October 19, 2018

Colorado Rules for Magistrates and Colorado Appellate Rules Amended

On Tuesday, September 11, 2018, the Colorado State Judicial Branch announced Rule Changes 2018(13) and 2018(14), amending the Colorado Rules for Magistrates and the Colorado Appellate Rules, respectively.

Rule Change 2018(13) amends C.R.M. 6, “Functions of District Court Magistrates,” to update references to the Colorado Rules of Probate Procedure in subparagraph (e)(1)(A). Rule Change 2018(14) amends C.A.R. 3.4, “Appeals from Proceedings in Dependency or Neglect,” to update a cross-reference to C.A.R. 53(h) in subparagraph (l).

For the redlines and clean copies of Rule Change 2018(13) and Rule Change 2018(14), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

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.

Colorado Court of Appeals: C.R.C.P. 106.5 Does Not Apply to Actions Seeking Review of Parole Board Decisions

The Colorado Court of Appeals issued its opinion in Moore v. Executive Director, Colorado Department of Corrections on Thursday, July 12, 2018.

C.R.C.P. 106.5—Parole Board Decisions—Subject Matter Jurisdiction.

Moore, an inmate in the custody of the Colorado Department of Corrections (DOC), filed a C.R.C.P. 106.5 petition against defendants, the DOC’s executive director and the warden of the prison facility where Moore was housed. Moore said he was challenging a parole board decision to defer his parole for abuses of discretion. Defendants moved to dismiss for lack of jurisdiction and for naming improper parties. The district court granted the motion, although it was not clear on what grounds.

On appeal, Moore contended that the district court erred in dismissing the action. He continued to argue that he was entitled to review under C.R.C.P. 106.5 and that the legal authority supporting defendants’ dismissal was no longer valid. C.R.C.P. 106.5 does not apply to inmate actions seeking judicial review of parole board decisions. The rule’s scope is limited to review of quasi-judicial decisions within the ultimate authority of the executive director and the facility wardens. It does not apply to parole board decision because the DOC’s executive director and prison facility wardens do not have authority over those decisions.

Dismissal was also required because the petition and complaint sought a level of judicial review that exceeded the district court’s subject matter jurisdiction. The parole board’s decision-making discretion is plenary and not subject to judicial review. Courts have the power to review the parole board’s actions only if the parole board fails to exercise its statutory duties, and that review is in the nature of mandamus relief under C.R.C.P. 106(a)(2).

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Indefinite Stay of Appeal Denied where Defendant Found Legally Incompetent After Notice of Appeal Filed

The Colorado Court of Appeals issued its opinion in People v. Liggett on Thursday, June 12, 2018.

Competency to Proceed—Stay of Appellate Proceedings—Jurisdiction—Restoration Proceedings—Right to Counsel—Waiver.

This is a direct appeal of two cases, first degree murder after deliberation and revocation of probation (based on the murder conviction). Based on Liggett’s incompetence, his counsel requested an indefinite stay of the appellate proceedings, a stay of the ruling on Liggett’s request to terminate counsel’s representation and to dismiss the appeal, and a remand of the cases to the district court for competency restoration proceedings.

On appeal, Liggett’s counsel contended that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. An incompetent defendant’s direct appeal should proceed, despite incompetence, if the defendant is provided a postconviction remedy to raise issues not raised in the direct appeal due to his incompetence. The court of appeals held that Liggett must be permitted to raise in a postconviction motion any matter not raised in the direct appeal due to his incompetence.

The People contended that the direct appeal divested the district court of jurisdiction and that the appeal and restoration proceedings cannot occur simultaneously. They also argued that the district court has no authority to order the Department of Corrections (DOC), in whose custody Liggett resides, to restore him to competency. The People agreed that Liggett is incompetent and that an incompetent defendant cannot waive the right to counsel on direct appeal. Thus, Liggett’s incompetence precludes the court from ruling on his pending requests to terminate counsel and dismiss the appeal, and a limited remand to restore Liggett’s competence is necessary.

A stay of the ruling on Liggett’s requests to terminate counsel and dismiss the appeal was granted. The request for indefinite stay of the appellate proceedings was denied. The request for limited remand to restore Liggett to competence was granted and the case was remanded to the district court for that limited purpose.

Summary provided courtesy of Colorado Lawyer.

The Grammar Dilemma: Which Rules Are Worth Knowing

“None of you are guilty” or “None of you is guilty”? Can I use “since” as a synonym for “because” or can I only use it to reference time? One space or two between sentences? Is it email or e-mail? Some people have strong feelings about these kinds of questions. But many exasperate “who cares?!”

We are lawyers. We are busy. We have limited time. When is it worth perusing a six-inch thick book to find a grammar rule? Almost never.

Nonetheless, to write clearly you need to understand the ambiguity of English grammar.

The Next Person That Recommends Strunk & White . . .

Since freshman orientation people have always told me to worship Strunk and White’s Elements of Style. I’m pretty sure 98% of those people have never read the book. I’m equally sure 99% of the U.S. population has not. These statistics are not backed by data, just my gut. But in fairness, most of our grammar sense comes from our gut—if this phrase “sounds” right it must be right. Turns out, the Gut Theory of Grammar works pretty well. It works pretty well because there are no grammar rules. Let’s circle back to the Elements of Style.

Most people recommend the Elements of Style because other people recommended it to them. This daisy chain advice is so long no one remembers where it started. But surely the book gained credence for a reason.

Who were Strunk and White? They were co-chairs of the National Commission of American English created by President Nixon to develop consistency in how American students learned the language. Just kidding. There is no commission. Unlike France, the United States has no official body that determines language rules.[1] Strunk and White are two people who sat down to write a book about grammar. Strunk was a college professor who authored the original edition around 1919.[2] White, who authored Charlotte’s Web, revised the book in 1959.[3] Neither had unique authority to assert anything was or was not a rule.

But surely the wide acceptance of the Elements of Style gave it credence after-the-fact? Nope. It’s one thing to wear a t-shirt with a nerdy grammar pun like “Poor Grammar Makes Me [sic].” It’s a different level to publish an article in the Chronicle of Higher Education titled “50 Years of Stupid Grammar Advice” tearing into Strunk & White. But that’s what Professor Pullum did.[4] He describes Strunk & White as “grammatical incompetents” and their advice as ranging “from limp platitudes to inconsistent nonsense” that has “significantly degraded” students understanding of English.[5] Ouch. And he’s not alone. Others have called the book unsystematic, chaotic, and unhelpful.[6] But, to be clear, the book still has supporters.[7] And not everyone agrees with Professor Pullum.[8]

It’s Much Worse Than You Think

Even if the Elements of Style is not perfect (and presumably no other book is), the legal community might silently agree on certain rules. Putting aside obscure stylistic choices, surely we agree on essentials like what a word means? Buckle up.

Since time immemorial teachers and bosses pounced on subordinates for confusing “literally” and “figuratively.” Something is literally true when it can and did happen. It is figuratively true when it cannot or did not happen. So “When I heard the news my heart stopped” is figuratively true, unless after hearing the news my blood stopped circulating in which case it is then literally true. Only not. Consult a dictionary to discover literally and figuratively are sometimes synonyms. Merriam Webster has a persuasive article and video defending the definitions and explaining how authors can use “literally” hyperbolically to mean “figuratively.”[9] There’s an indie romantic comedy here where former antonyms become synonyms.

Here’s another skull-buster. Most of us bleed from the ears when we hear the word “irregardless.” A Pavlovian reflex shocks our system with feelings of valley-girl bastardized English. But oh yes, you guessed it. It is a word. In fact, one of Merriam Webster’s lexicographers (the people that write dictionaries) made a video defending it.[10] “Irregardless” means “empathically regardless.”[11] Oddly, the lexicographer recommends not using the word because so many people think it is not a real word.[12]

English grammar is a mess.

What to Do

We want our readers to find us credible and to understand what we write. But grammar rules are unclear. And we are not going to attach an appendix showing we correctly used a comma on page six.

Begin by accepting the inevitable. You usually have no idea what grammar rules your audience subscribes to. A judge might know a rule, not know a rule, or know a rule that is not a rule.

Next, adapt to your audience. To write clearly you need to know what grammar rules exist—real rules, discredited rules, misunderstood rules, all rules. Even with maximum effort, you cannot avoid breaking some rule believed by someone somewhere. But, with this understanding you can ensure your writing is clear.

When a Grammar Rule is Unclear, Strive For Clarity

When your writing implicates an unclear grammar rule, prioritize clarity. Consider the that/which rule:

The Safety Instructor asked the student to get the gas tank, which has red tape on it.

The Safety Instructor asked the student to get the gas tank that has red tape on it.[13]

In the first sentence there is one tank and it has red tape. [14] “Which” introduces additional information. [15] So, if the student were just told “Go get the gas tank” the student would return with the same tank because only one exists. [16] By contrast, in the second sentence “that” introduces essential information; there are multiple tanks and the instructor wants the one with red tape.[17]

But you cannot count on your reader taking away this distinction. Your reader may not know the rule or may have the rule reversed. So if it is important to understand there were multiple tanks and the instructor asked only for the one with red tape, you need to do more.

You have a few options. You can avoid the that/which rule by rewriting the sentence more explicitly: there were eight tanks and the instructor asked for the one with red tape. Or you can add a clarifying sentence: When the student went into the storage room he saw a pile of tanks and grabbed the one with red tape.

Ultimately, awareness of ambiguous grammar cannot prevent a reader from enforcing a random grammar belief. But that awareness can help us ensure the reader gets our message.

If Most Judges Believe a Rule, Follow It

Recall the figuratively/literally and irregardless examples. There we learned some grammar beliefs are incorrect. But you being correct according to an external source is irrelevant to your case. Write for your audience. If the court has certain grammar preferences, follow them.

Think of a basic rule indoctrinated into you with no reasoning behind it. A rule like capitalize the first letter of each sentence. if you stopped capitalizing those letters, would it confuse anyone? would readers misinterpret your words? nope. but everyone would notice and everyone would think you are wrong. the historical reason for this rule doesn’t matter. even if you found a source saying it is unnecessary, the result will only hurt you.

Although few courts publish elaborate style guides, you can discern grammar preferences from court opinions, former law clerks, and CLEs with the judges. Use that information to preserve credibility and avoid disruption.

Conclusion

When it comes to grammar, write for clarity not accuracy.


[1] George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 196 (2004).

[2] William Strunk Jr.; E.B. White, The Elements of Style xiii-xviii; 87 (4th ed. 2000); Geoffrey K. Pullum, “50 Years of Stupid Grammar Advice,” The Chronicle of Higher Education, p. 1 (April 17, 2009), available at http://www.lel.ed.ac.uk/~gpullum/50years.pdf.

[3] Strunk &White, supra n. 2 at 1; Pullum, supra n. 2 at 1.

[4] Pullum, supra n. 2 at 1

[5] Id. Pullum didn’t let it go after only one article: Geoffrey K. Pullum, “The Land of the Free and The Elements of Style,” 26 English Today 2, 102 (June 2, 2010), available at http://www.lel.ed.ac.uk/~gpullum/LandOfTheFree.pdf.

[6] Tom Goldstein and Jethro K. Lieberman, The Lawyers Guide to Writing Well 9-10 (3d ed. 2016).

[7] See, e.g., “The 100 Best Nonfiction Books: No. 23 The Elements of Style by William Strunk and EB White (1959),” The Guardian, available at https://www.theguardian.com/books/2016/jul/04/100-best-nonfiction-books-all-time-elements-style-william-strunk-eb-white.

[8] To see how some of Pullum’s critiques may be overstated, see Ross Guberman, “Did Strunk & White Give “Stupid Advice?,” available at https://www.legalwritingpro.com/articles/strunk-white-give-stupid-advice/ (last visited May 20, 2018).

[9] Merriam-Webster Dictionary, “Did We Change the Definition of ‘Literally’?,” https://www.merriam-webster.com/words-at-play/misuse-of-literally (last visited May 20, 2018); Merriam-Webster Dictionary, “Literally- Merriam Webster- Ask The Editor,” https://www.youtube.com/watch?v=Ai_VHZq_7eU (last visited May 20, 2018).

[10] Business Insider, “‘Irregardless’ is a real word – you’re just using it wrong,” https://www.youtube.com/watch?v=bEJ2HF3xuFk (last visited May 20, 2018).

[11] Id.

[12] Id.

[13] This is a variation of the rake example provided in Gopen, supra n. 1 at 5.

[14] Id.

[15] Id.

[16] Id.

[17] 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: 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.

Rule Change 2018(07) Released, Amending Colorado Appellate Rules

On Friday, June 8, 2018, the Colorado State Judicial Branch released Rule Change 2018(07), adopted by the Colorado Supreme Court on June 7 and effective July 1, 2018. The rule change Form 8, “Designation of Transcripts,” in the Appendix to Chapter 32, and also amends Rules 21, 21.1, 49, 50, 51, 51.1, 52, 53, 54, 56 and 57.

While some of the changes are relatively minor, many of the rules were dramatically amended. A redline and a clean copy of the rule change is available here. Appellate practitioners are encouraged to familiarize themselves with the rule changes before their July 1 effective date.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: District Court Retains Jurisdiction Over Allocation of Parental Responsibilities while Prior Order on Appeal

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning W.C. on Thursday, May 3, 2018.

Parental Responsibilities—Jurisdiction—Appeal—Motion to Modify—Changed Circumstances.

In this allocation of parental responsibilities case, father appealed the district court’s permanent orders granting mother sole decision-making authority and majority parenting time. Though his appeal is pending with this court, father filed verified motions to modify parenting time and decision-making in the district court. The district court concluded that it lacked jurisdiction to consider those motions while the appeal was pending; it decided to take no action on father’s motions unless and until the Court of Appeals finds that the district court has jurisdiction or remands and gives the court authority to consider the motions.

The Court determined that under Colorado’s Uniform Dissolution of Marriage Act, a district court retains continuing jurisdiction over motions to modify parental responsibilities while the current allocation order is on appeal, as long as those motions are based on a material change in circumstances that occurred after the original order was entered.

Father’s motion to clarify was granted and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statutory Amendment Deprived State of Authority to Prosecute Conviction on Appeal

The Colorado Court of Appeals issued its opinion in People v. Cali on Thursday, May 3, 2018.

Theft—Theft by Receiving—Appeal—Statutory Amendment—Collateral Attack—Crim. P. 35(c)(2)(VI)—Postconviction Remedies.

Cali was convicted of theft and theft by receiving, both class 4 felonies, as well as two habitual criminal counts. The trial court sentenced him to 18 years in the custody of the Department of Corrections. Cali directly appealed his convictions, and his theft conviction was vacated. After Cali had filed his notice of appeal in the direct appeal and while the appeal was still pending, the legislature reclassified theft by receiving, as committed by Cali, to a class 6 felony. After his direct appeal became final, Cali timely filed a pro se Crim. P. 35(c) motion asserting, as relevant here, that he was entitled to the benefit of the changed statute. The postconviction court denied Cali’s motion without a hearing.

On appeal, Cali argued that the trial court erred by analyzing his postconviction claim as a request for retroactive application of the statutory amendment. He contended that because the amendment took effect while his direct appeal was pending and before his conviction became final, he is entitled to the benefit of the amendment. The amended statute applied to Cali because before Cali’s conviction became final, the State lost the authority to prosecute him for committing the class 4 felony of theft by receiving. That a different statute classifying theft by receiving as a class 6 felony could then be applied to Cali does not change the fact that the State lost the authority to enforce the statute under which Cali had been convicted. Although Cali did not raise the State’s loss of authority to prosecute him before his conviction became final on appeal, he could collaterally attack his conviction under Crim. P. 35(c)(2)(VI). Cali asserted a timely postconviction claim that entitles him to reversal of his conviction. But the trial court must convict him of the class 6 felony and sentence him accordingly.

The postconviction order was reversed. Cali’s conviction was vacated, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Forging New Writing Conventions: Parentheticals (And How We Use Them)

Putting citations after sentences sacrifices readability for credibility. The convention has critics but is here for the immediate future.[1] Its sister convention is putting parentheticals after citations. This convention rarely gets any discussion. It should.

When to Use Parentheticals

Every law student learns to use parentheticals. They take different forms. Often they are incomplete sentences explaining a point about the source, usually starting with a present participle—an “ing” word like “holding,” “finding,” or “concluding.” We use them often. Why?

Any answer includes a need to convey information about the source. But why convey that information in a parenthetical? This is the question you need to answer before using one.

There is a difference between each of the following:

“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.” People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16. (“Summary judgment is only appropriate if the moving party establishes that no disputed material facts exist.”)

Summary judgment is only appropriate when there are no disputed material facts. People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16.

People In Interest of S.N. v. S.N., 2014 CO 64, ¶ 16 (summary judgment is only appropriate when there are no disputed material facts).

When you include a parenthetical you make a series of choices. First, you choose to include rather than exclude information. Second, you decide how to phrase the information, either quoting, paraphrasing, or a little of both. Third, you determine where to put the information, either in the main text before the citation or in a parenthetical after the citation. That placement has consequences.

Those consequences come from how we read briefs. We all learn to write using parentheticals. But we do not necessarily learn to read parentheticals, or at least not to read them how the writer intends.

Here’s the writer’s perspective. The information is important enough to go in the brief, and belongs at the source’s hip.

But this placement has other consequences to the reader. The parenthetical is separate the main text. Because it stands apart, the reader must connect the main text information and the parenthetical information. A parenthetical placement may also suggest the information is less important than the main text. Indeed, part of Bryan Garner’s argument for putting citations in footnotes is that important authorities should be named and discussed in the main text, and “discussion of governing and persuasive authorities is enhanced because it can no longer be buried in parentheticals following citations.”[2] Plus, a parenthetical lengthens the citation, often by several lines. That lengthening causes greater disruption. Remember, main text citations trade readability for credibility. The longer the citation, the less readable the pros, the more unbalanced the trade.

Applying these factors, here are some scenarios that tempt readers to skip or gloss over parentheticals.

The main text suggests the parenthetical is unnecessary: If the main text sentence states an obvious or well-known proposition, a parenthetical seems unnecessary. Readers are always more tempted to skip portions that seem unnecessary. For example:

The statute of limitations for a bad faith tort claim is two years. Brodeur v. American Home Assur. Co., 169 P.3d 139, 151 (2007) (dismissing claim filed over two years and ten months after cause of action arose).

We all know what a statute of limitations is and the consequences of filing a tardy claim. The information in the parenthetical adds nothing. But that’s just the reader’s guess.

The reader’s triage comes before reading the parenthetical. Based on the main text sentence, the reader determines the parenthetical probably adds nothing and therefore is not worth reading. So the takeaway is to make sure the main text sentence preceding the citation sets up the need for a parenthetical. Great information does you no good if the reader never reads it. Secondarily, make sure the parenthetical’s information adds to your brief so when the reader does get to it, the information advances your argument.

The parenthetical is very long: Lengthy parentheticals rarely work. They are too much. They squeeze lists of facts or reasons into a run-on incomplete sentence. At the same time they drag out a citation, which disrupts the main text’s flow and often makes it difficult to find the next sentence. A common example is a parenthetical that tries to single-handedly apply a multi-factor test. For instance, a parenthetical applying People v. Humphrey’s twelve-factor assessment to determine if a Miranda waiver is valid.[3] Or a single parenthetical discussing how Effland v. People found five factors weighing against a finding of custody and fifteen in favor.[4] A parenthetical about one factor may be appropriate. But a discussion of the entire analysis or several factors is too much for one incomplete sentence bracketed by parentheses.

When to use parentheticals, what information to put in them, and how to convey that information requires judgment. But odds are you overuse them. To refine your judgment analyze People v. Brooks, which has over sixty case citations and only one with a substantive parenthetical explanation.[5] People v. Howard-Walker has over one-hundred case citations, only four with explanatory parentheticals.[6]

How to Phrase Parentheticals

An equally valid question is why we start parentheticals with a present participle (those “ing” words). Law school taught us this probably because the Bluebook rule on parentheticals says explanations not quoting the source “usually begin with a present participle.”[7] Why the Bluebook takes this position is unclear. Even if you live and die by the Bluebook, “usually” means not always.

Given the widespread use of “ing” words, would cutting them throw the reader or alter the meaning? See for yourself.

For all these reasons, we conclude that the issue was sufficiently preserved. See People v. Syrie, 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has “adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal”)

. . .

In all of them, the courts considered extrinsic circumstances only to determine whether the images were created to be viewed for sexual gratification. See Batchelor, 800 P.2d at 604 (that the defendant concealed the photos of his naked nine-year-old daughter, took the pictures at night, posed the child, and took the pictures secretly showed that he took the pictures for his own sexual gratification); T.B., ¶ 34 (that the defendant had texted the victims a picture of his erect penis when he solicited nude pictures from the victims showed that the pictures taken by the victims were intended for the defendant’s sexual gratification); Grady, 126 P.3d at 222 (the defendant produced photos of teenage models that he also posted on a website entitled “True Teen Babes”); Gagnon, 997 P.2d at 1284 (in deciding whether pictures taken by the defendant of a teenage girl in sexually suggestive poses and clothing were produced for sexual gratification, the court considered that “the pictures of the victim were found along with a large collection of other material the trial court described as adult pornography”).”

. . .

Images that are otherwise constitutionally protected images could become unprotected based merely on the subjective response of a particular viewer. See Batchelor, 800 P.2d at 602 (pictures depicting nude children for legitimate purposes are constitutionally protected).[8]

This excerpt shows “ing” words are often not needed. Commonly used present participles like “holding,” “finding,” and “concluding” are usually unnecessary because they are implied. In fact, it is difficult to imagine an example where such words make a difference. Take a look:

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (finding statute of limitations barred claim).

Smith v. Jones, 123 F.2d 345 (12th Cir. 2018) (statute of limitations barred claim).

By contrast, openings like “comparing,” “reaching,” and “distinguishing” add meaning to a parenthetical.

You can decide when a present participle adds to the parenthetical. But omit them when they are unnecessary. Break the habit.


[1] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 132-33 (Thomson/West 2008).

[2] Id. at 132.

[3] 132 P.3d 352, 356 (2006).

[4] 240 P.3d 868, 875 (2010).

[5] 2017 COA 80.

[6] 2017 COA 81M.

[7] The Bluebook: A Uniform System of Citation R. 1.5(a)(i), at 59 (Columbia Law Review Ass’n et al., eds., 19th ed. 2010).

[8] People v. Henley, 2017 COA 76, ¶¶16, 28-29.

 

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.

Colorado Supreme Court: Suppression Not Warranted where Defendant Dropped Drugs Prior to Seizure

The Colorado Supreme Court issued its opinion in People v. Taylor on Monday, April 30, 2018.

Arrest—Seizure—Suppression.

Pursuant to C.A.R. 4.1, the People challenged an order of the district court granting Taylor’s motion to suppress drug evidence. The supreme court held that the district court erred in granting Taylor’s motion to suppress because no seizure had yet taken place when Taylor dropped the drugs.

The court reversed the district court’s suppression order and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Dismissal of Single Parent from Dependency and Neglect Proceeding Not Final Appealable Order

The Colorado Supreme Court issued its opinion in People in Interest of R.S. on Monday, April 30, 2018.

Children’s Code—Dependency or Neglect Proceedings—Appeals.

In this dependency or neglect case, the trial court held a single adjudicatory trial to determine the dependent or neglected status of the child. The judge served as fact-finder with respect to allegations against mother, and a jury sat as fact-finder with respect to the allegations against father. The judge ultimately concluded that the child was dependent or neglected “in regard to” mother. In contrast, the jury concluded there was insufficient factual basis to support a finding that the child was dependent or neglected. In light of these divergent findings, the trial court adjudicated the child dependent or neglected and continued to exercise jurisdiction over the child and mother, but entered an order dismissing father from the petition. The People appealed the jury’s verdict regarding the father.

The court of appeals dismissed the People’s appeal for lack of jurisdiction, reasoning that the dismissal of a single parent from a petition in dependency or neglect based on a jury verdict is not a final appealable order because neither the appellate rule nor the statutory provision governing appeals from proceedings in dependency or neglect expressly permits an appeal from a “‘no adjudication’ finding.”

The supreme court concluded that, with limited exceptions not relevant here, section 19-1-109(1) of the Colorado Children’s Code authorizes appeals in dependency or neglect proceedings from “any order” that qualifies as a “final judgment” for purposes of C.R.S. § 13-4-102(1). Because the trial court’s order dismissing father from the petition was not a “final judgment,” the court concluded that the court of appeals lacked jurisdiction and properly dismissed the Department of Human Services’ appeal.

The court of appeals’ dismissal was affirmed.

Summary provided courtesy of Colorado Lawyer.