May 24, 2019

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

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

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

Apple’s Opening Paragraph

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

Points for Apple

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

Half-Point Deductions

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

Samsung’s Opening Paragraph

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

Points for Samsung

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

Half-Point Deductions

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

You Win

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

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

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

Coach’s Corner: Be a Lawyer and a Teacher

Rebecca Mieliwocki of Burbank, Calif., was recently named 2012 Teacher of the Year and honored by President Obama at a White House ceremony.

Among other impressive achievements in her career, she went to law school. This transition is not peculiar. Lawyers are, after all, teachers. They tell stories to instruct jurors and judges for the benefit of their clients.

But lawyers may not realize that they can use teaching techniques in many other ways to make the business of law more successful.

Consider just a few examples and ask yourself how good a teacher you are.

Justify your fees

Value is ultimately determined by the client, not the attorney. But it’s the attorney who must educate the client about the value of his services.

Most clients recognize the importance of and are willing to pay a fair fee for value. What they do not want is to pay for inefficiencies, duplications or unnecessary services.

To avoid fee disputes, lawyers must regularly demonstrate that their skills and the way in which services are delivered to the client coincide with what the client wants and needs.

Blog to inform

Lawyers often know a great deal about industry and economic issues that are important to clients, and can educate their clients about trends and developments using blog posts.

A blog combines the lawyer’s observations on breaking legal or regulatory issues with specialized content and research and can offer the option to comment and ask specific questions. This defines a teaching relationship — and also often serves as the beginning of a client relationship.

Educate your staff

In the current law firm world, lawyers and staff are affected by the ongoing transformation of client expectations and legal service delivery. Lawyers must take the lead in helping all staff members understand this change.

More than the continuing sluggish economy alone, firms are contending with upheaval in the way law is practiced. Secretarial assistants, technology specialists, project managers, any staff — they all need a better understanding of the forces reshaping law firms, and the lawyers who employ them should provide that understanding.

Emphasize the value of beyond-the-case effort

Young lawyers too often view themselves as being at the mercy of the firm’s partners when undergoing annual reviews. They can enhance their situations by educating the partners on what the lawyer has actually done in a key area, such as business development.

Attending lunch or bar association functions, posting blogs and client updates, writing articles in trade or legal publications are all valid marketing activities. The young lawyer who engages in them can make a convincing argument at review time: “This is what I’ve done to promote myself and promote the firm.”

Don’t assume these efforts are well-known tactics. Teach those who matter about the value of the effort.

Education is all about communication. It is essential that those with whom a lawyer interacts knows what the lawyer is doing and understands why it is being done. As lawyers, our job is to help others. Constantly conveying how and why you are doing this is an excellent way to derive greater personal satisfaction from your practice.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on June 20, 2012.

Is Solo Practice a Good Fit for You?

Today’s economy can lead seasoned attorneys, mid-career laterals and even freshly minted law grads into solo practice. But is solo practice a good fit for you? No matter the stage of your career, there are questions to ask yourself and options to examine to determine whether this is your best choice before you launch a solo practice.

How Many Hats Can I Wear?

Opening a solo practice means wearing many hats to handle all the functions in the firm—in addition to practicing law. A lawyer stepping out of a larger firm may find herself a bit ill-equipped to manage all the details required in running a law office, even a solo one. That realization—sometimes a difficult one—may lead to the need for extra support, either outsourced or in-house, to cover everything from bookkeeping and billing to marketing and technology support, plus other administrative duties. Acknowledge your strengths and interests, and then plan ways to cover the rest so you can balance both the administrative and the legal side of running the practice.

What Is My Vision of Solo Practice?

Do you view solo practice as a temporary or long-range option? Will you focus on one practice niche or several areas? Do you anticipate a need for support through a paralegal, legal assistant or other? Will you need the involvement of other lawyers? Many solo lawyers network and solidify of counsel relationships with their peers to plug into particular client matters as the need arises. Being prepared in advance is key to ensuring solid legal services and handling client expectations.

Who Would Be My Best Client?

Think about the areas of practice you want to concentrate in. Consider your background and experience—what types of client matters do you enjoy? Describe your best client and explore why that’s the case. Developing key areas of practice where you have both experience and interest to grow and develop will lead you on a path to a satisfying and successful practice.

What Is My Ideal Practice Setting?

The location of your office depends on the type of clients you want to serve. Are your clients businesses or consumers? How will the physical office affect attracting clients? Will clients need to visit you often or only occasionally? Endless technology options can support your law practice wherever it is, but you still need to decide what setting works best for you. Do you enjoy tossing around a legal issue or argument among a group of other legal minds? If so, consider renting within a suite of other lawyers. Or if you desire a strong presence, explore leasing or owning your own space. While working from home may seem like paradise, it is not always wise to bring clients to your home. You might consider a virtual office with a professional business address and renting a conference room for meeting with clients on confidential matters.

How Will I Find Clients?

To build your business, you must have a strong strategic plan that makes marketing and business development a high priority. Concentrate on marketing a few key areas of your practice. Reach out and network—you can learn and gain valuable insights by getting active in your local bar or other specialty law groups. Develop your writing and speaking skills so you can share your knowledge with potential clients. Weave your interests and experience into your online presence through your website and social media as you develop your place in a niche.

Remember, too, that in a solo setting, you may no longer be perceived as competition by your peers. This is a good thing. Communicate how you can be of value to them by helping when conflicts arise in their own firms. Their good feelings about you can result in a stream of solid referrals.

Ellyn Caruso is principal of CarusoPR, a group that combines strategy, creativity and technology. Ellyn is passionate about delivering persuasive marketing and public relations programs to help attorneys, businesses and organizations. She brings more than 25 years of public relations experience serving national and international clients. She also contributes to the Attorney at Work blog, where this post originally appeared on August 14, 2012.

CLE Program: Hanging Your Shingle

This CLE presentation will take place from Thursday, August 16 through Saturday, August 18. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD. The course materials will also be available.

Legal Writing Pro: Five Grammar Myths

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

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

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

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

Who says it’s a myth:

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

Myth Two: You can never split an infinitive.

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

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

Who says it’s a myth:

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

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

The Perils of the Video-Conference Deposition

The video-conference deposition itself sounds like a great idea. After all, we were supposed to have flying cars and robot maids by now.  However, the reality of video-conference deposition reveals many, many challenges.

The first and most obvious challenge is the technology. Through trial and error, I would always suggest using a court reporter’s office, which should be properly equipped to handle the video feed. The onus is therefore on the hired court reporting firm to have working equipment. Otherwise, should you use your own conference room and your Internet goes out, everyone looks at you.

The second challenge is the materials. Some fact witness depositions sail through without any marked exhibits.  Most expert and party depositions contain many marked exhibits. Therefore, the video-conference deposition requires some advanced planning. This challenge is magnified in video-conference depositions of expert witnesses. Essentially, you have to scan and copy your expert’s entire file the week prior to the deposition and mail (or cloud upload) copies in advance. Not only is the manual labor extensive, but often your experts do not have everything prepared a week in advance of the deposition.

The third challenge is the deposition itself. We can get to the moon, but we cannot figure out how to eliminate a delay on a video-conference. Therefore, you have to adjust your rhythm of asking questions. Slow down.

The fourth challenge is the lack of the interpersonal contact. There is something more commanding about being present in the room in front of your deponent. Video can cloud body language and, more concerning, can hide attorney assistance.

In my humble opinion, I think the technology is still a few years away. In the interim, video-conference depositions can be useful for lower-level fact witnesses. If you are deposing a party or an expert, I recommend being in the room.

Chad Lieberman served as lead trial attorney for a commercial litigation firm located in Chicago from 2005 through late 2010. He handled lawsuits involving contract disputes, personal injury, insurance related issues, product liability matters, construction defects, and real estate. Since moving to Colorado in 2010, he practices in state and federal courts throughout Illinois and Colorado, primarily in product liability and commercial litigation. He is also the new editor/promoter-in-chief of the SOLO in COLO blog, where this post originally appeared on July 20, 2012.

CBA Upgrades to the New Casemaker on July 18

Casemaker, the Colorado Bar Association’s free legal research member benefit, will be upgraded on Wednesday, July 18, 2012, to provide new features and functionality that will greatly improve users’ legal research experience.

Users will have three months to explore the new interface before the old Casemaker 2.2 version goes away for good. When using the New Casemaker, if you find yourself stumped, assistance is just a phone call away at (877) 659-0801, or revert to Casemaker 2.2 by clicking on the “Return to 2.2” link at the top of the New Casemaker search window. You can also call the CBA’s Casemaker Hotline for assistance at (303) 860-1115, and ask for Reba Nance or Lauren Eisenbach.

To make the transition easier, the CBA has created a video tutorial, specifically tailored for Colorado attorneys. The tutorial is broken down by chapters, allowing you to easily locate the information you need. In addition, trainings are available in person and via webinar.

The new version of Casemaker offers many improved features. Here are just a few:

  • Faster search results with a single, Google-like search field
  • Personalized search history—save and reuse your searches
  • Create folders to save your searches and cases and organize your research
  • Results can be filtered by most relevant, most cited, and date decided
  • Adjustable font sizes for easier viewing

Find the complete list of features here. As you explore the latest version of this member benefit, take advantage of the many video tutorials (one provided below), and access the schedule of upcoming trainings.

Legal Writing Pro: Stop Cutting “That”

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

Not so fast, I suggest.

Read this sentence to see why:

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

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

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

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

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

So we end up with something like this:

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

Other sentences in the opinion need similar fixes:

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

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

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

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

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

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

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

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

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

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

And our new Solicitor General:

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

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

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

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

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

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

And even the Wall Street Journal:

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

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

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

And that’s enough of “that.”


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

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

Coach’s Corner: Do You Have What It Takes to Start a Firm?

I have often argued that that law schools do little to prepare graduates for dealing with the business of law — finance, practice management, client relations — that determines practice success. That puts the onus on new lawyers to do the preparation themselves, especially if they are starting a practice on their own.

Solo or small-firm lawyers need all the traits of an entrepreneur: motivation, acceptance of risk, resiliency, commitment, persistence. You may think you have these traits in abundance, but what do they really mean on a personal level if you want to run your own firm?

A new resource enables lawyers to get some definitive answers for themselves. The U.S. Small Business Administration now offers a self-test, aimed at anyone interested in starting a small business.

The test will prompt you with questions and assist you in evaluating skills, characteristics and experience as they relate to your potential as an entrepreneur. Responses are scored automatically to create an assessment profile for how prepared you are to run your own business. And make no mistake: A law firm is a business.

These are just some of the key questions; consider for a moment how they relate to your own personal knowledge and inclinations:

  • Do you have support for your business from family and friends?
  • Have you ever taken a course or seminar designed to teach you how to start and manage a small business?
  • Have you discussed your business idea, business plan or proposed business with a business coach or counselor?
  • Do you have enough confidence in yourself and your abilities to sustain yourself in business if or when things get tough?
  • Are you prepared, if needed, to temporarily lower your standard of living until your business is firmly established?
  • Do you have a business plan for the business you are planning to start?
  • Do you know if your business will require a special license or permit and how to obtain it?
  • Do you know where to find demographic data and information about your customers?
  • Do you know how to compute the financial “break-even point” for your business?

If there is one running theme here, it’s that the lawyer starting a firm must make a commitment to success. Expressing success in relative terms such as “more revenue” or “greater satisfaction” sets a subjective standard that is difficult to achieve.

The truly successful person wants and needs a target. To successfully start a firm, know what you want to do, who you want to be and how you will provide your clients with value.

Ask a coach or other independent person with knowledge of the profession, its requirements and the requisite skills of entrepreneurship. Ask this person to react to your analysis of your strengths, weaknesses and opportunities. Although such an analysis will be at least somewhat subjective, it is essential to help you understand if you have what it takes to start your own firm.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on March 22, 2012.

Legal Writing Pro: Four Usage Fights

1. Should I use a serial comma?

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

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

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

Justice Breyer:

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

Justice Souter:

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

Justice Kennedy:

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

2. Can I start a sentence with however?

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

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

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

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

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

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

Justice Stevens:

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

Justice Scalia:

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

Justice Alito:

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

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

4.  Can I start a sentence with because?

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

Kathleen Sullivan:

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

Lawrence Tribe:

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

Walter Dellinger:

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

Justice Ginsberg:

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

Justice Thomas:

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

_____

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

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

Successfully Resolving Your Clients’ Legal Problems: Choosing the Right Model

Over the last several decades, alternative methods for addressing conflicts among private citizens have received increasing attention. This movement has been driven by a number of factors inherent in the public court system: (1) delays, (2) expense, (3) formality, and (4) uncertainty. As a result, alternatives to the public court system continue to develop.

These alternatives include Adjudication, Negotiation, and Evaluation, each with their own pros and cons and each suited better for particular clients and cases.

Jean Stewart will be in the CBA-CLE classroom on Monday, May 7, 2012 to discuss the various forms of alternative dispute resolution (ADR) that have been most successful and that offer the most promise. Attorneys will benefit from understanding these alternatives, and will learn:

  • How to prepare for the various kinds of ADR;
  • How they work and when they are viable;
  • How to counsel clients on each kind; and
  • How to use them successfully.

Whether you are new to ADR or a seasoned professional, Ms. Stewart will provide useful information and insider tips to build your practice and better serve your clients.

CLE Program: Successfully Resolving Your Clients’ Legal Problems – Choosing the Right Model

This CLE presentation will take place on Monday, May 7. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Regulation Counsel Says Law Students Need More Exposure to Professionalism

This post originally appeared on the Educating Tomorrow’s Lawyers blog. Educating Tomorrow’s Lawyers is an initiative of the Institute for the Advancement of the American Legal System (IAALS) that leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning, experimentation, ongoing measurement and collective implementation.

We recently sat down to talk with John Gleason. As Regulation Counsel for the Colorado Supreme Court, he directs the office of the Court responsible for lawyer admissions, registration, regulation, and client protection. In 2010, Gleason was appointed by the Arizona Supreme Court to investigate and prosecute Andrew Thomas, the former Maricopa County Attorney—a prosecution that last week ended in the disbarment of Thomas and one of his lieutenants, and the suspension of another attorney in Thomas’ office.

Gleason often meets lawyers when they are at their most vulnerable—under investigation for misconduct—and he believes new lawyers need more guidance on professional issues. Recent graduates, he says, are often referred to his office for minor misconduct issues. “There are an enormous number of issues that are not covered in law school. In fact, probably most issues related to professionalism are not covered in law school.”

Hear more from John Gleason below or click here to view the rest of his interview.

Alli Gerkman is Online Content Manager for IAALS, where she manages, edits, and creates content for IAALS and Educating Tomorrow’s Lawyers.

Legal Writing Pro: Four Motion Mistakes

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

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

1. Faulty capitalization of Order and Motion

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

What gives?

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

Defendant in this action has filed a motion to dismiss.

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

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

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

2. Faulty capitalization of Plaintiff, Defendant, and Court

This judge knows his capitalization rules.

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

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

Defendant was not Plaintiff’s employer.

The Court subsequently denied Defendant’s motion.

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

Plaintiff filed this action against the wrong defendant.

3. Faulty punctuation of quoted material

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

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

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

See Exhibit “A.”

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

4. Faulty use of ordinal numbers

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

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

Click here to view The Marked-Up Motion

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