Tag Archives: legal writing

Win Your Next Argument With These 5 Grammar Tips For Legal Briefs

“A good brief reflects the author’s ability to read cases, choose issues, cull facts, apply law to fact, and persuade,” writes Above The Law commenter Mark Herrmann.

And yet, these days, it’s surprising how many legal briefs submitted to court are incomprehensible.

Whether it’s non-stop run-on sentences, who instead of whom, paragraphs rife with jargon, or ambiguous vocabulary or idioms, poor legal writing may not lose a case, but it certainly won’t win one.

Furthermore, your firm’s legal writing gives opposing counsel, not to mention the judge, a first glimpse at your lawyer’s capabilities.

“In a typical case, I get one unfiltered view of counsel’s brain: The brief. If the introduction is incomprehensible, then I no longer trust your legal work. If the appellate brief doesn’t mention standard of review, then you’re either inept or don’t know when you’ve strayed beyond your competence; either way, you’ve turned me into a skeptic. If you use long block quotes or the passive voice repeatedly, then you don’t know how to persuade,” comments Herrmann for ATL.

“When my one unfiltered view of your brain suggests that you’re not very good, why should I take it on faith that the rest of your game is actually great? Because you say so?”

With that in mind, let’s look at our first grammar tip of the day.

1. Be specific: Tell vs. Say

Your mother used to respond to your constant please for explanation by “because I said so.”

She could have also said, “Because I told you so.” The difference here, clearly, is that the word “tell” requires a personal direction object. You tell somebody something, or you say something.

In law, it’s important to be specific. More often then not, it will be necessary to narrate a story about who told somebody else something. You wouldn’t leave the audience wondering what a witness said. So why leave judge, jury, and opposing counsel wondering to whom it was said?

2. Use three-syllable words (correctly): Tendentious.

Tendentious: “tending to promote a given viewpoint; biased. The word appears much more commonly in British English than in American English.” For example:

“The Whitehall information code says no press release should contain tendentious or politically biased material” reads a line from David Hencke, “Whitehall Press Officers Sound Off,” Guardian, 17 Oct. 1997, at 4) (excerpt Garner’s Usage Tip of the Day at lawprose.com).

3. Know the basics: That vs. Which

There are some grammar rules that are set in stone: when to use who vs. whom, for example, or affect vs. effect. Another commonly misused pair is that vs. which.

  • Republicans oppose new taxes that are unnecessary. (Some taxes might be necessary.)
  • Republicans oppose new taxes, which are unnecessary. (None, in their view, would ever be necessary.)  –LawProse Lesson #126: “That” vs. “which”

Don’t forget that “that” never takes a comma and “which” is always preceded by a comma.

Well, not really.

In fact, the words “that” and “which” become more complicated when you talk about British vs. American English, ambiguous meaning, or restrictive clauses. However, you can likely avoid confusion by sticking to the simple comma rule above.

To read more about the intricacies that surround these words, see here.

And, for a list of the most commonly misused words, see here.

4. Properly explain technical jargon (or is it technological?)

Two words are frequently mistook one for the other: technical and technological. Patent lawyers, contract lawyers, or litigation lawyers in contentious technical suits pay heed as the distinction is frequently separated by a thin line.

“Technical” is defined as “(1) of or relating to a particular science, art, or handicraft; or (2) of or relating to vocational training.

“Technological,” on the other hand, is defined as “(1) of or relating to the science of practical or industrial arts; or (2) of or relating to innovative gadgetry and computers. ‘Technological’ connotes recent experimental methods and development, whereas “technical” has no such connotation,” according to our experts at lawprose.com.

So, if your firm is dealing with a suit involving advanced machinery or gadgets, like computers or scientific technology, then you’re probably looking for the adverb “technologically.” However, people or professionals that are specialized in skill may have brought “technical” expertise or knowledge.

5. Re-read, re-read, re-read!

Finally, good legal writing takes practice, care, and sometimes training. There’s no short-cut to increasing your vocabulary.

However, one sure-fire way to bad legal writing is lack of care. Most people don’t bother to re-read what they’ve wrote. Or, they are in such a rush, there is no time.

The key too writing is, mostly, catching instances of bad writing. An accidental confusion of “it’s” vs. “its” in a brief is enough to diminish its (and your) credibility.


Don’t forget that good writing isn’t important for legal briefs alone. Learn how to write effective emails, as well, with these tips  from C4CM in this training course (with CD).


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Why Law Firms That Take Grammar Seriously Succeed

Although attributed to Will Rogers, the following quote—at one point or another—has been uttered by most Americans:

“The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.”

At times, legal jargon must be sensitive and all-inclusive to protect your corporate clients, which means it’s incomprehensible by laymen. To avoid lawsuits, disclaimers have become rife with legalese and incomprehensible verbiage.

As a result, lesson one in law school is that not all words are created equal. In fact, the Glossary of Terms within a legal document is frequently the longest portion of the entire brief.

This is why law firm professionals must possess a knack for precision in wording before they can be trusted with writing any legally-binding work. Attorneys are quick to practice proper citation and quotation methods when publishing law review articles.

Lynne Truss, author of Eats, Shoots & Leaves, has a zero tolerance policy when it comes to grammar. She’s a stickler for punctuation—although not for exaggeration—believing that people who mix up their itses “deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”

Kyle Wiens will not hire people who use poor grammar for a position within his companies, iFixit or Dozuki. Moreover, Wiens ensures his computer programmers know the difference between “to” and “too” during a mandatory grammar test that is given to each employee prior to starting work.

“If it takes someone more than 20 years to notice how to properly use “it’s,” then that’s not a learning curve I’m comfortable with,” explains Wiens in the Harvard Business Review Blog.

“So, even in this hyper-competitive market, I will pass on a great programmer who cannot write.”

Some might consider this zero tolerance policy to be harsh. But, Wiens thinks good grammar makes for good business. He claims writing code is not unlike writing prose. And, the best employees at his computer companies have a proven track record for attention to detail.

“I’ve found that people who make fewer mistakes on a grammar test also make fewer mistakes when they are doing something completely unrelated to writing—like stocking shelves or labeling parts.”

Law firms, too, benefit from a zero tolerance policy when it comes to grammar. It turns out, bad legal writing can have a detrimental impact on a case.

For example, a bankruptcy lawyer in Minnesota was publicly reprimanded for unprofessional conduct and ordered to pay court costs after he repeatedly filed documents that the court deemed “unintelligible,” due to a copious amount of spelling and typographical errors, reports Paralegal Today.

“In Duncan v. AT & T Communications, Inc., 668 F. Supp. 232 (1987), the defendant’s motion to dismiss was granted for several reasons, including poor organization. The court’s opinion stated: ‘A complaint may be so poorly composed as to be functionally illegible. This is not to say that a complaint needs to resemble a winning entry in an essay contest,’ Paralegal Today also cites.

There are a myriad of similar examples in law, where judges are swayed by the sloppy phraseology of a motion. Certainly, condemning legalese is not a new argument.

However, law firms who actively try to change this practice are new.

Why don’t legal recruiters throw out all CVs where itses are confused? Why doesn’t legal training include grammar tests?

Young attorneys rarely face formal repercussions at their firms for misspellings in their draft motions. But, consider this: As Wiens points out, we live in a competitive market. Where your firm fails, another one is poised to take over.

The courts have long proved grammar is important. So, the question is (like proper verb tense) does your firm agree?


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Ten Tips For Effective Proofreading

Still dazed and confused? Get more information from a lawyer’s guide to writing.

Never underestimate the power of proofreading. For each e-mail sent, brief submitted, and memo circulated at your law firm, it’s important to conduct a thorough proofread.

Not only will proofreading eliminate careless and embarrassing spelling or grammatical errors, it will also provide edits for clarity and comprehension.

Keep in mind, it’s nearly impossible to proofread your own work. So, solicit the aid of a colleague or friend. And, pass on to them these helpful tips for effective proofreading.

1. Find a quiet space

Law firm professionals may be tempted to conduct proofreading on the train ride home or at the end of the day. After all, it’s just a quick read-through, right?

Wrong. Proofreading is as important as the writing itself. It requires concentration and attention to detail that is only possible in a quiet area.

2. Run spell check

Spell check is an amazing tool. Equally amazing is the number of times professionals forget to run it!

This should be the first step in the proofreading process, whether for e-mail or e-filings.

At the same time, even spell check can make mistakes, so watch it with a keen eye. Beware of incorrect corrections.

3. Add industry-specific proper nouns or acronyms to dictionary

Another way to help speed along the proofreading process is to add certain industry-specific terms or acronyms to the spell check dictionary.

For example, if your case surrounds a government agency—say, for example, USAID—go ahead and add “USAID” in addition to “USAID’s” to the dictionary.

Not only will this step help move the spell check process along, adding abbreviations or proper nouns to the dictionary will prevent accidental “accepts” of USIAD (which might even exist as the U.S. International Agency of Disaster-Prevention, for all you know).

4. Read for grammar in isolated paragraphs

After spell check, start proofreading for grammar. This should be done paragraph by paragraph.

Once you’ve finished reading a paragraph, put a check in the margin, so that you remember what you’ve already edited.

5. Proofread in backward order

Editors have a trick up their sleeve for proper proofreading. They often read backward, either sentence-by-sentence, or last paragraph to first paragraph.

By correcting the last sentence first, proofreaders are able to really examine the grammar of the document, as opposed to being distracted by its meaning. Checking grammar from back to front will also allow proofreaders to read more slowly and thus more carefully.

6. Trust grammar check

These days, all word processors come with grammar check. And, like spell check, this technology can make mistakes.

However, if your grammar check is highlighting a sentence fragment or mismatched conjugation, give the phrase a second look. Human error is much higher than computer error.

7. Read for transitions

Finally, when you’ve read for spelling and grammar, take a look at transition words and sentences. Highlight the first and last sentence of each paragraph, and evaluate for interesting and informative transitional phrases.

Editing for flow is equally important as editing for punctuation.

8. Read for comprehension

Last but not least, read the entire document from start to finish for comprehension and clarity. Do you understand the point being made? Were there any sections where your reading level—and understanding—faltered?

Make changes accordingly.

9. If in doubt, read out loud

When in doubt about the sentence structure, read it out loud. If the sentence doesn’t make sense or is too long for an everyday verbal conversation, it’s likely that it’s also too long or confusing for the written word.

10. Don’t forget the headings!

The number one most missed proofreading errors occur in headings.

The content of your document may be perfect, but an unclear or misspelled heading will immediately reduce the confidence of your reader in your overall competence.

Although ten tips for proofreading may seem like nine too many, the best writers in the world, including legal ones, recognize the value of a good editor.

Proofreading is part of legal writing process; so for every hour you spend composing your document, take at least a half an hour for rereading and rewriting it.


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Everything Lawyers Wanted To Know About RSS Readers (But Were Too Afraid To Ask)

The icon for adding an RSS feed

OMG. Acronyms are not just for texting your BFF.

Members of the legal profession know well how to create a glossary of complicated acronyms for various official filings.

Remember that case where the ACM (“Association for Computing Machinery”) sued the GBF (“Gravitational Biology Facility”), but the jury verdict went to the opposing side—totally NMP (“not my problem”). Still, your boss asked to see you ASAYGB (“as soon as you get back”). What a BDATO (“bad day at the office”).

An unabbreviated word of caution, however. A California judge went so far as to reprimand lawyers for the egregious number of acronyms used in their appellant’s opening brief. Judge David Sills of the Fourth District Court of Appeal criticized the lawyers for “descending into an alphabet soup of jargon-based acronyms,” according to the Legal Pad blog (via ABA Journal).

“Judging by the briefing in the case before us now, nobody got the hint. Unfortunately, there are no rehab clinics for acronym addicts,” Sills wrote in his opinion (via the ABA).

“Consider, for example, this sentence, committed on page 32 of the appellant’s opening brief:” Sills continued, “‘In June 22, 2000, CARB adopted an SCM for AIM coatings.’ Huh?”

Huh, is right. Acronyms sometimes make a simple idea or statement seem unjustly intimidating.

Take, for example, RSS feeds. Or, RSS readers. Although blog articles (like this one) are always encouraging professionals to use them, what is an RSS, really?

It’s time to explain.

RSS stands for “Rich Site Summary.” RSS is a format for delivering regularly changing web content, such as news-related sites, blogs and other WWW (“world wide web”) content.

There are three major advantages to using RSS feeds (see, What is RSS):

  1. You use one source to stay informed on any subject that you deem interesting.
  2. You save time by retrieving the latest content at one site, as opposed to looking up each site individually.
  3. You maintain higher levels of privacy because you don’t need to input your personal information to sign up for an online or e-mail newsletter.

RSS readers allow individuals to skim pre-screened headlines (e.g., re: news, fashion, law) to pick and choose—filter, if you will—the vast space that is the Internet. Then, you can narrow in on only those subjects that matter.

With RSS readers, a lawyer can stay informed without sacrificing those precious billable hours.

To get an idea, try out some of the most popular RSS readers, including Amphetadesk (Windows, Linux, Mac), FeedReader (Windows), and NewsGator (Windows – integrates with Outlook), My Yahoo, Bloglines, and Google Reader (via What is RSS).

Google Reader is also available for your smartphone. Here is a great video tutorial of how it works (via Real Lawyers Have Blogs).

However, like overusing acronyms, don’t let overwhelming RSS feeds overrun your life. Unplug, desync, and disconnect once in awhile.

Keith Lee, author of An Associate’s Mind Blog, writes, “It was almost with dread that I opened my RSS Reader on Monday morning. There were 300+ new blog entries, news stories, infographics, etc. waiting for me. There was a sense of obligation about the whole thing.”

“With social media, blogging, etc. many people seem to think that a person needs to remain ‘engaged’ and stay on top of things 24/7 in order to be doing it properly,” laments Lee.

The solution? It may have two letters, but it’s not an acronym. When technology starts to get the best of you, don’t be afraid to just say “no.”

And, now you know.


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Hyperbole: The Language Of Love, Not Law

Hyperbole is the language of lovers, not lawyers. At least, that’s what one judge ruled in a Florida case dividing the assets of an unmarried couples living together as husband and wife.

“Adults have to view such language as momentarily expressive of intense and immediate emotion and desire… What a pallor the courts would cast on courtship if they were abole to hold otherwise,” said Judge Burnastein in response to submitted statements.

Emotional statements should not hold the same weight as extensively overthought logical ones. 

It’s a ruling (if not, in the least, a sentence) we should be remiss to forget. Hyperbole has no place in the practice of law, from writing to litigating to conducting firm business.

The most immediate negative impact of hyperbole can be seen in legal writing.

“There is nothing worse than reading a brief that is filled to the brim with over-the-top exposition and exploitive narrative detail. It does not bolster your argument – it dampens your argument,” writes Keith Lee of An Associate’s Mind.

Although a certain amount of confidence in your argument is a prerequisite to solid legal writing, this doesn’t imply embellishment. In fact, your credibility as a lawyer is diminished as soon as the opposing counsel or the presiding judge starts to believe your argument can only stand up with a fair amount of exaggerating it.

“By forcing a reader to navigate sentimental adjectives and impassioned turns of phrase, you are removing the focus of the brief from your argument to your prose. While such a tactic might hold some weight when making an oral argument before a jury, it instead comes across as amateurish and impertinent when delivered in a written brief to a court,” continues Lee of An Associate’s Mind.

Even still, oral arguments are not necessarily reinforced through overly bold statements. You might just leave your self open to critique once you start aggrandizing the facts. Whether on paper or in the courtroom, it’s best to leave the hyperbole for lovers, not litigators.

Finally, in day-to-day dealings, hyperbole also holds no weight. Whether it’s exaggerating your timesheet description, your ability to complete a project on time, or your performance in general, managers will appreciate frankness and honesty before overstatement of the facts.

A young associate who claims they are capable of writing a brief—exaggerates their previous experiences in doing so—will only personally and professionally suffer in the event the brief is subpar.

Evaluation reviews of your work, sooner or later, will include snide comments from a secretary or jealous colleague. The other version of the truth should not appear more valid than your own.

Whatever your business or legal assessment, ensure it is balanced, fair, and just—like the law, but often unlike love.


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Will A Question Mark in Your Law Review Article Title Get It Published?

A lot of cyberbuzz is stirring today about an article written in The Guardian regarding the format of academic journal article titles and whether or not certain punctuation leads to more downloads and citations of the writing (read here and here).

A recent study shows that the titles of academic papers do, in fact, impact their rate of citation and download.

There are three major findings to the study, published in Scientometrics:

  • Articles with question marks in the titles tended to be downloaded more but cited less.
  • Articles with longer titles were downloaded slightly less than the articles with shorter titles.
  • Article with long titles containing a colon had fewer downloads and fewer citations.   

A lawyer can certainly extrapolate reasons for why these conclusions may hold true. For example, articles with question marks in the titles may be more provocative, leading to more downloads. But, perhaps articles with question marks in the title are also more editorial in nature, leading to less citation.

Lincoln Was Self-Taught . . . So Why Go To Law School?” is an interesting title leading to a controversial article of limited scientific fact, for example.

In addition, article titles that are more succinct reveal their subject matter more readily, thus appeal to inquiring minds. So, it is understandable that articles with shorter titles would be downloaded at higher rates.

While the study certainly sheds light on strategies to increase the readership of an attorney’s academic writing, lawyers looking to publish work in Law Reviews or similar legal journals should read another message between the printed lines.

Successful legal writers have done significant legal reading.

That is to say, if you want to be an expert at a task—whether that be research, analysis, or writing—it’s vital to put in the time and practice.

So, renew that subscription to the Administrative Law Review or even the ABA Journal. These publications are essential for a continued, comprehensive knowledge of your practice area. But, also, these academic sources (and their over-punctuated titles) mark the first step toward publishing pertinent research of your own.

The best way to have an article published, read, and cited, is to have 10,000-hours of expertise and to be familiar with the competition.


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Write Like A Professional And Leave The Joking For The Judges

“In a recent ruling in a highway construction dispute, San Antonio federal judge Fred Biery cited a range of authorities: Barbra Streisand; Stephen Sondheim; James Taylor; the Pearl beer slogan; and television programs spanning the past 50 years.  

There were nods to the Lone Ranger and Superman, and at one point, the judge wrote: ‘Instead of the ‘X Files,’ this drama could be called the ‘Yuck Files’.’ Idling car engines cause ‘automobile droppings,’ the judge wrote, ‘which the court calls Petro Poop.’”

The Wall Street Journal is not the only news source to take note of a recent trend by judges to write… shall we say… colorful opinions.

These days, it’s not uncommon for judges to use pop culture references, puns, and even rap songs to express themselves. Whether their use of humor is an attempt to make verdicts more readable and understandable, or whether it’s an attempt to quell an overwhelming sense of boredom from the bench, the jury is still out.

What is certain, however, is that humor serves as a double standard in law. For the Chief Justice presiding, all’s fair. But as a lawyer, defense or plaintiff, attempting a stand-up routine for a court case is not a battle you’re likely to win.

It’s not fair, but attorneys are expected by judges and their peers to present arguments that are:   

  1. Clear;
  2. Concise; and 
  3. Serious.

First and foremost, language in a legal brief or in oral arguments, for example, should be plain and clear to understand. Replace technical jargon with more understandable terms. Always offer a defined terms list. And avoid—at all costs—legalese.

Secondly, arguments should be concise. Attorneys are reputed for writing overly lengthy briefs. However, it’s unnecessary to argue a case in fifteen pages when the facts can be presented succinctly in five.

To further bolster this point, since 2009, the number of words per Board of Patent Appeals and Interferences opinion has severely declined. Not only has the average words per opinion changed drastically, but the median words per opinion has also decreased. In sum, the board has become less and less verbose, so it’s likely they prefer you to be as well.

Finally, eradicate frivolity from your arguments. Only serious writing is taken seriously. As soon as a judge perceives a point to be petty, flippant, or needing the adage “all joking aside…” your case is already lost.

So, in your next brief, as tempting as it may be to reference Guys and Dolls, Miss Saigon, or the Wizard of Oz—though we acknowledge that Supreme Court Justice Philip Straniere is a fan—don’t waste the time of judge, jury, and client. The court jestering sentencing trend is not one to stick.

“You wanna waste my time? Okay. I call my lawyer. He’s the best lawyer in Miami. He’s such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.”

(On the other hand, in a blog, you’re allowed to quote Scarface.)


For more information about professional writing, read “Consequences To Unprofessional Conduct In The Courtroom

For more information on proper documentation methods, attend C4CM’s course, “Bulletproof Documentation: Creating Clear, Concise, Legally Air-Tight Write-Ups

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