hon. gerald lebovits new york state bar association march

3/6/2015

1

Hon. Gerald LebovitsNew York State Bar

AssociationMarch 18, 2015

3/6/2015

2

Justice William Brennan

Why is Legal Writing So Difficult?

• No defense to poor legal writing.

3/6/2015

3


• Poor role models.

Chief Judge Benjamin Nathan Cardozo

3/6/2015

4

The Goal

• Know your audience.• Know the purpose of your document.• Twin pillars: (1) make the court want to rule for

you and (2) make it easy for the court to rule for you.

• Write for judges, not like judges.

3/6/2015

5


• Linguistic roots.


• Sociological roots. • As Bismark said: “If you like law or sausages . . .

.”

3/6/2015

6


• Language of the law.


• History.

3/6/2015

7

Plain English • Legalisms:

Harder to quit than smoking.• What word can you remove?

“I enclose herewith a copy of my brief.”“I enclose herewith a copy of my brief.”

• Archaic expressions.• Foreign words (Latin, French, etc.).• Sesquipedality.• Count syllables.• Don’t write it if you wouldn’t say it (“prior to,” “said,” “such”).• But be formal: No clichés, colloquialisms, jargon, or

contractions.• Write for an eighth grader.

Plain English

• Undefined and excessive abbreviations and acronyms.

• The Plaintiff demanded ten dollars ($10.00) in Small Claims Court.

• The Defendant (the “Defendant”), Mr. Smith (“Mr. Smith”), filed a motion (the “Motion”).

• Excessive uppercasing: “The Lawyer filed a Summary Judgment Motion in Court.”

3/6/2015

8

Flesh-Kincaid on WordPerfectReadability statistics

• Tools.• Grammatik.• Options.• Analysis.• Readability.

Flesh-Kincaid on WordReadability statistics

• Word 2003-2007:• Tools; Spelling and Grammar; Options; Show

readability statistics.• Word 2010:• Click “Microsoft Office Button.” Then “Word

Options.” Then “Proofing.”• Select “Check grammar with spelling.”• Under “When correcting grammar in Word,”

select “Show readability statistics.” Select “OK.” Hit F7.

3/6/2015

9

CRARC Method

Conclusion on the issue.

Rule, supported by authority.

Application of law to fact.

Rebuttal and refutation.

Conclusion stating relief you seek.

Controversies

3/6/2015

10

Controversies: Serial Comma

• Yesterday, the New York City Police Department arrested five criminals three burglars and two robbers. How many criminals did the New York City Police Department arrest?


• Yesterday, the New York City Police Department arrested five criminals: three burglars and two robbers. How many criminals did the New York City Police Department arrest?

• = five

3/6/2015

11


• Yesterday, the New York City Police Department arrested five criminals, three burglars, and two robbers. How many criminals did the New York City Police Department arrest?

• = ten

Controversies: Hyphens

• In my pocket are ten dollar bills. How much money do I have?

3/6/2015

12

Controversies: Hyphens

• Small claims arbitrator.• Small-claims arbitrator.

• Real estate agent.• Real-estate agent.

• Criminal justice system.• Criminal-justice system.

Controversies

• Prepositions. • Split infinitives.• That/Which.• Innie or Outie?• Beginning sentences with “And” or “But.”• The conjunctive adverb.• Sentences. • Paragraphs. • Footnotes and endnotes.

3/6/2015

13

Persuasive-Writing Style

• Write concretely: Show, don’t tell.

Benjamin FranklinKing Solomon

Persuasive Writing

• Not law school.• Not law review.• Not moot court. • Not history.• Not mystery.

3/6/2015

14

Persuasive-Writing Tips

• Understate.• Stress arguments, not citations. • Visuals: Photographs, bullets point, charts, CD-ROMs,

photocopy cases. • Bold, italics, underlining, quotation marks, question marks

(rhetorical questions), exclamation points, capitals.• Emphasize and de-emphasize with sentence structure and

sentence length.• Adjectives, adverbs, nouns, verbs.• Punctuation.• Parentheticals. • Direct mail solicitations.

The Passive Voice

• Single Passive.• Double Passive.

3/6/2015

15

The Passive Voice

President Richard M. Nixon

3/6/2015

16

E-Filing and E-Documents

• New York State Courts Electronic Filing System (NYSCEF).

• Court requires PDFs due to the security needs of legal documents.

• Tips: hyperlink, CD ROMs, enable skimming, omit needless words, make it simple, use lots of white space, put the most important content at the top left of the page.

Myths About Legal Writing

• Start early.• Edit late.• Revise.• Knowing everything before you start.• Writer’s block.• Take breaks.• Write in a comfortable setting.

3/6/2015

17

Revision Tips

• Novices focus on words choice only.• Write for the reader, not yourself.• Write for the ear, not for the eye.• Improve macro-organization: each paragraph must

develop one point only. • Improve your large and small-scale organization:

order of paragraphs and sections. • Edit on hard copy, not on computer. • Read out loud, backward. • Use an editor.• Do C&S work-up.• Spell checker, grammar checker, Bluebook checker.

Ethics of Writing Persuasively

• Exaggeration.• Emotional writing. • Pinpoint citations.

Smith v Jones, 99 AD3d 100, 101(1st Dept 2011), lv denied 91 NY3d103 (2012). Or (Smith v Jones, 99AD3d 100, 101 [1st Dept 2011], lvdenied 91 NY3d 103 [2012]).

• Cite what you use. Use what you cite. • Dealing with the Rambo adversary.

3/6/2015

18

Organization

• Say it once, all in one place.• Thesis paragraphs: the roadmap. • Topic and thesis sentences.• Use headings and subheadings.

Citing

• Bluebook: Nineteenth edition.• Right for federal, multi-state, and

international sources and for law-journal editors and readers.

• Wrong for lawyers who write to orfor New York State courts.

3/6/2015

19

Citing

• ALWD.

Citing

• Tanbook: 2012.OFFICIAL EDITIONNew York Law Reports Style ManualPrepared by the New York State Law Reporting Bureau.http://www.courts.state.ny.us/reporter/new_styman.htm

3/6/2015

20

Citing

• Limit string citing to three cases except when you must document the sources necessary to understand authority or a split in authority.

• Cite only to apply rules to facts or to distinguish.• Citing well makes you credible.• Use pinpoint citations.• Never cite headnotes or syllabuses.

Citing• Signals:• No signal (direct support).• “Contra” (direct contradiction).• “Cf.” if your citation supports your proposition by analogy.• “See” if your citation supports your proposition indirectly or

by inference.• “But see” if your citation contradicts your proposition

indirectly or by inference.• “E.g.” if your citation gives one or more examples to support

your proposition directly.• “Id.” and “see id.” as short-form citations that refer

unambiguously to a single, immediately preceding citation.

3/6/2015

21

Quoting • “Quote me as saying I was misquoted.” Groucho

Marx.• Block quotations.• Lead-ins.• Alterations [ ].• Omissions . . . .• Quotes within quotes.• Copy-and-paste on WordPerfect: Copy, home page,

edit, paste special, unformatted text.• Copy-and-paste on Word: Copy, home page, paste,

paste special, unformatted text.• On WordPerfect: Home page, view, reveal codes.

Clarity • More important than concision.• Give foundation: Introduce before you explain.• State the rule before the exception.• Give the exception only if relevant.• Raise the issue before answering. • Answer before explaining.• State the point before the details.• Write directly, not indirectly.• Don’t generalize.

3/6/2015

22

Modifiers• Keep your modifiers next to the words they modify. (“Don’t go to

a lawyer with legal problems.”)• Don’t separate subject from predicate.• Squinting modifiers. Where does “only” go: “The prosecutor

wanted to cross examine the defendant.” • Dangling modifiers: word or phrase that modifies the wrong

phrase or describes something not in the sentence. The solution is to write in the active voice. Identify who is doing what to whom — subject, verb, object — and your modifiers won’t dangle.

• Example: “Last night, I shot an elephant in my pajamas. How it got into my pajamas I’ll never know.”

Document Design

• Follow court rules.• Word count and page limits.• White space.• Spacing between sentences and citations.• Single space or double space? • Right-ragged margins.• Font: Prefer Century to Times New Roman,

Courier, or Calibri (11 point) (the default in Word).

3/6/2015

23

Document Design

• Use a reasonable font size:▫ 12-point type is a minimum. ▫ 14-point type is required by many courts.

• Margins (allow plenty of white space.)• Italicize case names. Red v Green OR Red v

Green?• THIS SENTENCE IS DIFFICULT TO READ

BECAUSE IT IS WRITTEN IN ALL CAPS.

Adverbial Excesses

• Clearly.• Obviously.

3/6/2015

24

Cowardly Qualifiers

• Generally.• Usually.

Concision and Succinctness• Line editing.• “There is,” “there are,” “there were,” “it is.”• Example: “There are three cases supporting the

rule.”• Watch for doubles: “Advance planning.”• Don’t excessively define, qualify, or

overchronical.• Make your citations speak to save space.• It’s more important to be precise than concise.• Miscue: “The ball was thrown by me to her.”

3/6/2015

25

Precision and Concision • Fresh fish sold here today.• Fresh fish sold here today.

• Fresh fish sold here today.




Nominalizations

The fine was far in excess of.(The fine was excessive/far exceeded.)She has a tendency to.(She tends to.)I have knowledge that.(I know.)Defendant committed a violation of.(Defendant violated.)

3/6/2015

26

NominalizationsThe judge was of the belief that he would be affirmed.(The judge believed.)The intention of the parties was to reach an

agreement.(The parties intended to agree.)The District Judge gave a description.(The District Judge described.)The Court Clerk has a preference for the submission

of documents.(The Court Clerk prefers that documents be

submitted.)

Nominalizations

The establishment of the discovery violation might be difficult.

Establishing the discovery violation will be difficult.

Plaintiff will have difficulty proving that defendant violated the court’s discovery order.

3/6/2015

27

Metadiscourse• Writing about writing.• “Having studied the case carefully and giving due

consideration to all the evidence, the court respectfully concludes that . . . .”

• “Another aspect of the case that ought to be considered is that . . . .”

• “In dissent I propose to argue that . . . .”• “In our opinion . . . .”• “It is hornbook law that . . . .”• “It is well settled that . . . .”• “It is the court’s conclusion that . . . .”• “The court recognizes that . . . .”

Gender Neutrality

• A gourmet likes her coffee black. Not: “A gourmet likes their coffee black.”

• Make it plural:• “G0urmets like their coffee black.” • Or delete the antecedent:• “A gourmet likes black coffee.”• No “he or she,” “him or her,”

“s/he,” or worse.

3/6/2015

28

3/6/2015

29

Vague Referents

• “It,” “they,” “him,” “her,” “them.”

Write in the Positive

Fix the following:Do not write in the negative.(Write in the positive.)This argument is not without support in the cases.(This argument is supported by the cases.)(The cases support the argument.)We remand for proceedings not inconsistent with

this opinion.(Consistent with this opinion.)Exceptions.

3/6/2015

30

Mechanics

• Numbers, numerals, and figures: spell out zero to ninety-nine and use figures for 100 and above.

• References: Give the pages at which the reference begins and ends, separated by an en dash (–) or hyphen (-).

• Example: “(People v Wilson, 44 NY2d 224-225).”

Mechanics• Typographic symbols:▫ Paragraph (¶) and section symbols (§).▫ Double the section or paragraph symbols when

referring to consecutive sections or paragraphs.

• The ampersand symbol “&” (and).

3/6/2015

31

Do’s and Don’ts

Do’s:

• Right tone. • Get to the point fast.• Give context. • Love simple

declarative sentences.• Respect deadlines. • Add visuals.

Don’ts

• Pomposity.• Inconsistency. • Attacks and rudeness.• Redundancies.

Legal Method• Memorandum opinions.• Concurrences• Dissents.• Majority opinions.• Plurality opinions.• Decrees.• Orders.• Seriatim opinions.• Per curiam opinions.• En banc opinions.

3/6/2015

32

Grammar• Use a possessive to avoid a fused participle.• “The client did not object to his trying the case.” Not “him

trying the case.”• “I appreciate your filing the brief.” “Not “you filing the brief.”• Delete “by and the first pronoun.”• “The case was argued by Fred and she.” “Argued by her.”• “Bill went to court with Fred and I.” “Went with me.”• Run-on sentences.• “He wrote the brief, she argued in court.” • Comparisons: “The case is better.”• Superlatives: “[I]n order to form a more perfect union . . . .”• “A” vs. “The.”

Punctuation

• Use a question mark at the end of a direct question and a period at the end of an indirect question. ▫ Direct: Judge X said, “I am deciding the case

today.”▫ Indirect: “Judge X said that he was deciding the

case today.”• Use one period, not two, when the sentence ends

in an abbreviation. Not: “Ms. Packman, J.D..”

3/6/2015

33

Punctuation

• Introductory comma: “After the microwave blew up Mary sued.”

• Colons. They go after an independent clause or before a list on a separate line.

• “The area codes he calls are: 212, 718, 917, and 347.” • Semicolons. They go between two closely related

independent clauses.• Apostrophes. Write as you speak: “Lebovits’ book”

or “Lebovits’s book”?• Em dashes.

Tense • Past is past:▫ “The suspect ran [not runs] from the police.”

• State current rules in the present tense.• State past facts with current rules in the subjunctive:▫ “This court has held that . . . .”

• State permanent, immutable truths (truths that never change) in dependent clauses in the present tense:▫ “Albert Einstein proved that E equals mc².”

• State permanent, immutable truths in independent clauses in the past tense: ▫ “Albany was where Chief Judge Kaye presided.”▫ “He was a former judge.”

3/6/2015

34

Elegant Variation

• There’s power and clarity in repetition. Use different words to mean different things. Don’t use different words for the same thing.

• “The prosecutor wanted to indict the defendant. That’s why the Assistant District Attorney [the prosecutor] secured a grand jury true bill [indictment] against the suspect who was arraigned [the defendant].”

Brief Writing

3/6/2015

35

Cover

Brief: Questions Presented

• Weak method: The objective “whether” statement.• Good method: (1) “Under,” (2) “law,” (3) did” (or

“may,” “should,” “will,” “can,” etc.), (4) “court” (“this court” or “the trial court” or “party,” (5) “issue,” (6) add a comma, (7) “given that” (8) add 2-3 facts (only facts, no conclusions) helpful to you (and unhelpful to your opponent).

• Best method: The deep issue.

3/6/2015

36

Brief: Facts• The most important consideration: Theme.• All arguments can be reduced to “We win because . . . . ”• What follows “because ” is your theory.• A smart high-school student should understand it.• It should appeal to your emotions: It’s about right and wrong.• Include every important and helpful authority, fact, and issue

that supports your theme or contradicts your adversary’s theme.• Write persuasively, not objectively.• Use only facts: No law or conclusions.• Organization: Halo effect.• Order of facts: Storytelling. (Chronologically? By issue? By

witness?)

Brief: Facts

• Start with something helpful to your client: The protagonist.

• Use past tense. • Perspective: How to refer to clients and opponents.• How many facts? Less is more. (1) Eliminate

irrelevant details. (2) Compare facts in Facts section to facts in Argument section. (3) Add “bad” facts.

• Include record references.• End with procedure.

3/6/2015

37

Brief: Argument• CRARC• Cite only as relevant.• Footnotes.• String citations. • Point headings and sub-point headings.• Set out the court’s jurisdiction, the burden of

proof to be applied by the trial court, and the appellate standard of review.

Brief: Conclusion

• Tell the court what you want. • Include a proposed order when permitted.

3/6/2015

38

Before Filing

• Check for compliance with certifications. • Include proof of service.• File papers timely• Courtesy copies.

Rhetorical Devices

• Parallel structure.• Antithesis.

3/6/2015

39

Conclusion – Questions?