Another CLE from QPL!

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Looks like I’ll be teaching another CLE on legal writing with the Tennessee Bar Association! Hope to see some of you join us on Monday, June 26th, at the Tennessee Bar Center in Nashville. It’s a full day of legal writing seminars, and I’m teaching the last two segments. One is on counterarguments, and the other is on proofreading and polishing. The TBA has wrapped the whole thing in a Minecraft theme, so this should be interesting! ūüôā


The Dunning-Kruger Lawyer

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I recently ran across more awesomeness from Bryan Garner.¬†(Sorry if you’re over the Garner craze.¬†I’m a fan, even though I don’t always agree with him.)¬†Dunning-Kruger debilitates many professions, but I’d have to agree with Garner that we lawyers are all but intellectually paralyzed by it. In pondering¬†“Why Lawyers Can’t Write” back in March of 2013 for the ABA Journal, Garner noted: More

Citation Hot Potato


Where, oh where, should my citations go? ¬†Just read another article by Bryan Garner arguing that citations should be relegated to footnotes rather than cluttering up a legal brief. ¬†He’s been pushing for the switch to footnotes for quite a while now. ¬†And as usual, his arguments make perfect sense. ¬†Take this comparison, for example:

In your legal work, I’m sure you often have to make sense of something like this:

‚ÄúOur opinions in¬†Hughes Aircraft Co. v. United States, 86 F.3d 1566, 39 USPQ2d 1065 (Fed. Cir. 1996) (Hughes XIII) and¬†Hughes Aircraft Co. v. United States, 140 F.3d 1470, 46 USPQ2d 1285 (Fed. Cir. 1998) (Hughes XV) do not lead to a different result.¬†Hughes XIII¬†explicitly held that¬†Hughes Aircraft Co. v. United States, 717 F.2d 1351, 219 USPQ 473 (Fed. Cir. 1983) (Hughes VII) was entirely consistent with our intervening en banc decision in¬†Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931, 4 USPQ2d 1737 (Fed. Cir. 1987).¬†Hughes XV¬†held that¬†Warner-Jenkinson¬†provides no basis to alter the decision in¬†Hughes VII because the court properly applied the all-elements rule. 140 F.3d at 1475, 46 USPQ2d at 1289. In neither case was there controlling authority that in the interim had made a contrary decision of law applicable to the relevant issue.‚ÄĚ

You have to make sense of this because your client is depending on it. That task becomes significantly easier when the passage is shorn of the citations:

‚ÄúOur opinions in¬†Hughes XIII¬Ļ and¬†Hughes XV¬≤ do not lead to a different result.¬†Hughes XIII¬†explicitly held that¬†Hughes VII¬≥ was entirely consistent with our intervening en banc decision in¬†Pennwalt v. Durand-Wayland.‚Āī And¬†Hughes XV¬†held that¬†Warner-Jenkinson¬†provides no basis to alter the decision in Hughes VII¬†because the court properly applied the all-elements rule.‚ĀĶ In neither case was there controlling authority that in the interim had made a contrary decision.‚ÄĚ

I must admit, I am torn on this issue. ¬†I always hesitate to disagree with someone like Bryan Garner, but I also¬†think sometimes citations become the scapegoat for other writing missteps. ¬†So, in the example above, what if we introduced the cases and assigned simpler reference labels first, rather than trying to do all that while simultaneously embedding the long citations in prepositional phrases and compound sentence clauses and whatnot? ¬†What if we rid ourselves of redundant parallel citations? ¬†How about trading marathon sentences for shorter, crisper points? ¬†Can we ditch a few empty adverbs and abstract nouns? ¬†Maybe trade them in for more action verbs? ¬†Convert the roman numerals to Arabic numbers, perhaps? ¬†Get rid of some double negatives and ambiguous pronouns? ¬†That way Mr. Garner’s example becomes something like this (the opening sentence is added for a bit of context):

The law of this case is no longer binding, because controlling authority has shifted in the interim. That distinguishes the present case from the two leading decisions where the law of the case doctrine prevailed. The first is Hughes¬†Aircraft Co. v. United States, 86 F.3d 1566 (Fed. Cir. 1996)¬†(“Hughes¬†13″). The second is Hughes Aircraft Co. v. United States, 140 F.3d 1470, (Fed. Cir. 1998)¬†(“Hughes¬†15″). ¬†Hughes 13 preserved the law of the case because its earlier rulings were “entirely consistent with¬†Pennwalt” and other intervening decisions. ¬†Hughes 13¬†¬†at 1576.¬Ļ¬† Hughes 15 likewise had “no reason to depart from” the law of the case because it, too, had “satisfie[d] the¬†… rule as stated in [the intervening case of]¬†Warner-Jenkinson.” ¬†Hughes 15 at 1475.¬≤ ¬†Since neither Hughes 13 nor¬†Hughes 15¬†had occasion to reconcile the law of the case with any subsequent contrary authority, those precedents have no bearing on the issue at bar.

FN1.  Revisiting Hughes Aircraft Co. v. United States, 717 F.2d 1351 (Fed. Cir. 1983) (Hughes 7) in light of Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931 (Fed. Cir. 1987).

FN2. ¬†Revisiting¬†Hughes 7 in light of¬†Warner‚ÄďJenkinson Co. v. Hilton Davis Chemical Co.,¬†520 U.S. 17 (1997).

Well, what do you think? ¬†Is Door #3 available? ¬†It does use embedded citations, because that keeps the reader’s head from bobbing to and from the footer every four seconds to verify statements made in the text (which can be just as distracting as long citations). ¬†It also uses some footnotes¬†‚ÄĒ¬†but only sparingly, and only for ancillary information. ¬†It jettisons the extra-lawyery mumbo-jumbo and cuts to the chase. ¬†My goal was to trim the fat and keep the meat, so to speak. ¬†Is this version easier to read, or harder? ¬†Does it make sense, or have I distorted what the court was trying to say? ¬†If anyone’s interested in the original case where Mr. Garner found this excerpt, you can read the full opinion here.

TABL Law Students Conference

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The Tennessee Alliance for Black Lawyers is preparing for its 2014 Law Students Conference in Nashville, and I’ll be there giving another seminar on legal research and writing! Can’t wait to work with all the great students again this year! Save the date: March 21-22… Details to come!

Pleaded or Pled?


For those of you who need a reprieve from the Manti Te’o dramas, I found this timely article on the ABA website. I vote for “pleaded.” What do you think: “pleaded” of “pled”?

How many negatives make a positive?

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Here’s a reiteration of my “one negative (if any)” quota.¬† This sentence reverses itself so much that at the end of the day I have no idea who did what.

The employer contests the plaintiff’s denial that the appellate court erred by reversing the trial court’s conclusion that the plaintiff had not sufficiently pleaded his vicarious liability claim.

Huh?¬† Seriously, doesn’t this end up being more like an extended algebra equation than a statement of the case’s procedural posture?¬† And this — dare I say it — came from a judge’s opinion (names were changed to protect the guilty). ¬† To all the esquires — and, yes, Your Honors too: do the plain folk a huge favor and quit with the multiple negatives, already.¬† It’s terribly confusing.

Always use the serial comma. Always.


There are exceptions to every rule … except this one.¬† Sorry, journalists.¬† You’re just wrong for omitting the serial comma.¬† Dead wrong.

We are no longer living in the age where every character costs money.¬† We no longer have to compromise clarity for the sake of reigning in overhead.¬† That extra comma is now free.¬† It’s easy to type, it takes up almost zero space, and it increases the clarity of your series by leaps and bounds. The omission of the serial comma (or Oxford comma) originated back in times when printers used movable type — characters that were literally movable blocks.¬† Imagine if instead of a keyboard, you had to type with dozens of ink stamps — each character on a separate stamp.¬† Well, if each stamp cost money, and adding one comma meant you had to physically shift over every stamp after it, well yeah, you might just omit it and live with the loss of readability, however slight or great (Law professor Stephen Bainbridge calls it a “throwback” to the old days of manual typesetting).¬† But this is the age of technology, and adding a comma is a snap … and a free snap, at that.¬† So …. add it, please.¬† Your readers will be forever grateful.

Consider these examples with no serial comma:

Jack, Tom and Jerry are coming.

Who’s coming exactly?¬† Are we telling Jack that Tom and Jerry are coming?¬† Or are all three coming?¬† With the serial comma, it becomes, “Jack, Tom, and Jerry are coming” (all three of them) — and all is well in Camelot.¬† How about when we get into complex series …

I’ve lived in Memphis, Tennessee; Cairo, Egypt and Paris, France.

Ok, so I suppose you could figure out what this means by context clues.¬† But why force your readers to work harder than they have to?¬† It’s much, much simpler to add the final serial comma before the “and” (or semi-colon in the case of a complex series) and call it a day: “I’ve lived in Memphis, Tennessee; Cairo, Egypt; and Paris, France.”

Here’s one from a motion I was hired to write a response to:

‚Äú…None saw, was in a position to see or encountered any misconduct‚ÄĚ and ‚Äúnone can speak as to the incident which precipitated his arrest.‚ÄĚ

Woe is me.  Comma advocates, unite!  This sentence has potentially jeopardized its substantive content for the sake of sparing a serial comma (and another one that should separate the two independent clauses).  Now, let me warn that most lawyers actually overuse commas in most instances.  But for some reason the serial comma is lost on us.

Perhaps this sentence would have been clearer if written this way — each item in the series clearly delineated, and all verbs parallel (also, avoid funky subject pronouns like “none” … who but grammar nerds can really confidently conjugate a verb with a subject like “none”?):

‚Äú…No one was in a position to see, no one saw, and no one personally encountered any misconduct.¬† Thus, the defendants cannot speak as to the incident which precipitated his arrest.‚ÄĚ

How ’bout it, crack scribes?¬† Any suggestions for a better re-write?¬† Anyone care to disagree with me that serial commas add clarity?

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