May 25, 2019

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

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

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

Apple’s Opening Paragraph

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

Points for Apple

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

Half-Point Deductions

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

Samsung’s Opening Paragraph

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

Points for Samsung

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

Half-Point Deductions

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

You Win

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

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

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

Legal Writing Pro: Five Grammar Myths

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

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

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

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

Who says it’s a myth:

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

Myth Two: You can never split an infinitive.

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

Legal Writing Pro: Stop Cutting “That”

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

Not so fast, I suggest.

Read this sentence to see why:

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

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

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

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

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

So we end up with something like this:

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

Other sentences in the opinion need similar fixes:

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

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

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

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

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

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

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

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

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

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

And our new Solicitor General:

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

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

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

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

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

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

And even the Wall Street Journal:

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

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

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

And that’s enough of “that.”


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

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

Legal Writing Pro: Four Usage Fights

1. Should I use a serial comma?

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

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

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

Justice Breyer:

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

Justice Souter:

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

Justice Kennedy:

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

2. Can I start a sentence with however?

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

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

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

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

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

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

Justice Stevens:

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

Justice Scalia:

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

Justice Alito:

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

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

4.  Can I start a sentence with because?

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

Kathleen Sullivan:

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

Lawrence Tribe:

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

Walter Dellinger:

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

Justice Ginsberg:

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

Justice Thomas:

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

_____

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

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

Legal Writing Pro: Five Secret Typography Tips for Lawyers

By Matthew Butterick

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

1) Extra characters on the iPhone & iPad

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

2) Footnote references in bold

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

3) ALL-CAPS on stationery and business cards

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

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

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

5) PDF exhibit letters

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

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

Legal Writing Pro: Four Motion Mistakes

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

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

1. Faulty capitalization of Order and Motion

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

What gives?

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

Defendant in this action has filed a motion to dismiss.

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

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

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

2. Faulty capitalization of Plaintiff, Defendant, and Court

This judge knows his capitalization rules.

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

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

Defendant was not Plaintiff’s employer.

The Court subsequently denied Defendant’s motion.

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

Plaintiff filed this action against the wrong defendant.

3. Faulty punctuation of quoted material

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

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

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

See Exhibit “A.”

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

4. Faulty use of ordinal numbers

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

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

Click here to view The Marked-Up Motion

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

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

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

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

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

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

A Couplet to Love

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

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

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

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

Defend Yourself

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

You Are Hereby Absolved

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

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

Want More?

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

_____

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

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

Legal Writing Pro: Avoid These Clichés Like the Plague

1. An Apple a Day

Example: “The State prosecuted the astronaut on a more serious charge because it wanted a second bite at the apple.”

Don’t distract your reader with an imaginary fruit salad. Instead, explain why your opponent shouldn’t get what it wants: “The State added a new charge only because the court rejected its first bail request.”

2. Giant Ball of Twine

Example: “Her state tort law claims were inextricably intertwined with Medicare regulations.”

Popular variations: inextricably linked and inextricably connected.

Don’t get stuck in the tangled web. Instead, emphasize why the connection matters: “Unless the provider violated Medicare regulations, Plaintiff’s state tort claims must fail.”

3. Your Eminence

Example: “Dr. Smith’s resume demonstrates that she is eminently qualified to opine on damages.”

Have you ever heard of an expert who is qualified, but not eminently so? I didn’t think so. The same goes for such expressions as eminently reasonable and eminently clear. Just stick to the facts: “Mary Smith is qualified to testify because she has a doctorate in economics and has testified in 24 other federal antitrust cases.”

4. Slip Sliding Away

Example: “If the Court allows large punitive damages in this case, it will head down a slippery slope.”

When I was in law school, my contracts professor challenged us to get through our entire course without once using the phrase slippery slope. We held out for just two days before someone slipped. In its place, just explain the danger of not doing what you want: “If the Court allows large punitive damages here, Defendants will be forced to pay many times for the same claim.”

5. Bald Faith

Example: “Plaintiff’s conclusory allegations and bald assertions cannot withstand scrutiny.”

I’m convinced that some of us lawyers develop keystrokes for these couplets. Is any allegation not conclusory? Is any assertion not bald? Judges tell me that these predictable pairs are like fingernails on the chalkboard. Better to focus on what makes the assertions so bald: “Although Jones claims promissory estoppel, he cites no facts to suggest that he relied on Smith’s alleged promise.”

I’ll stop now so I don’t go down a slippery slope of my own. But if I’ve opened Pandora’s box here and you think clichés are the Achilles’ heel of legal writing, please send me more of these tempting truisms—either the ones you love to write or the ones you hate to read.

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

Legal Writing Pro: Judges Gone Wild

Is the country’s malaise affecting our judges as well?

The Seventh Circuit just referred a lawyer to the state ethics board for possible suspension of his license. His sin? “Rampant grammatical, syntactical, and typographical errors” (full opinion).

A federal judge in Texas recently issued a “Kindergarten Order” comparing the lawyers in a discovery dispute to squabbling kindergarteners. (The judge himself was then chastised for “caustic, demeaning, and gratuitous” rhetoric by the Chief Judge of the Fifth Circuit but has refused to back down.)

Also in Texas, in a civil-rights case filed by the mother of a high-school cheerleader who didn’t make the squad, the Fifth Circuit accused the firm representing the plaintiff of “miscues” that were “so egregious and obvious that an average fourth grader would have avoided most of them.” Although the errors flagged by the Fifth Circuit may be “obvious”; many other issues in the main offending paragraph are far less so.

Can you spot 15 writing issues in the highlighted parts of this passage?

The Magistrate’s egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

As I mentioned, there’s much more to this passage than meets the eye—and met the Fifth Circuit’s wrath.

Here are 15 issues, by category:

Four attention-to-detail issues

  1. “Vacateur” is misspelled, though that error is neither “obvious” nor “egregious.”
  2. In the last sentence, “principals” is the wrong spelling. This error may seem “obvious,” but this word is the most commonly misspelled word in legal writing. (Trick: When you mean “rule”, spell “principle” with an –e. Every other time it’s spelled “principal” with an –a.)
  3. Also in the last sentence, “are” agrees with “principals,” not “incompetence.” (Although this error may seem “obvious” as well, I’m not sure that it’s “egregious.” Many other lawyers make the same mistake, not because we don’t know about agreement but because under time pressure, we tend to agree verbs with the last noun we typed.)
  4. As a singular name ending in –s, “Sanches” is made possessive with an apostrophe –s, not just an apostrophe. (Exception: biblical, classical, and mythological names like Jesus or Moses.)

Five redundancy issues

  1. “Failure to utilize or apply the law” says the same thing twice. So often, when we use two verbs, either they have the same meaning or one swallows the other. “Failure to apply” is plenty. Not to mention that “utilize” is jargon for “use.”
  2. “Applying improper legal standards” and “ignoring precedent” mean the same thing.
  3. “Failing to consider Sanches’ 1983 claims” and “summarily dismissing them” mean the same thing.
  4. “Summarily dismissing them” and “without analysis or review” mean the same thing.
  5. “Analysis” and “review” mean the same thing.

Three legal-convention issues

  1. The proper term is “Magistrate Judge,” not “Magistrate.” (In my view, the Fifth Circuit was too harsh in pouncing on this error.)
  2. Inconsistency in using pronouns to refer to the Magistrate Judge. You can make a case for “he” or “she” and “his” or “her.” You can also make a case for “it” and “its” if you see the Magistrate Judge as a proxy for an institution. But you can’t go back and forth. Plus the lawyers dropped the “the” before “Magistrate” in the second sentence.
  3. Don’t “elegantly vary” the language you use to refer to the same thing. If it’s “Court,” call it “Court”; don’t switch to “Judge” or “decision-maker.” Here, then, the lawyers should have avoided shifting between “Magistrate” and “Court.” Switching terms in such a way just confuses the reader.

One syntax issue

  1. If “ignoring precedent” had to be there at all, it should have been much closer to what it modified: “the Magistrate [Judge] applied improper legal standards.” Instead, it dangled at the end of the sentence. (Tip: put all –ing phrases as close as possible to what they modify.)

One rhetorical-construction issue

  1. “Because” is a great word, but it must introduce a true cause-and-effect relationship. Surely “incompetence at applying the law” isn’t “ordinary” for Article III judges—and yet that’s what the lawyers suggest.

One tone issue

  1. Speaking of the “incompetence” line, the main reason for the Fifth Circuit’s tirade was not the various errors in isolation. It was the overall tone: The language is too snarky, even aggressive, suggesting that the lawyers just didn’t think about their audience here. (Tip: The angrier you sound, the more your readers will assume that you don’t have the goods to back up your claims.)

I’ll leave it to you to decide whether the Fifth Circuit’s own language was too harsh, just right, or not harsh enough. But I’m sure we can agree that many of the issues in this paragraph are more common than the court suggests. And if you learn nothing else from this brouhaha, make sure you don’t mess with a Texas cheerleading mom!

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

Ross Guberman: Client Alert or Client Asleep?

Many law firms market themselves by sending out “client alerts” about the latest hot case or regulation.

Here’s a secret: These client alerts leave most clients cold.

Why? Because they fail the “So what?” test.

A Typical Alert

A typical client alert starts like this:

In Verzini v. Potter, No. 03-1652 (3d Cir. 2004), the court discussed the relationship between two defenses that employers can use under the Americans with Disabilities Act (“ADA”). The Court considered both the “direct threat” defense and the “business necessity” defense. The Plaintiff, a postal worker, told his supervisor that his neighbors were peering into his windows while he slept. The supervisor was concerned that the employee was not fit for duty and ordered him to be examined by a psychiatrist. The psychiatrist diagnosed the employee with chronic paranoid schizophrenia. The Postal Service eventually fired him. Plaintiff sued for disability discrimination, but the Postal Service insisted that it had a “business necessity” to fire him because it had to ensure workplace safety. . . .

Any clients still reading are tapping their pens.

A Better Approach

Start by telling your clients what they can or should do now. Only then discuss the case or regulation—and only to highlight the “So what?” factor.

Try something like this:

Under a recent Third Circuit ruling, if an employer fires an employee to preserve workplace safety, the employer need not prove that the employee has directly threatened anyone. In that case, for example, the court allowed the Postal Service to fire an employee who was “unfit for duty” simply because he had refused treatment for paranoid schizophrenia. Although this case appears to allow employers to fire an employee for legitimate business needs alone, employers should take the following steps before doing so. . . .

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

Ross Guberman: Legal Writing Lessons from The New Yorker

Editor’s Note: Jeffrey Toobin will be the keynote speaker at the 2011 Judicial Excellence for Colorado Dinner on November 1, 2011. The annual dinner event is hosted by the Colorado Judicial Institute, which will also be presenting the year’s Judicial Excellence Awards to several local judges and magistrates. Click here for more information.

Looking for some writing inspiration?

Start with The New Yorker, the nation’s best-edited publication. Add Jeffrey Toobin, one of the most talented legal journalists. Now mix in the unsolved murder of a Seattle federal prosecutor, a story Toobin told in a recent issue.

Here are ten great techniques at work in Toobin’s tale:

1. Start sentences with light openers.

Wales, an Assistant United States Attorney in Seattle, had planned to have dinner and spend the evening with his girlfriend, Marlis DeJongh, a court reporter who lived downtown. But that afternoon Wales called DeJongh and said that he had projects he needed to work on at home.

The notion that McKay was fired for failing to prosecute Democrats is plausible. But the passion that McKay brought to the Wales case may have played a part, too.

2. Link the first sentence of a paragraph to the last sentence of the one before.

Neither Wales’s romantic life nor the fender bender yielded promising leads in the murder investigation.

Wales’s work on gun control also failed to produce suspects.

3. Begin a paragraph with a short sentence.

Progress came slowly. Anderson remained the only suspect; in 2004, the Seattle Times reported that the F.B.I. had searched Anderson’s home in Beaux Arts and removed twenty-seven boxes of possible evidence.

4. Follow a long, complex sentence with a short, punchy one.

By 2000, the investigation of the helicopter-conversion industry was winding down, with disappointing results for Wales and the U.S. Attorney’s Office. Only one case remained.

The firm, called Intrex Helicopters, which was based at Powell’s home, was renovating a single helicopter for civilian use. Still, the stakes were substantial.

5. Use a signpost to link your sentence to the previous one.

Several local entrepreneurs decided to retrofit the surplus military models for civilian use. Such conversions were legal, as long as they were conducted in accordance with safety rules established by the Federal Aviation Administration.

6. Convey chronology through transition phrases rather than dates and times.

  • In July, three months before his death, Wales had been involved in an altercation at a parking garage near his office.
  • About fifteen minutes later, someone shot him three or four times through the window from the back yard.
  • Two weeks after the murder, the Senate confirmed a new U.S. Attorney for western Washington, John McKay.
  • A month after [Wales] was killed, the group held a benefit in his honor, which was attended by more than five hundred people, including many prominent Democratic politicians in the state, and raised five hundred thousand dollars.
  • Meanwhile, Wales’s friends began to talk about creating a memorial.
  • Not long after the meeting, John Ashcroft visited Seattle to give a speech at a Coast Guard base, but he didn’t meet with McKay’s staff or mention the Wales case.

7. Use semicolons for parallel constructions.

[United States Attorneys] establish the priorities for each of the nation’s ninety-four judicial districts and announce significant indictments and arrests; many are well known in their communities. Assistant U.S. Attorneys are more like civil servants; they perform the day-to-day work on important investigations and their public speaking is typically limited to the courtroom.

8. Hyphenate phrasal adjectives for clarity and elegance.

  • cell-phone towers
  • gun-control initiative
  • death-penalty case
  • law-enforcement official
  • information-sharing system
  • high-school students
  • highest-ranking official
  • organized-crime unit
  • forty-year-old pilot

9. Set off explanatory phrases with dashes.

The proposal brought out the full might of the gun-control lobby, which spent four million dollars—primarily on television advertisements and direct-mail appeals—and voters rejected the measure, seventy-one to twenty-nine percent.

The F.B.I gave the investigation the code name SEPROM—short for “Seattle prosecution murder”—but the bureau set the reward for tips leading to a prosecution in the case at twenty-five thousand dollars, which was widely regarded in Seattle as an insultingly small amount, and did not offer local investigators assistance from Washington, D.C.

10. Use a colon to set off an explanation that could stand as a complete sentence.

The phrase was partly a joke, a bit of feigned grandiosity to justify a tendency toward excessive meticulousness: Wales did things slowly.

Original Article: Jeffrey Toobin, “An Unsolved Killing” (August 6, 2007)

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

Ross Guberman: How to Get Memos that Help, Not Hurt

I recently asked some associates during a seminar why they thought partners assigned memos.

For the first time that morning, the associates were silent. Finally, about twenty seconds later, one woman whispered:

“Because the partner wants to learn more about the law?”

Not quite. But her response helps explain why supervisors find many memos rambling, wishy-washy, and pedantic.

Young attorneys and their supervisors have cross-purposes here. A partner asks for the memo to help make a decision. But the associate wants to avoid making any decision at all, particularly a wrong one, and thus hedges at every turn.

An Alternative Approach

To get around this impasse, try the following approach:

  1. When you assign a memo, tell the attorney exactly what you plan to do after you read it. Are you advising a client or plotting internal strategy? How will the memo affect the course you take? Many associates tell me they have no idea what their memo is for.
  2. Remind young attorneys that memos are practical tools that must drive toward a “yes” or “no” decision. Readers crave confident executive summaries and short answers that distill all the details the writer has uncovered. Concluding that “the law is all over the place” is not useful. Nor is a mini law-review article filled with “on the one hand and on the other hand” pontifications.
  3. Encourage attorneys to do more than summarize cases and string cite. Even if you need an exhaustive look at the legal landscape, ask the attorney to organize the case law logically. What are the key holdings? How do they relate to one another? How does each case cited help explain the trend in the law?
  4. Suggest the following self-test for attorneys about to submit a memo: Is this memo written for you the writer—or is it written for me the reader? Are you trying to “show your work” and memorialize your own research and thought processes—or are you trying to tell me what I need to know to make an informed decision? If the attorney can certify that everything in the memo is geared to the reader and decision-maker, you’ll have a happy supervisor and an even happier client.

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