legal writing june 30 2011 gerry schulze.pdf

8/11/2019 Legal Writing June 30 2011 Gerry Schulze.pdf

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Legal Writing

June 30, 2011

Little Rock, AR


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Drafting a WinningAppellate Brief

Presenter: Gerry Schulze

Baker, Schulze, & Murphy


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Selecting Issues

Identifying the Issues that Win on Appeal

Select your Best Two or Three What is the Court Likely to Consider Strength of Record Below Prejudicial Error Has the Court indicated interest in the

issue? The Caveat


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Quotes

If Id had more time, my brief wouldhave been shorter.

Source unknown, but not original with me.Theres no such thing as a final draft,theres only the last draft done beforethe brief is due. Gerry Schulze

At least I think its original with me. I may haveheard it somewhere else, but I cant trace it.


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Limiting the Number of Arguments

Avoid the Kitchen Sink approach.Some recommend three points as themaximum.Others will let you get away with four. The problem is, sometimes you donthave the judgment [or psychic powers]to know what argument will work.


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Judge Arey

Appellate advocates must next exercise discretion and objectivedetachment in deciding which of these issues will be raised onappeal. One consistent admonition decries the kitchen sinkapproach of raising every conceivable issue on appeal. A

storm of arguments--good, bad, and indifferent--can convincethe judges that there is no merit to the case, even if buriedin the deluge is a winning nugget. A competent appellateadvocate will evaluate the issues accordingly, select[ing] withdispassionate and detached mind the issues that commonsense and experience tell him are likely to be dispositive. Hemust reject other issues or give them short treatment.

Arey, D. Franklin, Competent Appellate Advocacy and ContinuingLegal Education, Fitting the Means to the End, 2 J.App.Prac. &Process 27 (2000)


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Standard of Review

Rules require you to lead off with this. After that, dont feel free to ignore it.


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A Concise Brief: Page Limits andOther Considerations

Arkansas: PagesFederal: WordsUsually, this should be no problem.In very complicated cases, it can be aproblem.


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Secrets to a successful argument:Persuading without Exaggeration

Lawyers write for different purposes,and it is essential to remember the

appropriate kind of writing for eachsegment of the brief.


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Kinds of Legal Writing

InformativePersuasiveFunctional


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Informative

Letters to client Not necessarily simple but not legalese

Explain termsInteroffice memorandaOpinion letter understandable. disclaimers


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Informative parts of the brief

Jurisdictional StatementStatement of the CaseStatement of Facts


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Persuasive

Settlement Brochures Argument portion of Briefs Vary in complexity Probably the most time consuming of all

documents Different concerns with

Trial Courts Appellate Courts Administrative Agencies


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Functional

This kind of document is one which issupposed to create a result

Will Deed Complaint Trust

Power of Attorney Contract Real Estate Documents


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Functional part of briefs

Cover PageTable of ContentsTable of Authorities


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Legalese

Some say, never use legaleseI say, use it advisedly.Legalese is particularly useful infunctional writing where it has anaccepted meaningEven Latin is appropriate in someoccasions


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Characteristics of Legal Writing

Clarity Word choice

Organization Avoid Legalese where possible

In functional writing, legalese is often preferable In persuasive writing you can get by with it

when you have to In informative writing it will seldom do muchgood


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Conciseness Strunks advice, Make each word tell.

Sometimes you have to balance the needfor completeness and the need for concisewriting

Avoid repetition

As to page limits, remember, this is nothigh school. The Court does not expectyou to fill up your page limits.


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Pleadings

Pleadings are generally functionalrather than persuasive.

It is more important to comply with theform and to say all the right magicwords than to make your languageconcise or enjoyable.Pleadings are to be interpreted to dosubstantial justice.


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Characteristics of LegalWriting

Accuracy Accuracy of Facts

Check your sources Facts are often not what you know, but what

you can prove Frequent references to testimony, affidavits,

depositions, exhibits, and other evidence canhelp you maintain credibility as well as help youkeep accurate on the facts


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Accuracy of Authority Double check cites

Shepardize or Keycite


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Proper form Pay attention to Court Rules

Paper sizes and margins Captions Type size and font Spacing

Pay attention to the Bluebook and othersources Citation forms


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References in the Office

Make your own booklet of informationyou need

Arkansas Bar Association SystemsPick out books you like and keep themhandy Greggs Strunk & White Elements of Legal Style


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Grammar

I am about to or I am going to die, either expression is used.

Grammarian Dominique Bonhours, on hisdeathbed.


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Analyze languages by

comparison to foreign languagesProblem: Many of us dont actuallyknow another language.

Solution: We all know a little Latin,even though we should rarely resort toit.


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Res ipsa loquitur

Whats the Latin for thing or matter?Res ipsa loquitur . The thing speaks foritself.Res judicata. The matter is decided.In rem. Against the thingIn re. In the matter ofRebus sic stantibus. In thesecircumstances.


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How about day?

The legislature adjourns sine die.The legislators receive a per diem.


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Case Singular Plural Singular Plural

Nominative res res dies dies

Genitive rei rerum diei, die dierum

Dative rei rebus diei, die diebus

Accusative rem res diem dies

Ablative re rebus die diebus

Locative ? rebus ? diebus

Vocative res res dies dies


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Analyze the normal by using the bizarre

We dont notice the normal.Sometimes the only way to look at thenormal is to compare it to aberrations.Examples of language usage in thebooklet, page 77 and following.


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Grammar

Systematic study and description of alanguage or dialect

Standard American English is a dialect Legalese is a subdialect of Standard AmericanEnglish

In English, the standard for grammar is set

by general acceptance in the community Compare French and Spanish, for example,in which proper usage is determined by

Academies.


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Grammar: Prescriptive and

Descriptive"Descriptive grammar " is the studyand description of a language as it is

actually used."Prescriptive grammar " is the study anddescription of a language as it "should"

be used.


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Grammar

"Should" implies that there is a right wayand a wrong way to use language. To the

scientific student of language, there is noform which is inherently right, and no formwhich is inherently wrong.

Right usage is simply usage which isaccepted by the language community asright.


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Style

Style is more than grammaticalcorrectness.

Develop your own style. It comes withpractice.


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Making Your Case: The Art of Persuading Judges , Antonin Scalia

and Bryan Garner Recent (4/28/08) Very good book.Sections 39-54 dealwith style.Even the authorsdo not agree oneverything.


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Scalia and Garner

39. Value clarity above all otherelements of style

40. Use captioned section headings.41. Use paragraphs intelligently;signpost your arguments

42. To clarify abstract concepts, giveexamples


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Scalia and Garner

43. Make it interesting.44. Banish jargon, hackneyedexpressions, and needless Latin.45. Consider using contractionsoccasionallyor not.

46. Avoid acronyms. Use the partiesnames.


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Scalia and Garner

47. Dont overuse italics; dont usebold type except in headings; dont use

underlining at all.48. Describe and cite authorities withscrupulous accuracy.49. Cite authorities sparingly.50. Quote authorities more sparinglystill.


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Scalia and Garner

51. Swear off substantive footnotesornot.

52. Consider putting citations infootnotesor not.53. Make the relevant text readilyavailable to the court.54. Dont spoil your product with poortypography.

Q i k i f f i i


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Quick review of confusing pointsof grammarin case anyone is

interestedWho and whom.The subjunctive.Non-rules. Myths.


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Who and Whom

Who is a subject It is like I, he, she, or they.

Whom is an object It is like me, him, she, or them.

When who/whom is found in a clause,

the correct form depends on thefunction the word plays in that clause


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Who and Whom

Give the prize to whoever wins.

Give the prize to whomever the judgeschoose.


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The Subjunctive

People tend to think of the subjunctiveas an obscure, incomprehensible verb

form in EnglishIt is somewhat difficult because most ofthe time theres no difference between

indicative and subjunctive forms.


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The Subjunctive

With the verb to be in the presenttense, the form is not am, is, or are

but be. ...that I be; that you be.With other present tense verbs, the onlydifference is in the third person singular,where the characteristic -s is missing. ..that he walk.


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The Subjunctive

In the past, the verb to be is alwayswere

. . . that I were; . . . that he were.

In the future, will becomes would

Otherwise, the form is identical to theindicative.


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The Subjunctive

Whats it for? Expression of necessity, demand, strong

request. It is necessary that these questions be

answered at once. I demand that I be allowed to attend the

meeting.


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The Subjunctive

Whats it for? Wish clauses

I wish I were going to the meeting Counterfactual statements

If statements followed by a statement that thespeaker suggests is not true.

Particularly useful in all kinds of arguments


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Non-Rules/Myths

Do not end a sentence with apreposition

Never split an infinitiveNever begin a sentence with: And, but, or or

Because or however Never write a one sentence paragraph


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Preposition

This is the sort of arrant pedantry up withwhich I will not put.

Winston ChurchillThe preposition often seems to stand at theend of the sentence or clause: 'I have lost thepen I write with .'

George Curme, Syntax, 566 (1931) Curme was a noted grammarian of the Germanic

languages. English is a Germanic language.


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Split Infinitive

To boldly go where no man has gonebefore. Of course, that is incorrect. It should be, where no one has gone before.

From: Garner on Language and Writing


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Split Infinitive

Hardly any serious commentator believesthat infinitives should never be split. Thedispute is between those who believe thatsplit infinitives should be avoided when thiscan be done with no sacrifice of clarity ornaturalness, and those who believe that noeffort whatever should be made to avoid

them. Alt.Usage.English Frequently Asked Questionsentry on the split infinitive.


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And/But/Or at Beginning ofSentence

Bryan Garner challenged this mythbeautifully in Garner on Language and

Writing . He goes back to Chaucerand works forward, showing that goodwriters have always ignored this myth.


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Word Usage

Less/Fewer Conclusory

EnormityTherefore/Therefor


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Problem with Non-rules

Too manyreaders

thinkthey areactuallyrules.

June Casagrande. Mortal Syntax 101: 101 Language Choices That Will Get You Clobbered by the Grammar Snobs--Even If You're Right


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ConclusoryConclusory Greenwood v.Wierdsma, 741 P.2d 1079,1086, n3 (Wyo. 1987)

After painstaking deliberation,we have decided that welike the word "conclusory,"and we are distressed by itsomission from the Englishlanguage. We now proclaimthat henceforth "conclusory"is appropriately used inthe opinions of this court.Furthermore, its usage is

welcomed in briefs submitted forthis court's review. Webster's,take heed!


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Style

Emphasis belongs at the beginning.Use short, simple sentences.

Use active verbs.Do not overstate.Do not offend.Make each word tell.

Avoid equivocal language.

f


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Get someone else to proofread before printing the final draft

ll d h


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Spelling errors can distract thereader.


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Pleadings

Pleadings are generally functionalrather than persuasive.

It is more important to comply with theform and to say all the right magicwords than to make your languageconcise or enjoyable.

Pleadings are to be interpreted to dosubstantial justice.


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Fact Pleading

Arkansas is a fact pleading state. You must plead facts sufficient to state a

cause of action Merely stating conclusions is not enough

The Federal System is Notice

Pleading This used to mean that a very skeletalcomplaint was adequate.


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Notice Pleading

The federal rules allow fairly vaguestatements of facts, but . . .

Recent changes in the discovery ruleshave made it advantageous to pleadfacts so that the initial disclosures will

be more complete.


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Matters which you must plead

Facts for jurisdiction Its usually not that important in state court,

but sometimesespecially in courts of limited

jurisdictionmay be essential. It never hurts.)Facts for venueIdentity of partiesFacts giving rise to the disputeNoticeIn some cases, such as contract cases,exhibits must be attached and properlyidentified


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Necessary legalese

Sometimes it is necessary to useformulas to properly allege a fact

Upon information and belief . . . .


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Unnecessary legalese and/or

It is obvious this problem has arisen because theinterrogatory employed an imprecise term, and/or ,

when precision was called for. The phrase has beenso soundly criticized as to have been driven almostentirely from current usage. At best it has beenlabeled equivocal , obscure and meaningless ,at worst slovenly , improper and a linguistic

abomination. It has no place in modern practice,least of all in discovery interrogatories. Borenv.Qualls, 284 Ark. 65 (1984) [citations omitted].


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Briefs

You have to be careful to getthese right, because there is an

opposing counsel just looking for anymisstatement of fact, citation error,typographical error, unclear language,or any other fault that can be exploited


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Citations

Citations are the way you tell the Courtthe authority for the legal arguments

you are making.Follow the applicable authority oncitation forms

Double check the citationsShepardize or electronically checkeach citation.


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Be Respectful and Professional

Finally, I am compelled to mention that the appellees intemperateresponse to the appellants rehearing petition was not onlyinappropriate but was vile and slanderous. He argues, among otherthings, that the majority was correct to allow the trial court to make acustody decision based on his perception of the appellants religiousbeliefs because not all religions are worthy of constitutional protection.He denigrates Mormons, asserting that Mormons practice incest andchild marriages, and proclaims that Wicca is a cult, not a religiousbelief. He admonishes that this court is committing a grievous errorif it allows cult activities to be protected and that the trial judgeappropriately ruled in this case after carefully considering the facts. Inlight of the appellees further illumination of this issue, I simply cannotsay that the trial courts decision was appropriate. I lament that this

court has accepted the appellees invitation to embark on a grandinquisition. Hicks v. Cook , dissent on denial of rehearing


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Be Respectful and Professional

Walker contends that the brief submitted by Ligonshows a clear personal bias and is repletewith sarcasm and vituperation masquerading aslegal argument. Although we do not find anyimpermissible bias in this case, we agree with Walkerthat the Executive Directors brief is unprofessionalin tone and improper in some of its content. Ligonsbrief contains unnecessarily sarcastic remarks and,at one point, invites the court to look outside of therecord to examine matters that were not before thespecial judge. This is improper argument. Ligon, Executive Director Of The Supreme Court Committee

On Professional Conduct v. Walker (3/12/2009)


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Purpose of Briefs

The overarching objective of a brief isto make the courts job easier. Every

other consideration is subordinate. Scalia and Garner, p. 59


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Citations

Citations are the way you tell the Courtthe authority for the legal arguments

you are making.Follow the BluebookDouble check the citations

Shepardize or electronically checkeach citation.


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Order of Citations

There are some general guidelines in theBluebook, but they were written with law

journals in mind.Heres what Id suggest: Most helpful first. Most recent before older cases (the precedential

or persuasive effect is less likely to have beendiminished by more recent events) Controlling before persuasive


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Controlling before persuasive

The Arkansas Supreme Court controls onquestions of Arkansas law.If there is no Arkansas Supreme Courtopinion, then you can go to the ArkansasCourt of AppealsThereafter, federal courts which haveinterpreted Arkansas law under the Erie doctrineThereafter other courts.


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Other Authority

A constitutional provision on pointcontrols.

In the federal system, theres hardly a wordof the Constitution that hasnt been workedover by the Courts

In the State system, there are a lot ofsurprises in the Arkansas Constitution


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Other Authority

A statuteunless its unconstitutionalcontrols.Federal statutes may preempt state law.Thats a federal Constitutional doctrine, and itcan get very confusing.Statutes have often been interpreted in greatdetail, and it may be more persuasive to citea case relying on the statute than the statuteitself, especially where the language of thestatute does not clearly say what the Courtshave interpreted it to say.


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Secondary Authority

Law Reviews American Law Reports (ALR)

annotationsTreatises (some more respected thanothers)Hornbooks are usually somethingfrom Law School, but are occasionallypersuasive secondary authority.


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Procedural phrases

In re means in the matter of Thephrase is used in one name styles,

but when theres an adversary party, itshould be left outThe only procedural phrase that should

be used when there are two parties isex rel which means for the benefit of


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Abbreviations

If the whole name of a party can beabbreviated by commonly recognized

initials, thats ok NLRB v. Widgets, Inc.

Bluebook, 18 th Ed. Rule 6.1(b)

Otherwise, do not abbreviate the firstword of a partys name


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Abbreviations

In the text of the brief, as opposed to acitation sentence, there are only a few

words that should be abbreviated


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Abbreviations

When not part of the text, additionalabbreviations are permitted.

This would most commonly be in aseparate citation sentence or a stringcite.


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Names of parties

With individuals, you usually just usethe last name.

Some foreign names createcomplications. Chinese names often start with the

surname. The tradition has been to givethe whole name.

Mao Zedong v. Li Po


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Spanish and Portuguese Names

The surname is often composed ofthe first surname of each parent. Just

remember that the last name of JuanSnchez Rivera may be SnchezRivera. It gets confusing, and oftenenough the courts or the publishers getit wrong, too.


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Cases from other states

Some stateslike Arkansas until recentlyhave official reporters. Smith v. Jones , 343 Ark. 253, 55 S.W.3d 424

(1997).

Some states do not have official reporters.Then you just give the Wests cite, and put

the state in parentheses. Coyote v. Acme, Inc. , 854 P.2d 423 (Colo. 1983).


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Cases from other states

The new blue book rule is to only useofficial reporters in the state in which

the brief is filed. Therefore, in an Oklahoma Court, Smith v.Jones would be Smith v. Jones, 55 S.W.3d424 (Ark. 1997).

Arkansas is going to give the Blue Bookwriters fits.


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Quotations

Remember the 50 word rule.When a letter is changed from upper to

lower case or vice versa, indicate thechange with brackets.When words are omitted, use threeperiods separated by spacesCitations go to the left margin after ablock quote


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Table of Contents

I came across Elizabeth Blochs material for aTexas CLE.She said that some judges look to the tableof contents to see what the appeal is about.So she recommends fleshing out the tableof contents with all your points, and write the

points so the judge who starts with the tableof contents will know what your case is about.


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Statement of the Issues: Framing a


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Statement of the Issues: Framing aPicture, not a Puzzle.

Bryan Garners article. All schemes have drawbacks. Garners

drawback is that it requires too muchwork. Honestly, Im frequently too lazyto do it right.Still, if youre simply aware of thismethodology it will improve youranalysis.

Writing the Statement of Facts with


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Writing the Statement of Facts withSimplicity and Relevance

Take off your advocate hat.Hold it behind your back.

Tell the story objectively, but make sureto get in all the details that the court isgoing to hear.That means getting the bad stuff outup frontunless youre certain youropponent has forgotten it.

Footnotes and Authority Citations


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Footnotes and Authority Citations Again, Scalia and Garner are excellent.Even when they disagree they are veryinformative.If theres any doubt, opt againstfootnotes in Arkansas appellate courts.Ive used footnotes in trial courts tomake sure Ive raised all the issues.

Ive used footnotes in appellate briefsto discuss matters I contend are not atissue, when I expect opposing counselto try to make those points.


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The End

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