EFFECTIVE LEGAL WRITING

Sponsor: Young Lawyers Division CLE Credit: 1.0

Thursday, June 18, 2015 3:45 p.m. - 4:45 p.m.

Heritage 2-3 Lexington Convention Center

Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive

Cincinnati, Ohio 45237

Kentucky Bar Association

TABLE OF CONTENTS The Presenter .................................................................................................................. i Effective Legal Writing ..................................................................................................... 1 Nix the Acronyms .......................................................................................................... 13 In Other Words . . . When and How to Quote and Paraphrase ...................................... 17

THE PRESENTER

Judge James D. Ishmael, Jr. Fayette Circuit Court, Division Three

120 North Limestone, Fifth Floor Lexington, Kentucky 40507

(859) 246-2218 jamesishmael@kycourts.net

JUDGE JAMES D. ISHMAEL, JR., serves as Circuit Judge – Civil and Criminal Jury Trials – in Fayette Circuit Court. He was appointed to the position in July of 2004 and was elected to serve out the remaining term in November, 2004. He has twice subsequently won re-election. Judge Ishmael also serves as a Drug Court judge. Prior to taking the bench, he maintained a private practice and served as a Domestic Relations Commissioner. Judge Ishmael received his B.S. from Eastern Kentucky University and his J.D. from the University of Louisville School of Law, where he served on Law Review as an Associate Editor. He is admitted to practice in all Kentucky state courts and before the United States District Court for the Eastern and Western Districts of Kentucky, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court. In 2006, Judge Ishmael was honored for his outstanding contributions to Kentucky law related education by the Kentucky Court of Justice. The award was in recognition for his work with the Kentucky High School Mock Trial program, where he has served as a volunteer judge for many years.

i

ii

EFFECTIVE LEGAL WRITING Judge James D. Ishmael, Jr. and Judge Robert (Rob) G. Johnson,

with assistance by James Bolton Bevins, J.D. I. INTRODUCTION

As a matter of format, this presentation has been divided into two main sections: 1) Legal Writing Tips that Trial Judges Think You Should Know and 2) Legal Writing Ethics. The first section is an effort from years of reading legal briefs – some very effective, some not so effective – to pin down what a practicing attorney should accomplish when making written arguments to a trial court. The second section is a reminder that almost everything judges and attorneys do have ethical implications and sets out several rules that attorneys should abide by when preparing legal memoranda and briefs.

II. LEGAL WRITING TIPS THAT TRIAL JUDGES THINK YOU SHOULD KNOW

A. K.I.S.S. (Keep It Short, Stupid)

1. Attorneys should make every effort to set out only the necessary facts to provide the judge a quick background of the case and the recitation of evidence relevant to ruling on the pending motion.

a. Most motions do not require the entire procedural history of

a case – mention only previous motions directly related to the pending one.

b. As you lay out your arguments, go back and review the

facts to make sure they are relevant. A "pet peeve" of many judges is having to wade through unnecessary details that are irrelevant to the pending Motion. The fact that the Defendant was "driving a red, 2014 Chevrolet four-door Sedan at 1:00pm on a Sunday afternoon…" has nothing to do with whether or not he ran the red light causing an accident. "Defendant was driving a car…" would give the judge the necessary information to consider the Motion for Summary Judgment on the issue of liability.

c. One judge has strongly suggested there is no substitute for

proofreading before signing a pleading. A redacted copy of an actual pleading filed in a divorce case contains the following paragraph:

"Petitioner, ________, is the mother of her son's wife, who is the daughter of Respondent"

Huh?

1

d. While judges realize that every motion in every case deserves due consideration, attorneys should keep in mind that a single docket for a judge contains numerous pleadings to read, research and consider. Judges look for the important information in a written argument. When memoranda are concisely written, the judge is more likely to read every word. The author of a memorandum containing a great deal of unnecessary information runs the risk of the judge missing an important point in the brief. Does the judge really need to read that "… the frigid January night air caused the whispers from her full, pouty, expectant, ruby lips to form a light mist that nestled upon the stubble of his heavily tanned cheek?" Leave the unnecessary adjectives, adverbs and descriptive words to the romance novelists.

e. Another "pet peeve" of judges is the use of gross

exaggeration in written arguments. "Nothing could be further from the truth" is an example. Really? In the entire history of the world not one thing written or spoken is a worse lie than the statement made by opposing counsel?

"Inaccurate" or "not supported by the record" convey the message but do not distract the judge from the argument.

f. Trials and the litigation process are adversarial by

definition. However, personal attacks on opposing counsel or a party are never appropriate. It is offensive to the Court and to a jury. You may disagree but you should never be disagreeable. Counsel who file CR 37 motions for sanctions or CR 11 costs or fees in every case are not taken seriously by the Court. Read Peter and the Wolf.

2. Likewise, an attorney must conduct sufficient legal research to

give the judge the most up-to-date legal authority on the disputed issue(s).

a. Failing to include legal authority in your argument is a poor

way to argue the case, especially if there is case authority to support your position. Judges are leery to create new legal precedents, which is what an attorney is asking a court to do if they cite no law. If there is no Kentucky law to support an argument, rulings from federal courts or other states can provide some persuasion. If you cannot find any relevant legal authority, re-examine your argument – is it truly an original, cutting edge legal theory or is it an untenable position that should not be included? The rules of law should build your argument in most instances.

b. Check legal citations within your written arguments to

verify they still represent current law. This used to be done

2

by looking up (Shepardizing) the case citations within the specific Shepard's Citations book for the reporter in which the case was published. This was a painstaking and lengthy process. Now with Westlaw (the online legal research tool provided to Kentucky judges), Shepardizing is as simple as clicking on the case history cite or flag at the upper left corner of the document on the computer screen. LexisNexis has a similar feature. Thorough legal research is an integral component to effective and persuasive advocacy.

c. Attorneys must read the cases they cite as legal authority.

Even though the holding in a cited case may initially appear to be beneficial to an argument, it may ultimately prove to be less helpful or even detrimental based upon the facts in the different cases. It is also important to read cases chronologically to determine how the law may have changed over time.

d. Do not quote a KeyCite synopsis within your document or

rely upon a KeyCite to argue your position in the pending case. Many times a KeyCite is worded differently in the body of an opinion and may misconstrue the holding of a case.

B. Although most judges allow oral arguments during motion dockets, an

attorney should make sure to include all necessary points and information in the written arguments. If new matters surface during oral arguments that were not included in the written arguments, an attorney should request that the judge allow an opportunity to file a subsequent pleading to address the new information. This will ensure the judge considers all relevant facts and law when reviewing the motion. If a judge allows this additional pleading, it should be as concise as possible and only address the new information.

C. Organize and prioritize a memorandum. A well-organized written

argument will also mean it will be more concise.

1. State the issue or issues that the judge must decide in order to address the motion before writing the statement of facts. This informs the judge of what to look for when reading the rest of the memorandum. (Example: ISSUE PRESENTED: Does a bad faith claim for an underinsured motorist accrue at the time of the motor vehicle accident or at the time of a judgment or settlement of the underlying claim?)

2. Next, write the Statement of Facts. Be sure the Statement of

Facts is written in chronological order. However, other than initially stating the time period of the events, only include dates if they are relevant to the arguments. As addressed above, only include relevant facts within the statement.

3

3. Then, set out the arguments in the Discussion.

a. Arguments should be presented in the order of their importance. The judge will usually assume this is the intent of the writer.

b. It is also helpful to the reader in longer memoranda to

include headings and subheadings. Doing so makes it easier for the judge to locate information within the pleading when preparing an order and needing to reference specific information within it. Additionally, headings break up the monotony of pages of discussion and will keep the reader more engaged.

4. End the memorandum with a conclusion that briefly summarizes

the arguments in the discussion section. Do not simply ask for the relief sought in the conclusion, but remind the judge of the strong points of your arguments.

D. Professor Melissa N. Henke from the University of Kentucky College of

Law has written an excellent piece in the November 2013 Bench & Bar entitled "Take a P.A.S.S. on your next legal document." It is helpful for your consideration on the subject. The acronym stands for "Purpose, Audience, Scope and Stance."

1. As the Legal Research & Writing Director, Professor Henke

suggests the writer of a legal document first determine the Purpose of the document. For our discussion, we can assume the purpose is to inform and persuade a judge or panel of judges.

2. Next, resolve who is your Audience? Write with a particular reader

in mind. What are this judge's "pet peeves"? What have you seen or heard about in your firm that has been persuasive to that judge on a similar issue? The wise writer must adapt the argument to the needs and wants of a particular audience to be most effective.

3. Third, what is the Scope of the document? Nothing is more

frustrating for a judge to be reading an argument on a particular subject and suddenly find they are "chasing rabbits" all over the courtroom. This tends to tell the judge the writer is not considerate of the Court's time and resources.

4. Lastly, what is your Stance? Documents filed with the Court are,

or certainly should be, persuasive in nature. That is the role of the attorney – advocate, i.e., to tell the Court why your client's position should prevail. It should be based on the facts of the case as honestly set out in the document and legal authority applicable to those facts. If there is a case against you, tell how the case is distinguishable on its facts or application of law.

4

5. Other points to consider outside of this article might include attention to the Organization of the document. Can the reader see where you are going with the argument? Are there smooth transitions? Are there any "dead-ends"?

6. Citation of legal authorities are like what my tenth grade English

teacher suggested is the proper length of a lady's skirt, i.e., long enough to cover the subject, but short enough to make it interesting (blame my high school English teacher if you are offended, but that was not my intention).

7. Generally, string citations are not persuasive. Cite the most recent

and higher Court authority on the issue and move on. Citation of "Not To Be Published" cases are governed by CR 76.28(4)(c) and should be cited or relied on with caution. If there is no Kentucky precedent, most judges would invite reference to other authorities from Federal or sister-state jurisdictions if it is on point to the case at bar.

8. Very importantly, be considerate of the Court's time. Yes, your

case is important to you and especially your client. Be clear and concise. Plain (Kentucky) English is a good rule. Latin terms are rarely persuasive to a judge and can be distracting. You can convince a judge you are smart if you are clear and concise and follow those suggestions in your legal document.

E. A good legal writer (not to mention a member of the bar) must be

forthright in the matters included within court filings.

1. An attorney is not candid within a memorandum or writing when facts are stated that are not supported by evidence, the record is not clearly presented, or a case holding or fact is clearly misstated. A writer should also not use paraphrasing to change or confuse the meaning of evidence or the law.

2. Once the trust of a judge is violated, it is difficult to regain. A

judge will constantly question the attorney's future presentations and filings for accuracy. This puts a more onerous burden on the attorney for future matters within the instant case and complicates the attorney's future cases with other clients in front of that judge.

G. A writer can build trust with a judge by proofreading and using proper

grammar, punctuation, and syntax. These concepts go hand in hand – it is difficult to successfully proofread if the writer is a poor orthographer (a person versed in the use of the rules of spelling, hyphenation, capitalization, word breaks, emphasis, and punctuation). An effective orthographer removes errors that occur unintentionally while drafting a document.

1. Rampant sloppiness within an attorney's written argument is

almost as lethal as untruthfulness. The presence of improper word

5

usage, subject-verb agreement, spelling, or punctuation may cause a judge to form the opinion that the attorney is not serious about his/her work. It further leads the judge to wonder about the attorney's ability to research and properly interpret the law.

2. Improperly cited legal references also weaken an attorney's

argument(s) within briefs and memoranda. This type of error can cause a judge to question whether the attorney actually read the cited authority. It also causes the judge to waste time to try to locate the case or statute in order to review it.

3. At the very least, typographical errors in pleadings distract the

reader from the important arguments the writer is trying to convey.

4. Memoranda and briefs with too much "character" detract from the impact of the arguments contained within. Additionally, the writer's opinion on what the law should be is irrelevant and unpersuasive.

5. Attack the other party's arguments, but never attack opposing

counsel within your pleading. One attorney's expressed opinion of the opposing counsel does not persuade a judge concerning which party's legal position is correct. As stated previously on a different point, it only diverts attention away from the author's legal arguments.

6. Never assail the judge personally or his/her previous opinions

within a brief or memorandum. This will be further addressed in the ethics section, but doing so will only harm the relationship between the attorney and the judge and will not persuade a judge that he/she is wrong.

H. Always check the local rules of a court to determine extra restrictions that

may be in place regarding briefs and memoranda. Some courts have pages limits, font and size restrictions, rules for exhibits, and requirements for courtesy copies.

III. LEGAL WRITING ETHICS

The previous section was written more in a narrative form. However, after reviewing the materials for this section, it is apparent that the cases speak for themselves. Therefore, the format of this section will be laid out by stating a section heading, listing case law from around the country and then setting out the significance of each case. The case citations are included if someone wants to more fully explore the facts or holding of the cases that are listed. A. Misstating the Law within Court Briefs and Memoranda

1. Failure to disclose relevant adverse case law: Tyler v. State, 47 P.3d 1095 (Alaska Ct. App. 2001) – This case was about the misstatement of law and fact to the Alaska Court of Appeals. The defendant/appellant in this action was convicted of a felony DWI

6

based upon two prior DWIs. Within his brief, the appellant's attorney informed the court that his client was convicted by a jury in the underlying action. In fact, the trial court had accepted a conditional guilty plea (referred to as a Cooksey plea in Alaska), which entitled the defendant/appellant to reserve the right to appeal dispositive matters. However, the issue that defendant/ appellant was arguing on appeal (two prior DWI no contest pleas were unconstitutional) would not have been dispositive of the underlying conviction based upon prior case law of the Alaska Supreme Court. The court found two things: 1) the attorney's misstatement of fact attempted to better the client's position on appeal as Alaska law did not give the appellate court jurisdiction without a proper plea, but the jury trial conviction would have; and, 2) the attorney failed to disclose an adverse case that was directly on point even though he was one of the attorneys that argued the adverse case. The attorney was held in contempt and fined $250.00.

2. Failure to cite a case that stood as an exception to the general

rule: Northwestern National Insurance Co. v. Guthrie, 90-C-04050, 1990 WL 205945 (N.D.Ill. 1990) (unpublished case) – The court found that the attorney came "perilously close" to an ethical breach for failing to cite a case that was an exception to the general rule of law at issue in the matter. The court further stated, "We will assume that counsel's glaring omission is the result of sloppy research and writing, and not an intentional effort to mislead or misdirect this Court. We request that the head of the Litigation Department of defendants-counterplaintiffs' law firm write to the Court in response to this concern."

3. Intentional misstatement of the law: Precision Specialty Metals,

Inc. v. U.S., 315 F.3d 1346 (Fed. Cir. 2003) – The attorney in this matter worked for the federal government. The Court of International Trade set a deadline for the attorney to file her brief. On the day before the deadline, the attorney requested an extension. The court denied the extension request and ordered the government to file its brief "forthwith." The attorney filed the brief twelve days later. The court struck the brief for failure to follow its order and granted the movant's summary judgment motion. The attorney moved for reconsideration and quoted case law defining "forthwith" rather liberally, without including the part of the quote that included within its definition the period of twenty-four hours. The attorney was reprimanded for misrepresenting the law and the Federal Court of Appeals upheld the reprimand.

4. Careless legal misstatement: Georgopoulos v. Int'l Bhd of

Teamsters, 942 F.Supp. 883 (S.D.N.Y. 1996) – The attorney in this case was admonished by the court in its summary judgment order after it stated, "This Court does find, however, that plaintiffs' papers are inaccurate, poorly drafted, and an embarrassing example of shoddy lawyering. This Court reminds plaintiffs'

7

counsel that an attorney is an officer of the court . . . ." The main concern that the court had with the attorney was that he cited cases as current law when in fact he was trying to get the court to extend the current law above what the cited sources held. The court also pointed out inaccurate citations on two of the cases.

5. Failing to support an argument with legal authority: Chapman v.

Hootman, 999 S.W.2d 118 (Tex. App. 1999) – This case was an appeal of a summary judgment motion granted by the trial court in which that court found the appellant owed his previous attorney, the appellee, $35,600.00 in attorney's fees pursuant to a written agreement. Two arguments of appellant within his brief were that the trial court wrongly considered testimony offered by appellee and the trial court wrongly failed to consider testimony the appellant offered. The third argument was that the trial court interpreted the parties' contract incorrectly. Appellant failed to support his first two arguments with legal authority. The Texas Court of Appeals dismissed the appeal and found that the appeal had been frivolously filed and partially based its holding on the failure of appellant's brief to support his first two arguments with case law. The court awarded appellee attorney's fees of $5,000 in addition to the trial court judgment. In its order, the court stated, "There is no room at the courthouse for frivolous litigation. When a party pursues an appeal that has no merit, it places an unnecessary burden on both the appellee and the courts. More importantly, it unfairly deprives those litigants who pursue legitimate appeals of valuable judicial resources."

B. Misstating Facts within Legal Briefs and Memoranda

1. Intentional misstatement of facts: Romala Corp. v. U.S., 927 F.2d 1219 (Fed. Cir. 1991) – The attorney for the appellant and his client were sanctioned with a fine of $5,000, levied joint and several, for filing a frivolous appeal. In this case, the appellant's brief greatly distorted the arguments of the opposing party and the legal conclusions of the underlying trial court. The basic subject of the appeal was an interpretation of a contract by the lower court. The appellate court stated, "Regardless of whether the appeal is frivolous as filed, Romala's post-filing conduct, consisting of irrelevant and illogical arguments based on factual mis-representations and false premises, is the sort of appellate litigation behavior that makes an appeal frivolous as argued, and thus eligible for sanctions." The trial court's ruling was affirmed.

2. Reasonable duty to inquire as to accurate facts: Stone v. House

of Day Funeral Serv., Inc., 748 N.E.2d 1200 (Ohio Ct. App. 2000) – This appellate decision affirmed the finding and conclusions of the trial court, which found that the appellant's attorney failed to conduct a reasonable investigation of the facts of the case before filing a complaint. The underlying complaint comprised several counts; among them were one for wrongful possession of a body,

8

abuse of a corpse, and intentional infliction of emotional distress. However, none of these claims were true because the appellee/defendant had been legally appointed as personal representative of the estate of the deceased at issue and acted according to her appointment. The appellant/plaintiff's attorney should have been aware of these facts before filing his complaint. The appellant/plaintiff was fined $1,500 for violating Rule 11 and filing a frivolous action pursuant to RC 2323.51. One other item to point out about this case was that the appellate court determined that the trial court had jurisdiction to hear the CR 11 motion even though the appellant/plaintiff voluntarily dismissed the case before the motion was filed. The appellate court determined that jurisdiction continued as to "collateral" matters.

C. Poor Legal Writing

1. Kentucky Bar Association v. Brown, 14 S.W.3d 916 (Ky. 2000) – This case concerned an attorney whose appellate brief failed to abide by the rules governing such filings and rose to the level of constituting a failure to provide adequate representation to his client. The attorney represented his client before the Kentucky Court of Appeals. The Court of Appeals dismissed the appeal, describing it as "virtually incomprehensible," and finding that the attorney had not met the requirements of CR 76.12(4)(c)(i), (iii), (iv), and (v) because his filing did not contain a brief introduction, a statement of the case including a chronological summary of facts and procedural history with reference to the record, an argument with supporting references to the record with citations of authority, or a conclusion stating the type of relief requested from the court. The attorney was referred to the Kentucky Bar Association, whose investigation resulted in him being found guilty of violating SCR 3.130-1.1. That rule states, "A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation." The Kentucky Supreme Court's Opinion and Order agreed with the Kentucky Bar Association's description of the attorney's filing as "a little more than fifteen unclear and ungrammatical sentences, slapped together as two pages of unedited text with an unintelligible message." The attorney was suspended from the practice of law for sixty days and ordered to pay costs in the amount of $1,090.95.

2. In re Hawkins, 502 N.W.2d 770 (Minn. 1993) – This matter

involved a disciplinary proceeding against an attorney for repeatedly failing to comply with the local rules of the United States Bankruptcy Court in the District of Minnesota along with repeatedly submitting filings "rendered unintelligible by numerous spelling, grammatical, and typographical errors … sufficiently serious that they amounted to incompetent representation." It was found that although the attorney's errors did not cause specific harm to his clients in the instance alleged, "administration of the

9

law and the legal profession have been negatively affected by his conduct. Public confidence in the legal system is shaken when lawyers disregard the rules of court and when a lawyer's … legal documents are so filled with spelling, grammatical, and typographical errors that they are virtually incomprehensible." Hawkins was publicly reprimanded; ordered to pay costs of $250; and ordered to complete a program on bankruptcy rules or the law of bankruptcy, a program of at least ten hours in legal writing, and a program of at least five hours on law office management.

D. Plagiarism

1. Iowa Supreme Court Board of Professional Ethics and Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002) – This case involved an attorney using the work of someone else, claiming it as his own, and submitting a bill to the court for eighty hours at $200 per hour for said work. At a hearing on the attorney's fee application, the United States magistrate judge stated it did not appear to him that the attorney wrote the legal portions of his brief. The attorney stated, "I borrowed liberally from other sources. Yes, your Honor." The attorney was ordered to explain or identify his sources. He eventually complied with the court's order and submitted a list of sources four pages long and single-spaced. Amongst this list was a particular treatise that he had copied, verbatim and without citation, into his filing. He called no special attention to this source in the voluminous four page list. What made this matter particularly egregious in the eyes of the court was not only the initial plagiarism but the subsequent willful attempt to conceal his act and deceive the court. The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint with the Supreme Court of Iowa's Grievance Commission alleging ethical violations with a recommendation of a three month suspension from the practice of law. The Supreme Court of Iowa agreed with the charges of misconduct but extended the suspension to six months.

2. Kingvision Pay Per View, LTD. V. Wilson, 83 F.Supp.2d 914

(W.D.Tenn. 2000) – This case involved the owner of rights to televise boxing matches suing a bar owner over an allegation that the bar owner had illegally broadcast a match in violation of the Cable Communications Policy Act. Plaintiff's attorney filed a pleading consisting of nineteen paragraphs. The court discovered that seven of the paragraphs and three of the footnotes were copied verbatim from a Federal Practice and Procedure manual without attribution. The court reprimanded the attorney and stated, "The court does not condone this practice and finds this practice even more distasteful in a case, such as the present … predicated on alleged theft of intellectual property. [T]his may violate Tennessee's Code of Professional Responsibility … prohibit[ing] a lawyer from engaging in 'conduct involving dishonesty, fraud, deceit, or misrepresentation.'"

10

E. Lack of Civility

Kentucky Bar Association v. Waller, 929 S.W.2d 181 (Ky. 1996) – This case involved an attorney personally insulting a judge. The attorney, after the regular circuit judge had recused, filed a memorandum stating, "Comes defendant, by counsel, and respectfully moves the Honorable Court, much better than that lying incompetent ass-hole it replaced if you graduated from the eighth grade..." The attorney was fined $499 and sentenced to thirty days in the county jail by the new judge sitting on the matter. The Inquiry Commission of the Kentucky Bar Association also charged him with one count of violating SCR 3.130-3.5(c) for using disparaging language that was intended to disrupt the court; one count of violating SCR 3.130-4.4 for using language that served no purpose and was intended to embarrass the regular circuit judge; and one count of violating SCR 3.130-3.4(e) for referring to the regular circuit judge who had recused, thereby knowingly and intentionally alluding to a matter not relevant to the cause under consideration by the court of supported admissible evidence. The Inquiry Commission eventually amended its complaint to an alleged violation of SCR 3.130-8.2(a) for making an unfounded statement concerning the qualifications and integrity of the regular circuit judge. The attorney was eventually found guilty of the amended charge and not guilty of the three initial charges. The Kentucky Bar Association Board of Governors recommended that Waller only be publicly reprimanded, but the Kentucky Supreme Court, based on the attorney's history and lack of "a meaningful expression of regret," suspended him from the practice of law for six months and ordered that he pay the costs of the proceedings against him.

F. Obeying Court Limits and Rules Concerning Filings

Kano v. National Consumer Cooperative Bank, 22 F.3d 899 (9th Cir. 1994) – This case was an appeal to a civil action wherein the Court of Appeals sanctioned appellant's lawyer personally for using "formatting tricks" to subvert the filing rules of the court. The attorney used 1.5 spacing instead of double spacing and put the footnotes into an extra-small type in order to cram a sixty-five page brief into the maximum allotted fifty pages. The court caught the attempted subterfuge and assessed a penalty upon the attorney of $1500.

11

12

NIX THE ACRONYMS Judith D. Fischer1

Reprinted with permission from Kentucky Bench & Bar, Vol. 79, No. 1, January 2015. Not long ago, the Ninth Circuit sardonically listed a string of acronyms that lawyers had used in a case. Then the court said it would ignore most of them and write its opinion "in plain English."2 Other courts have also expressed displeasure with acronyms. One dismissed a complaint partly because it was loaded with confusing acronyms, including "'SOP,' 'OPM,' 'NALC,' 'NRLCA,' 'CCM' and 'CCR.'"3 And the D.C. Circuit chastised a set of lawyers for "abandon[ing] any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not . . . ."4 An acronym is composed of the initial letters or parts of a name that can be spoken as a single word. An example is the acronym for the National Aeronautics and Space Administration, which is pronounced as a single word, NASA. An initialism is composed of initials that do not form a word but are pronounced letter by letter, as with FBI for the Federal Bureau of Investigation. Some writers refer to both kinds of abbreviations collectively as acronyms, which I will do here. Why do courts dislike acronyms? As one court stated, although parties may use them among themselves, the shortened forms "are not an effective means of communicating with the Court."5 Instead, they make communication more difficult.6 Particularly where many acronyms appear in a short space, the writing becomes dense and impenetrable. And in a longer document, acronyms require the court to memorize new terms or page through the document to figure out what the sets of letters mean. The D.C. Circuit has even codified a provision against them: "In briefs, the use of acronyms other than those that are widely known should be avoided."7

1 Judith D. Fischer is a professor at the University of Louisville's Brandeis School of Law. She teaches Legal Writing and Women and the Law. 2 N. Cheyenne Tribe v. Norton, 503 F.3d 836, 839 n.1 (9th Cir. 2007). 3 U.S. ex rel. Fowler v. Caremark RX, Inc., No. Civ. A. 03C8714, 2006 WL 2425331 at *3 n.1 (N.D. Ill. Aug. 21, 2006). 4 Nat’l Ass’n of Regulatory Utility Comm’rs v. U.S. Dep’t of Energy, 680 F.3d 819, 820 n.1 (D.C. Cir. 2012). 5 Waveland Capital Partners, LLC, v. Tommerup, 840 F.Supp.2d 1243, 1244 (D. Mont. 2012). 6 Gagliano & Co., v. Openfirst, LLC, 828 N.W.2d 268, 271 n.2 (Wis. Ct. App. 2013), rev’d in part on other grounds (Wis. July 15, 2014). 7 United States Court of Appeals for the District of Columbia, Handbook of Practice and Internal Procedures 41 (Nov. 12, 2013), http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20-20Handbook%202006%20Rev%202007/$FILE/HandbookNovember2013WITHTO CLINKS22.pdf

13

This example illustrates how acronyms can impede communication:

The parents alleged that their child was denied a free and appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA) because the Department of Education (DOE) had provided an inadequate individualized learning plan (ILP). The State Review Officer (SRO) found that the DOE’s plan complied with IDEA, and the parents appealed. The court held for the DOE, agreeing with the SRO’s finding that the DOE’s ILP provided the student with a FAPE.

Even though some of these acronyms are common in student disability cases, generalist judges may not be familiar with them. And a lawyer who packs so many of them into a short space creates awkward and frustrating prose. The example’s final sentence degenerates into near incomprehensibility. Why do some lawyers write like this? Perhaps they want to seem like insiders who know a special language. Or they may think acronyms are more convenient. But that’s shortsighted. Lawyers who are trying to convince a court should consider the court’s convenience, not their own. It may be mildly easier to type "SRO" than "State Review Officer," but the acronym is harder, not easier, for the court to read and understand. Here are some guidelines for acronyms. Instead of using an acronym, consider whether a term can be shortened

into one understandable word. In the example above, it would be clear to call the Individualized Learning Plan "the plan" and the Department of Education "the department."

Consider using the full term. While FAPE is a common acronym in student

disability cases, using the full phrase would make the above passage more readable.

Avoid using an acronym if you need not repeat the term at all. The above

example can be edited to use "State Review Officer" only once, eliminating the need for yet another cumbersome set of initials.

Carefully choose one or two terms that can profitably be shortened. IDEA

might be that term in the above example, because the full phrase is unwieldy and the acronym is commonly used in student disability cases.

The above example might be edited to read like this:

The parents alleged that their child was denied a free and appropriate public education under the Individuals with Disabilities Education Act (IDEA) because the Department of Education had provided an inadequate individualized learning plan. The State Review Officer found that the department’s plan complied with IDEA, and the parents appealed. The court held for the department, agreeing that the plan provided the student with a free and appropriate public education.

14

In urging lawyers to limit the use of acronyms, the D.C. Circuit recently quoted George Orwell: "[W]ritten English is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble."8 A lawyer who wants to communicate effectively should take the necessary trouble to edit a daunting alphabet soup into understandable English.

8 Nat’l Ass’n of Regulatory Utility Comm’rs v. U.S. Dep't of Energy, 680 F.3d at 820 n.1 (2012) (quoting George Orwell, "Politics and the English Language," 13 Horizon 76 (1946)).

15

16

EFFECTIVE LEGAL WRITING IN OTHER WORDS .... WHEN AND HOW TO QUOTE AND PARAPHRASE

Diane Kraft∗ Reprinted with permission from Kentucky Bench & Bar, November 2014

One of the most important decisions a legal writer makes when working on a memo or brief is choosing when to quote legal authority and when to paraphrase it. A well-chosen quote can be much more effective than a paraphrase, but quotes are often overused. Succinct paraphrases can help a reader understand a court's reasoning in a difficult case, but a good paraphrase can be difficult to write. Here are some guidelines to help you decide when and how to use quotes and paraphrases most effectively. QUOTING In a few circumstances, it's more appropriate to quote from a source than to paraphrase: When citing to a statute, it is almost always better to quote the statute. The

precise words in a statute matter, and you don't want to misrepresent the meaning of a statute by getting one word, or even one comma, wrong.

But be careful: Quote only the parts of the statute that are relevant to the case at hand. When discussing key language from a case, it's preferable to quote rather than

paraphrase. For example, when you're using a term of art that is part of the court's analysis in a case, it's better to quote that word or phrase, for much the same reason it's better to quote statutes: the precise language matters, and you don't want to confuse the reader by using words other than the key words the court used. For example, when a court writes, "false imprisonment requires that the restraint be wrongful, improper, or without a claim of reasonable justification, authority or privilege,"1 quote rather than paraphrase that language.

Sometimes language isn't from a statute and isn't necessarily key language, but

is such apt or memorable language that it would be difficult to improve on. Here, the original, "only a soothsayer could have known with any certainty,"2 sounds better than the paraphrase, "No one could have foreseen…." In such cases, go ahead and quote the original.

∗ Diane Kraft is an assistant professor of Legal Research and Writing at the University of Kentucky College of Law 1 Banks v. Frisch, 39 S.W.3d 474, 479 (Ky. App. 2001). 2 United States v. Bruno, 383 F.3d 65, 78 (2d Cir. 2004), quoted in Ross Guberman, Point Made: How to Write Like the Nation's Top Advocates 139 (2011) (Guberman uses the quote as an example of including short quotations in parentheticals).

17

26

But be careful: Use quotes sparingly, and use long block quotes even more sparingly (readers do not like block quotes, and often skip them). And never use quotations in place of legal analysis.3 When you choose to quote rather than paraphrase, be sure that your quote is accurate. If you need to alter the quote for conciseness or to make it fit grammatically with the rest of the sentence, follow these simple rules:4 Use ellipses to indicate when one or more words within a quotation, such as

citations, have been omitted. For example:

Original: Submission to the mere verbal direction of another, unaccompanied by force or threats of any character, does not constitute false imprisonment. 35 C.J.S. False Imprisonment 11, p. 636. Bare words are insufficient to effect an imprisonment if the person to whom they are spoken is not deprived of freedom of action. Quotation: "Submission to the mere verbal direction of another, unaccompanied by force or threats of any character, does not constitute false imprisonment ... Bare words are insufficient to effect an imprisonment if the person to whom they are spoken is not deprived of freedom of action." 5

Use brackets to indicate when a word has been changed, part of a word has

been omitted, or when one or more letters or punctuation marks have been omitted. For example:

Original: He had met his equal at last.

Quotation: The witness stated that "[h]e had met his equal at last."

Original: We hasten to observe that the able district court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape.

Quotation: " … only a soothsayer could have known with any certainty that [Crawford] would change the legal landscape."6

3 E.g., Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs 26 (2d ed. 2011) (citing a case where attorneys were assessed fees and costs in part for using long block quotations from case law in place of legal analysis). 4 Two excellent sources for a more in-depth look at the rules on proper use of quotations (and much else) are Bryan Garner's The Red Book: A Manual on Legal Style (3d ed. 2013) and Mary Barnard Ray and Jill Ramsfield's Legal Writing: Getting It Right and Getting It Written (5th ed. 2010). 5 United States v. Bruno, 383 F.3d 65, 78 (2d Cir. 2004), quoted in Guberman, supra note 2, at 39. 6 Id.

18

PARAPHRASING Many times, the language you want to use will not be from a statute, will not be key language, and will not be particularly apt or memorable language. In those cases, you should paraphrase the language rather than quote it. Effective paraphrasing is harder than it sounds, which is why writers often rely too heavily on quotes. If the goal is to make your writing and analysis easy for the reader to follow, however, paraphrasing is one of your most important legal writing tools. Keep in mind that paraphrasing is not just replacing a few words here and there with synonyms, deleting some words, and perhaps tweaking the grammar. This, for example, is not a proper paraphrase: Original: Mr. Garamond also testified that Mrs. Byrnes's furniture and most of her other belongings have remained in place in the basement suite during her time away (albeit mostly covered to avoid collecting dust). Mrs. Byrnes had her jewelry and a few other valuables removed from the suite and placed in a safe deposit box. The refrigerator and cupboard have been empty the entire time Byrnes has been in the rehabilitation facility. Improper Paraphrase: Mrs. Byrnes's furniture and most of her other things have remained in the basement suite during her time away. Her jewelry and a few other valuables were removed from the suite and put in a safe deposit box. The refrigerator and cupboard were empty while Byrnes has been in the rehabilitation facility. Instead, effective paraphrasing concisely and accurately restates information in a way that the reader can easily follow. In the process, it may use some of the same words and phrases as the original when no clearer substitute exists and when precision is important (as when restating key facts), but it deletes information that's irrelevant to the analysis, and is not a slave to the language or organization of the original. For example, the following is an effective paraphrase because it conveys concisely and accurately the information relevant to the issue of whether a basement suite is a "dwelling" while retaining only the necessary language from the original. Effective Paraphrase: While Mrs. Byrnes was in the rehabilitation facility, her furniture and most of her belongings remained in the basement. Only her jewelry and a few other valuables, as well as the contents of the refrigerator and cupboard, had been removed. Many writers try to paraphrase while looking at the original text. That technique is a recipe for a poor paraphrase. Instead, a better technique is to read the original passage several times until you are certain you understand what it's saying. Then, cover the passage and either write down or say (and perhaps record with your phone) your paraphrase of the passage. If you know the material well, you'll be able to restate it accurately in your own words.7 Then look at the original to be sure your paraphrase is complete.

7 As Albert Einstein purportedly said, "If you can't explain it simply, you don't understand it well enough."

19

Quoting and paraphrasing are both essential tools for the legal writer. Used properly, they will help your writing to be clear, accurate, and effective.

20

NOTES

21

22