Texas Appellate Law Blog : Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

As discussed this morning at Don Cruse's Supreme Court of Texas Blog and picked up by How Appealing, Justice Don Willett wrote an interesting op-ed that appeared recently in the online version of the Austin American-Statesman.  (Note to the Statesman's editorial staff:  When you receive a submission from a sitting Texas Supreme Court justice, it's probably a good idea to publish it in the print edition as well.)

In honor of Constitution Day, Justice Willett discussed the U.S. Supreme Court's recent Heller decision (the D.C. gun-ban, Second Amendment case) and the parties' and Court's reliance on a new, fully indexed online library of constitutional source materials created by ConSource.  Justice Willett, who sits on ConSource's national advisory board, describes it as "a nonprofit with this singular goal:  granting direct access to our Founders' words."

In his blog post, Don Cruse mentioned the Debates in the Texas Constitutional Convention of 1875 as something of a state counterpart.  As Don noted, though, "[i]t’s not as lovingly annotated as its federal equivalents, but it does shed at least a little light on some of the more mysterious parts of our constitution."

These are undoubtedly useful resources.  But honestly, I don't often analyze  federal or state constitutional provisions in my practice.  For most folks like me, better documentation and dissemination of state statutory legislative history would be more useful.  When someone creates a nonprofit entity dedicated to that purpose, just tell me where to send a check.

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Faced with an opposing brief that preceded a conclusion with the word "clearly," my first supervising partner sometimes responded with this quote from Texas Supreme Court Justice Nathan Hecht:

I have learned in more than a decade of judging that what is claimed to be clear seldom is.

Nathan L. Hecht, Foreword to W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1041, 1043 (1993).

I always thought this was an effective—if pithy—way of highlighting the weakness in reasoning that intensifiers tend to reveal.  Now, a legal-writing professor and a statistics professor have teamed up to show a correlation between using intensifiers in appellate briefs and bad appellate outcomes.   It's not a causal relationship, mind you, but the study provides another reason to avoid lapsing into "an intensifier-rich mode of writing."

Thanks to Rob Gilbreath for bringing this article to my attention.

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Wayne Schiess, the head of UT's legal-writing program and author of Wayne Schiess's legal-writing blog, spoke to the Austin Bar Association's Solo & Small Firm Section last week.  Following the premise that lawyers are professional writers—an observation that applies with even greater force to appellate counsel—Prof. Schiess suggested a three-step process for improving one's legal-writing skills:

1. Practice:  I suppose it's a truism that you can't become good at anything without performing the task repeatedly.
    
2. Study:  Prof. Schiess recommends that we consult and rely on the best resources.  Aside from a good dictionary, The Chicago Manual of Style, Strunk & White's The Elements of Style, and his own Better Legal Writing, among others, Prof. Schiess praised Bryan Garner's The Red Book:  A Manual on Legal Style as a resource aimed directly at lawyers.
     
3. Open Yourself to Honest Critique.  Though self-explanatory, this step might be the most difficult of the three.

I felt pretty good after hearing what Prof. Schiess had to say.  I don't lack for practice, and I'd like to think I'm fairly open to honest critique, especially since clients and other lawyers review my work product on a regular basis.  (One might ask whether lawyers are good judges of effective legal writing, but that's the subject of another post.)  Where I need improvement is in the "study" phase.  Although I enjoy that part of the process—I have been a Garner disciple since I attended one of his seminars before I started my Big Law job more than 10 years ago—like everything else, it's a challenge to find the time.

9/21/08 Update:  Prof. Schiess discusses these ideas in his own words here.

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In a thought-provoking series over at his legal-writing blog, Wayne Schiess ruminates on the reasons why modern legal writing isn't what it should be.  Among the causes he cites are a primary and secondary education system that doesn't emphasize writing education adequately, reliance on poorly written judicial opinions and form documents, merely superficial understanding of legal authorities and transactions, and a lack of time to edit one's work appropriately.  All legal writers at all levels should read and reflect on these posts.

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I filed a brief recently in which I made the decision to discard an issue litigated at trial in favor of stronger arguments that, in my judgment, provide better prospects for obtaining appellate relief.  Ray Ward, author of the (new) legal writer, compares this exercise to the "kitchen-sink" approach.  According to Ray:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge.  So should we get rid of those weak issues and arguments?  Yes, we should, because the risk created by throwing them in is greater than that created by throwing them out.  Kenneth Oettle says it better than I can:

Gamblers will continue to gamble even as their stakes dwindle as long as they receive intermittent, unpredictable payoffs.  This is how slot machines work.  Random payoffs keep the patrons pulling.  So it is with weak arguments.  We have all won something with a weak argument, so we keep using them.  We seem to think that persuading a judge is a matter of pushing buttons until we find the right one.  The right argument is, in a sense, a button—if you press it, you persuade.  But weak arguments are buttons, too, and unlike the Close Door buttons on elevators, they are connected to something.  At a minimum, weak arguments hurt your credibility and cast doubt on your belief in your case; they irritate the court because they lengthen the brief; and they may even insult the court's intelligence.

James McElhaney says the same thing in a different way:

Are there risks in [discarding weak arguments]?  You bet.  Good legal writing is good writing.  It's also good lawyering.  Good writing and good lawyering both involve taking risks.  That runs counter to our law school training, where we were rewarded with good grades for spotting and articulating every conceivable legal issue but were almost never expected to drop the ones that wouldnt fly in the real world.  Nobody told us that failing to toss out the arguments that would not fly ultimately runs a bigger risk:  creating a mishmash of legal theories that produces lumpy, sodden writing.

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Ray Ward at the (new) legal writer mentions two self-editing tips in this post, one familiar and one not.  The first is to put away your draft for a while and come back to it later with (hopefully) a fresh set of eyes and an open mind.  The second, which might be particularly useful if you are short on time, is to change the font in your document before printing it to edit.  Like Ray, I haven't tried the second option, but I agree it makes sense.

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Ray Ward at the (new) legal writer has this great post listing his favorite online writing resources.  He includes references for dictionaries, quotations, briefwriting, and citations, among other things.  I haven't looked at all of Ray's suggestions yet, but I expect to add many of them to the Useful Links section (in the right-hand column) so that anyone who is interested will have easy access.

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Steve Merican over at the Illinois Appellate Lawyer Blog recently posted some interesting comments about the role of oral argument to the appellate decision-making process.  Within that post, he linked to an article he wrote entitled How to Write an Appellate Brief That Judges Want to Read and Answers Their Questions.

Like most appellate advocates I know, I'm a fan of oral argument in appropriate cases, such as when the law is unsettled.  But as a rule, to rip from Steve's observation while paraphrasing a Pat Riley quote, "your brief is the main thing."  The importance of presenting a persuasive, well written brief that anticipates the questions appellate justices might have can't be emphasized enough.

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Short on time to edit a brief?  Looking for a way to help catch passive voice in your writing?  If you are a Microsoft Word user, I've got just the trick for you. 

In the Grammar Settings dialog box (Tools / Options / Spelling & Grammar), select grammar and style instead of grammar only.  With that change, Word will alert you when it locates passive voice, just as it highlights sentence fragments and misspellings.  There are several other items you can customize.

Thanks to Susan McDonald and Lynn Gaertner-Johnson for the tip.

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Over at Legalwriting.net, Wayne Schiess has posted his observation that many lawyers fail to use an "apostrophe + s" to create the possessive of a word already ending in "s."  Professor Schiess notes a connection between this tendency and newspapers' use of this form.  (Yes, it's OK to use only an apostrophe when the word is already plural.)

I admit that I sometimes backslide when writing "court of appeals" as a possessive.  "The court of appeals's ___" often seems awkward and too attention-grabbing.  Other than to rewrite the sentence to avoid the possessive (which tends to create passive voice problems), I haven't come up with a satisfactory solution.  Fortunately, Professor Schiess seems to have given those struggling with this issue a free pass.

The notion that newspapers can influence legal writing reminds me of Roger Hughes's piece in The Appellate Advocate called Legalese in the Age of IM (Instant Messaging).  If newspapers hold that kind of sway, how long will it bebefore we start seeing IM slang in legal briefs?  If Roger's tongue-in-cheek prediction holds true, it's only a matter of time.

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For the past decade or so, appellate lawyers have been taught to avoid the passive voice in their writing (the preceding sentence notwithstanding).  But Dr. George Gopen of Duke University says that advice, as well as other principles emphasized in today's writing courses and CLEs, is wrong.

UT's Wayne Scheiss, author of Legalwriting.net, has taken Dr. Gopen to task for some of his ideas, including his challenges to the notions that shorter is better and that one should always begin a paragraph with topic sentence stating the issue and point of the paragraph.  Read Dr. Gopen's response here.

This is an interesting debate.  I can accept that passive voice has its place if used sparingly, but I must admit that some of Dr. Gopen's ideas challenge the way I think about legal writing.  Ultimately, I agree with Ray Ward over at the (new) legal writer, who summed up his feelings this way:

I have found Strunk & White, Plain English for Lawyers by Richard Wydick, and the things Wayne teaches helpful.  I've also found helpful books by Bryan Garner, Ed Good, Mark Painter, John Trimble, William Zinsser, Patricia O'Conner, and Roy Peter Clark.  I've read, and recommended, George Gopen's books.  Read them all.  Learn what you can from all of them.  But don't think that any one of them will give you The Whole Truth.  Whatever you think you know, there's always more to learn.

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