August 19, 2019

Colorado Court of Appeals: Claims Raised in Parole Board Appeal Are Not Successive Under Crim. P. 35

The Colorado Court of Appeals issued its opinion in People v. Melnick on Thursday, February 21, 2019.

Postconviction Remedies—Parole Revocation Appeal—Successive Claims

Defendant pleaded guilty to sexual assault and two misdemeanors, third degree assault and menacing, and was sentenced. He was later granted parole. Defendant’s parole was subsequently revoked and he was remanded to the custody of the Department of Corrections for 540 days. The Appellate Board of the Colorado State Board of Parole (the parole board) denied his appeal of that decision. Defendant then filed a Crim. P. 35(c) motion in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding the challenges raised to the parole board were not properly brought pursuant to Crim. P. 35(c).

On appeal, defendant argued that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by C.R.S. § 17-2-201(14). Rule 35 does not encompass this type of claim and Colorado appellate courts have consistently declined to review such claims under that rule. Thus, the postconviction court properly denied this claim.

Defendant next argued that the hearing officer was biased and had prejudged his appeal. This challenge is aimed at the lawfulness of the revocation and is explicitly governed by Rule 35(c)(2)(VII) and is cognizable. The postconviction court concluded that defendant’s appeal to the parole board had the same preclusive effect that a direct appeal would have had. But the parole statute explicitly provides for judicial review of parole revocation under C.R.S. § 18-1-410(1)(h), so defendant’s claim is not barred as successive. A Rule 35 motion may be denied without a hearing if the record clearly establishes that the defendant’s allegations are without merit and do not warrant relief. A defendant is not required to set forth evidentiary support for his allegations in a Rule 35 motion, but must only assert facts that if true would provide a basis for relief. Here, defendant asserted that the hearing officer prejudged his case by partially completing electronically a preprinted disposition form and printing it five days before the hearing. This allegation cannot be resolved without testimony from the hearing officer.

Defendant also asserted that he was denied the opportunity to present witnesses and evidence. He identified witnesses and the general subject of their testimony in exhibits attached to his postconviction motion. Defendant also alleged that he was denied the benefit of potentially exculpatory evidence. He claimed law enforcement officials destroyed the cell phone that contained text messages that would have corroborated  his claim that his work supervisor had provided false information, which led to his termination from employment and, in turn, to his parole violation. If these allegations were established after a hearing, defendant’s parole revocation may have been unlawful. Defendant is entitled to a hearing and the appointment of counsel.   

The order was affirmed as to the denial of defendant’s challenge to the parole board’s failure to provide him a new parole hearing within 180 days. The remainder of the order was reversed and the matter was remanded with instructions to appoint counsel for defendant and to conduct a hearing.

Summary provided courtesy of Colorado Lawyer.

Repetition of Phrasing

“REPETITION—far too often avoided—can be a powerful rhetorical device. It can bring order and balance to a sentence’s parts. And it can rivet a word to the reader’s frontal lobe with more impact than elegant variations ever could.”[1]

I. Types of Repetitive Phrases

If you thought repetition was only repeating the same point again, prepare yourself. Repetition is a class of rhetorical devices. Brigham Young University’s Silva Rhetoricae database describes an arsenal of rhetorical devices involving repetition.[2]

One class within this arsenal is repetition of letters, syllables, and sounds. You probably already know alliteration, which is repetition of the same sound at the beginning of words.[3] Is there a name for when you get so excited about alliteration that you work it in wherever you can? Thankfully, yes. In the X Games of Rhetoric, the event known as paroemion is “alliteration taken to an extreme” — think tongue twister (Peter Piper picked a peck . . . ).[4] A variation is repetition of word endings (running, biking, swimming).[5]

Another class is repetition of words or phrases. One type repeats the same word or words at the beginning of phrases, sentences, or paragraphs (I have a dream . . . ;[6] We shall fight in France, we shall fight on the seas . . . [7]).[8] You can flip that strategy to repeat words at the end (a government of the people, by the people, for the people [9]).[10]

Searching for these unique “turns of phrases” is very difficult. Every now and then they pop out if you are looking for them: “Outlaw to outcast [repetition of prefixes] may be a step forward, but it does not achieve the full promise of liberty.”[11] Nonetheless, it is worth keeping an eye out for them to give yourself ideas.

II. Common Critiques

Any discussion of repetition of phrasing has at least two common criticisms. First, such repetition is showy and ornamental, or is more well-suited for oral than written communication. Second, such repetition is far too time consuming to work into a legal brief, especially given the small payoff. Both criticisms are true, sometimes.

Like any rhetorical device, repetition of phrasing becomes showy and ornamental when it draws the reader’s attention to it—“it” being your choice to repeat phrasing. Readers tend to notice a writing technique only when that technique does not fit; it stands out for one reason or another. In these cases, any technique can become showy, ornamental, and have little payoff. In fact, it probably hurts your brief by being distracting. Even if you get credit for being a wordsmith, your argument suffers as your reader admires you and not your position. But when used selectively and seamlessly, repetition of phrasing is a worthwhile technique.

III. Superfluous Phrases

Sometimes we inadvertently combine two terms that mean the same thing, yielding superfluous repetition: “absolutely certain,” “added bonus,” “difficult dilemma.” Some books list dozens of such commonly used phrases.[12] It’s unlikely any writer has the time to review these lists while proofreading a brief. But skimming these lists and keeping an eye out for such phrases is worthwhile.

IV. Use Repetitive Phrasing to Make a Point

Sometimes repetition is part of a larger technique. Here are some ways to weave repetition and paragraph structure together to make a powerful point.

Repeat a paragraph structure to emphasize a reappearing (and helpful) fact.

As he turned the first corner, he heard the radio announcement about I-70 closing due to bad weather. Tractor trailers were flipping. But the Plaintiff continued on anyway.

As he turned the second corner, he saw skid marks and two cars crashed into the guard rail. But the Plaintiff continued on anyway.

As he turned the third corner, he skidded and regained control just in time to barely avoid crashing into another car. But the Plaintiff continued on anyway.

And then he came to the corner where the accident occurred.

Here, the repeated phrase and its location emphasize a key fact for the defense: the Plaintiff repeatedly rejected signs to turn around and instead chose to continue into bad conditions. Unlike the tedious repetition of a particular fact, here the same fact keeps reappearing. The repetition of phrasing helps draw the reader’s attention to it.

Use repetition to establish a pattern and then break the pattern.

We often think of repetition as a way to draw the reader’s attention to what is being repeated. But you can use it for the opposite effect too—to draw attention to the only thing not being repeated.

Here is one way to make a point: “In every other training of 2018 the safety instructor identified a radio channel. The only time the instructor did not was the training that injured Firefighter Smith.” Here’s another way:

The Department’s Safety protocols revised in January require that before any live fire training the safety instructor (1) take all trainees through the building to identify all exits, (2) assign teams, and (3) identify the radio channel.

At the February live fire training, the safety instructor began by taking trainees throughout the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the March live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the April live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then, training started.

No one identified a radio channel.

Combining repetitive language and structure can establish a pattern—here a routine or procedure. The repetition blends together, establishing a cadence for the reader. The break in that pattern draws attention to the only thing not repeated: a key fact. Here, the repetition both draws attention to a key fact and highlights how that fact is inconsistent with a trend.

V. Conclusion

Don’t dismiss repetition of phrasing as too showy or too difficult. Call upon this tool when you need to.


[1] Bruce Ross-Larson, Stunning Sentences: The Effective Writing Series 40 (1st ed. 1999).

[2] Silva Rhetoricae, Figures of Repetition, http://rhetoric.byu.edu/Figures/Groupings/of%20Repetition.htm (last visited Dec. 27, 2018).

[3] Silva Rhetoricae, Alliteration, http://rhetoric.byu.edu/Figures/A/alliteration.htm (last visited Dec. 27, 2018). Bruce Ross-Larson, supra note 1 at 42 (repetition of prefixes and suffixes).

[4] Silva Rhetoricae, Paroemion, http://rhetoric.byu.edu/Figures/P/paroemion.htm (last visited Dec. 27, 2018).

[5] Known as homoioteleuton or homoioptoton. Silva Rhetoricae, Homoioteleuton, http://rhetoric.byu.edu/Figures/H/homoioteleuton.htm (last visited Dec. 27, 2018); Silva Rhetoricae, Homoioptoton, http://rhetoric.byu.edu/Figures/H/homoioptoton.htm (last visited Dec. 27, 2018). See also Bruce Ross-Larson, supra note 1 at 42-44.

[6] Martin Luther King, Jr., “I Have a Dream” (August 28, 1963).

[7] Winston Churchill, “We Shall Fight on the Beaches” (June 4, 1940).

[8] Silva Rhetoricae, Anaphora, http://rhetoric.byu.edu/Figures/A/anaphora.htm (last visited Dec. 27, 2018).

[9] Abraham Lincoln, “Gettysburg Address” (November 19, 1863).

[10] Silva Rhetoricae, Epistrophe, http://rhetoric.byu.edu/Figures/E/epistrophe.htm (last visited Dec. 27, 2018).

[11] Obergefell v. Hodges, 135 S.Ct. 2584, 2600 (2015).

[12] Mark Nichol, 50 Redundant Phrases to Avoid, https://www.dailywritingtips.com/50-redundant-phrases-to-avoid/ (last visited Dec. 27, 2018). See also Bruce Ross-Larson, Edit Yourself: A Manual For Everyone Who Works With Words 1-6 (1996); Robert Harwell Fiske, The Dictionary of Concise Writing 47-396 (2d ed. 2006).

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: Non-Party to Juvenile Delinquency Case Needed Only to Show It Was Substantially Aggrieved to Appeal District Court’s Order

The Colorado Supreme Court issued its opinion in People in Interest of D.Z.B. on Monday, January 14, 2019.

Standing on Appeal.

The supreme court reviewed whether the court of appeals erred in concluding that the Arapahoe County Department of Human Services (the Department) lacked standing to challenge a district court’s temporary custody order placing D.Z.B., a juvenile, in one of its residential facilities pending his delinquency adjudication.

The court concluded that the court of appeals erroneously merged the analysis used to determine whether a plaintiff has standing to sue with the analysis used to determine whether a non-party has standing to appeal to assess whether the Department, a non-party to the district court proceedings, had standing to appeal. As a result, the division required the Department to demonstrate that it (1) suffered an injury in fact to a legally protected interest and (2) was substantially aggrieved by the district court’s order. Because the Department was a non-party to the lower court proceedings, the court of appeals should have assessed only whether the Department was substantially aggrieved by the district court’s order. Accordingly, the court reversed and remanded the case to the court of appeals to apply the correct standard and to consider any outstanding issues.

Summary provided courtesy ofColorado Lawyer.

Repetition of Substance: When It Helps, When It Hurts

When it comes to repetition, advice conflicts. On the one hand: tell them what you are going to tell them, tell them, and then tell them what you told them. On the other hand: don’t beat a dead horse, I got it already, make your point and move on.

Truth be told, like every technique repetition can be effective or ineffective. When used purposefully to add value, repetition helps. When used because of habit, repetition hurts.

One form of repetition is “repetition of substance”—i.e., repeating the same point even if done with different words. All briefs repeat substance. To some degree, a brief’s structure requires this repetition. When and how to add more is strategy.

I. Acknowledge the inherent repetition in a brief’s structure by moving on to the “why”

To avoid tedious repetition, acknowledge the inherent repetition in a brief’s structure.

Briefs contain most of the following features:

  • Caption
  • Introduction
  • Summary of Argument
  • Headers
  • Topic Sentences
  • Concluding Sentences
  • Conclusion

Each of these features repeats the substance of at least one other item on the list (usually several), sometimes with a different degree of detail.

Although writers draft these features separately, readers process them cumulatively. Failure to recognize the inherent repetition among these features can cause excessive repetition of substance, like this:

MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM

Plaintiff brings this Motion to Dismiss the Complaint for Failure to State a Claim because the Complaint’s allegations fail to state a claim. . . .

Summary of Argument

The civil rules require dismissal of complaints that fail to adequately state a claim. Here, this Complaint fails to state a claim because . . .

Argument

I. Complaints that fail to state a claim must be dismissed

Rule 12 requires dismissal of complaints that fail to adequately state a claim. . . .

II. The Complaint fails to state a claim for tortious interference

Here, the Complaint fails to adequately plead a claim for tortious interference. . . .

We get it. You want to dismiss the complaint because it fails to state a claim. Whether separated by lines or pages, the repetition’s effect is the same: tedious pounding. That tediousness comes from overlooking the inherent repetition in the structure.

In this example, each section operates as if in a vacuum and with a need to be self-sufficient. But the reader doesn’t need that. The reader wants to move forward, while the brief keeps moving backwards; instead of starting where the prior section left off, each section reverts to the beginning. After the first sentence, the reader knows you want to dismiss the complaint for failure to state a claim. The reader wants to know why the complaint fails to state a claim. Even if the why comes in the second or third sentence of a section, the damage is done by the repetitious headers and opening sentences.

A brief’s inherent repetition should suppress fears of a judge not remembering your points or misunderstanding your main ideas. For example, a conclusion does not need to repeat any substance. It can state the remedy you want. And nothing else. If a judge does not understand why you win by the conclusion, you have bigger problems that repetition will not solve.

Even when judges read briefs in piecemeal fashion—starting, stopping, and returning—the judges remember what the brief is about or can re-read or re-skim the brief. I have yet to find a judge who expects a particular section to repeat all the substance learned up to that point. Think about it: for good reason you have never read a book where chapter eighteen repeats all the substance from chapters one through seventeen.

II. Add repetition to compensate for structural incoherence

Sometimes a brief’s structure works against you. When structure stuffs material between two related points, the reader might struggle to link the two.

This often happens in multi-issue briefs. Imagine an appellate brief that raises issues with jury selection, cross-examination, and damages. The brief might begin by discussing jury selection facts, then add pages of unrelated facts on the other issues, and then return to jury selection in the Argument section. Those intervening pages may cause the reader to temporarily forget some of the relevant jury issue facts. Another example is when an argument starts with the law, then adds facts, and then applies the law to the facts. In both scenarios, the middle section is such a dramatic shift (from one issue to another, or from the law to the facts) that the reader may not remember everything covered in the first section.

When structure weakens cohesion, punchy repetition can help get the reader back on track. But the point is to recall information, not recite it. Referencing the key point is enough to yank the information forward:

  • “Recall the balance between access and cost that this doctrine pivots on;”
  • “Recall how the prosecutor called the defendant a ‘liar’ during closing argument not one or two, but three times;
  • “But remember Justice Holmes’ warning;”
  • “Remember the elaborate safety diagrams placed on the product to avoid this precise kind of accident.”

Here, the repetition is not re-teaching or re-informing the reader. Rather, the repetition helps connect non-consecutive information.

III. Perseverance is not an effective writing strategy

Repeating substance in short succession often does more harm than good. Readers assume every paragraph moves an argument or story forward. But repetition moves backwards. So repetition in short succession resembles a stalling car; the reader tries to move forward while the author moves backwards. Cue frustration.

Usually this occurs when writers try to overwhelm the reader with an onslaught of authority spread over paragraphs. Something like this:

The diversity jurisdiction statute only grants jurisdiction to cases involving controversies worth over $75,000. 28 U.S.C. § 1332(a). The Supreme Court held there is no diversity jurisdiction when the complaint alleges damages of only $75,000. [cite case].

Every circuit court agrees. The Tenth Circuit upheld dismissal of a complaint that alleged $75,000 in damages. [cite case]. So has every other circuit. [string citation].

Wright & Miller also states that $75,000 is not enough. [cite treatise]. See also [string citation of treatises].

“I got it. Why are we still on this?,” thinks the reader. These paragraphs do not move forward. Instead, they repeat the same message with different authority. Even if the opponent challenges this hornbook proposition, repetition is not an effective counter argument. Rather, a single, short, decisive sentence with a citation to binding authority speaks volumes.

Another example of excessive successive repetition is when briefs try to use the same fact to make the same point over and over again (occasionally with bold font and underlining). It looks like this:

The baker agreed to purchase eggs from the farmer every Monday for $2,000. The farmer drafted a contract, signed it, and sent it to the baker. But the baker never signed the contract.

For the next thirty Mondays the farmer sent eggs and the baker sent money. Both parties acted with a mutual understanding. But the baker never signed the contract.

Even though both parties had lawyers who advised them during the transaction, and even though the contract involved the sale of goods, the baker never signed the contract.

That the contract was not signed is important. And that importance was clear the first time. Plus, surely the fact will appear again when discussing the statute of frauds.

Effective storytelling emphasizes key facts; repetition does not. Repeating the same fact over and over again, even a very important fact, is more annoying than emphatic. Although some writers risk annoyance for the assurance that a judge not forget a key fact, that is not a choice you need to make. Use storytelling, paragraph and sentence structure, or headers to highlight a key fact. When done well, the reader remembers.

IV. Repetition, without more, is just repetition

Varying volume is an effective speaking tool; shouting all the time is not. Similarly, there is no correlation between an amount of repetition and the strength of your argument. Repeat substance when it helps; don’t when it doesn’t.

Much of unnecessary counter-productive repetition stems from high school requirements that you bookend sections with topic and concluding sentences. The concluding sentence (we were taught) is just the topic sentence slightly reworded or with a concluding transition word like “therefore” in front. Many writers believe such repetition brings resolution. The opposite occurs. The reader expects the last sentence to move forward, but it only states what they already know. It wastes space and words.

Consider the following:

The evidence is inadmissible for three reasons. First, . . . . Second, . . . . Third, . . . . Therefore, the evidence is inadmissible.

The first and last sentence are repetitive, and nothing more. The last adds nothing new. The only reason most writers think to include the final sentence is because of high school. When repetition does not advance your argument, cut it.

V. Repetition that adds value is effective

Repetition of substance works well when it adds something. Counterintuitive yet true, repetition can add something the first incarnation did not. Here are some ideas on useful repetition of substance.

Repetition Plus: Repetition with elaboration or additional support does more than remind the reader of a point. These couplets add to a reader’s understanding and move the argument forward.

Repetition Connectors: You can also use repetition to connect a previously mentioned point with a new concept. For example:

The Fourth Amendment balances the government’s interest in investigating crimes against each individual’s interest in privacy

. . .

Thus, condoning an arrest warrant under these circumstances upsets the Fourth Amendment’s delicate balance by dramatically favoring the government’s interest to the detriment of every individual’s privacy rights.

Here, the section begins with a generic point about the Fourth Amendment that introduces a “balance” to the reader. This concept probably fades into an analysis of facts and precedents. But the last sentence links the analysis with the balance referenced at the beginning to tie them together.

VI. Conclusion

Overused and frequently misunderstood, repetition of substance is a powerful tool when used well.

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: Postconviction Matters for County Court Felony Criminal Matter Resolved in County Court, Not District Court

The Colorado Court of Appeals issued its opinion in People v. Vargas-Reyes on Thursday, December 28, 2018.

Criminal Law — Commencement of Prosecution — Felony Complaint in County Court; Criminal Procedure — Appeals From County Court

A division of the court of appeals considers whether, when a felony case is commenced in county court pursuant to section 16-5- 101(1)(c), C.R.S. 2018, and resolved with a plea agreement involving only misdemeanor pleas, the plea and any subsequent postconviction matters are handled by the county court or by the district court. We conclude that unless the matter is formally bound over to the district court before the plea is accepted, it remains a county court matter for purposes of appeal. Because this appeal involves a challenge to the denial of a postconviction motion issued by the county court, this court lacks jurisdiction and the appeal is dismissed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Language in Fee Agreement Insufficient to Terminate Counsel’s Representation

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, November 29, 2018.

Criminal ProcedureConstitutional LawSixth AmendmentNotice of AppealIneffective Assistance of CounselCrim. P. 44(e)Termination of Representation.

Newell represented Lancaster at a criminal trial. The fee agreement between Newell and Lancaster included a provision that representation terminated at the conclusion of trial. A jury found Lancaster guilty on six of seven counts and he was sentenced in 2007. Following trial, Newell informed Lancaster that he would not represent him on appeal, but Newell did not withdraw from the representation. Thereafter, Lancaster did not timely file a notice of appeal. In 2010, Lancaster filed a pro se Crim. P. 35(c) motion alleging that Newell had been constitutionally ineffective by failing to file a notice of appeal. The motion was denied after a hearing.

On appeal, Lancaster contended that Newell was constitutionally ineffective in failing to file a notice of appeal on his behalf. Trial counsel’s representation of a criminal defendant terminates only as provided under Crim. P. 44(e), notwithstanding the fee agreement; therefore, trial counsel’s duty to perfect the defendant’s appeal is not discharged until the representation terminates pursuant to Crim. P. 44(e). Here, Newell’s failure to either file a notice of appeal on Lancaster’s behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of the public defender to represent Lancaster on direct appeal constituted ineffective assistance of trial counsel. Because the ineffective assistance of trial counsel deprived Lancaster of his right to direct appeal of his conviction, he is entitled to pursue a direct appeal out of time pursuant to C.A.R. 4(b).

The order was reversed.

Summary provided courtesy of Colorado Lawyer.

From Here to There: How to Use Transitions

For many writers, transitions are a list of eleven words that start the first sentence of a paragraph. Here’s the list:

Also
First, Second, Third . . .
Furthermore
However
In Addition/Additionally
In Conclusion
Moreover
Nevertheless
Next
Therefore
Thus

When you read these transitions, they probably sounded forced and seemed disruptive. That’s because they were forced and disruptive. Few of us use transitions effectively.

Blame high school. Somewhere around junior year of high school a teacher told us transitions are necessary to move the reader from one topic to another. It doesn’t matter that everyone followed what we wrote sophomore year just fine. Now we are sixteen and need to use transitions. We learned quickly to start each new paragraph with one of those eleven words to get a check mark from the teacher. The teacher is gone, but the habit lives on.

There is a universe of more effective transitional words few writers use. But that’s only part of the problem. Transitions are more than a finite set of words and phrases. They connect more than just paragraphs. And they can go many places besides the first word of a paragraph.

We no longer write for high school teachers. Start thinking about transitions differently.

Transitional Words

Because most people associate transitions with specific words, let’s start there. Some words primarily function as transitions. In fact, there are dozens of these words. And when used effectively, these words do more than just flag a new point; they flag the relationship between the prior point and the new point.

Conveniently, Bryan Garner and Ross Guberman compiled lists of such transitional words (Guberman’s has 135 words). They categorized the lists by the purpose each word serves: to conclude, to add a point, to extract the essence, to show cause and effect, to compare, to give an example, to concede a point or preempt a counter-argument, to redirect, to emphasize or expand, to restate or summarize, to sequence ideas, etc.

Here’s a sampling:[1]

 

To show cause and effect To conclude or explain
And so

And therefore

And thus

As a result

Because

For

For that reason

In consequence

On that basis

Since

So

That is why

To that end

To this end

When

With that in mind

So

Then

Thus

Hence

And so

Because

And thus

In short

At bottom

Therefore

All in all

Accordingly

As a result

At its core

That is why

To that end

In any event

Consequently

In consequence

For that reason

To draw a contrast To press a point
At the same time

But

By contrast

Despite

For all that

However

In contrast

In the meantime

Instead

Nevertheless

Not

Rather

Unlike

Yet

In fact

As a matter of fact

Indeed

Of course

Without exception

Still

Even so

Anyway

The fact remains

Assuredly

 

 

A partial version of Guberman’s list is available online.[2]

Garner’s and Guberman’s categories have a wonderful side effect. To find a transitional word, you need to search for a relationship category. And to find the right relationship category, you need to understand the relationship between two of your points. In other words, choosing an effective transitional word requires you to organize and understand your own points.

Use transitional words to signal not just that you are making a new point, but also that point’s relationship with the prior point. As you’ll see in the examples below, using a variety of short transitional words can dramatically improve flow and clarity.

Backward-Looking Phrases

Another form of word-specific transitions are those that refer to a previously mentioned subject. Pronouns and articles like “this,” “these,” “that,” “those,” and “the” always modify a subject.[3] When that subject has been previously mentioned, you have a transition.

  • Under the doctrine of stare decisis, a trial court follows appellate decisions concerning the same legal issue and similar facts. Here, this principle requires . . .
  • Unbeknownst to Mrs. Smith, when the temperature dropped ice formed on the road. And the tanker in front of her leaked oil onto the road. These conditions . . .
  • S. v. Maverick held that any explicit claim that a movie was better than TOPGUN is prima facie evidence of defamation. That decision . . .

Unlike the lists of words mentioned above, these transitions do not flag a relationship. Nor do they connect points. Instead, they continue the story of a particular subject. This method is an effective way to elaborate on a subject, or take a subject in a new direction without making a new point. Look to use these to connect sentences or paragraphs.

Sentence Structure Transitions

Another method uses sentence structure to transition. Converting the direct object of one sentence into the subject of the next sentence creates a tight causal link between the two. You can chain this method together to create a domino effect that connects your starting point with an otherwise unrelated ending point. Take a look.

Example 1: Showing Factual Causation

When the workers left the construction site, they left the cement machine on. Because the machine was on for three hours, it started to leak oil. That oil seeped through the floor. From the floor the oil dripped onto the paintings.

The paragraph establishes a chain of causation. Each sentence begins with a cause and ends with an effect. In the next sentence, the effect becomes a cause. This method links precisely how the workers harmed the paintings.

This same technique works to show a lack of causation (break in causation, intervening causation, lack of foreseeability, etc.). Sometimes spelling out the entire chain of events shows the facts are more attenuated than your opponent suggests. For example:

The conductor extended his arm from the train to the sprinting man. The sprinting man barely clung to a bulky package. The bulky package was filled with fireworks. As the man leapt, the fireworks fell. When the fireworks fell, they caused an explosion. That explosion rippled to a large scale. The scale fell over. When the scale fell over, it hit Mrs. Palsgraf.

Example 2: Showing Legal Causation

The same technique can tie together related legal principles. Take a look:

Under the civil rules, a party may only sue if it has capacity to sue. By state law, businesses only have capacity to sue when they are in good standing with the Agency. Agency regulations grant good standing only when a company timely pays taxes and fees.

This paragraph uses transitions to establish a legal chain. Although different laws are at play, by the end the reader understands that a business can only sue when it has timely paid taxes and fees.

Similarly, this method can help articulate an opponent’s omitted legal premises:

The Defense claims the admission of character evidence before the grand jury violated the Fifth Amendment. But the claim only succeeds if (1) the Fifth Amendment’s grand jury clause has been incorporated to apply to the states, (2) that incorporated clause bars the use of character evidence, and (3) if such character evidence was used here. Because the grand jury clause is not incorporated, the claim fails.

Example 3: Connecting the Facts With the Law

Before making an incision, surgeons sterilize the skin to kill germs. Germs cause infections. Causing infections violates the “do no harm” principle. Violating that principle violates a physician’s duty of care. Such violations are always negligent. So Dr. Smith’s failure to sterilize the skin was negligent.

This paragraph uses transitions to tie sterilization (a fact issue) to negligence (a legal conclusion).

Transitions In Action

In these excerpts, watch then-attorney John Roberts, Justice Kagan, and former U.S. Solicitor General Paul Clement use some of the techniques described above.

Brief by Then-Attorney John Roberts

As the legislative history of the Act’s PSD provisions makes clear, the determination of BACT is “key” to a State’s ability to manage “growth” within its borders. S. Rep. No. 95-127, at 31 (1977). For this reason, Congress “place[d] this responsibility with the State, to be determined in a caseby-case judgment.” Id. (emphasis added).

. . .

Congress intended the State, in determining BACT, “to consider the size of the plant, the increment of air quality which will be absorbed by any particular major emitting facility, and such other considerations as anticipated and desired economic growth for the area.” S. Rep. No. 95-127, at 31. Given the nature of these judgments, BACT “is strictly a State and local decision.” Id.

. . .

But the EPA cannot claim that ADEC’s decision was “unreasoned.” Nor can the EPA assert that ADEC’s determination in any way results in emissions exceeding national standards or permitted increments. How to control emissions within those standards, without exceeding available increments, was for the State to decide.

. . .

Compounding its error, the court next stated that “the cost-effectiveness of recent NOx control BACT decisions ranged from $0 to $7,000 per ton of NOx removed,” and that the cost-effectiveness of SCR in this case was “well within the applicable range.” Pet. App. 14a. The figure the court relied on, however, pertained to ADEC’s recent BACT determinations for NOx control generally, not for NOx control for similar sources—i.e., diesel-fired electric generators used for primary power generation. See J.A. 205-206. As just explained, the cost of controls for similar sources ranged between $0 to $936 per ton of NOx removed, less than half the estimated cost of SCR in this case—$2,100 per ton of NOx removed. As noted, the EPA itself considers cost-effectiveness in light of “the range of costs being borne by similar sources under recent BACT determinations.” [4]

Ross Guberman observed Roberts’ use of short transition words throughout the brief, like “at bottom, also, under that approach, in short, to this end, because, then, for example, in each case, nowhere, in any event, of course, instead, to begin with, indeed, and thus, just to name a few.”[5] On placement he adds “instead of just sticking these transitions at the beginning of your sentences, place them closer to the verbs, where they are often more effective and interesting.”[6]

Opinion by Justice Kagan

Because parents and school representatives sometimes cannot agree on such issues, the IDEA establishes formal procedures for resolving disputes. To begin, a dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides). See §1415(b)(6). That pleading generally triggers a “[p]reliminary meeting” involving the contending parties, §1415(f)(1)(B)(i); at their option, the parties may instead (or also) pursue a full-fledged mediation process, see §1415(e). Assuming their impasse continues, the matter proceeds to a “due process hearing” before an impartial hearing officer. §1415(f)(1)(A); see §1415(f)(3)(A)(i). Any decision of the officer granting substantive relief must be “based on a determination of whether the child received a [FAPE].” §1415(f)(3)(E)(i). If the hearing is initially conducted at the local level, the ruling is appealable to the state agency. See §1415(g). Finally, a parent unhappy with the outcome of the administrative process may seek judicial review by filing a civil action in state or federal court. See §1415(i)(2)(A).

Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests. Of particular relevance to this case are two antidiscrimination laws—Title II of the Americans with Disabilities Act (ADA), 42 U. S. C. §12131 et seq., and §504 of the Rehabilitation Act, 29 U. S. C. §794—which cover both adults and children with disabilities, in both public schools and other settings. Title II forbids any “public entity” from discriminating based on disability; Section 504 applies the same prohibition to any federally funded “program or activity.” 42 U. S. C. §§12131–12132; 29 U. S. C. §794(a). A regulation implementing Title II requires a public entity to make “reasonable modifications” to its “policies, practices, or procedures” when necessary to avoid such discrimination. 28 CFR §35.130(b)(7) (2016); see, e.g., Alboniga v. School Bd. of Broward Cty., 87 F. Supp. 3d 1319, 1345 (SD Fla. 2015) (requiring an accommodation to permit use of a service animal under Title II). In similar vein, courts have interpreted §504 as demanding certain “reasonable” modifications to existing practices in order to “accommodate” persons with disabilities. Alexander v. Choate, 469 U. S. 287, 299–300 (1985); see, e.g., Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961–962 (ED Cal. 1990) (requiring an accommodation to permit use of a service animal under §504). And both statutes authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages.

. . .

The IDEA’s administrative procedures test whether a school has met that obligation—and so center on the Act’s FAPE requirement. As noted earlier, any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f)(3)(E)(i); see supra, at 3.6 Or said in Latin: In the IDEA’s administrative process, a FAPE denial is the sine qua non. Suppose that a parent’s complaint protests a school’s failure to provide some accommodation for a child with a disability. If that accommodation is needed to fulfill the IDEA’s FAPE requirement, the hearing officer must order relief. But if it is not, he cannot—even though the dispute is between a child with a disability and the school she attends. There might be good reasons, unrelated to a FAPE, for the school to make the requested accommodation. Indeed, another federal law (like the ADA or Rehabilitation Act) might require the accommodation on one of those alternative grounds. See infra, at 15. But still, the hearing officer cannot provide the requested relief. His role, under the IDEA, is to enforce the child’s “substantive right” to a FAPE. Smith, 468 U. S., at 1010. And that is all.

For that reason, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing her suit under a statute other than the IDEA—as when, for example, the plaintiffs in Smith claimed that a school’s failure to provide a FAPE also violated the Rehabilitation Act. Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required. After all, the plaintiff could not get any relief from those procedures: A hearing officer, as just explained, would have to send her away empty-handed. And that is true even when the suit arises directly from a school’s treatment of a child with a disability—and so could be said to relate in some way to her education. A school’s conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to §1415(l)’s exhaustion rule because, once again, the only “relief ” the IDEA makes “available” is relief for the denial of a FAPE.[7]

Brief by Paul Clement

There is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Morrison, 529 U.S. at 618. “Under our federal system, the ‘States possess primary authority for defining and enforcing the criminal law.’” Lopez, 514 U.S. at 561 n.3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1992)); see also Montana v. Engelhoff, 518 U.S. 37, 43 (1996) (plurality opinion) (“preventing and dealing with crime is … the business of the States”). None of this is to deny Congress’ ability to enact criminal statutes. But the federal government may step into the States’ traditional criminal realm only when it targets conduct that implicates matters of national or international, not just local, concern. Prohibiting assaults on ambassadors or poll workers or on federal enclaves is one thing; prohibiting assault simpliciter is quite another. “Were the Federal Government to take over the regulation of entire areas of traditional state concern,” rather than limiting its laws to matters of distinctly federal concern, “the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” Lopez, 514 U.S. at 577 (Kennedy, J., concurring).

In keeping with that basic division of power, this Court has never accepted the argument that Congress may regulate criminal conduct with no nexus to matters of federal concern. Despite the gradual expansion of federal authority, this one constant has never changed. Indeed, the Court is typically unwilling to assume that Congress even attempted to “dramatically intrude[] upon traditional state criminal jurisdiction” in this impermissible manner. United States v. Bass, 404 U.S. 336, 350 (1971) (construing federal firearms statute not to reach every possession of a firearm); see also Jones v. United States, 529 U.S. 848, 855 (2000) (construing federal arson statute not to reach every building). And in the rare instances when the inference that Congress actually intended such an intrusion is unavoidable, the Court has not hesitated to hold the law unconstitutional. See, e.g., Lopez, 514 U.S. at 567 (holding unconstitutional federal law that sought to criminalize possession of a gun in a local school zone); Morrison, 529 U.S. at 617 (holding unconstitutional federal law that sought to regulate all gender-motivated crimes of violence).

There can be no serious dispute that a federal effort to criminalize every malicious use of chemicals throughout the Nation could not be reconciled with these fundamental principles. Poisonings and assaults involving harmful substances were not unknown to our founding generation. Yet it would have been unthinkable to the Framers that such matters would be anything other than a state concern. To be sure, there is some small subset of such crimes that touches on matters of federal concern. Even the Framers would recognize that poisoning the French Ambassador or a United States military officer would come within the federal ambit. And more recently, few would doubt that there is a distinct federal interest in eliminating particularly harmful chemicals from interstate commerce, or using chemicals to perpetrate acts of terrorism. But a statute that purported to federalize every malicious use of chemicals, without regard to whether that use has any nexus to a distinct federal interest, would remain a non-starter. When the government candidly conceded that its theory in Lopez would permit the criminalization of every assault, see Oral Argument Tr. 8–9, United States v. Lopez, No. 93- 1260 (1994), the argument was effectively over. To accept any theory of federal power that would permit Congress to usurp the core criminal jurisdiction of the States “would require” this Court “to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated.” Lopez, 514 U.S. at 567.[8]

Conclusion

Focus on transitions when:

  • Your writing feels choppy, jumpy, clunky, or abrupt
  • The section doesn’t “flow”
  • It’s unclear how a point or topic relates to the rest of the section/paragraph or the next point or topic
  • You feel like something is missing[9]

Keep in mind there are many ways to transition: words, phrases, sentence structure. And you may need transitions between sections, paragraphs, or sentences.[10]


[1] Bryan A. Garner, Legal Writing in Plain English 86 (2d ed. 2013); Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 275 (2d ed. 2014); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 219-227 (2015).

[2] Ross Guberman, “90 Transition Words and Phrases,” Legal Writing Pro, https://legalwritingpro.com/pdf/transition-words.pdf.

[3] Garner, supra n. 1 at 83-87.

[4] Brief for Petitioner at 7; 18; 46, State of Alaska v. Environmental Protection Agency, 540 U.S. 461 (2004) (No. 02-658) (emphasis added), available at https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

[5] Ross Guberman, “Five Ways to Write Like John Roberts,” Legal Writing Pro https://www.legalwritingpro.com/pdf/john-roberts.pdf.

[6] Id.

[7] Fry v. Napoleon Community Schools, 137 S.Ct. 743, 749; 754-55 (2017) (emphasis added).

[8] Brief for Petitioner at 21-23, Bond v. United States, 134 S.Ct. 2077 (2014) (No. 12-158) (emphasis added), available at http://www.bancroftpllc.com/wp-content/uploads/2013/01/12-158-ts.pdf.

[9] See “Transitions,” The Writing Center University of North Carolina at Chapel Hill,  https://writingcenter.unc.edu/tips-and-tools/transitions/ (last visited Oct. 19, 2018).

[10] Id. For a more thorough handling of how to connect paragraphs using transitions, topic sentences, and concluding sentences see George D. Gopen, The Sense of Structure: Writing From the Reader’s Perspective 136-43 (2004).

 

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 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.