3/6/2015. Hon. Gerald Lebovits New York State Bar Association March 18, 2015

Transcription

1 Hon. Gerald Lebovits New York State Bar Association March 18,

2 Justice William Brennan Why is Legal Writing So Difficult? No defense to poor legal writing. 2

3 Why is Legal Writing So Difficult? Poor role models. Chief Judge Benjamin Nathan Cardozo 3

4 The Goal Know your audience. Know the purpose of your document. Twin pillars: (1) make the court want to rule for you and (2) make it easy for the court to rule for you. Write for judges, not like judges. 4

5 Why is Legal Writing So Difficult? Linguistic roots. Why is Legal Writing So Difficult? Sociological roots. As Bismark said: If you like law or sausages.... 5

6 Why is Legal Writing So Difficult? Language of the law. Why is Legal Writing So Difficult? History. 6

7 Plain English Legalisms: Harder to quit than smoking. What word can you remove? I enclose herewith a copy of my brief. I enclose herewith a copy of my brief. Archaic expressions. Foreign words (Latin, French, etc.). Sesquipedality. Count syllables. Don t write it if you wouldn t say it ( prior to, said, such ). But be formal: No clichés, colloquialisms, jargon, or contractions. Write for an eighth grader. Plain English Undefined and excessive abbreviations and acronyms. The Plaintiff demanded ten dollars ($10.00) in Small Claims Court. The Defendant (the Defendant ), Mr. Smith ( Mr. Smith ), filed a motion (the Motion ). Excessive uppercasing: The Lawyer filed a Summary Judgment Motion in Court. 7

8 Flesh-Kincaid on WordPerfect Readability statistics Tools. Grammatik. Options. Analysis. Readability. Flesh-Kincaid on Word Readability statistics Word : Tools; Spelling and Grammar; Options; Show readability statistics. Word 2010: Click Microsoft Office Button. Then Word Options. Then Proofing. Select Check grammar with spelling. Under When correcting grammar in Word, select Show readability statistics. Select OK. Hit F7. 8

9 CRARC Method Conclusion on the issue. Rule, supported by authority. Application of law to fact. Rebuttal and refutation. Conclusion stating relief you seek. Controversies 9

10 Controversies: Serial Comma Yesterday, the New York City Police Department arrested five criminals three burglars and two robbers. How many criminals did the New York City Police Department arrest? Controversies: Serial Comma Yesterday, the New York City Police Department arrested five criminals: three burglars and two robbers. How many criminals did the New York City Police Department arrest? = five 10

11 Controversies: Serial Comma Yesterday, the New York City Police Department arrested five criminals, three burglars, and two robbers. How many criminals did the New York City Police Department arrest? = ten Controversies: Hyphens In my pocket are ten dollar bills. How much money do I have? 11

12 Controversies: Hyphens Small claims arbitrator. Small-claims arbitrator. Real estate agent. Real-estate agent. Criminal justice system. Criminal-justice system. Controversies Prepositions. Split infinitives. That/Which. Innie or Outie? Beginning sentences with And or But. The conjunctive adverb. Sentences. Paragraphs. Footnotes and endnotes. 12

13 Persuasive-Writing Style Write concretely: Show, don t tell. Benjamin Franklin King Solomon Not law school. Not law review. Not moot court. Not history. Not mystery. Persuasive Writing 13

14 Persuasive-Writing Tips Understate. Stress arguments, not citations. Visuals: Photographs, bullets point, charts, CD-ROMs, photocopy cases. Bold, italics, underlining, quotation marks, question marks (rhetorical questions), exclamation points, capitals. Emphasize and de-emphasize with sentence structure and sentence length. Adjectives, adverbs, nouns, verbs. Punctuation. Parentheticals. Direct mail solicitations. Single Passive. Double Passive. The Passive Voice 14

15 The Passive Voice President Richard M. Nixon 15

16 E-Filing and E-Documents New York State Courts Electronic Filing System (NYSCEF). Court requires PDFs due to the security needs of legal documents. Tips: hyperlink, CD ROMs, enable skimming, omit needless words, make it simple, use lots of white space, put the most important content at the top left of the page. Myths About Legal Writing Start early. Edit late. Revise. Knowing everything before you start. Writer s block. Take breaks. Write in a comfortable setting. 16

17 Revision Tips Novices focus on words choice only. Write for the reader, not yourself. Write for the ear, not for the eye. Improve macro-organization: each paragraph must develop one point only. Improve your large and small-scale organization: order of paragraphs and sections. Edit on hard copy, not on computer. Read out loud, backward. Use an editor. Do C&S work-up. Spell checker, grammar checker, Bluebook checker. Ethics of Writing Persuasively Exaggeration. Emotional writing. Pinpoint citations. Smith v Jones, 99 AD3d 100, 101 (1st Dept 2011), lv denied 91 NY3d 103 (2012). Or (Smith v Jones, 99 AD3d 100, 101 [1st Dept 2011], lv denied 91 NY3d 103 [2012]). Cite what you use. Use what you cite. Dealing with the Rambo adversary. 17

18 Organization Say it once, all in one place. Thesis paragraphs: the roadmap. Topic and thesis sentences. Use headings and subheadings. Citing Bluebook: Nineteenth edition. Right for federal, multi-state, and international sources and for law-journal editors and readers. Wrong for lawyers who write to or for New York State courts. 18

19 Citing ALWD. Citing Tanbook: OFFICIAL EDITION New York Law Reports Style Manual Prepared by the New York State Law Reporting Bureau. yman.htm 19

20 Citing Limit string citing to three cases except when you must document the sources necessary to understand authority or a split in authority. Cite only to apply rules to facts or to distinguish. Citing well makes you credible. Use pinpoint citations. Never cite headnotes or syllabuses. Citing Signals: No signal (direct support). Contra (direct contradiction). Cf. if your citation supports your proposition by analogy. See if your citation supports your proposition indirectly or by inference. But see if your citation contradicts your proposition indirectly or by inference. E.g. if your citation gives one or more examples to support your proposition directly. Id. and see id. as short-form citations that refer unambiguously to a single, immediately preceding citation. 20

21 Quoting Quote me as saying I was misquoted. Groucho Marx. Block quotations. Lead-ins. Alterations [ ]. Omissions.... Quotes within quotes. Copy-and-paste on WordPerfect: Copy, home page, edit, paste special, unformatted text. Copy-and-paste on Word: Copy, home page, paste, paste special, unformatted text. On WordPerfect: Home page, view, reveal codes. Clarity More important than concision. Give foundation: Introduce before you explain. State the rule before the exception. Give the exception only if relevant. Raise the issue before answering. Answer before explaining. State the point before the details. Write directly, not indirectly. Don t generalize. 21

22 Modifiers Keep your modifiers next to the words they modify. ( Don t go to a lawyer with legal problems. ) Don t separate subject from predicate. Squinting modifiers. Where does only go: The prosecutor wanted to cross examine the defendant. Dangling modifiers: word or phrase that modifies the wrong phrase or describes something not in the sentence. The solution is to write in the active voice. Identify who is doing what to whom subject, verb, object and your modifiers won t dangle. Example: Last night, I shot an elephant in my pajamas. How it got into my pajamas I ll never know. Document Design Follow court rules. Word count and page limits. White space. Spacing between sentences and citations. Single space or double space? Right-ragged margins. Font: Prefer Century to Times New Roman, Courier, or Calibri (11 point) (the default in Word). 22

23 Document Design Use a reasonable font size: 12-point type is a minimum. 14-point type is required by many courts. Margins (allow plenty of white space.) Italicize case names. Red v Green OR Red v Green? THIS SENTENCE IS DIFFICULT TO READ BECAUSE IT IS WRITTEN IN ALL CAPS. Clearly. Obviously. Adverbial Excesses 23

24 Generally. Usually. Cowardly Qualifiers Concision and Succinctness Line editing. There is, there are, there were, it is. Example: There are three cases supporting the rule. Watch for doubles: Advance planning. Don t excessively define, qualify, or overchronical. Make your citations speak to save space. It s more important to be precise than concise. Miscue: The ball was thrown by me to her. 24

25 Precision and Concision Fresh fish sold here today. Fresh fish sold here today. Fresh fish sold here today. Fresh fish sold here today. Fresh fish sold here today. Fresh fish sold here today. Nominalizations The fine was far in excess of. (The fine was excessive/far exceeded.) She has a tendency to. (She tends to.) I have knowledge that. (I know.) Defendant committed a violation of. (Defendant violated.) 25

26 Nominalizations The judge was of the belief that he would be affirmed. (The judge believed.) The intention of the parties was to reach an agreement. (The parties intended to agree.) The District Judge gave a description. (The District Judge described.) The Court Clerk has a preference for the submission of documents. (The Court Clerk prefers that documents be submitted.) Nominalizations The establishment of the discovery violation might be difficult. Establishing the discovery violation will be difficult. Plaintiff will have difficulty proving that defendant violated the court s discovery order. 26

27 Metadiscourse Writing about writing. Having studied the case carefully and giving due consideration to all the evidence, the court respectfully concludes that.... Another aspect of the case that ought to be considered is that.... In dissent I propose to argue that.... In our opinion.... It is hornbook law that.... It is well settled that.... It is the court s conclusion that.... The court recognizes that.... Gender Neutrality A gourmet likes her coffee black. Not: A gourmet likes their coffee black. Make it plural: G0urmets like their coffee black. Or delete the antecedent: A gourmet likes black coffee. No he or she, him or her, s/he, or worse. 27

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29 Vague Referents It, they, him, her, them. Write in the Positive Fix the following: Do not write in the negative. (Write in the positive.) This argument is not without support in the cases. (This argument is supported by the cases.) (The cases support the argument.) We remand for proceedings not inconsistent with this opinion. (Consistent with this opinion.) Exceptions. 29

30 Mechanics Numbers, numerals, and figures: spell out zero to ninety-nine and use figures for 100 and above. References: Give the pages at which the reference begins and ends, separated by an en dash ( ) or hyphen (-). Example: (People v Wilson, 44 NY2d ). Mechanics Typographic symbols: Paragraph ( ) and section symbols ( ). Double the section or paragraph symbols when referring to consecutive sections or paragraphs. The ampersand symbol & (and). 30

31 Do s and Don ts Do s: Right tone. Get to the point fast. Give context. Love simple declarative sentences. Respect deadlines. Add visuals. Don ts Pomposity. Inconsistency. Attacks and rudeness. Redundancies. Legal Method Memorandum opinions. Concurrences Dissents. Majority opinions. Plurality opinions. Decrees. Orders. Seriatim opinions. Per curiam opinions. En banc opinions. 31

32 Grammar Use a possessive to avoid a fused participle. The client did not object to his trying the case. Not him trying the case. I appreciate your filing the brief. Not you filing the brief. Delete by and the first pronoun. The case was argued by Fred and she. Argued by her. Bill went to court with Fred and I. Went with me. Run-on sentences. He wrote the brief, she argued in court. Comparisons: The case is better. Superlatives: [I]n order to form a more perfect union.... A vs. The. Punctuation Use a question mark at the end of a direct question and a period at the end of an indirect question. Direct: Judge X said, I am deciding the case today. Indirect: Judge X said that he was deciding the case today. Use one period, not two, when the sentence ends in an abbreviation. Not: Ms. Packman, J.D.. 32

33 Punctuation Introductory comma: After the microwave blew up Mary sued. Colons. They go after an independent clause or before a list on a separate line. The area codes he calls are: 212, 718, 917, and 347. Semicolons. They go between two closely related independent clauses. Apostrophes. Write as you speak: Lebovits book or Lebovits s book? Emdashes. Tense Past is past: The suspect ran [not runs] from the police. State current rules in the present tense. State past facts with current rules in the subjunctive: This court has held that.... State permanent, immutable truths (truths that never change) in dependent clauses in the present tense: Albert Einstein proved that E equals mc². State permanent, immutable truths in independent clauses in the past tense: Albany was where Chief Judge Kaye presided. He was a former judge. 33

34 Elegant Variation There s power and clarity in repetition. Use different words to mean different things. Don t use different words for the same thing. The prosecutor wanted to indict the defendant. That s why the Assistant District Attorney [the prosecutor] secured a grand jury true bill [indictment] against the suspect who was arraigned [the defendant]. Brief Writing 34

35 Cover Brief: Questions Presented Weak method: The objective whether statement. Good method: (1) Under, (2) law, (3) did (or may, should, will, can, etc.), (4) court ( this court or the trial court or party, (5) issue, (6) add a comma, (7) given that (8) add 2-3 facts (only facts, no conclusions) helpful to you (and unhelpful to your opponent). Best method: The deep issue. 35

36 Brief: Facts The most important consideration: Theme. All arguments can be reduced to We win because.... What follows because is your theory. A smart high-school student should understand it. It should appeal to your emotions: It s about right and wrong. Include every important and helpful authority, fact, and issue that supports your theme or contradicts your adversary s theme. Write persuasively, not objectively. Use only facts: No law or conclusions. Organization: Halo effect. Order of facts: Storytelling. (Chronologically? By issue? By witness?) Brief: Facts Start with something helpful to your client: The protagonist. Use past tense. Perspective: How to refer to clients and opponents. How many facts? Less is more. (1) Eliminate irrelevant details. (2) Compare facts in Facts section to facts in Argument section. (3) Add bad facts. Include record references. End with procedure. 36

37 Brief: Argument CRARC Cite only as relevant. Footnotes. String citations. Point headings and sub-point headings. Set out the court s jurisdiction, the burden of proof to be applied by the trial court, and the appellate standard of review. Brief: Conclusion Tell the court what you want. Include a proposed order when permitted. 37

38 Before Filing Check for compliance with certifications. Include proof of service. File papers timely Courtesy copies. Parallel structure. Antithesis. Rhetorical Devices 38

39 Conclusion Questions? 39