April 19, 2019

Colorado Appellate Rules Amended by Colorado Supreme Court

On June 25, 2015, the Colorado Supreme Court issued Rule Change 2015(06), amending the Colorado Appellate Rules, effective immediately. The changes are extensive.

The changes to Rule 28, “Briefs,” include changes to formatting requirements for briefs and the deletion of some subsections. Former subsection (h) from Rule 28 was expanded into new Rule 28.1, “Briefs in Cases Involving Cross-Appeals.” Rule 29, “Brief of an Amicus Curiae,” received new subsections regarding content and form of briefs and length. Rule 31, “Serving and Filing Briefs,” added a subsection regarding consequences for failure to file and deleted subsections about the number of copies to be served in the supreme court and court of appeals. Rule 32, “Form of Briefs and Appellate Documents,” was also substantially amended, including changes to the captioning requirements. Finally, Rule 34, “Oral Argument,” was amended to specify that oral argument may be allowed at the discretion of the court. The changes to Forms 6 and 6A include certifications that the briefs conform to word and page limits in Rule 28, and the changes to Forms 7 and 7A set forth example captions for use in appellate briefs.

A redline of Rule Change 2015(06) is available here.

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

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

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

Apple’s Opening Paragraph

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

Points for Apple

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

Half-Point Deductions

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

Samsung’s Opening Paragraph

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

Points for Samsung

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

Half-Point Deductions

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

You Win

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

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

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

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

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

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

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

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

A Couplet to Love

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

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

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

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

Defend Yourself

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

You Are Hereby Absolved

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

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

Want More?

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

_____

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

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

Legal Writing Pro: Avoid These Clichés Like the Plague

1. An Apple a Day

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

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

2. Giant Ball of Twine

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

Popular variations: inextricably linked and inextricably connected.

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

3. Your Eminence

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

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

4. Slip Sliding Away

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

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

5. Bald Faith

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

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

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

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

Colorado Appellate Courts Adopt New Public Domain Case Citation Format

The Colorado Supreme Court has adopted the proposed public domain citation format, creating a new way for parties and legal practitioners to refer to its and the Colorado Court of Appeals’ published opinions in legal briefs and other documents.

The public domain citation format will expand open access to Colorado case law by allowing practitioners and parties to cite directly to new opinions from the moment they are announced. The new format also will allow pinpoint citations by incorporating paragraph numbers. The new format became effective January 1, 2012.

Sixteen other states, including New Mexico, Wyoming and Utah, already have adopted the same format, which was recommended by the American Association of Law Librarians in the mid-1990s and is endorsed by the American Bar Association.

The courts already provide online access to published opinions free of charge on the Judicial Branch web site. Before implementation of the public domain citation format, opinions issued by Colorado’s two appellate courts were “slip opinions” which lacked a formal citation format until they were published in print in the Pacific Reporter.

“The purpose of the public domain citation format is to make it easier for practitioners and self-represented parties who lack the resources to access an electronic research database or the printed volumes of the Pacific Reporter to locate Colorado case law and to cite to that case law in all levels of Colorado’s justice system, whether in the trial or appellate courts,” Chief Justice Michael L. Bender said.

The Supreme Court adopted the new citation format after receiving public comment. The new format is implemented by the new Chief Justice Directive 12-01.

Practitioners and parties will be permitted to use the public domain citation format or to cite to the Pacific Reporter, and they will not have to provide parallel citations in either format.

The new citation format is part of a broader effort by the Colorado Supreme Court to improve access to justice by integrating court resources and electronic technology.

“Our goal is to eliminate the barriers that keep people from coming to court to exercise their rights and that prevent the courts from delivering fair and just outcomes,” Chief Justice Bender said. “Having a public domain citation format, though implicating a seemingly technical aspect of motions practice and brief writing, is actually a very important step in achieving that goal.”

A citation to an appellate opinion in the Pacific Reporter could look like this:

Smith v. Jones, 45 P.3d 1237, 1254 (Colo. 2012).

Under the new format, a citation to a Supreme Court opinion would look like this:

Smith v. Jones, 2012 CO 22, ¶¶ 44-45.

And a citation to a Court of Appeals opinion under the new format would look like this:

Jones v. Smith, 2012 COA 35, ¶¶ 44-45.

“CO” means Supreme Court and “COA” means Court of Appeals. The “22” in the first example and the “35” in the second example mean those opinions are, respectively, the 22nd and the 35thissued by each court in 2012. Both citations point to the opinion’s 44th and 45th paragraphs.

The public domain citation system will be overseen by Christopher T. Ryan, Clerk of Court for both the Supreme Court and Court of Appeals. Upon announcement, each opinion selected for publication will be assigned a public domain citation and internal paragraph numbers.

Opinions that are not designated for official publication pursuant to C.A.R. 35(f) will remain unpublished and will not be assigned a public domain citation.

Click here to read the announcement from State Judicial.

Click here to read Chief Justice Directive 12-01 and more examples of proper Bluebook citation.

Legal Writing Pro: Judges Gone Wild

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

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

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

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

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

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

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

Here are 15 issues, by category:

Four attention-to-detail issues

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

Five redundancy issues

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

Three legal-convention issues

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

One syntax issue

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

One rhetorical-construction issue

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

One tone issue

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

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

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

Public Domain Citation Format Proposed for Colorado Supreme and Appeals Court Published Opinions

The Colorado Supreme Court is requesting written public comments by any interested person on a Proposal to Adopt a Public Domain Citation Format For Colorado Supreme Court and Court of Appeals Published Opinions.

Given the increasing amount of legal research being conducted via the internet and other electronic resources and the desire to promote equal access to Colorado’s system of justice, the Colorado Supreme Court and the Colorado Court of Appeals are proposing to adopt a public domain citation format that will support the use of Colorado case law in both book and electronic formats.

It is proposed that beginning January 1, 2012, the Clerk of the Colorado Supreme Court and the Clerk of the Colorado Court of Appeals shall assign to all opinions announced for publication a citation that shall include:

  1. The calendar year in which the opinion is announced;
  2. Followed by the Colorado U.S. Postal Code “CO” for opinions issued by the Colorado Supreme Court, or followed by the Colorado U.S. Postal Code “CO” and the abbreviation “App.” for published opinions announcedby the Court of Appeals; and
  3. Followed by a consecutive Arabic numeral, beginning in each new calendar year with the number “1”; for example: “2012 CO 1” for the first opinion announced by the Colorado Supreme Court in 2012, and “2012 CO App. 1” for the first published opinion announced by the Colorado Court of Appeals in 2012.

This public domain citation shall appear on the title page of each published opinion announced by the Court and by the Court of Appeals. All publishers of Colorado Supreme Court and Colorado Court of Appeals materials are requested to include this public domain citation within the heading of each opinion they publish.

Opinions that are not designated for official publication by the Court of Appeals will  not be assigned a public domain citation.

Proper Bluebook public domain citations would appear as follows:

  • Colorado Supreme Court:
  • Primary citation:
    • Smith v. Jones, 2012 CO 22, 989 P.3d 1312.
  • Primary citation with pinpoint citation:
    • Smith v. Jones, 2012 CO 22, ¶¶ 13–14, 989 P.3d 1312, 1314.
  • Subsequent citation with pinpoint citation:
    • Smith, ¶¶ 13–14, 989 P.3d at 1314.
  • Id. citation with pinpoint citation:
    • Id. at ¶¶ 13–14,1314.
  • Colorado Court of Appeals:
  • Primary citation:
    • Jones v. Smith, 2012 CO App. 35, 634 P.3d 125.
  • Primary citation with pinpoint citation:
    • Jones v. Smith, 2012 CO App. 35, ¶¶ 44–45, 634 P.3d 125, 128.
  • Subsequent citation with pinpoint citation:
    • Jones, ¶¶44–45, 634 P.3d at 128.
  • Id. citation with pinpoint citation:
    • Id. at ¶¶44–45, 128.

Click here for further information about the new citation style, including how to cite modified opinions and withdrawn opinions.

An original plus eight copies of written comments concerning this proposal should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Suite 800, Denver, Colorado 80202, no later than Monday, December 12, 2011, by 5:00 pm.

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

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

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

Reviewed by Charles C. Tucker

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

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

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

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

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

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

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

#32. Zingers: Use colorful verbs.

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

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

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

Notes

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

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

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. His legal writing articles are often featured by Legal Connection and can be found here.

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

Ross Guberman: Can Computers Help You Write Better?

For many lawyers, computers are the enemy: They tempt us to write before we think. But computers can also help solve common legal-writing problems.

Here are four easy ways to use computers to your advantage:

1. Search and Rescue

Search for clutter words to cut. Three common culprits: the preposition “of,” the throat-clearing introduction “it is,” and the word “clearly.”

When proofing, you can also hunt for errors that spell check won’t catch. These two often slip by: “it’s” vs. “its,” and “principal” vs. “principle.”

Tip: In Microsoft Word, go to Edit > Find. Check “Highlight all items found in” before you do your search.

Editor’s Note: In Microsoft Word 2007, go to Home > Find.

2. Passive Aggressive

If you overuse the passive voice, set your Spelling & Grammar Options to flag passive constructions. You don’t have to change every passive construction, but this tool will help you find the worst offenders.

Tip: In Microsoft Word, go to Tools > Options > Spelling & Grammar > Settings. Check “Passive sentences.”

Editor’s Note: In Microsoft Word 2007, go to Review > Spelling & Grammar > Options. Click “Settings” and check “Passive sentences.”

3. Take Ten

Wordiness is the biggest writing complaint I hear from judges and supervisors. As one wit put it, “Lawyers say less per square inch than anyone else on the planet.”

Take two pages of your document and perform a word count. Now cut 10% of the words in 10 minutes. No excuses, no exceptions!

Tip: In Microsoft Word, go to Tools > Word Count.

Editor’s Note: In Microsoft Word 2007, go to Review > Word Count.

4. How do you rate?

You can also use “readability statistics” to gauge your writing quality. Microsoft Grammar will provide a Flesch Reading Ease Score. The formula reflects two key measures of reading ease: your average number of words per sentence, and your average number of syllables per word. In both cases, fewer is better.

Do better Flesch scores mean better writing? Not necessarily. But you can use these metrics to make even the most complicated document easier to digest.

So if you’re feeling brave, check “Show readability statistics” in your Spelling & Grammar Options. After you run your spell checker, your Flesch Score will pop up.

The Flesch Score ranges from 0 to 100. For internal communications and court filings, strive for 30. When you write to clients, your Flesch score should top 40.

For comparison purposes, Lincoln’s Gettysburg Address scores about 60. This article gets a 56. U.S. Supreme Court decisions hover around 30. Junior-associate memos rarely crack 20. Attorneys sent to me with “writing problems” are usually stuck around 15.

If you’re unhappy with your score, the solution is easy: cut long sentences in two, and replace longer words with shorter ones. Your score will jump fast.

Tip: In Microsoft Word, go to Tools > Options > Spelling & Grammar. Check “Show readability statistics.”

Editor’s Note: In Microsoft Word 2007, go to go to Review > Spelling & Grammar > Options. Check “Show readability statistics.”

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

Colorado Court of Appeals: Briefs Stricken and Appeal Dismissed for Uncivil Language and Failing to Comply with Appellate Rules

The Colorado Court of Appeals issued its opinion in Martin v. Essrig, and Concerning Carroll on August 4, 2011.

Civility—C.A.R. 38(d) and (e)—CRS § 13-17-102—Attorney Fees—Sanctions.

Paul Essrig (tenant), a former tenant of a residence owned by Bernie Martin (owner), appealed the district court’s denial of his C.R.C.P. 60(b)(3) motion challenging as void a judgment in owner’s favor on a claim that tenant had breached the parties’ lease. Tenant and his counsel, David Carroll, also challenged the district court’s award of attorney fees incurred by owner in responding to the motion. The appeal was dismissed and the case was remanded with directions.

Owner argued that tenant’s briefs should be stricken, the appeal dismissed, and other appropriate sanctions imposed because tenant failed to comply with the appellate rules governing the form and content of briefs and because tenant’s opening brief contained “inappropriate and unprofessional commentary.” In rare cases, conduct in prosecuting an appeal is so contrary to court rules and so disrespectful of the judicial process and its participants that the right to appellate review is forfeited.

Here, Carroll filed briefs supporting this appeal, which largely failed to advance a coherent argument in support of the contention of error. Most troubling, however, was the tenor of the opening and reply briefs. They were suffused with uncivil language directed primarily against owner’s attorneys, and were filled with sarcastic and bombastic rhetoric. This was bad advocacy and in large part inconsistent with Carroll’s professional obligation to represent his client in a civil manner. Therefore, the opening and reply briefs were stricken, the appeal was dismissed, attorney fees and double costs were assessed against Carroll, and the case was remanded to the district court for a determination of the reasonable attorney fees owner has incurred on appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

Ross Guberman: The Charlie Sheen Letter

With Charlie Sheen taking his one-man show on the road, I wanted to share a letter to Sheen’s counsel signed by Munger Tolles partner John Spiegel.

Rarely do we get a chance to read a letter from a former Supreme Court clerk about something this juicy.

So long as the facts don’t make you blush, consider these seven style techniques:

1. Parallel sequence

Warner Bros. would not, could not, and should not attempt to continue “business as usual” while Mr. Sheen destroys himself as the world watches.

… no professional apparently was willing to attest that Mr. Sheen had self-treated, self-healed, and self-cured his brain of his addiction problems.

2. Using “and so” rather than “therefore,” “consequently,” or even “thus”

As Mr. Sheen was aware, some lead time was required to restart production and so it was scheduled to resume February 28.

3. A dash for emphasis

Press reports described the trip as a three-day bender, and noted that Mr. Sheen was seen drinking the morning of his return, January 11—the same day he was scheduled to begin rehearsing that week’s episode of the Show.

4. A fragment to add variety

You claim that Mr. Sheen was turning in “brilliant” performances during this time. Not true.

5. A sentence of all one-syllable words

As bad as all this was, the worst was yet to come.

6. Letting your opponents’ words speak for themselves, without gloating or other commentary

Mr. Sheen recently stated in an interview that the last time he used drugs, he “probably took more than anybody could survive. I was banging seven gram rocks [of cocaine] and finishing them. That’s the way I roll.”

7. Fleshing out a series through bullet points

For example, Mr. Sheen called Mr. Lorre a “contaminated little maggot,” a “retarded zombie” and a “turd.” He also stated that he wishes Mr. Lorre “nothing but pain” and that he has “defeated this earthworm with my words—imagine what I could have done with my fire breathing fists.” [A]mong many other bizarre comments, Mr. Sheen has proclaimed:

  • “I am on a drug. It’s called Charlie Sheen. . . . If you try it once you will die. Your face will melt off and your children will weep over your exploded body.”
  • “I have tiger blood” and “Adonis DNA.”
  • My brain “fires in a way that is . . . maybe not from this particular terrestrial realm.”
  • “I’m not bipolar but biwinning.”
  • “I’m tired of pretending I’m not a total bitchin’ rock star from Mars.”

I won’t even try to top that last line. Happy writing!

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

Ross Guberman: The Winning Wal-Mart Brief — 6 Sales

In finding for Wal-Mart in Wal-Mart v. Dukes, Justice Scalia argued that a class action needs “glue” to hold together. So does a great brief. Use these six techniques from the winning Wal-Mart brief to help make your own arguments stick.

1. Parallel Lives

In this sweeping opening sentence, Ted Olson and Ted Boutrous of Gibson Dunn hit the Justices with a parallel sequence of three vivid verbs that sum up why they should reverse the Ninth Circuit:

The Ninth Circuit’s decision allowing this class action to proceed contradicts Federal Rule of Civil Procedure 23, departs from this Court’s precedent, and endorses an approach that would abrogate the substantive and procedural rights of both Wal-Mart and absent class members.

A similar parallel sequence caps the same introduction. This one showcases why decertifying the class would be a good idea, not just a legally sound one (what I call in Point Made the Why Should I Care? technique):

The certification order is harmful to the rights of everyone involved. It distorts basic principles of class-action and anti-discrimination law, eviscerates fundamental procedural protections for class-action defendants, and allows three class representatives to extinguish the rights of millions of absent class members without even telling them about it.

Note how the homespun phrase “without even telling them about it” aims to align Wal-Mart with the little guy.

I immediately recalled a similar passage from another Ted Olson brief—which also sought to reverse the Ninth Circuit—in MGM v. Grokster, the file-sharing case:

The Ninth Circuit’s decision eviscerates intellectual property rights. It frustrates those who have invested substantial resources in creating an original work, only to see the fruits of their labors snatched away. It rewards those, like Respondents, who unjustly profit by designing tools to enable the theft of private property. And it stifles innovation by depriving citizens of the incentive to create works of art or music or literature that can be enjoyed by people ages hence.

Back to Wal-Mart. The attorneys also exploit parallelism in the argument itself:

As shown below, the evidence, at most, indicates that Wal-Mart’s pay and promotion system could possibly result in individual disparities—not that it was designed to do so, was intended to do so, or would inevitably do so with respect to every single female employee around the country.

One suggestion: Shun the oddly beloved phrase “with respect to.” Long and fuzzy, it also ruins the rhythm of the sequence here. “For every single female employee” would have worked just fine.

2. Zinger Words

Class-action doctrines are dry and abstract, so they need some zesty language to come to life. “Distorts” and “eviscerates” aren’t the only catchy words in Wal-Mart’s winning brief.

Try picturing a “broad array of diverse claims” or an “amalgam of unrelated claims.” Not much comes to mind, right?

Now picture a “kaleidoscope” of claims instead. Those scattered bits and specks of color are just the image the Gibson Dunn lawyers want you to conjure up when you think of the Wal-Mart class action:

This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members.

(It’s no surprise that the kaleidoscope made a cameo in the Supreme Court brief; Ninth Circuit Chief Judge Kozinski used the same word in his dissent below.)

“Untethered” below is another zinger:

The district court rejected Wal-Mart’s objections that Drogin’s statistics were untethered to plaintiffs’ store-level theory of discrimination on the ground that it would “engage the Court in a merits evaluation of the expert opinions.”

And “sidestepped” is a novel twist on the usual suspects for claiming error:

The Ninth Circuit majority sidestepped this critical issue, erroneously opining that “[t]he disagreement” between Drogin and Haworth regarding the appropriate level of aggregation “is the common question.”

Two quick thoughts: A disagreement isn’t “regarding” something, it’s “over” something. In fact, I would avoid both “regarding” and “concerning” as much as possible. And how about affixing “erroneously” to “opine”? Even if a court can “erroneously opine,” “sidestepped” already makes it clear that the Ninth Circuit erred. Once is enough.

3. Starting Gate

I have long noted that the greatest writers, legal or otherwise, prefer such short transitions as “and” or “but” or “nor” to clunky ones like “additionally” or “however.” The Gibson Dunn team is no exception:

Nor can the certification order be reconciled with the requirements of Rule 23(b)(2), which is limited by its terms to claims for “injunctive relief or corresponding declaratory relief.”

Plaintiffs seek billions of dollars in individual monetary relief, yet seek to evade the additional procedures required for fair adjudication of monetary claims, including notice and opt-out rights for absent class members.

And they take no issue with the “consensus among the circuits,” holding that courts are not only authorized but obligated to resolve such disputes at the certification stage relating to Rule 23 factors.

But because this case, properly analyzed, does not meet the prerequisites imposed by Rule 23(a), a trial on the merits would be completely unmanageable and unfair.

4. Ebb and Flow

Here’s a trick from the Wal-Mart brief that will help you add speed to your prose: Move words like “thus” and “therefore” closer to the verb so they don’t weigh down the start of your sentences.

Read the beginning of this version and see how slowly it moves: “Therefore, Plaintiffs’ bid for affirmance of the class certification order rests on a fundamental—and quite radical—remaking of Title VII law.” Now look at what the Wal-Mart team wrote instead:

Plaintiffs’ bid for affirmance of the class certification order thus rests on a fundamental—and quite radical—remaking of Title VII law.

And now imagine swapping “Accordingly, Plaintiffs failed to establish that . . .” for this sentence from the actual brief:

Plaintiffs thus failed to establish that a crucial element of their prima facie case could be proved on a classwide basis.

5. Size Matters

Another way to distinguish your writing is to start a paragraph with a short sentence. This paragraph opener has just five words:

Title VII codifies certain defenses.

Sprinkled throughout the brief are these other short sentences that contrast with the inevitable long ones:

Yet plaintiffs could find no such practices.

That should have ended the inquiry.

This too was error.

6. Classy Marks

In almost all great nonfiction writing, you’ll find thoughtful uses of the dash, colon, hyphen, and semicolon—four punctuation marks that give many lawyers heartburn.

The dashes here highlight the intervening phrase and emphasize the repeated word “different”:

The class memberspotentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the countryassert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses.

Also underused is the colon. When swapped for “because” or “due to the fact that,” a colon lets the reader know that an explanation is on the way:

This is a failure of proof at the most basic level: Plaintiffs challenge decisions by individual store managers, but failed to adduce any statistical evidence of discrimination (or even disparities) at the store level.

How about the semicolon? Try one out the next time you want to highlight a contrast:

But, regardless of the strength of Wal-Mart’s statistics, it is plaintiffs’ burden to produce “significant proof” of a company-wide discriminatory policy; plaintiffs failed to meet that burden by failing to offer any proof of gender-based disparities at the store level.

Finally, hyphenating phrasal adjectives can make your writing clearer and more professional:

Plaintiffs’ disparate-impact claim requires them to prove “a particular employment practice that causes a disparate impact” on a prohibited basis.

Those are six of the techniques that glue this great brief together.

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