May 26, 2019

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.

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.

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.

A Systematic Approach to Editing

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

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

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

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

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

Common Imperfect Editing Advice

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

Read Your Brief Aloud

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

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

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

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

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

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

This approach has value, but circumstance limits its usefulness.

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

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

Computer Programs

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

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

Numerical Benchmarks and Other Rules of Thumb

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

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

An Editing System

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

Multi-Stage Methods

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

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

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

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

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

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

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

Checklist Methods

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

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

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

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

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

Conclusion

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

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

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


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

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

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

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

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

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

[7] Microsoft, supra n. 6.

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

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

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

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

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

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

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

[15] Id.

[16] Id.

[17] Id.

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

[19] Id.

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

[21] Id.

[22] Id.

[23] Id.

[24] Id.

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

[26] Id. at 312.

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

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

[29] Id. at 313-14.

[30] Id.

[31] See id. at 315-30.

 

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

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

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

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

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

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

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

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

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

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

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

CLAIM: No one knows where healthcare is going.

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

Claim: Benefits no longer cover all daily expenses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you,

The Members of the LTC Forum of Colorado, Inc.

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

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

 

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

The Grammar Dilemma: Which Rules Are Worth Knowing

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

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

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

The Next Person That Recommends Strunk & White . . .

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

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

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

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

It’s Much Worse Than You Think

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

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

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

English grammar is a mess.

What to Do

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

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

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

When a Grammar Rule is Unclear, Strive For Clarity

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

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

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

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

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

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

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

If Most Judges Believe a Rule, Follow It

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

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

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

Conclusion

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


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

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

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

[4] Pullum, supra n. 2 at 1

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

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

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

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

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

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

[11] Id.

[12] Id.

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

[14] Id.

[15] Id.

[16] Id.

[17] Id.

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

Forging New Writing Conventions: Treat Active and Passive Voice Equally

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

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

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

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

What is Active Voice and Passive Voice?

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

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

 

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

 

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

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

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

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

The Classic “Advantages” of the Active Voice

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

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

Which is Better: Active or Passive?

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

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

When to Use Passive Voice

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

The actor is obvious: [10]

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

The actor is irrelevant or distracting:[11]

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

The actor is unknown:[12]

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

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

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

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

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

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

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

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

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

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

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

To emphasize the end of a sentence.

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

To create abstraction:

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

For irony:

“The passive voice should not be used.”

Conclusion

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


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

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

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

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

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

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

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

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

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

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

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

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

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

[14] Gopen, supra n. 13.

[15] Id.

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

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

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

[19] Id.

 

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

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

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

When to Use Parentheticals

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

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

There is a difference between each of the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to Phrase Parentheticals

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

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

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

. . .

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

. . .

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

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

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

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

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

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


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

[2] Id. at 132.

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

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

[5] 2017 COA 80.

[6] 2017 COA 81M.

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

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

 

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

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

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

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

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

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

Think For Yourself

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

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

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

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

Adjectives and Adverbs

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

Misuses and Concerns

Critics of adjectives and adverbs have good reasons for concern.

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

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

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

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

Using Adjectives and Adverbs Effectively

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

Example 1

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

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

. . .

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

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

Example 2

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

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

. . .

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

. . .

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

. . .

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

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

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

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

Example 3

Ross Guberman found several briefs using adjectives and adverbs effectively:

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

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

Conclusion

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

Adverbs and adjectives are where great advocacy lives.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Why Everyone Needs a Long-Term Care Plan

In my previous blog I explained why I began, at age 26, a career in helping people plan for one of the biggest risks in life: needing chronic care for an extended period of time. Now, twenty-one years into my profession, I can absolutely say that everyone needs a plan for extended care, not necessarily LTC insurance!

According to the most recent data from the U.S. Department of Health and Human Services, 52.3% of persons turning 65 will need long-term care. Certainly, some care needs are just a few weeks or months. In other cases, the care event can last 10 years or more. In fact, 29.2% of those incurring LTC expenditures are expected to spend more than $250,000. The Alzheimer’s Association reports that caregivers for people with Alzheimer’s or other dementias provided approximately 18.2 billion hours of informal, unpaid assistance in 2016 valued at $230 billion – nearly 50% of Walmart’s revenue in 2016! Who are these caregivers? 80% of home care for people with Alzheimer’s and other dementias is provided by unpaid caregivers, most often family members. In my experience, family caregivers overwhelmingly agree that the emotional and physical consequences they experience are far more devastating than the financial costs.

Without planning, you or your client’s loved ones may be forced to make tough decisions. Do we make a placement into a nursing home or is someone willing and able to provide informal home care? Can we afford the best facility in the area or can we bring in 24/7 home care? Planning for extended care helps to mitigate the devastating emotional, physical and financial consequences of a long-term care event. Critical components of a long-term care plan include:

  • Who will be my caregiver if I am to remain at home? Will this person be physically and emotionally able to take care of me? Will he/she leave a career to be my caregiver? Sometimes the bigger question is who do I not want to set aside his or her life to care for me.
  • What type of care might I need? Care at home, an assisted living facility or a skilled nursing facility?
  • Where might I receive care? Will my children living in another community or state wish to move me closer to them? Would one of my adult children want me to move in with them, or would one of my adult children care to move in with me?
  • When is it likely to happen? What if I need care in my 50s, 60s, or 70s? Might I avoid dreaded diseases such as Alzheimer’s or Parkinson’s but live long enough to become frail and fragile and need help as a normal part of aging?
  • Why might I need extended care? Are there reasons to believe that I am more likely or less likely to need help than the average person? How much can I rely on family history?
  • How will I/we finance and coordinate care needs? If retirement funds and income are diverted to pay for care, how will our ability to meet ongoing obligations to loved ones be affected? Who will make decisions on my behalf?

LTC Planning Goals

I find that my clients’ planning goals often align nearly perfectly with my own personal reasons for owning some form of insurance against chronic care:

  1. If I need extended care, keep me at home for as long as possible without destroying the lives of my loved ones around me. Let them be my care manager, not my 24/7 caregiver.
  2. Preserve the retirement plan and other assets for my spouse and children and other worthwhile charitable pursuits.
  3. Keep intact our other planning devices such as the estate plan, charitable giving plan, tax avoidance plan, business succession plan, the special needs of a disabled child, etc.

What about those who are single, divorced, or widowed? Most wish to stay at home without running out of money. And if an assisted living facility or nursing necessary, who wouldn’t want the best facility possible?

Without a plan for care, someone, not just the person needing care, will suffer the consequences. Often times the person in charge of making decisions may become confused and frustrated regarding options and choices. Someone in the family may feel that there is no choice but to get involved to make sure the loved one is safe and getting good care. And because the children typically do not contribute equally physically, emotionally, or financially, resentment and hard feelings can erupt.

The Role of Insurance

Simply put, the myriad insurance products on the market today (life insurance with accelerated benefits, hybrid asset-based policies, traditional LTC insurance, short-term care insurance, hybrid LTC annuities) provide funds to help meet the planning goals detailed above. In other words, proceeds from the insurance policy provide cash flow so that a loved one can stay at home as long as possible or afford the best facility around. Because a third party is helping to pay for care, the spouse/partner/family has the freedom to make the best choices for all concerned. And if there is a surviving spouse or partner, the money provided by the insurance policy means more money to live on and a better lifestyle.

My next blog will focus on why affluent clients need a plan for care, and local care costs. Until then, if there is anything I can do for you or your clients, please visit www.AaronEisenach.com or call 303-659-0755.

Thank you,

Aaron R Eisenach, CLTC

AaronEisenach.com

 

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

Enhance Your Brief With Visual Aids

Have you ever tried to describe a fence in a brief? How about a photo lineup, a property line, a crime scene, a trademark, a scientific process, a patent, a timeline, a trail of money, a web of subsidiaries, or a comparison under a multi-factor test? You have options. A picture is worth a thousand words. So use a picture and lower your word count.

Rarely used yet always appreciated are visual aids like charts, maps, diagrams, and pictures.[1] Some concepts are easier to understand pictorially.

Simple visual aids are best. Remember, visual aids are substitutes for less effective main text. They should be simple and self-explanatory. If they need explaining, they are not working. For example, do not describe a scene and then include a map that matches the description. Just use the map.[2]

If you are new to visual aids, do not fear. You do not need to be an artist or computer wizard. Although you must use care when designing the aid, it need not be elaborate or artistic. As you will see below, many are basic and occasionally even hand drawn.

Finally, even if the visual aid is part of the record, include it in the brief rather than just citing to the record. Keep the brief a cohesive unit with all the information a court needs to decide a case.

Here are some opinions that use visual aids effectively. They show courts using them for three reasons: (i) to orient a reader or visualize the scene, (ii) to make a comparison, and (iii) to summarize facts. Each example includes the paragraph introducing the visual aid.

Using Visual Aids to Orient a Reader/Visualize the Scene

Example 1: [3]

Busch also concluded that the trajectory of the bullet holes caused by the initial shots to both Baldwin and Turley were consistent with a shooter being located by the barstools and that the shots could not have been made by someone coming out of the men’s restroom. First, the bullet that caused Turley’s wound was found in the tavern’s east door. Had the bullet been fired by someone by the men’s restroom or walking along the south wall (as Ogryzek testified), the bullet would have had to change its course almost 90 degrees after striking Turley to end up in the east door. The diagram below reflects the tavern’s layout and locations of Marcia Woolley, Turley, and Baldwin at the time of the shootings.

Example 2: [4]

The following diagram shows the approximate relative relationship of the properties that we have described above. This diagram is for illustrative purposes only, and it is not drawn to scale.

Example 3: [5]

The court ordered that a deed transferring a right-of-way for a road from Digor to the county be reformed and that the defendants among others be permanently restrained and enjoined from interfering with the county’s or the public’s use and possession of the property described in the reformed deed. We affirm.

On December 1, 1953, defendant Digor filed a plat signed by him in which a proposed road across his land, represented by the segments A, B, C, and D in the diagram below, was designated ‘Digor Drive.’

Example 4: [6]

This writ of error presents a rather knotty problem and arises from the fact that a house was so constructed as to encroach about 2 feet on an adjoining lot. To aid in an understanding of the entire matter, there is set forth below a diagram, not to scale, which when considered in connection with the balance of this opinion will hopefully bring the dispute into focus.

 

Using Visual Aids to Compare

Example 1: [7]

¶ 42 And even if (1) defendant’s identity as the perpetrator of the crime had been at issue; or (2) modus operandi evidence were admissible in cases other than sexual assault or domestic violence cases to prove the crime’s actus reus, we would nonetheless conclude that evidence of the February drug deal was not admissible to prove defendant’s modus operandi. When we compare the February drug deal with the May drug deal in the chart below, we see that, although the two drug deals were similar in some respects, they lacked the striking similarities and distinctive methodology that the law requires to show that both drug deals were the handiwork of one perpetrator. . . .

Example 2: [8]

Figure 2 compares the Hawg sealed bearing pack (Figure 2a) and the Newsco sealed bearing pack (Figure 2b).

. . .

Fifth, a defense expert compared the Hawg design to designs that had been publicly available at that time. One of these was illustrated by U.S. Patent Application Pub. No. 2003/0015352 fig. 1 (filed July 17, 2001), which we compare to the Hawg design in Figure 3.

Example 3: [9]

When Baig saw a billboard advertisement for Diet Sprite Zero in September 2004, he contacted Coca-Cola to threaten litigation over its purported infringement of his mark. Below are pictures of “Diet Sprite Zero” and “Naturally Zero.”

 

Summarizing Facts With Timelines, Charts, or Flow Charts[10]

Example 1: [11]

The facts of the petitioner’s brutal sexual assault and murder of 25-year-old LaTausha Curry on January 21, 1999 have been set forth in detail in our earlier opinion and the opinion of the Texas Court of Criminal Appeals. We will not repeat them here. Some of the relevant dates have been set forth above. We repeat these dates and others in the timeline set forth below:

November 19, 1999: Johnson sentenced to death.
October 22, 2001: Johnson files state petition for writ of habeas.
January 30, 2002: Tex. Court of Criminal Appeals (“TCCA”) affirms Johnson’s conviction on direct appeal.
June 20, 2002: U.S. Supreme Court issues Atkins.
October 8, 2003: TCCA denies habeas relief.
February 11, 2004: TCCA modifies the “two-forum rule,” which required dismissal of a state writ or successive writ if a federal proceeding was pending, even if that proceeding was stayed. Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.Crim.App.2004).
May 17, 2004: Johnson files first federal writ.
September 18, 2007: Federal writ denied by district court.
December 2, 2007: District court denies motion for new trial.
April 7, 2008: Johnson seeks COA from Fifth Circuit.
October 2, 2008: Fifth Circuit denies COA.
January 16, 2009: Execution date set for April 30, 2009.
March 9, 2009: U.S. Supreme Court denies cert to Johnson’s challenging the Fifth Circuit’s denying his COA.
April 28, 2009: Johnson attempts to file successive writ with TCCA based on Atkins claims.
April 29, 2009: TCCA denies subsequent writ because Johnson failed to make a prima facie case of mental retardation. Johnson files the current motion.

Example 2: [12]

On cross-examination, witness Nee frequently asserted his Fifth Amendment privilege. The chart below outlines the context in which these assertions were made:

Example 3: [13]

The ownership genealogy of the ‘236 and ‘578 patents is documented in the chart below.

Example 4: [14]

JWR operates four coal mines west of Birmingham, Alabama. The parties refer to the mines as Mines 3, 4, 5, and 7. Mine 3 is located in Jefferson County, Alabama, near Adger, Alabama. Mines 4, 5, and 7 are located in Tuscaloosa County, Alabama. The number of layoffs at each mine and the percentage of workers affected are reflected in the chart below:

 

How to Create Visual Aids

Here are helpful resources on creating visual aids.

Designing charts and graphs

  • Gene Zelazny, Say It With Charts: The Executive’s Guide to Visual Communication (4th ed. 2001).

Creating flowcharts, charts, and graphs in Microsoft Word

  • Add A Drawing To A Document, https://support.office.com/en-us/article/Add-a-drawing-to-a-document-348a8390-c32e-43d0-942c-b20ad11dea6f (last visited August 23, 2017).
  • Saikat Basu, How to Create Stunning Flowcharts With Microsoft Word, http://www.makeuseof.com/tag/create-stunning-flowcharts-microsoft-word/ (last visited August 23, 2017).
  • Insert A Chart From an Excel Spreadsheet Into Microsoft Word, https://support.office.com/en-us/article/Insert-a-chart-from-an-Excel-spreadsheet-into-Word-0b4d40a5-3544-4dcd-b28f-ba82a9b9f1e1 (last visited August 23, 2017).
  • How to Add A Graph to Microsoft Word, http://www.wikihow.com/Add-a-Graph-to-Microsoft-Word (last visited August 23, 2017).

[1] “Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.” Hon. Richard Posner, Effective Appellate Brief Writing, A.B.A. Litigation News (Spring 2010), https://apps.americanbar.org/litigation/litigationnews/trial_skills/appellate-brief-writing-posner.html. See also Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 293-94 (2d ed. 2014).

[2] Unlike brief writing, during a trial you might decide such repetition is useful to the jury.

[3] Woolley v. Rednour, 702 F.3d 411, 418 (7th Cir. 2012).

[4] Graham v. Jules Inv., Inc., 2014 COA 136, ¶ 13 (Colo. App. 2014).

[5] Bd. of Comm’rs of Grand Cty. v. Baumberger, 513 P.2d 1075, 1075–76 (Colo. App. 1973).

[6] Emery v. Medal Bldg. Corp., 436 P.2d 661, 662–63 (Colo. 1968).

[7] People v. Williams, 2016 COA 48, ¶ 42-43 (Colo. App. 2016).

[8] Hawg Tools, LLC v. Newsco Int’l Energy Servs., Inc., 2016 COA 176M, ¶¶ 27, 33 (Colo. App. 2016).

[9] Baig v. Coca-Cola Co., 607 Fed. Appx. 557, 558–59 (7th Cir. 2015).

[10] See also Stephen Armstrong & Timothy Terrell, Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing 127-30 (Practicing Law Institute 3d ed. 2008) (discussing use of lists and bullet points); Ross Guberman, Point Made: How to Write like the Nation’s Top Advocates 295-300 (2d ed. 2014) (same); Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 73-77 (2015) (discussing same in an opinion’s Statement of Facts).

[11] In re Johnson, 325 Fed. Appx. 337, 339 (5th Cir. 2009).

[12] United States v. Newman, 490 F.2d 139, 144 (3d Cir. 1974).

[13] Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d 1331, 1333 (Fed. Cir. 2011).

[14] Int’l Union, United Mine Workers v. Jim Walter Res., Inc., 6 F.3d 722, 724 (11th Cir. 1993).

 

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.

Introduction, and Lessons from Alzheimer’s Disease

Editor’s Note: CBA CLE Legal Connection welcomes Aaron Eisenach to the blog. Aaron Eisenach has specialized in long-term care planning and insurance-based solutions for 20 years. Read more below.

I am very excited to submit my first blog on CBACLELegalConnection.com! Some of you will recognize me from recent Elder Law and Estate Planning Retreats. Others may have heard me lecture at Senior Law Day or provide CLE courses on long-term care planning. Or perhaps you have read my chapters in Elder Law in Colorado and Senior Law Handbook. But in case our paths have never crossed, please allow me to further introduce myself.

I am a long-term care planning specialist representing myriad insurance companies and products that help people protect their family and finances from the greatest risk left in life: needing extended care.  I wear three hats in my professional life. First, I assist other advisors and agents that do not specialize in long-term care insurance and choose to trust me with their clients.  Second, I serve as a wholesaler of LTC planning products to agents in Colorado and many other states. And third, as an educator I am certified by the Colorado Division of Insurance to teach state-mandated continuing education courses that all resident agents must complete in order to offer LTC coverage. Whichever hat I’m wearing my goal is to help families mitigate the emotional, physical and financial consequences of an extended care event.  My steadfast belief is that everyone deserves a serious conversation about the potentially devastating emotional, physical and financial consequences needing long-term care can cause.

My passion for this niche in the insurance industry stems from witnessing my father’s and grandfather’s battles with Alzheimer’s disease and the lasting impact on family and finances. I remember occasionally visiting my grandfather, usually after Sunday morning church services, in the skilled nursing facility in which he lived for 10 years. I can still breathe the smells and hear the groans from residents in the hallways of the facility. I could hardly wait to get in the car and escape the image of the man that I only knew as a prisoner to a crippling, horrific disease.

Imagine the heartbreak when we started to realize that my father was beginning to show symptoms of the same condition. Thankfully, before signs of dementia crept in to rob him of his cognition, he took my advice and purchased long-term care insurance. Because of his familial experiences, my father realized that the coverage was not for him per se. It was for my mom, and his children and grandchildren more than it was ever for him. When dad resigned from a prestigious job, a few newspaper articles, banquets and receptions honored him while he was still mostly aware of his surroundings. When dad could no longer be left alone, my mom also quit her job and began her new vocation: full-time caregiver.

Dad’s long-term care insurance policy was structured to cover care at home, in an assisted living or skilled nursing facility, adult day care or hospice. Its benefits were unlimited: the coverage could never be exhausted regardless of how long he might have needed care.  Mom resisted turning on the benefits for many months (it seems she held sacred the “…for better or worse, for richer or poorer, in sickness and in health” part of the wedding vows) until she finally realized that she needed help in caring for dad. Eventually a home care agency was hired to help take care of him a few hours per day, freeing her to go to the grocery store, the doctor’s office, or see a grandchild’s piano recital. In other words, the long-term care insurance gave her some of her life back.

Eventually the combined care provided by mom and the agency wasn’t enough. After a health scare of her own, mom called me and wanted to know my feelings about placing dad in a nursing home permanently. Realizing that my dad’s chronic care needs were making my mother chronically-ill herself, I told her that she had my absolute encouragement to do so. At that point she said that she had already talked to the other children and that they also agreed. A facility was chosen that was close to the homes of three of the four children. Mom and dad’s house was sold, allowing mom to live closer to the facility so that she could be there every day possible as his loving wife and his personal care advocate, which is so vitally important regardless of the quality and reputation of the facility in which your loved one resides. As an example of her compassion, after dad had passed away in the very early morning hours she fed his roommate breakfast later that morning. All but $20 per day of dad’s 18-month stay was paid-for by his insurance policy. In fact, not a single penny of mom or dad’s retirement plans was spent on care.

These experiences and God’s hand led me to my passion for, and career in, telling others about the importance of planning ahead for the possibility of needing extended care services. For more than 20 years I have listened to clients tell me of their own stories of caregiving. The stories lead to similar conclusions: the emotional and physical strains and pressures of being a caregiver are devastating, adult children often do not contribute equally to the care needs of the parent(s) which can lead to resentment and in-fighting, the lifetime savings of the care recipient was depleted much quicker than ever imagined, relying on Medicaid should be avoided, the lack of planning leads to chaos, and more.

My next blog will focus on the premise that everyone needs a plan for care (not necessarily insurance), the components of a care plan, and common planning goals. I will also present the latest cost of care data for Colorado. Until then, if there is anything I can do for you or your clients, please visit www.AaronEisenach.com or call 303-659-0755.

 

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