On CNN, John King just said, “Obama’s position isn’t without support…” Why not just say, “Obama’s position has support too”?
Another Successful CLE on Legal Writing
January 5, 2012
CLEs, Uncategorized, Wisdom from the Bench, Writing for Clarity Leave a comment
Special thanks to Andrea Perry, Nicole James, and Judge Richard Dinkins for the tremendous job they all did to put together “Anatomy of an Appellate Brief” — the December 12th CLE we held in Nashville (sponsored by the Tennessee Alliance for Black Lawyers). I had a blast conducting the session with Judge Dinkins, and I look forward to bringing the program to several more cities in Tennessee!
Even Judges Prefer Plain English…
October 13, 2011
Persuasive Strategy, Uncategorized, Wisdom from the Bench, Writing for Clarity Leave a comment
Check out this article by Sean Flammer, posted in the Michigan Bar Journal in September, 2011 (kudos to John Hightower for sharing this on LinkedIn) …
Now there’s actual research to prove it… Yes, even judges want us to cut the jargon and just speak plainly.
The Case for the Serial Comma
September 13, 2011
Grammar and Mechanics, Punctuation, Uncategorized, Wisdom from the Bench Leave a comment
I am a HUGE fan of the serial comma in most instances (especially in legal writing). In this article, Susan Hankin at the University of Maryland Law School uses the reasoning of New York’s People v. Walsh to make a solid case for keeping that critical comma. More importantly, her article makes the general case for paying attention to grammar in legal writing. Kudos to John Hightower for posting this article on LinkedIn.
Latest Musings of Miffed Courts
April 20, 2011
Uncategorized, Wisdom from the Bench Leave a comment
If your tribunal has no idea what you’re saying, then it’s safe to assume you’ve gotten off on the wrong foot.
Plaintiff claims that the ALJ’s decision should be reversed, but his brief, which was prepared by counsel, is so poorly drafted that it is difficult to identify the arguments he is making in support of that conclusion. Encarnacion v. Astrue 2009 WL 2842737, 11 -12 (S.D.N.Y.,2009)
See a trend here? The worst way to set up oral argument is to leave the Courts at a loss to know what your argument will be. This Georgia court not only blasted the plaintiff, but praised the much better prepared defense.
Proper review of this Motion has been complicated by the inadequacy of Plaintiff’s response. Plaintiff’s brief (Doc. 46) is poorly drafted, and it is difficult to discern the outline of her argument within its text. Plaintiff’s evidentiary support for her claims is similarly lacking. Defendant, meanwhile, has submitted a substantial body of evidentiary materials to support its Motion, in the form of affidavits, documents, and the deposition of the Plaintiff. Welch v. Mercer University 2008 WL 1990336, 2 (M.D.Ga.,2008)
New Rule #5
April 20, 2011
New Rules!, Uncategorized Leave a comment
Hey all you Tennessee medical negligence lawyers (yes, both sides):
New rule. If you’re drafting your expert’s affidavit, don’t start until you’ve read Kennard v. Townsend at least thirty-eight times in four languages, and don’t stop until you’ve highlighted every possible medically-relevant similarity between your city and your expert’s. Also, find a way to get your expert challenges out of the way long before your designation deadline (I know … next to impossible) so you’ll have time to hire a new expert when you get kicked out of court.
Or if you’d like to skip the scary stuff altogether, just hire an expert from the same city where your case arose (I know … next to impossible).
The TN Locality Rule: A False Promise?
April 20, 2011
Uncategorized, Wisdom from the Bench, Writing for Clarity Leave a comment
Tennessee MedMal lawyers: It might be a good idea to just get home-grown experts from now on.
Kennard v. Townsend is the most recent of several COA cases on the so-called “locality rule.” Like most of its predecessors, Kennard assures us (scout’s honor!) that out-of-town experts are perfectly fine, as long as they are familiar with medical standards in a city that is similar to yours. This similarity is shown (theoretically) by “information such as the size of the community, the existence or non-existence of teaching hospitals in the community and the location of the community.” Kennard v. Townsend (No. W2010–00461–COA–R3CV), 2011 WL 1434625, at *2 (Tenn. Ct. App. April 14, 2011). Of course, that’s a non-exhaustive list; but at least in theory, area demographic stats are a solid start to establishing the required community similarity.
But how does this play out in the courts? Cases where out-of-state experts get the court’s approval are becoming more and more rare. Kennard draws some fair distinctions between Memphis, TN and Springfield, MO (the most prominent being population). But some cases have even refused to equate Memphis with Nashville. Ouch!
So, heads up, MedMal lawyers on both sides of the “V” … Is this the dawn of an era where the only real safety zone is hiring an expert from the same city where your case arose? And all that jazz about similar cities with similar populations and similar hospitals — all that case law swearing you don’t need equal populations or even first-hand knowledge — what about all that? Does the wide open abuse of discretion standard pretty much toss those promises right out the window?
Here’s Kennard if you’re interested. Whether you like the holding or not, it gives a very comprehensive survey of the state of the Tennessee courts on the locality rule. Legal writers (and more specifically, folks prepping an expert or drafting an expert’s affidavit) must walk a very fine line and be super-precise and extra-detailed, or else they risk finding themselves without an expert on the eve of trial.
Even Tough Cases Can Be Won with Good Writing
March 20, 2011
Persuasive Strategy, Uncategorized, Writing for Clarity 1 Comment
A few months ago, I wrote appeal for a lawyer representing an undocumented alien in a personal injury case. They were kicked out of court on Rule 56 & Rule 41 after it came to light that (unbeknown even to his own lawyer) the plaintiff had been using an alias. The entire case had been prosecuted under this alias to that point. The attorney did what he could to correct the record, but after a bit of procedural gymnastics by the court, the case was dismissed. Just found out that based on the appellate brief I wrote and the attorney’s oral argument, the appellate court revered the dismissal and remanded the case. We’re back in business!
Moral of the story: I don’t condone this plaintiff’s use of an alias or his failure to disclose that fact to his own attorney. However, I think our strategy of being honest and straightforward about these circumstances weighed heavily in our ultimate victory at the appellate level. I would advise attorneys not to minimize, ignore, or attempt to justify what may be perceived as bad acts by their clients. Instead, face them head on and deal with them in earnest through whatever legitimate legal means are available, and let the chips fall where they may.
The Ever-Troublesome Semicolon …
March 19, 2011
Grammar and Mechanics, Punctuation, Uncategorized 4 Comments
Some people think the semicolon is a redundant punctuation mark, since it technically functions in nearly the same manner as a period (with the exception of its use to separate items in a complex series). I personally like semicolons, and I do use them — but only in the very narrow circumstances where it’s appropriate. But if the British Royal Family can’t figure out how to properly use a semicolon, then maybe it’s safer to just stick with periods. This photo was taken at historic Kensington Palace in London a few days ago:
Royal Family Botches Use of Semicolon
Why is this semicolon misused? Semicolons separate closely-related independent clauses (complete sentences) only. “[E]vents that have shaped the society we live in today” is not a complete sentence. Most grammarians would replace this semicolon with a comma; but I personally would replace it with an em dash (long hyphen). (Sorry — had to throw in a shamelessly conspicuous semicolon somewhere in this post.)
Be Careful How You Move…
February 19, 2011
Uncategorized, Wisdom from the Bench Leave a comment
Getting slammed with seemingly frivolous “form motions”? Or are you the one obsessively filing them? Here’s a not-so-subtle smack-down from Tennessee’s Court of Criminal Appeals …
Counsel also claims that his repeated motions to recuse — footnoted in every recent motion he has filed — result from his fear of waiving the issue. Given counsel’s legal experience and expertise, we view this claim to be disingenuous. Rather, we believe repetitive, rote filings of the same motion for the purpose of guarding generally against waiver border on abdication of responsibility to use professional judgment. Prolific motion practice may be justified through zealous advocacy, but such does not justify repeated motions that are wholly unnecessary when given a modicum of reasonable thought. Counsel needs to give all his assertions in his pleadings his highly capable considered judgment, not boilerplate treatment.
State v. Huskey 82 S.W.3d 297, 313 (Tenn. Crim. App. 2002)
