organization or how a manufacturing process works.

Also consider whether the perspective will be consistent or whether it will change. You might begin with a god’s-eye-view of the world and then shift to a person’s perspective entering this world. Or you might start with the agency’s perspective in creating a regulatory scheme and then discuss your client’s view.

How. For most of us, to tell the client’s perspective we state the facts that client knew per that client’s testimony, deposition, sworn statement, etc. It looks likes this:

John became CEO of the company in 2001. The company entered the contract in January. The contract said all material facts were disclosed. It mentioned a $1 million debt. It did not mention a pending $3 million lawsuit. But John did not know about the lawsuit.

Stating facts your client knew does not necessarily tell the story from that client’s perspective. In fact, this example has three different perspectives.

Professor George Gopen explains that most people read a sentence as the story (i.e., perspective) of the main clause’s subject.[14] So “Jack loves Jill” is Jack’s story while “Jill is loved by Jack” is Jill’s story.[15] “Keep the grammatical subjects of your sentences the same for as long as you are telling that particular story. Then, by changing whose story the next sentence is, you will (silently) convey to your reader” a shift to a new story.[16]

So sentence structure defines perception. That is why in the above example there are three perspectives: John’s, the company’s, and the contract’s.

Avoid changing perspectives unintentionally. The compulsion to vary sentence structure (courtesy of our elementary school teachers) works against us. Rest assured, there are many ways to vary sentence structure while keeping the subject of the main clauses consistent. For example, both of these sentences are the defendant’s perspective:

The defendant chose to refuse the goods, even though the plaintiff delivered them on time.

Even though the plaintiff delivered the goods on time, the defendant chose to refuse them.[17]

Details

Identify the Necessary Facts

For a fact section you must know the law. The law identifies which facts a court must consider. For precisely this reason, many suggest writing the argument section first and the fact section last.[18] Public policies and equity may inform this decision too.

One caveat. Some hold Judge Aldisert’s view that, at least in an appellate brief, any fact you use in an argument section must be in the fact section.[19] The reason is that the fact section gives a court “an objective account of what occurred before the twist of advocacy is added to the cold facts.”[20] Perhaps in a single issue brief Judge Aldisert’s positon holds true. But modern writers have modified this approach.

“Do not burden the opening statement of facts with details relevant to a specific argument that you will develop in full later. Just state the basics.”[21] If your brief raises multiple unrelated issues, having mini-fact sections near each argument is easier for readers. Think of an appellate brief that raises pretrial, trial, and post-trial issues. The reader gets to the pretrial issue fact section on page four but does not see its corresponding argument section until page eighteen. Between those sections are pages of unrelated facts. Having a pretrial issue fact section right before its argument section makes your reader’s life much easier.

Cut Irrelevant Unnecessary Facts

A universal gripe is that fact sections contain too many facts.[22] But “too many” is the wrong phrase; it is not a numbers issue. It’s an issue with misleading a reader.

Fact sections cause problems when they suggest a fact is important when it is not. Readers assume you included a fact for a reason. The longer the reader searches for that reason the more confused the reader becomes. If a reason never comes, the reader gets confused and frustrated.

Here is a good example. At a recent CLE, one judge remarked that when she reads that police executed a search warrant at a particular address, she immediately begins to think the police searched the wrong home because why else would the address be relevant. When that is not the case, she is left wondering why the lawyer told her the address.[23] For precisely the same reason, dates, times, quotations, addresses, procedural history, locations, dollar amounts, weights, quantities, and proper names of people, places, entities, and pleadings are often irrelevant.[24]

A related problem is that fact sections fail to highlight key facts. If there are nine key facts and you tack on eighty more, those nine facts do not look essential. “Cutting clutter isn’t just about saving words. It’s also about turning down the noise so the signal shines through.”[25]

Applying these guidelines, look at Judge Posner’s edits to an opinion by Judge Wald.[26]

 

 

Judge Wald’s Opinion

 

 

Judge Posner’s Edit

 

Appellant Robert Morris was convicted of possession of cocaine with intent to sell, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii), and for using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He appeals both convictions on the ground that the evidence was insufficient to support either charge. We reject both challenges and affirm the judgment below.[27] A jury convicted the defendant of possession of cocaine with intent to sell it, and of using or carrying a firearm during and in relation to a drug offense. The judge sentenced him to 130 months in prison.[28]
On December 11, 1990, officers of the Metropolitan Police Department executed a search warrant on a one-bedroom apartment at 2525 14th Street, N.E., in the District of Columbia. Upon entering the apartment, the officers found appellant seated on a small couch in the living room; they detained him while they searched the apartment. The search produced two ziplock bags containing a total of 15.7 grams of crack cocaine divided among 100 smaller ziplock bags, $500 in cash, empty ziplock bags, razor blades, and three loaded and operable pistols. Two of the guns were under the cushions of the couch on which appellant sat; the third was in a nightstand in the bedroom. The cocaine and the cash were in an air duct vent in the ceiling of the bedroom. In the drawer of a dresser in the bedroom, the officers found two birthday cards; appellant’s name was on the envelope of one, and the other was for a “son,” signed “Mr. and Mrs. B.G. Morris” and dated November 30, 1990. No address was on either. In a hallway closet, the officers found a laundry ticket dated December 3, 1990, and bearing the name “E. Morris.” There were no identifiable fingerprints on any of these items. The officers arrested appellant, who was indicted on two counts: possession with intent to distribute in excess of five grams of cocaine base and using or carrying a firearm in relation to the possession offense.[29] Police had a warrant to search a one-bedroom apartment. Upon entering they found the defendant sitting on a small couch in the living room. The search revealed drugs, cash, and drug paraphernalia, and also three pistols—two under the cushions of the couch and the third in a nightstand in the bedroom.[30]

 

Once you identify the necessary facts and cut all the excess facts, congratulations—you now have a timeline. But not a fact section.

Add Relevant Unnecessary Facts

Conventional advice strips a fact section to only what a court needs to rule.[31] This advice goes too far.

Think of a summary judgment motion. Think of that numbered list of materially undisputed facts. That list is not a story. If you delete the numbers and group the list into paragraphs, it is still not a story. So a fact section needs more.

Great fact sections contain helpful unnecessary facts. The difference from the previous step is that these, albeit unnecessary, facts have a purpose, a purpose that furthers the story even if it does not further the legal argument.

This concept is not new. We see it in judicial opinions. “I doubt it’s a coincidence, for example, that in the U.S. Supreme Court’s landmark death-penalty cases in the 1970s and ’80s, the justices who voted against death sentences said nary a word about the underlying crimes, while those who upheld death sentences sometimes sounded like they were writing smut fiction.”[32]

There is another role for relevant unnecessary facts.  Some facts neutralize a tangent on the reader’s mind. For example, you might explain a rare point of law, like how although the defendant acknowledged his prior convictions when he testified trial, that testimony is inadmissible at a post-trial habitual criminal sentencing hearing to prove those convictions.[33] Without this fact, a court may be left wondering why a defendant disputes the existence of prior convictions he admitted to.

Organization

“[S]ome writers assume that, if they organize facts chronologically, they are by definition telling a story. That is a damaging mistake.”[34]

Choosing which facts to include and exclude is not enough. Equally important is where the facts fit into the story.

Begin by choosing the key facts in your story. Then choose an organization that highlights those facts. For chronologies, the key fact is the sequence of events. If the case centers on who knew what when, or who did what first, chronologies work well. But be careful because chronologies deprive you of control. “Because the writer is locked into his chronological default, however, he has no choice but to insert the key [] facts wherever the chronology permits, blurring the emphasis they deserve.”[35] They also tend to “run[] out of control and drag[] irrelevant facts along.”[36]

Other kinds of key facts do not depend on sequence. Armstrong and Terrell frame these alternatives as who, what, where, and why. Who: people and descriptions of them, their motives, or their credibility. [37]  What: a thing, like documents and what they say, who they were sent to, or how they were drafted; a manufacturing process; a person’s mental state.[38] Where: a location, the conditions of an area; the weather. Why: an explanation or motive like alcohol, jealousy, greed, wet roads.[39]

These facts are best highlighted without a chronology. Just because an organization is not a chronology does not mean it is told backwards or out of order. It just means sequence and timing do not control the story. Such stories might have timeless sections that discuss context, like a corporate structure or the ecology of a marsh polluted by an oil spill.[40] They might have lengthy explanations about people, companies, or contracts before moving on to an event. Or they might explain the story out of order; they might begin at the end and then explain what led up to that event. They might switch back and forth between an event and the past (like The Godfather Part 2).

Conclusion

Fact sections are the most underused part of briefs. If you do not tell a story and if you do not tell the right story, your brief is weak. Elevate your fact section and you will elevate your brief.

Channel your inner filmmaker to craft the story that advances your argument and sets you up for success. The next time you read a brief, think about whether the fact section helps the argument. Analyze it from the director’s chair: where does the story start, where does it end, who is telling the story, which details does it include and omit, and how it is organized.


[1] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18 (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf (attributing quotation to Clarence Darrow without citation).

[2] Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 168 (National Institute of Trial Advocacy 2d ed. 2003).

[3] Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 111 (Practicing Law Institute 3d ed. 2009).

[4] Id.

[5] See also Brian J. Foley & Ruth Anne Robbins, “Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections,” 32 Rutgers L. Rev. 459 (2001).

[6] Armstrong & Terrell, supra n. 3. at 299. See also Aldisert, supra n. 2 at 168 (stories have characters, conflict, resolution, organization, a point of view, and a setting).

[7] Armstrong & Terrell, supra n. 3. at 299.

[8] Id. at. 299.

[9] Id. at 300.

[10] See id. at 298; 300.

[11] Id. at 300.

[12] See Armstrong & Terrell, supra n. 3 at 113-14.

[13] Id. at. 300 (“notice how the impact of the arrest differs dramatically then it comes at the end rather than the beginning. If the rest of the story has been carefully constructed, the arrest seems cruel and unjust, not a presumption to be overcome.”).

[14] George Gopen, Whose Story is This Sentence? Directing Readers’ Perceptions of Narrative, 38 Litigation 3, Spring 2012 at 17-18,

available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_4_whose_story.pdf.

[15] George Gopen, “Controlling the Reader’s Perception of Your Client’s Story,” 38 Litigation 4, at 18, (Summer/Fall 2012), available at www.georgegopen.com/uploads/1/0/9/0/109073507/litigation_5_palsgraffian_perspectives.pdf.

[16] Id. at 19.

[17] Gopen, supra n. 14 at 17-18.

[18] See Armstrong & Terrell, supra n. 3 at 297 (“To write a persuasive story, you have to think carefully about the framework of plot and character around which the facts will cohere.”). See also id. at 354 (“Present facts with an eye towards the law” by stating only the facts you need, addressing material facts harmful to your argument, and avoiding argumentative characterizations of the facts).

[19] Aldisert, supra n. 2 at 169-70.

[20] Id. at 169.

[21] Armstrong & Terrell, supra n. 3 at 354.

[22] Armstrong & Terrell, supra n. 3 at 297 (“The fact section of the brief or memorandum of law becomes an agglomeration of data that is not just unpersuasive, but downright painful to read.”).

[23] Elizabeth Harris, Judge, Colorado Court of Appeals, Presentation at Appellate Practice Update 2017 (CLE in Colo., Inc. Nov. 29, 2017).

[24] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 44-57 (Oxford University Press 2015) (applying this advice to judicial opinion writing); Ross Guberman, “Five Resolutions for Litigators,” www.legalwritingpro.com/articles/five-resolutions-litigators/.

[25] Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 51 (Oxford University Press 2015) (applying this advice to judicial opinion writing). See also Armstrong & Terrell, supra n. 3 at 301-03 (showing how too much detail prevents key facts from getting the attention they disserve).

[26] These examples come from Guberman, supra n. 25 at 45-47.

[27] United States v. Morris, 977 F.2d 617, 618 (D.C. Cir. 1992).

[28] Guberman, supra n. 25 at 45-47.

[29] Morris, 977 F.2d at 619.

[30] Guberman, supra n. 25 at 45-47.

[31] See also Guberman, supra n. 25 at 56; 77 (“if your legal analysis does not turn on one of these details, consider purging them from your fact or background statement . . . .”) (applying advice to judicial opinion writing).

[32] Id. at 60.

[33] C.R.S. § 18-1.3-803(5)(b) (2017).

[34] Armstrong & Terrell, supra n. 3 at 120. But see Aldisert, supra n. 2 at 169-70 (recommending always explaining facts chronologically). The dangers of default organizations applies to other sections of brief writing too. In fact, Armstrong and Terrell have a chapter titled “The Dangers of Default Organizations” discussing common defaults like tracking the history of your research and thinking, or tracking your opponent’s organization. Armstrong & Terrell, supra n. 3 at 87-110.

[35] Armstrong & Terrell, supra n. 3 at 113.

[36] Id. at 111. “[T]he writer usually seizes onto chronology as a drowning person onto a life preserver. But a chronology is not a story. Nor can you turn it into one by ‘spinning’ or characterizing the facts, or by adding a few more heart-wrenching details.” Id. at 297.

[37] See id.

[38] See id.

[39] See id.

[40] See Armstrong & Terrell, supra n. 3 at 111-12.

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

Brave New (Jobs) World

“The American work environment is rapidly changing.
For better or worse, the days of the conventional full-time job may be numbered.”

The above quote is from a December 5, 2016 Quartz article that reported the findings of economists Lawrence Katz (Harvard) and Alan Krueger (Princeton, former chairman of the White House Council of Economic Advisers) that 94% of all US jobs created between 2005 to 2015 were temporary, “alternative work” — with the biggest increases coming from freelancers, independent contractors, and contract employees (who work at a business but are paid by an outside firm).

These findings are consistent with what we looked at last time: how neoliberal economics has eroded institutional support for the conventional notion of working for a living, resulting in a more individuated approach to the job market. Aeon Magazine recently offered an essay on this topic: The Quitting Economy: When employees are treated as short-term assets, they reinvent themselves as marketable goods, always ready to quit. Here are some samples:

In the early 1990s, career advice in the United States changed. A new social philosophy, neoliberalism, was transforming society, including the nature of employment, and career counsellors and business writers had to respond. (Emphasis added.)

US economic intellectuals raced to implement the ultra-individualist ideals of Friedrich Hayek, Milton Friedman and other members of the Mont Pelerin Society…In doing so… they developed a metaphor — that every person should think of herself as a business, the CEO of Me, Inc. The metaphor took off, and has had profound implications for how workplaces are run, how people understand their jobs, and how they plan careers, which increasingly revolve around quitting.

The CEO of Me, Inc. is a job-quitter for a good reason — the business world has come to agree with Hayek that market value is the best measure of value. As a consequence, a career means a string of jobs at different companies. So workers respond in kind, thinking about how to shape their career in a world where you can expect so little from employers. In a society where market rules rule, the only way for an employee to know her value is to look for another job and, if she finds one, usually to quit.

I.e., tooting your own résumé horn is no longer not so much about who you worked for, but what you did while you were there. And once you’re finished, don’t get comfortable, get moving. (This recent Time/Money article offers help for creating your new mobility résumé.)

A couple years ago I blogged here about a new form of law firm entirely staffed by contract attorneys. A quick Google search revealed that the trend toward lawyer “alternative” staffing has been gaining momentum. For example:

This May 26, 2017 Above the Law article reported a robust market for more conventional associate openings and lateral partner hires, but included this caveat:

The one trend that we see continue to stick is the importance of the personal brand over the law firm brand, and that means that every attorney should really focus on how they differentiate themselves from the pack, regardless of where they hang their shingle.

Upwork offers “Freelance Lawyer Jobs.” “Looking to hire faster and more affordably?” their website asks. “ Tackle your next Contract Law project with Upwork – the top freelancing website.”

Flexwork offers “Flexible & Telecommuting Attorney Jobs.”

Indeed posts “Remote Contract Attorney Jobs.”

And on it goes. Whether you’re hiring or looking to be hired, you do well to be schooled in the Brave New World of “alternative” jobs. For a further introduction, check out these articles on the “Gig Economy” from Investopedia and McKinsey. For more depth, see:

The Shift: The Future of Work is Already Here (2011), by Lynda Gratton, Professor of Management Practice at London Business School, where she directs the program “Human Resource Strategy in Transforming Companies.”

Down and Out in the New Economy: How People Find (or Don’t Find) Work Today (2017), by University of Indiana Anthropology Professor LLana Gershon — the author of the Aeon article quoted above.

Next time, we’ll begin looking at three major non-human players in the new job marketplace: artificial intelligence, big data, and robotics. They’re big, they’re bad, and they’re already elbowing their way into jobs long considered “safe.”

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

The Secret Joys of Bureaucracy

“So we have inspectors of inspectors and people making instruments
for inspectors to inspect inspectors.”

-Buckminster Fuller

We met anthropologist David Graeber last time. His book The Utopia of Rules: On Technology, Stupidity and the Secret Joys of Bureaucracy takes on a universally-acknowledged kind of modern workplace drudgery: the mind-numbing bureaucracies built around filling in forms. This is from an interview in The Guardian:

A few years ago David Graeber’s mother had a series of strokes. Social workers advised him that, in order to pay for the home care she needed, he should apply for Medicaid, the US government health insurance programme for people on low incomes. So he did, only to be sucked into a vortex of form filling and humiliation familiar to anyone who’s ever been embroiled in bureaucratic procedures.

At one point, the application was held up because someone at the Department of Motor Vehicles had put down his given name as “Daid”; at another, because someone at Verizon had spelled his surname “Grueber.” Graeber made matters worse by printing his name on the line clearly marked “signature” on one of the forms. Steeped in Kafka, Catch-22 and David Foster Wallace’s The Pale King, Graeber was alive to all the hellish ironies of the situation but that didn’t make it any easier to bear. ‘We spend so much of our time filling in forms,’ he says. ‘The average American waits six months of her life waiting for the lights to change. If so, how many years of our life do we spend doing paperwork?’

The matter became academic, because Graeber’s mother died before she got Medicaid. But the form-filling ordeal stayed with him. “Having spent much of my life leading a fairly bohemian existence, comparatively insulated from this sort of thing, I found myself asking: is this what ordinary life, for most people, is really like? Running around feeling like an idiot all day?”

In other words, it’s almost 2018 — with all our smart technology, you’d think we could do better — for the people on both sides of the bureaucratic desk. The interview continues:

[Graeber] quotes with approval the anarchist collective Crimethinc:

Putting yourself in new situations constantly is the only way
 to ensure that you make your decisions unencumbered
 by the nature of habit, law, custom or prejudice
 – and it’s up to you to create the situations.

That’s good paradigm-shifting advice. We could follow it all the way to eliminating “the Secret Joys of Bureaucracy.” As you would expect, a whole bunch of enterprising software developers are already on it — here’s a software list. In fact, if it’s a dull, repetitive job, we probably already have technology that can do it better than humans can.

But that would eliminate all those mind-numbing bureaucratic jobs. Then what? Then it’s time for the second half of the Buckminster Fuller quote above:

The true business of people should be to go back to school
 and think about whatever it was they were thinking about
before somebody came along and told them they had to earn a living.

A friend of mine was a chimney sweep. He’d be up on the roof, shaking down soot with his long-handled brushes, and downstairs his helpers would screen off the fireplace and capture the soot with a high-powered vacuum before it ruined the homeowner’s den. “Don’t wallow in it,” he’d tell them.

That’s also good paradigm-shifting advice. Trouble is, our brain wiring loves to wallow in the old ways of doing things — including filling in forms — at least until, as the saying goes, the pain of status quo becomes greater than the pain of change.

We’ll be looking more at workplace paradigm shifts in the coming weeks. But first, next time we’ll let a poet help us wallow a bit more in workplace drudgery.

 

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.

Show Me The Way: Using Headers More Effectively

Headers are helpful. Use them.[1]

Use Headers in a Statement of Facts

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

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

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

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

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

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

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

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

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

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

Phrase Argument Section Headers Persuasively

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

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

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

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

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

The Integrated Header: Visual Cues For The Reader

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

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

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

Example 1:

Summary of Argument

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

[several paragraphs]

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

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

Example 2:

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

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

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

[another paragraph]

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

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

Example 3:

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

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

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

[multiple paragraphs]

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

[multiple paragraphs]

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

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


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

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

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

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

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

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

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

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

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

[10] Id. at 59-60.

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

 

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