Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, March 12, 2019

A “Writer’s Toolbox” - Part I (A Practical Writing Library)

As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."

While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools. 

Today, I focus on my writer's library.

I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use.  Below are some of my favorite writing resources:

Handbook Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux  [ISBN: 9781454889335]

This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.

 

 

Plain English for LawyersPlain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]

This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.

 

 

 

 

Bluebook

The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]

My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well. 

I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.

 

Bluebook Uncovered

The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}

This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.

 

 

Dernbach

A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]

This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples. 

 

 

 

Just Briefs

Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]

This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.

 

 

 

Webster

Merriam-Webster Smartphone App (available on itunes & google play)

My final go-to reference is an app. I use both the dictionary and thesaurus features. 

 

 

 

Books

What's in your writer's library? 

Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.

March 12, 2019 in Appellate Advocacy, Appellate Practice, Books, Legal Profession, Legal Writing | Permalink | Comments (9)

Tuesday, February 19, 2019

Masters of Allusion

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As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.

It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.

The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.

Literary allusions can be very effective tools in legal writing.

The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.

Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.

First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.

Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.

Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).

Make sure the allusion agrees with the law.

Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.

For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.

Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).

The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.

Let the reader discover the allusion.

It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.

Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.

Be sure the reader will recognize the allusion, or can understand the point if not.

When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.

In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).

Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.

We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.

Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:

No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.

NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).

Sometimes allusions can draw the sting out of a rebuke

Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.

Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”

Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.

When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:

When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).

While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.

(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).

February 19, 2019 in Appellate Advocacy, Books, Legal Writing, Religion, Rhetoric | Permalink | Comments (1)

Thursday, October 11, 2018

Thinking Thursdays: Speak onto the Page

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

Thinking Thursdays: Speak onto the Page

The ideal advocate is both a skilled writer and a skilled speaker. Regardless of practice area, the law is a profession of words, and lawyers must be able to effectively communicate those words whether called upon to do so in a brief, in a contract, at oral argument, or when counseling a client. Yet, many lawyers experience a certain lopsidedness in their communication skills. Some of us are more confident writers than we are speakers (this blog author included!). Others are at our most articulate when speaking rather than writing.

Professor Peter Elbow, a Professor of English Emeritus at the University of Massachusetts Amherst, has written a book called Vernacular Eloquence: What Speech Can Bring to Writing that will appeal to lawyers of both stripes. Professor Elbow’s book sets out to be both theoretical and practical. Harnessing his frustrations about the “snobbery” of the culture of “correct writing” that he posits stifles and excludes many demographics of potentially good writers, Professor Elbow states that the theoretical goal of his book is to prove that “everyone with a native language has what it takes to write well.” Along those lines, the central argument of his book is that “we can enlist the language activity that most people find easiest, speaking, for the language activity most people find hardest, writing.”  

In addition to supporting his theoretical claim by marshaling a breadth of scholarship on writing and literacy, Professor Elbow offers practical suggestions for readers looking to improve their writing. The book suggests two major concrete ways to enlist speech for writing: (1) “talking onto the page” at the early stages of writing and (2) reading aloud to revise at the late stages.

Legal writing has long been criticized for being needlessly opaque. Typical speech, however, is rarely so incoherent. Most writing teachers, when faced with a confusing passage in a student work, will ask, “What did you mean here?” Usually, the student can speak a much clearer explanation of the passage than the passage itself. Professor Elbow says of this paradox, “the incoherence that comes from nonplanning is minor compared to the incoherence that comes from careful planning – unless it’s quite skilled.” In other words, while unplanned conversational speech may contain false starts, hesitations, and digressions, those aspects of speech do not interfere with the listener’s understanding nearly as much as certain aspects of planned typical writing can interfere. 

Professor Elbow, however, is careful to qualify his practical advice. He recognizes that professional writing quires a final draft in “correct English.” But he proposes that until that final draft, writers should “speak onto the page” and ignore internal voices that nag and criticize when that speech doesn’t produce polished results.

In the end, as one reviewer noted, “[Professor] Elbow is his own best argument for speaking onto the page: His voice is both authoritative and affable, conversational and professorial.” Lawyers looking to silence their inner critics would benefit from “listening” to Professor Elbow’s book.  

October 11, 2018 in Appellate Advocacy, Books, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, September 13, 2018

Thinking Thursdays: ALWD Guide to Legal Citation -- the Sixth Edition is better than ever.

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners.  An end to the tyranny of The Bluebook! A coup de grace!  

And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.

Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?

Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual.  The only difference is that you'll be able to understand and use the ALWD Manual!”  

This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.

September 13, 2018 in Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, December 19, 2016

President-Lawyers as Communicators and Writers

It is the "most wonderful time of year" for law professors--grading season!  So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.

I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.

Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison.  These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.  

Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers.  When they delivered public addresses to Congress people often had to strain to hear them.

With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers.  Bill Clinton--another president-lawyer--was known as the great communicator.  President Obama too is effective at pubic speaking.  While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.

In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!

December 19, 2016 in Books, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)