Category: Legal Writing

Bad Writing Kills Client’s Big Dreams

Angry client comes to lawyer. Angry client had big dreams of holding his own outdoor concert series. He thought it would be epic.  And like Wayne Campbell and Roy Kinsella years before him, he believed that if he built it, they would come.  So he set to work building his concert facility. But alas, the cops shut him down over security concerns, thereby dashing his dreams. 

So he did what people do: He went to a lawyer. Lawyer is moved by angry client’s story. “We will draft such a lengthy and powerful complaint that it will force them to relent!” Lawyer says. “Hoorah!” says angry client. Lawyer then grabs his Dictaphone and sets to work spewing forth every lurid detail. Somebody types it up. Who? We don’t know. The lawyer then files it. But alas (yes, a second alas), he either failed to proofread it or was so jacked on Aerosmith tunes that he must have just plain missed all the typos, punctuation and grammatical errors. The defense moves to dismiss—“What does any of this even mean, your Honor…?” 

But of course, district court judges are loath to kill dreams so easily. The judge gives the dreamers a second chance, and then apparently a third chance to amend. But it seems the story was just too good to leave any of it on the cutting room floor—or at least clean up its punctuation and grammatical errors. The district court tossed it. Enough is enough.  

The dreamers were not done—they never are when it comes to litigation.  They appealed to the Seventh Circuit (Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011)).  Surely that court would see the merit in their cause.  But the Seventh Circuit was unmoved.  It affirmed the dismissal; calling the third amended complaint nearly incomprehensible, lacking in punctuation, and riddled with grammatical and syntactical errors.  In the process, the court felt compelled to acknowledge (at n.7) “the unfortunate reality that poor writing occurs too often in our profession[.]” The takeaway: Raise the bar, write well, be thorough yet concise, proofread, and then rock on.

The takeaway: Raise the bar, write well, be concise, proofread, and then rock on.

Put the Glass in Your Reader’s Hand

For those who are old enough (my fellow GenXrs), remember how exciting it was when your teacher rolled the projector into class? Especially if the reel was a big one. The big reel not only meant a longer film, but also increased the odds that the film would jam up in the machine, taking further time away from academic pursuits.  Today, let’s roll out the projector. Short reel. 

It is well known (or should be) that a good writer leads the reader to a conclusion by showing, not telling. As C.S. Lewis explained, “Don’t say it was ‘delightful’; make me say ‘delightful’ when we’ve read the description.”  The clip below, from the TV show The West Wing, is a great example of this.  In the scene, Leo McGarry (played brilliantly by the late great John Spencer) is an alcoholic who had a relapse.  He is about to endure questioning in front of a congressional subcommittee and is explaining his relapse to his attorney.  But instead of writing simple dialogue in which McGarry tells his lawyer, effectively, “I’m an alcoholic and couldn’t help myself,” the writers lead us there by putting the glass in our hands. This is how you show…

Build a Cathedral

Justice Robert Jackson (one of the great justices and writers in Supreme Court history and a former Solicitor General) once gave a parable about three stone masons, each of whom was asked what they were doing. The first answered, “Earning my living”; the second replied, “I am shaping this stone to pattern”; but the third said, “I am building a Cathedral.” Applying the parable to appellate advocates, Justice Jackson explained:

The attitude and preparation of some show that they have no conception of their effort higher than to make a living. Others are dutiful but uninspired in trying to shape their little cases to a winning pattern. But it lifts up the heart of a judge when an advocate stands at the bar who knows that he is building a Cathedral. 

Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 528 (2001) 

Get Your Hands Dirty

“Arguments, like gardens, take work, and a party who hopes to prevail on appeal should be willing to dig in the dirt and not expect that opposing counsel or the court will do that work for them.”  

A.S. v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465. 

Decluttering Citations to Court Documents

You are drafting your opposition memorandum or response brief.  That means directly engaging arguments advanced by the opposing party, which requires you to cite where they made those arguments in their motion.  That citation usually looks something like this:

Plaintiffs next argue that they were entitled to 30 days’ advance written notice and opportunity to cure under Section 3.  See Plaintiffs’ Motion for Summary Judgment at pp. 11-13.  That assertion is false and violates straightforward rules of contract interpretation.

There’s nothing wrong with this citation.  We see it all the time in different forms.  But notice how it slows down the read and clutters up the text.  Now consider the same excerpt with a mid-sentence citation:

Plaintiffs next argue (at 11-13) that they were entitled to 30 days’ advance written notice and opportunity to cure under Section 3.  That assertion is false and violates straightforward rules of contract interpretation. 

This type of citation ensures a much smoother ride and accomplishes the same result.  You can also use it to refer to your own filings, as in a reply:

As we argued in our motion (at 7), Utah case law mandates this result …

Read any sampling of briefs from the top flight appellate attorneys and you will see that this is how they do it. It’s also a preferred citation method in the Solicitor General’s Style Guide. There are, of course, times when a direct, old school citation is needed—such as when citing to multiple different court documents or in multi-party cases to avoid confusion.  You’ll know it when you see it. But most of the time, this should be your go to.  Smooth. Bold. Refreshing.

The Citation Wars: Cleaning up Quotations – Part 3

I wrote in a post back in January 2018 that the Utah Court of Appeals had joined the growing number of courts across the nation using the parenthetical (cleaned up).  In a nutshell, (cleaned up) is used “to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation.”  State v. Cady, 2018 UT App 8, ¶ 9 n.2.  A few months later, as I explained in this post, the Utah Court of Appeals adopted the parenthetical (quotation simplified) in place of (cleaned up).  

The court of appeals explained that (quotation simplified) was now part of its internal style guide.  See State v. Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3.  But Judge Mortensen remained steadfast in using (cleaned up) even after that pronouncement.  See, e.g., Warrick v. Property Reserve, Inc., 2018 UT App 197, ¶¶ 6, 12, 18, and 19 (using (cleaned up)).   

The matter was ripe for the Utah Supreme Court to weigh in.  It now has. And the winner is (cleaned up).  See Salt Lake City v. Kidd, 2019 UT 4, ¶ 14.  

Though I have used (quotation simplified) in briefs to the Utah Court of Appeals, given the widespread use of (cleaned up) and the Utah Supreme Court’s apparent adoption of the parenthetical, it is likely the better choice.  And if you’re still on the fence about whether to use the parenthetical at all, remember that the Bluebook gobbledygook—(citing this) (quoting that) (alternations original) (blah blah blah)—counts against your allotted number of words and lengthens each page of your argument with unnecessary verbiage and clutter.  Get on board.  


Conversing with Lawyers (Who Talk Like They Write): Date Night

Finally, it was Friday night and Betty was thrilled that her husband Don, a senior associate at Mega Firm, would make it home by 7:00 so they could go out to dinner together.  Don finally arrived. They jumped in the Audi and sped off down the street.  “Where should we go?” Don asked.

“You decide.”

“How about Chilis and/or Outback ….” Don responded.  They may drive an Audi, but they still liked the chain restaurants.  But Betty had a bigger problem: Where did Don want to eat?

“So, do you want Chilis or Outback?” she asked for clarification.

“Yeah, Chilis and/or Outback…”

“You want both?”

“I like both.”

“But where do you want to eat?”

“Don’t care.”

“Obviously. Just pick one.”

“I did–”

“You didn’t. You said Chilis ‘and/or’ Outback. That doesn’t make any sense. ‘Or’ would mean one or the other—that you’re fine with either; ‘and’ would mean that you want to go to both and that’s not going to happen.”

“Listen, I write contracts every day using ‘and/or’—it makes perfect sense.  It’s in every form that I’ve read and used in the five years I’ve been at Mega Firm.  Sterling Goodfellow uses it all the time and he’s a senior partner … has a 23,500 square foot log cabin near Bear Lake,” he glanced confidentally at her, then back to the road. “It’s a legal term.”

“It’s stupid. Take me home,” Betty demanded. At this moment she realized that her mom was right.  She should have married Henry, an architect.  He wasn’t afraid of commitment.

Accepting Criticism: The Declaration of Independence

If there was one thing Thomas Jefferson loathed, it was criticism. Thus, he was not at all pleased with the edits forced upon his draft of the Declaration of Independence. In this scene from the excellent HBO series John Adams, we see Franklin and Adams working over Jefferson’s prose.  Franklin’s edits were modest, but included one of the most memorable phrases in the document.  He took Jefferson’s original language, “We hold these truths to be sacred and undeniable,” and changed them to: “We hold these truths to be self-evident.”

As a group, lawyers—litigators in particular—refuse to seek out and accept criticism. That is a mistake. Whether it’s editing a brief for tone and clarity, testing an opening or closing argument, or whatever. Your goal as a lawyer is to persuade. The persuasive impact your work has is solely determined by the reader. Thus, seek out and accept criticism from others. Bring different points of view and experience to your work product. Don’t work in a silo. As we learned from Jefferson’s experience, the result typically ends up better than what you could have done on your own.

(Quotation Simplified)

As I wrote in a post back in January, in State v. Cady, 2018 UT App 8, the Utah Court of Appeals joined the growing number of courts using the parenthetical “(cleaned up)” to “clean up” citations to quoted material. A few months after Cady, in State v. Gonzales-Bejarno, 2018 UT App 60, the court used the parenthetical “quotation simplified” in place of “cleaned up.”  Id. ¶ 12. With a nod to Cady, it noted, “[t]he court’s internal style guide has adopted the parenthetical “quotation simplified” in the spirit of the nascent “cleaned up” parenthetical.” Gonzales-Bejarno, 2018 UT App 60, ¶ 12 n.3.

Since then, the court has been liberal in its use of the parenthetical, as shown in the following cases:

  • Kirkham v. McConkie, 2018 UT App 100
  • State v. Guzman, 2018 UT App 93
  • True v. UDOT, 2018 UT App 86
  • State v. Norton, 2018 UT App 82
  • State v. Brocksmith, 2018 UT App 76
  • State v. Peraza, 2018 UT App 68
  • Pulham v. Kirsling, 2018 UT App 65
  • State v. York, 2018 UT App 90
  • Gerwe v. Gerwe, 2018 UT App 75
  • State v. Whitbeck, 2018 UT App 88
  • Palmer v. St. George City Council, 2018 UT App 94
  • NPEC LLC v. Miller, 2018 UT App 85
  • Berrett v. State, 2018 UT App 55
  • State v. Becker, 2018 UT App 81
  • Blackhawk Townhouses Owners Ass’n v. J.S., 2018 UT App 56
  • Munoz-Madrid v. Carlos-Moran, 2018 UT App 95
  • State v. Rinehart, 2018 UT App 87
  • State v. Mooers, 2018 UT App 74
  • Basin Auto Paint Specialists Inc. v. Ultimate Autobody & Accessories LLC, 2018 UT App 72
  • Boyle v. Clyde Snow & Sessions PC, 2018 UT App 69

So even as “cleaned up” grows in popularity with courts across the country, “quotation simplified” has become the parenthetical of choice in the Utah Court of Appeals for cleaning up quotations.

The Tenth Rule

The great Elmore Leonard’s Tenth Rule of Writing should be every lawyer’s first: “Try to leave out the part that readers tend to skip.”