Please take notice and refer to me as Ishmael (hereinafter “Ishmael,” “I” or “me”). On or about approximately some years ago, having approximately little to no ($0) monies on my person, moreover, having nothing of interest to me on that certain real property which was then my place of abode, I determined to leave said real property for the adjacent waters (hereinafter “the Ocean” or “Sea”) which I decided to explore via a large floating vessel (hereinafter the “Ship”). This idea arose as a proximate cause of the anger that had been arising from my time on said real property. Indeed, whenever I start feeling the corners of my mouth start to project themselves downward. Furthermore, whenever there is rain and the sky is gray proximately causing my mood to feel the same. Moreover, whenever I find that I have stopped involuntarily in front of various structures wherein caskets are manufactured and stored. Indeed, whenever I end up at the end of every funeral procession that I come upon whereupon I become clinically depressed and contemplate taking my life by stepping into oncoming traffic. Or, on the other hand, becoming so angry that I determine to commit assault and battery by removing the hats off other person(s) heads. I think about going to the Seas as soon as practicable. Said Ship is my alternative to a pistol and a ball. Marcus Porcius Cato Uticensis (hereinafter “Cato”) has a tendency to “fall upon his sword” with various philosophical statements. Whereas I quietly take to the Ship, which is not surprising. Most men at various times do the same thing. That is, they have the same feelings as I do towards the Oceans.
Ancient Relics
Tuesday night, April 3, 2018. Attorney Duncan Winston just returned home from the gym. He tossed his gym bag on the floor, frustrated that once again he could find no takers for a game of Jai alaia. Maybe it was for the best, he had work to do. Before sitting down at the desk in his study, he went through his usual routine. First, he took his phone off the hook. Next, he switched on his television for a little background noise. He turned the knob through all four stations. But even after fidgeting with the rabbit ear antenna, and caking it with more foil, he just couldn’t get a clear enough reception. No matter. He grabbed a mixed tape and popped it in his boombox. (He would have turned on a movie but his Betamax was broken.) After hearing the hard slam signaling that the cassette was rewound, he pushed play and moved to his desk. Next, he ensured he had sufficient reams of paper lined up in his dot matrix printer. (That paper was hard to come by these days.) He then sat down at his desk and fired up his Commodore 64. As he waited for the system to boot up, he reached for his copy of Blackstone and cracked it open. The musty smell of the parchment was familiar, like an old friend. Time to get to work. There was no doubt how he would start this motion—the same he way he had started every motion, pleading, and filing since he began practicing law:
COMES NOW the Plaintiff, Southwestern Utah Red Rock Appliance Wholesale, Inc., a Utah corporation (hereinafter “SWURRAW”), by and through its undersigned counsel, Duncan G. Winston, Esq., and hereby ….
How to Lawyer Up (and Kill) Good Writing
It is often said that effective writing does not tell, it shows. Justice Thomas’s recent opinion in District of Columbia v. Wesby, No. 15–1485, slip op. (Jan. 22, 2018), does exactly that. It puts you at the scene with the officers during those early morning hours. You can visualize the house, the filth on the floor, the partygoers scampering about the place. You can hear the commotion and whispers. You can see the officers standing there questioning two of the partygoers in an effort to track down a woman known only as “Peaches” — “She did not know Peaches’ real name. And Peaches was not there.” Wesby, slip op. at 3. Golden.
Unfortunately, most legal writing is nothing like this. All too often lawyers employ a lazy and mechanical approach to drafting facts. Fact and background sections of briefs plod along as if the writer could care less about the only person who matters, the reader. Most legal writing is lawyered up with these common tools of the legal writing trade:
- Define as many terms as you can to avoid confusing the reader—even where the term is obvious. If you have at least five or more parentheses that begin with “hereinafter” followed by a capitalized term, you’re in the kill zone.
- Replace names with acronyms wherever possible because everybody likes the challenge of trying to remember what those acronyms stand for.
- Even if dates are not relevant, include as many as you can to keep readers on their toes, thinking they must remember those dates as having some critical importance to the case.
- And because every reader loves to solve math problems, never express time in terms of time, stick with dates instead. And always express each date fully by month, day, and year, e.g., “On or about March 1, 2016. Then, on or about March 3, 2016 ….” That’s much better than “two days later” or a “few days later.”
- Follow every number with the same number in parenthesis to avoid any confusion that you meant what you said, e.g., “the sixteen (16) plaintiffs sued the five (5) police officers.”
- Whenever you can, make your prose as long as possible to show intellectual force. So instead of, “In the living room, the officers found a makeshift strip club.” Wesby, slip op. at 2. Try, “As the officers entered into the living room area of the house, they observed approximately two (2) to four (4) women who appeared to be in the process of removing their clothes in front of other persons who had either previously provided compensation for such removal or appeared to be prepared to provide compensation for the same.”
- The terms “same” and “such” move you into the kill zone. Treat the same as such.
- Try using common and boring language to avoid startling your reader. So instead of, “The officers found more debauchery upstairs.” Wesby, slip op. at 2. Try, “The officers happened upon further and additional questionable moral activities when they entered the upstairs floor of the house.”
- Do not edit. You worked hard on that first draft so make your reader labor just as hard to read it. Besides, you want to give your reader a feeling of accomplishment upon reaching the end.
If you want to kill good writing, that is how you do it. Fortunately for those of us trying to understand why the officers had probable cause to arrest the partygoers, the Wesby opinion employs none of these tools.
The Meet and Confer
Walt sat down at his desk and began skimming through the opposition’s responses to his discovery. The more he read, the angrier he became. “Objection …. Objection… Objection …” Before the responses could hit the floor, he was hammering away on an email:
Re: meet and confer
Gustavo:
This email serves as my effort to meet and confer under the rules. I have received and reviewed your objections to my discovery. They are without merit and frivolous. Please respond by providing all documents and interrogatory answers by tomorrow by 3:52 p.m. or I will file a motion to compel. Thanks.
Walt
Moments later, Gus glanced at his iPhone and looked to clear that annoying red badge in the corner of his email app icon. Walt’s “meet and confer” email was not well received. Gus was quick to respond:
I got your email. My objections were proper. It is your discovery requests that were frivolous. And if you remember, in Utah it’s no longer called a motion to compel, it’s called a statement of discovery issues. See you in court. Gus
Sent from my iPhone
After this brief exchange, can Walt properly certify that he conferred in good faith with opposing counsel? Surely not. To meet and confer in good faith takes more. Under Utah’s federal local rules it requires, “[a]t a minimum, … prompt written communication sent to the opposing party: Continue reading The Meet and Confer
Conversing with Lawyers (If They Talked Like They Wrote): A Post-Game Discussion
Ted and John each just finished a long day’s work, Ted with the parks department and John as an economist at a regional bank. They meet at the local pub and grill. After exchanging fist-bumps, they take their seats at the bar. “Barkeep,” John said, two fingers in the air. The bartender knew what that meant. John and Ted are regulars. They launch into conversation, oblivious to the fact that lurking two stools down is Sterling Augustus Goodfellow III, Attorney at Law.
“Did you see the game last night?” Ted asked enthusiastically.
“That was unbelievable, to throw on fourth-and-goal from the one …” John replied, shaking his head as he brought his beverage up for a quick sip.
Goodfellow, always interested in the conversation of common-folk, couldn’t help himself. “Comes now Sterling A. Goodfellow the third, by and through himself,” he slipped off his seat and started over to them. “Are you two discussing the football contest held on or about September 8, 2017, between the New England Patriots, a National Football League club, hereinafter [air quotes] ‘N-E-P’ and the Kansas City Chiefs, a National Football League club, hereinafter [air quotes] ‘K-C-C’?”
They both turned their heads towards Goodfellow as he moved to the empty stool next to John. Was this guy serious?
“Yeah,” John responded, careful not to make eye contact. “The Patriots/Chiefs game last night.” His tone left no doubt that he was irritated by the invasion of this stranger with his mismatched shirt and tie ensemble.
After panning the area for a hidden camera, Ted simply ignored Goodfellow and turned back to his discussion with John, “One of those teams has a chance to play in the Super Bowl this year,”
“The Patriots, maybe … but the Chiefs, not a chance,” John responded.
Goodfellow wanted in. “I believe that N-E-P and K-C-C both have a decent opportunity to qualify for said game.”
John and Ted looked at each other, then to Goodfellow. “What did you just say?” Ted asked in a slow, measured tone.
Goodfellow could hardly believe the question. He slowed his speech for the common-folk, “I said that both N-E-P and K-C-C, collectively [air quotes] ‘The Teams,’ have an opportunity to qualify for said game mentioned hereinbefore.”
As he brought up his mug, John shook Ted off with a quick glance—he was not to further engage. Ted got his message, but didn’t care. He turned to face Goodfellow: “You mean that both the Patriots and Chiefs have a chance to make it to the Super Bowl this year … is that what you’re telling us? Because they can’t both make it, they’re in the same conference.”
“There is not another game mentioned hereinbefore, is there?” Goodfellow responded. “And by [air quotes] ‘The Teams,’ I did not mean to suggest or imply that both of them would qualify for said game at once, but clearly that The Teams both have an opportunity to qualify for said game, meaning one team or the other—in the disjunctive sense, not the conjunctive. In other words, N-E-P or K-C-C both have a chance to represent the American Football Conference, hereinafter [air quotes] ‘A-F-C,’ against the victor of the National Football Conference, hereinafter [air quotes] ‘N-F-C,’ in the game that is typically held on or about the last week of January or first week of February commonly known as the [air quotes] ‘Super Bowl…Of course, if they won the A-F-C, K-C-C or N-E-P would likely have to play against G-B-P.’”
Ted stared with a blank look on his face. But John had it figured out, “You some kinda lawyer?”
Editing Your Own Work
It’s after hours. You just finished drafting your brief and you’re feeling pretty good about it. You’ve read it numerous times, caught a few typos and errors, and cut out some of the fat. But you’ve lived with this thing for too long. You need a fresh pair of eyes on it because we all know that after that many times reading the same thing your brain sees what it expects to see. And besides, you still need to cut a few paragraphs to comply with the rules. So you wander the halls of your office to find someone to put eyes on this thing. But alas, your colleagues don’t share the same commitment to work (or skill at procrastination) that you do and have long since left for home. Pop quiz, hot shot: What do you do now?
Go back to your office and change the font of your brief to something different than Times New Roman (or whatever you’re using): try Courier or Palatino Linotype. Then print it out and read it again. Yes, print it. Don’t review on the screen. This is like putting a fresh pair of eyes on the text. It slows down your review, you see things you missed before and end up quickly spotting and cutting the expendable. Make your revisions, convert back to standard font, good to go.
(Cleaned up) Lands in Utah
How do you reduce word counts, remove extraneous information, and declutter your briefs? Simple. Clean up your parentheticals with (cleaned up).
On January 11, 2018, the Utah Court of Appeals issued State v. Cady, 2018 UT App 8, and in the process joined the growing number of courts climbing on-board the (cleaned up) citation movement. See State v. Cady, 2018 UT App 8, ¶ 10. At paragraph 10 of its opinion, the court quoted from the Utah Supreme Court’s opinion in State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719. The quote in the Bagnes opinion was this:
we may reverse only when “it is apparent that there is not sufficient competent evidence as to each element of the crime charged.” State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985 (internal quotation marks omitted). Our review of the evidence itself is deferential. See State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993). We may reverse a verdict ―only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that defendant committed the crime for which he or she was convicted.” Id.
So normally, your citation would look something like this: State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (quoting State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985 (internal quotation marks omitted) (quoting State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993)).
Employing the (cleaned up) citation method, the quotation and accompanying citation in Cady became this:
we may reverse only when it is apparent that there is not sufficient competent evidence as to each element of the crime charged. Our review of the evidence itself is deferential. We may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that [the] defendant committed the crime for which he or she was convicted.
State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (cleaned up)