"persuasive Legal Writing" By Daniel U. Smith

PERSUASIVE LEGAL WRITING By Daniel U. Smith

"If you can' t write, you can' t win." Hon. William D. Stein California Court of Appeal First Appellate District The Recorder (5/21/97) p. 1.

Tenth Edition; Copyright 2009 All Rights Reserved Reprinted by Permission Daniel U. Smith 21 Rancheria Road Kentfield, California 94904 Certified Appellate Specialist State Bar Board of Legal Specialization [email protected] www.appealsmith.com

TABLE OF CONTENTS Page PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii A.

What others say about this manual. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

B.

About the author. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii PERSUASIVE LEGAL WRITING . . . . . . . . . . . . . .

1

1. The core principles of persuasive legal writing. . . . . . . . . . . . . . . . . . . . .

2

A.

Don' t burden the reader; create "ease of parsing." . . . . . . . . . . . . . . . . . . . .

2

B.

Obstacles to persuading a busy judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The subject is complex. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The judge is busy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The judge) a generalist) may need a quick education on the law. . . . . . . 4. Writing is a fragile way to communicate. . . . . . . . . . . . . . . . . . . . . . 5. The academic style wrongly assumes that difficulty for the reader implies excellence in the writer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. We grasp our own complex constructions, but judges won' t. . . . . . . . . 7. We are accustomed to the rhythms of conversation, which make for cluttered writing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Lawyers' credibility is low. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

3 3 3 3 3

. .

4 6

. .

6 7

2. Brevity, simplicity, clarity, and honesty. . . . . . . . . . . . .

8

C.

D.

Brevity. . . . . . . . . . . . . . . . . . . . . . . 1. Advocates of brevity. . . . . . . . . . 2. How to achieve brevity. . . . . . . . . a. Delete the noise (clutter))what implicit. . . . . . . . . . . . . . . b. Delete hollow modifiers. . . . c. Omit needless words. . . . . . . d. Condense clauses to phrases. . e. Use only the core word. . . . . 3. Judicial advice for shorter briefs. . .

.................... .................... .................... is unnecessary, redundant, or .................... .................... .................... .................... .................... ....................

..... 8 ..... 8 . . . . . 10 . . . . . .

. . . . . .

. . . . . .

. . . . . .

. . . . . .

10 12 13 14 15 17

Simplicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1. Advocates of simplicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. Simplicity is the trend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 i

3. 4.

Replace long, fancy words with simple, common words. . . . . . . . . . . . . 20 Exercises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

E.

Clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. Advocates of clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. How to achieve clarity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

F.

Honesty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Enhance your credibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Ethical requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

G.

Emulate Holmes' s plain style, not Cardozo' s ornate style. . . . . . . . . . . . . . . . 28 1. Holmes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2. Cardozo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

H.

Additional benefits: Clarify your thinking; manifest your competence; please the client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1. 2.

3. Drafting and editing. . Drafting. . . . . . . . . . . . . . . . . . . . . . . . . Editing. . . . . . . . . . . . . . . . . . . . . . . . . . a. Advocates of editing. . . . . . . . . . . . . . b. Match thought and expression. . . . . . . . c. Tips for editing your own writing. . . . . d. Tips for editing the writing of others. . . e. Editing exercise: U.S. v. Microsoft Corp.

ii

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

31 31 32 32 32 35 35 36

1. 2. 3. 4. 5. 6.

1. 2. 3. 4.

5. 6.

1. 2. 3.

4. 5. 6. 7.

4. Headings. . . . . . . . . . Assert a complete point, using key terms and details. Be brief (two lines or less). . . . . . . . . . . . . . . . . . Use parallel structure. . . . . . . . . . . . . . . . . . . . . In text after the heading, use the heading' s key terms. Format: Bold (only) and lower case. . . . . . . . . . . . Exercises. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

. . . . . .. ..

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

5. Paragraphs. . . . . . . . . . . . . . . . . . . . . Limit the paragraph to one point, stated in the topic sentence. . . . . . . a. Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maintain a clear train of thought. . . . . . . . . . . . . . . . . . . . . . . . . . a. Exercise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In drafting, put extra space between the paragraphs. . . . . . . . . . . . . . Intensify with a short sentence or one-sentence paragraph. . . . . . . . . . a. Short topic sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Short second sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Short sentence at paragraph' s end. . . . . . . . . . . . . . . . . . . . . d. One-sentence paragraph. . . . . . . . . . . . . . . . . . . . . . . . . . . . Replace paragraphs with visuals) photos, charts, diagrams, lists, tables, and graphs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other paragraph structures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. State your adversary' s point and refute it. . . . . . . . . . . . . . . . . b. Start with striking facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Start with a quote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Start with a question. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Sentences. . . . . . . . . . . . Start with a link to prior text when needed. . . . . . . . . End with the point of emphasis. . . . . . . . . . . . . . . . . Put the subject at or near the start. . . . . . . . . . . . . . . a. Avoid long introductory clauses. . . . . . . . . . . . b. Avoid introductory clauses modifying the subject. c. Avoid throat clearing. . . . . . . . . . . . . . . . . . . Use a strong subject and verb. . . . . . . . . . . . . . . . . . Keep subject, verb, and object close together. . . . . . . . Use parallel structure. . . . . . . . . . . . . . . . . . . . . . . Keep sentences short. . . . . . . . . . . . . . . . . . . . . . . a. Tips for shorter sentences. . . . . . . . . . . . . . . . b. Omit "that" and "who is/which is." . . . . . . . . . . c. Condense "of" constructions. . . . . . . . . . . . . . . d. Refer to cases by one name only. . . . . . . . . . . . e. Exercises to shorten sentences. . . . . . . . . . . . . iii

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

. . . . . . .

. . . . . . .

39 39 40 40 41 41 42

. . . . . . . . . . .

. . . . . . . . . . .

44 44 45 50 50 51 51 51 51 51 52

. . . . . .

. . . . . .

53 54 54 54 55 55

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . .

56 56 58 59 59 60 60 61 61 62 65 65 66 66 66 67

8.

9.

Punctuate for brevity and emphasis. . . . . . . . . . . . . . . . . . . . . . a. Dash. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Colon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Bullets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Italics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Semicolon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Parentheses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g. Minimize commas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . h. Minimize hyphens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. Minimize ellipses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Use vivid prose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Concrete details. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. The order of time, cause and effect, and climax. . . . . . . . . . c. Put the "because" clause (the cause) before the effect. . . . . . . d. Replace nominalizations with verbs. . . . . . . . . . . . . . . . . . e. Use the same word for the same concept. . . . . . . . . . . . . . . f. Describe court filings by the action, not the title. . . . . . . . . . g. Use the active voice. . . . . . . . . . . . . . . . . . . . . . . . . . . . h. Refer to parties by name. . . . . . . . . . . . . . . . . . . . . . . . . i. Use positive constructions. . . . . . . . . . . . . . . . . . . . . . . . j. Before a quote, state its point. . . . . . . . . . . . . . . . . . . . . . k. Avoid block quotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . l. Avoid vague or ambiguous constructions. . . . . . . . . . . . . . . (1) Use specific terms to refer back. . . . . . . . . . . . . . . . . (2) For words with multiple meanings, use just one meaning consistently. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Avoid the restrictive/nonrestrictive modifier dilemma. . . (4) When stating your adversary' s position, say so. . . . . . . (5) Put modifiers immediately next to the person or thing modified. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . m. Condense step-by-step sentences. . . . . . . . . . . . . . . . . . . .

iv

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

67 67 68 68 69 70 70 70 70 71 71 71 72 73 73 74 74 74 75 75 76 77 77 77

. . . . 78 . . . . 78 . . . . 79 . . . . 79 . . . . 80

n.

10.

1. 2.

3.

4. 5.

6. 7.

8. 9. 10.

Use the right tone. . . . . . . . . . . . . . . . . (1) Show respect. . . . . . . . . . . . . . . . . (2) Avoid emotion. . . . . . . . . . . . . . . . (3) Advocate sound judicial administration (4) Use gender-neutral language. . . . . . . (5) Use informal constructions. . . . . . . . (6) Avoid word gaffes. . . . . . . . . . . . . Exercises. . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

81 81 82 82 83 84 88 90

7. Structuring briefs and motions. . . . . . . . . . . . Universal structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Issues presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Summary of argument. . . . . . . . . . . . . . . . . . . . . . . . . . . d. Cite to the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Create a theme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statement of facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Be complete. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Structure the facts to match the legal arguments. . . . . . . . . . c. Persuade, within the bounds of honesty. . . . . . . . . . . . . . . . d. Use frequent headings and subheadings. . . . . . . . . . . . . . . . Procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Understand the syllogism. . . . . . . . . . . . . . . . . . . . . . . . . b. Select and organize arguments from strongest to weakest. . . . c. State the standard of review. . . . . . . . . . . . . . . . . . . . . . . d. An argument' s five parts. . . . . . . . . . . . . . . . . . . . . . . . . (1) Road map) orient the reader. . . . . . . . . . . . . . . . . . . (2) Rules) discussed neutrally. . . . . . . . . . . . . . . . . . . . (3) Apply rules to facts. . . . . . . . . . . . . . . . . . . . . . . . . (4) Anticipatory refutation. . . . . . . . . . . . . . . . . . . . . . (5) Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Footnotes: Minimize substantive footnotes. . . . . . . . . . . . . . . . . Citing cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Note the precedent' s similarity (or dissimilarity) to your case. b. Hierarchy of authority. . . . . . . . . . . . . . . . . . . . . . . . . . . c. Citations belong in the text) but minimize clutter. . . . . . . . . . d. Help the reader. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Avoid repetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reply briefs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix to the brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

92 92 92 92 93 94 94 94 95 95 95 95 96 96 96 96 97 97 98 98 99 100 100 100 101 101 102 102 102 106 106 106 107

v

......... ......... ......... and fairness. ......... ......... ......... .........

. . . . . . . .

. . . . . . . .

1. 2. 3.

8. Memos. Clarify the assignment. . . . . . . . . . Format. . . . . . . . . . . . . . . . . . . . Citing cases. . . . . . . . . . . . . . . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

108 108 108 108

9. Letters. . . . . . . . . . . . . . . . . . . . . . . . . 109 10. E-mails. . . . . . . . . . . . . . . . . . . . . . . . 112 11. Future work and study. . . . . . . . . . . . . . . . . . . 113 12. Humor: Self-cancelling advice. . . . . . . . . . . . . . . . . 114 13. List of shorter words and phrases. . . . . . . . . . . . . . . 116 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

vi

PREFACE "Persuasive Legal Writing" answers the question facing every lawyer: What writing style will best persuade the busy judge? The answer is: brevity, simplicity, clarity, and honesty. To achieve these style qualities, this manual offers over 70 tips, allowing you to: ! Write shorter briefs more easily and more quickly. ! Enhance your stature in the eyes of the court. ! Please your client. ! Increase your chance of winning. This manual is based on research with judges on the Ninth Circuit Court of Appeals and on California' s Courts of Appeal. I extend my deep appreciation to the many judges who have shared their views on legal writing and in many instances have co-presented this seminar. Those judges include: Ninth Circuit Court of Appeals: Hon. Marsha Berzon, Hon. Alex Kozinski. California Supreme Court: Hon. Carol A. Corrigan. California Courts of Appeal: Hon. Barton Gaut, Hon. Zerne P. Haning (ret.), Hon. Earl Johnson (ret.), Hon. Eileen C. Moore, Hon. Fred K. Morrison, Hon. Stuart R. Pollak, Hon. Rick Sims, Hon. William D. Stein, Hon. Gary E. Strankman (ret.), Hon. Paul Turner, Hon. Jim Ward (ret.). California Superior Courts: Hon. David A. Garcia (ret.) and Hon. John Zebrowski (ret.). Mr. Smith presents this seminar for California' s Continuing Education of the Bar (CEB), the Bar Association of San Francisco, the Los Angeles County Bar Association, and major law firms throughout California. A. What others say about this manual. Law professors and senior partners: "A serious effort to improve one of lawyers' most vital skills." Prof. Jesse H. Choper, Former Dean, U.C. Berkeley School of Law (Boalt Hall) "This manual should be required reading for every lawyer in America. The examples are terrific!" Gerald F. Uelmen, Professor and Former Dean Santa Clara University School of Law "No book better presents how to write with the clarity and vigor demanded of the successful practitioner." Robert M. Westberg, Pillsbury Winthrop Shaw Pittman, LLP, San Francisco

vii

Participant evaluations: "The best CLE course I have ever taken." "Most helpful MCLE event ever attended. A must for success as an attorney." "The best seminar on legal writing I have ever taken; as enjoyable as it was informative." "Truly educational) both for the novice and savvy veteran lawyers." "Excellent. I' ll put these tips to use tomorrow!" "Marvelous) colorful, passionate, interesting. Great balance in explaining how and why to write well." "Absolutely fabulous"; "Outstanding." "Incredibly helpful." "Superb course; superb teacher." "Patient, sophisticated, storytelling teacher. Invaluable!" "Excellent program by a well-qualified speaker." "Of my first brief after the seminar the judge said: ` excellent,' ` succinct,' ` to the point,' and ` very helpful.' A first! Thanks for your excellent course." "I will highly recommend this session to everyone I speak with." "Excellent. Tremendously clear and easy to follow." "Extremely well done. I will refer to this booklet often." "Fantastic. I will be keeping this on top of my desk." B.

About the author. Since 1976 Daniel U. Smith has engaged exclusively in civil appeals. He is a Certified Appellate Specialist (California State Bar Board of Legal Specialization) and a member of the California Academy of Appellate Lawyers. In the past 32 years Mr. Smith has obtained the following results on appeal: ! Affirmed 88% of pretrial judgments (7 of 8). ! Affirmed 82% of posttrial judgments (61 of 74). ! Reversed 60% of pretrial judgments (27 of 45). ! Reversed 60% of posttrial judgments (28 of 47). Mr. Smith served on the California Judicial Council' s Civil Jury Instruction Subcommittee, which in 2003 issued a new set of jury instructions in plain English. Mr. Smith is admitted to the bar of the U.S. Supreme Court and in California and Illinois. He served as co-chair of the San Francisco Bar Association' s Appellate Courts Committee, and he was founding vice-chair of the Los Angeles County Bar Association' s Appellate Courts Committee. Mr. Smith received his A.B. degree from Princeton University (Woodrow Wilson School; 1965) and J.D. degree from the University of California, Berkeley (Boalt Hall; 1968), where he was Executive Editor of the California Law Review. He clerked for Federal District Judge Alfonso J. Zirpoli (N.D. Cal.), and was an associate at Sidley & Austin. In the California Supreme Court, Mr. Smith has briefed and argued the following cases: Grisham v. Philip Morris, U.S.A., Inc. (2007) 40 Cal.4th 623 (the statutes of limitation for separate injuries are triggered by the separate manifestation of each injury). Shin v. Ahn (2007) 42 Cal.4th 482 (golfer who fails to look to see if fairway is clear before teeing off is reckless and cannot invoke the primary assumption of risk defense).

viii

Miller v. Department of Corrections (2005) 36 Cal.4th 446 (supervisors sexual activities with other female employees created actionable hostile environment and retaliation for female plaintiffs). Donaldson v. National Marine, Inc. (2005) 35 Cal.4th 503 (California courts may consider asbestos claims arising under the Jones Act in other states). Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (landowner has duty to warn of hazardous asbestos materials installed on property). Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 (punitive damages may take account of plaintiff' s uncompensated harm). Elsner v. Uveges (2004) 34 Cal.4th 915 (Labor Code section 6304.5 makes OSHA standards admissible to prove a contractor' s duty). Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 (smokers may recover for tobacco company misconduct before enactment of statutory immunity in 1988). Salgado v. County of Los Angeles (1998) 19 Cal.4th 629 (in a medical malpractice case, plaintiff' s pain and suffering award is a present lump sum, not to be distributed in periodic payments over the plaintiff' s lifetime). Munoz v. Olin (1979) 24 Cal.3d 629 (arson investigator may not use deadly force to apprehend fleeing arson suspect). Dawkins v. City of Los Angeles (1978) 22 Cal.3d 126 (police had probable cause to detain suspect). For the annual seminar "What' s New in Tort and Trial Practice," Mr. Smith has served as panelist and co-author since it began in 1983. For more information, visit www.appealsmith.com

ix

PERSUASIVE LEGAL WRITING By Daniel U. Smith This seminar teaches over 70 techniques to make motions and briefs more persuasive. These techniques persuade the reader by making the reader' s job easier, by enhancing your credibility, and by making your arguments concise, simple, and clear. These writing techniques will increase your chances of winning and will please your partners and clients. How to get the most from this seminar. 1. This manual reflects not just the author' s preferences, but the preferences of appellate judges in California and the Ninth Circuit and the teaching of experts on writing and legal writing across the country. 2. Decide to be the best legal writer you can be: "I am an excellent legal writer." Date:_________ Name: _______________________________________ 3. This manual is designed for a six-hour law firm seminar. If your seminar is shorter, review those parts that had to be skipped. 4. During the seminar ask questions. Your question will benefit everyone. 5. After the seminar, commit to 30 days of intense application of the manual' s principles) and to a lifetime of pride in writing persuasively. The ineffective writing habits we developed in college and law school take time to root out. Summarize the manual' s key principles to create your own mini-manual. Focus on the tips you most want to adopt. The fastest way to acquire a new skill is to write about it and to share it with others. So share the manual' s tips with your associates, assistant, and paralegal. Share these tips with your children and grandchildren by offering to edit their homework and term papers. Perform the assignments in Chapter 10: "Future work and study."

1

1.

The core principles of persuasive legal writing. This manual' s writing tips reflect the following principles of persuasion. A.

Don' t burden the reader; create "ease of parsing. " Jacques Barzun: The "ethics of writing" are that "the reader' s part . . . must 1 never become a strain. " Thomas & Turner: "[T]he reader has a problem to solve, a decision to make, a ruling to hand down, an inquiry to conduct, . . . )in short, a job to do. . . . [T]he prime literary virtue is ease of parsing . . . because . . . writing is an instrument for delivering information with maximum efficiency and in such a way as to place the smallest possible burden upon the reader, who has other)more 2 important)burdens to bear. " "Practical style values clarity because it places a premium on being easy to parse. . . . [P]ractical style is precise and efficient because the reader wants to understand well and quickly for the purpose of making immediate use of 3 what he is reading. " [The practical style allows the reader to look] at something through a perfectly clean and undistorting window; the window should not draw attention 4 to itself, and will not unless it is obviously defective in some way. " E. B. White: "[T]he reader [is] in serious trouble most of the time, floundering in a swamp, and . . . it [is] the duty of anyone attempting to write English to drain this swamp quickly and get the reader up on dry ground, or at least to 5 throw a rope. "

1 2 3 4 5

J. Barzun, Simple and Direct, A Rhetoric for Writers (1994) p. 7. F. Thomas & M. Turner, Clear and Simple as the Truth (1994) p. 81 (emphasis added). Id. at p. 82. F. Thomas & M. Turner, supra, p. 36. W. Strunk, Jr. and E.B. White, The Elements of Style, p. viii (2000). 2

B.

Obstacles to persuading a busy judge. 1.

The subject is complex.

A brief or motion must cover factual history, procedural history, and law, and apply the law to disputed facts. 2.

The judge is busy.

Judges work under severe time limits. One law and motion judge reports spending just seven minutes on each principal brief. Many California appellate judges write 10 opinions per month and concur (or dissent) in 20 other opinions per month, totalling 30 opinions per month. Each appeal has three briefs, totalling 90 briefs per month. Yet for this workload, judges have only 20 working days per month (two days are allocated to oral argument). This limited time requires appellate judges to process 1. 5 appeals per day. : "Clearly the most serious problem facing the California justice system is overload, which is adversely affecting the delivery of justice at all levels. In both the trial and appellate courts, the primary goal appears no longer to be justice for the litigants, but disposing of the crush of cases as fast as 6 possible. " "We are in the midst of a law explosion as a result of which court time has 7 become an increasingly scarce and valuable, if not an endangered, resource. " 3.

The judge)a generalist)may need a quick education on the law.

Civil judges are generalists, hearing cases in a variety of fields. Accordingly, before you can persuade the judge of the merit in your client' s cause, you must provide the judge with a concise, simple, and clear analysis of education on the law applicable to your case. 4.

Writing is a fragile way to communicate.

Your writing style must command the judge' s attention because judges are often interrupted by phone calls, clerks, and meetings. Judges sometimes read briefs in difficult settings)while commuting or while their spouse is driving.

6

Hon. Marcus Kaufman, Associate Justice of the California Supreme Court, California Lawyer (August 1990) p. 28. 7 County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 780-781 (Presiding Justice Robert Gardner). 3

5.

The academic style wrongly assumes that difficulty for the reader implies excellence in the writer.

Though "[l]awyers are the highest paid writers in the world, " they are "the 8 worst. " Academic writing. In college and law school, we acquired the academic style)verbose, complex, and dense. The academic style assumes that difficulty for the reader shows excellence in the writer. We mistakenly imitate college professors)even though they are hard to understand: "[I]n college . . . articulate people used big words, which impressed me. [My] philosophy professor . . . sounded so smart to me simply because I didn' t understand him. . . . The way someone writes)the more difficult the writing style)the more intellectual they sound. . . . Ideas are supposed to be written in such a fashion that they are difficult for untrained people to understand. This is scholarly writing. And if you want to be a scholar, you need to learn to reproduce this way of 9 writing. " Jonathan Franzen explains the difference between "status" writing)promoting the writer' s "status")and "contract" writing. The "status" writer believes: "difficulty tends to signal excellence; it suggests that the novel' s author has disdained cheap compromise and stayed true to an artistic vision. Easy fiction has little value, the argument goes. Pleasure that demands hard work, the slow penetration of mystery, the outlasting of lesser readers, is the pleasure most worth having; and if . . . you can' t hack it, 10 then to hell with you. " By contrast, the "contract" style "represents a compact between the writer and 11 the reader, " where "difficulty is a sign of trouble. "

8

P. Wolff, Foreword to I. Younger, Persuasive Writing (The Professional Education Group, Inc. 1990) p. v. 9 H. Becker, "If You Want to Be A Scholar," reprinted in M. Rose and M. Kiniry, Critical Strategies for Academic Thinking and Writing, pp. 697-698 (3d ed. 1998). 10 J. Franzen, "Mr. Difficult," The New Yorker, September 30, 2002, p. 100. 11 Ibid. 4

Judicial writing. The style of judicial opinions often burdens the reader. The purpose of such writing appears not so much to persuade a busy reader, but to display the writer' s command of complex details. Such writing is often cluttered)dense prose, fancy words, elaborate constructions, detours (off-message excursions) and excess detail (overparticularizing). These maladies obscure the point. A bad example: Pennoyer v. Neff, 95 U. S. 714 (1877). This is an action to recover the possession of a tract of land, of the alleged value of $15, 000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff' s deed, made upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment. It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at that time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a nonresident of the State, that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication. (201 words)

Possible revision Plaintiff, a non-resident of Oregon, challenges the sheriff' s sale of his Oregon property. The sale enforced a default judgment in a debt collection action where plaintiff was served only by publication. We hold that service by publication did not give personal jurisdiction over plaintiff because he was not an Oregon resident, he was not personally served, his property was not attached, and he did not appear. (78 words)

5

Another bad example: The duty owing from defendants to plaintiff in the abstract will vary . . . relative to the juxtaposition of the real world environmental encasement 12 of the two sides. The concept of causation would seem less plastic. Fault: abstract. Another bad example: LBE' s complaint more specifically alleges that NRB failed to make an 13 appropriate determination of RPT and TIP conformity to SIP. Fault: Requires the reader to remember what the initials stand for. Another bad example: In fine [conclusion], I resile [spring back] from turning ERISA decision 14 making into an aeonian [eternal] logomachy [word battle]. 6.

We grasp our own complex constructions, but judges won' t.

We draft slowly, which give us time to parse complex constructions, whose meaning we already know. These complex constructions sound intelligible to us because "[t]he mind tends to run along the groove of one' s intention and overlooks 15 the actual expression. " But the reader doesn' t want to slow down to analyze complex constructions about an unfamiliar subject. 7.

We are accustomed to the rhythms of conversation, which make for cluttered writing.

In conversation, the burden of cluttered and inflated phrases is offset by intonation, eye contact, body language, and listener feedback. But in writing, these aids are absent. Accordingly, the conversational style is not a persuasive writing style. 8.

Lawyers' credibility is low.

Lawyers' credibility is notoriously low. Lawyers are paid, not to be objective, but to advocate for one side. In this partisan atmosphere, lawyers sometimes exaggerate or even mislead. Judges are on guard against this tendency. Hence, to dispel doubts about your credibility, eliminate vigorous assertions. Instead, simply reveal the facts and the law. Don' t tell; show. Don' t paraphrase; quote.

12

Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 867 fn. 2 (9th Cir. 1977). A Ninth Circuit Brief quoted by Hon. Alex Kozinski, "The Wrong Stuff," 1992 Brigham Young University L.R. 325, 328. Judge Kozinski added: "Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA." Ibid. 14 Kearney v. Standard Ins. Co. (9th Cir. 1999) 175 F.3d 1084, 1105. 15 J. Barzun, supra, pp. 4-5. 13

6

2.

Brevity, simplicity, clarity, and honesty. Judges, who are busy and need our help, want us to write with: ! Brevity ! Simplicity ! Clarity ! Honesty C. Brevity. Persuasive writing is concise) eliminating words that are unnecessary, redundant, or implicit. 1. Advocates of brevity. Scalia and Garner: "The overarching objective of a brief is to make the court' s job easier. 16 Every other consideration is subordinate. What achieves that objective? Brevity. * * * * "Every word that is not a help is a hindrance because it distracts. A judge who realizes that a brief is 17wordy will skim it; one who finds a brief terse and concise will read every word. * * * * "[A] brief that is verbose and repetitious will only be skimmed; a brief that is terse and to the point will likely be read with full attention. So a long and flabby brief, far from getting a judge to spend more time with your case, will probably have just the opposite effect. Ponder this: Judges often associate the brevity of the brief with the quality of the lawyer. Many judges we' ve spoken with say that good lawyers often come in far below the page limits) and that bad lawyers almost never do." 18 Strunk and White: "Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences . . . . This requires not that the writer make all sentences 19 short, or avoid all detail and treat subjects only in outline, but that every word tell." "Omit needless words." 20 Isaac Babel: "Your language becomes clear and strong, not when you can no longer add, but when you can no longer take away." 21 William Zinsser: "Clutter is the laborious phrase [or word] that . . . blunts the 22 painful edge of truth." "Writing is like a good watch) it should run smoothly and have no extra parts." 23 16

59.

A. Scalia and B. Garner, Making Your Case: The Art of Persuading Judges" (2008) p.

17

Scalia and Garner, supra, p. 81. Scalia and Garner, supra, p. 98. 19 Strunk & White, supra, p. 23. 20 Ibid. 21 Quoted in John Updike, "Hide-and-seek: The Complete Isaac Babel," The New Yorker (November 5, 2001), p. 91. 22 William Zinsser, On Writing Well (6th ed. 2001) p. 14. 23 Zinsser, supra, p. 85. 18

7

George Orwell: "Never use a long word where a short word will do. If it is possible to cut out a word, always cut it out." 24 Winston Churchill: "Short words are best and the old words when short are best of all." Ted Sorenson: "Lincoln never used a two- or three-syllable word where a onesyllable word would do, and never used two or three words where one word would do." 25 Edward Everett on Lincoln's Gettysburg Address: "I shall be glad if I could flatter myself that I came as near to the central idea of the occasion in two hours as you did in two minutes." 26 Hon. Harry Pregerson: "[U]nnecessarily long briefs are counterproductive. They clog a good argument with excess verbiage. They tend to lose their persuasive edge as well as their credibility." 27 Pareto principle: The 80-20 rule) 20% of the causes create 80% of the effects. 28 Applied to writing, the Pareto principle means that 80% of the text contributes just 20% of the meaning. Hence, 80% of the text can be condensed substantially without significant loss of meaning. Signal-to-noise ratio: In engineering, the signal-to-noise ratio compares the strength of the signal (useful information) to the strength of the competing noise (text that is unnecessary, redundant, or implicit). 29 The writer can increase the signal-to-noise ratio by minimizing noise) deleting all text that obscures or distracts because it is unnecessary, redundant, or implicit.

24

G. Orwell, Politics and the English Language (1946). T. Sorenson, Kennedy (1965) p. 240. 26 W. Safire, "Lend Me Your Ears: Great Speeches in History" (1997) p. 49. 27 H. Pregerson, "The Seven Sins of Appellate Brief Writing and Other Transgressions," 1986 UCLA Law Review 431, 434. 28 Vilfredo Pareto (1848-1923), a French-Italian sociologist, economist, and philosopher, noted that 80% of the land in Italy was owned by 20% of the population. en.wikipedia.org/wiki/Pareto_principle. 29 en.wikipedia.org/wiki/Signal-to-noise_ratio. 25

8

2.

How to achieve brevity. a. Delete the noise (clutter)) what is unnecessary, redundant, or implicit. Exercise #1: Palsgraf v. Long Island R.Co. (N.Y. 1928) 162 N.E. 99 (Cardozo, C.J.). Plaintiff was standing on a platform of defendant' s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. (16 lines)

9

Possible deletions: Plaintiff was standing on a platform of defendant' s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues. (16 lines) Possible revision: Palsgraf was standing on the railroad' s platform when a man carrying a small package wrapped in newspaper ran to catch a departing train. As two guards helped him board the moving car, the package) containing fireworks) fell and exploded. At the other end of the platform, many feet away, the explosion' s shock dislodged some scales, injuring Palsgraf. (5 lines) Exercise #2: When the Continental Congress edited the Declaration of Independence to Jefferson' s dismay, Franklin consoled Jefferson with a story about a young hat seller who wanted to open his business with this sign: John Thompson, Hatter, makes and sells hats for ready money. [with the figure of a hat]. 30

30

H.S. Brands, The First American) The Life and Times of Benjamin Franklin (2000) pp. 511-512. 10

b. Delete hollow modifiers. Voltaire: "The adjective is the enemy of the noun." 31 In speech intensifiers create emphasis and vitality, but in writing they deaden the impact. Ask your staff to help you root them out. absolute(ly) eventual in this case needless to say (in a) sense actively (it is) evident in turn no doubt seriously actual(ly) that incidence of not only . . . (a) significant and/or exactly inevitably but also degree of almost extremely inherently obviously situated (it is) apparent (as a matter of) interestingly ongoing so ("so great") that fact it appears (is on the one somewhat (it) appears (the) fact apparent) that hand sort of that remains it can be stated order of (by any) arguably (the) fact that with certainty magnitude standard as far as ~ is first and that over time straightconcerned foremost it goes without overall forward as can be seen for the most saying that own (adj.) strictly speaking assuredly part it is important per se successfully as such frame of to note (worth plainly Suffice it to say basically reference noting; should (the) point is surely both . . . and framework be noted) that systematically certainly frankly it would practically tend to (it is) clear in fundamentally appear that precise(ly) thankfully this case that greatly kind of proper that is (are) clearly having said largely purely (for one) thing completely that literally quite thorough(ly) (of) course highly (a) little rather (adj.) total(ly) decidedly historically mainly real(ly) truly definitely hopefully meaningful relative(ly) undue (unduly) dimension in depth more or less reportedly unfortunately doubtless(ly) in particular mostly respective(ly) utterly effectively in question namely (that) said various eminently in the final (last) naturally (having) said that very entire(ly) analysis nearly (it would) seem virtually essential(ly) in that regard necessarily Never modify absolutes: equal, essential, fatal, final, identical, matchless, perfect, pregnant, supreme, unique, universal. "To form a more perfect Union" is correct politically but not grammatically.

31

D. Lambuth, The Golden Book on Writing (1964) p. 29. 11

c. Omit needless words. Make these phrases as short and simple as possible. You may want a word that does not appear in the original phrase. evidence in this case the fact that testified at trial Prior to the commencement of trial said in his testimony With respect to the reprehensibility prong The evidence in the record in this case showed that he said imposed restrictions precluding the use of in pertinent part call your attention to the fact that in the instant case the fact that he had not succeeded in many cases the engines were in a hasty manner defective regarded as being at this point in time on the ground that for the duration of by means/reason/virtue of check in the amount of has been involved in the investigation of in the majority of instances have knowledge of in the event that in accordance with a large number of prior to pursuant to the provisions in the policy subsequent to with the exception of did not in any way until such time as The medical expert was of the for the purpose of opinion that referred to as was able to draw conclusions as to the question as to whether would have been sufficient to this is a subject that along the same lines the reason why is that in connection with despite the fact that an excessive number of due/owing to the fact that in order to is based on acts of a hostile character/nature this case is a difficult one on the basis of in circumstances when at the time that There is a substantial body of case law making it clear that There is ample evidence to support 12

d. Condense clauses to phrases. A subordinate clause (subject-verb-object) can often be shortened to a phrase or word: 1. Replace the clause' s subject and verb with an adverb or adjective: Earl Warren, who had been formerly Governor of California, became Chief Justice of the Supreme Court. He was represented by an court-appointed attorney who had been appointed by the Court. 2. Turn the clause into a prepositional phrase: While she was traveling on business On business trips, her supervisor sexually harassed her. 3. Turn the clause (starting with "that" or "so that") into an infinitive or gerund phrase: The witness examined the document so that he could to refresh his recollection. [or: "examined the document, refreshing his recollection."] 4. Turn the clause into an adjective or adverb: The construction site was littered with rusty nails that had rust on them. She drove onto the picnic area in a reckless manner recklessly.

13

e. Use only the core word. Using the word that reveals the core of your point allows you to delete the helping words. David Lambuth: "If you have a nail to hit, hit it on the head." 32 Mark Twain: A writer must "say what he is proposing to say, not merely come near it." "Use the right word, not its second cousin." 33 Mark Twain: "The difference between the almost right word and the right word is really a large matter ) ' tis the difference between the lightning bug and the lightning." 34 Example #1: Compare the bold phrases in Virginia' s Declaration of Rights to the equivalent phrases in the Declaration of Independence. Note how Jefferson focuses on the key word or concept, allowing him to eliminate needless words. Virginia's Declaration of Rights35 Declaration of Independence 1. That all men are born equally free that all men are created equal; that they are and independent, and have certain endowed by their creator with certain inherent natural rights, of which they unalienable rights; that among these are cannot, by any compact, deprive or divest life, liberty, and the pursuit of happiness; their posterity; among which are the that to secure these rights, governments are enjoyment of life and liberty, with the instituted among men, deriving their just means of acquiring and possessing powers from the consent of the governed; property, and pursuing and obtaining . . . . (48 words) happiness and safety. 2. That all power is vested in, and consequently derives from the people; that magistrates are their trustees and servants, and at all times amenable to them. (77 words)

32

D. Lambuth, supra, p. 17. Mark Twain, Letters from the Earth (1938) p. 123. 34 G. Bainton, The Art of Authorship (1890) pp. 87-88. 35 When Jefferson drafted the Declaration of Independence, he had available Virginia' s Declaration of Rights, printed in the Pennsylvania Gazette on June 12, 1776. P. Maier, American Scripture: Making the Declaration of Independence (1997) p. 126. 33

14

A good example: Short sentences (one to two lines). Statement of facts36 Lagatree was offered a full-time legal secretary position with Luce, Forward, Hamilton & Scripps (“Luce”). On Lagatree’s first day, Luce presented its standard offer letter. The letter required Lagatree to submit all "claims arising from or related to [his] employment or termination of [his] employment" to binding arbitration (as provided in the Federal Arbitration Act [9 U.S.C. § 1 et. seq.]). Lagatree objected to the arbitration clause, but gave no reason related to federal anti-discrimination law. Later he said he wanted to keep his "civil liberties, including the right to a jury trial and redress of grievances through the government processes in place." Lagatree worked for Luce for two days while Luce considered his objection to the arbitration clause. When Luce insisted on the arbitration clause, Lagatree told Luce the clause was "unfair" and refused to sign the offer letter. Luce then terminated Lagatree' s conditional employment solely because he refused to sign the arbitration agreement. Lagatree' s only complaint about Luce was its arbitration agreement. He admitted Luce acted professionally without any purpose to cause harm or distress.

36

Modified from E.E.O.C. v. Luce, Forward, Hamilton & Scripps LLP, 345 F.3d 742 (9th Cir. 2003). 15

3. Judicial advice for shorter briefs. The California Court of Appeal, Fourth Appellate District, Division Two (Riverside), has offered these tips to shorten a brief: 1. Make the Statement of Facts a summary, reserving details to the specifically related arguments. 2. State only the facts that directly relate to, or give necessary background for, an argument in the brief. 3. Reduce explanations of well known principles of law and cite the court to such explanations, when necessary, in cited cases. 4. Avoid recitations of the facts of cases cited when there is no question that the principle of law stated in the cited case applies to this case. 5. Avoid quotations from the record or case law when a paraphrase and citation would be shorter. [Beware of this suggestion) paraphrasing rather than quoting can diminish your credibility.]

16

D.

Simplicity. The most persuasive construction is the simplest. The writer' s job is to reduce complex ideas and constructions to their essence. 1. Advocates of simplicity. Abraham Lincoln: "I was not satisfied . . . until I had put [the idea] in language plain enough . . . for any boy I knew to comprehend. This was a kind of passion with me, and it has stuck by me." 37 E.B. White: "The approach to style is by way of plainness, simplicity . . . ." 38 Aristotle: 39 "Clearness is secured by using the words . . . that are current and ordinary." George Bernard Shaw: "In literature the ambition of the novice 40 is to acquire the literary language; the struggle of the adept is to get rid of it." Walt Whitman: "The art of art, the glory of expression is simplicity. Nothing is better than 41 simplicity . . . nothing can make up for excess or for the lack of definiteness." Jacques Barzun: "Prefer the short word to the long; the concrete to the abstract; and the familiar to the unfamiliar." 42 George Orwell: "Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent." 43 Bryan Garner: "If the same idea can be expressed in a simple way or in a complex way, the simple way is better ) and, paradoxically, it will typically lead readers to conclude that the writer is smarter." 44 Scalia and Garner: "[S]hun[] puffed-up, legalistic language." 45 Ockham's razor: The best solution is the simplest. 46

37

M. Meltzer, Lincoln in His own Words, p. 6 (1993). Strunk & White, supra, p. 69. 39 Quoted in U.S. Securities and Exchange Comm' n, "A Plain English Handbook: How to create clear SEC disclosure documents" (1998) p. 30; www.sec.gov/ pdf/handbook.pdf. 40 Quoted in J. Williams, Style-Toward Clarity and Grace (2000) p. 191. 41 Quoted in J. Barzun, supra, p. 90. 42 J. Barzun, supra, p. 13. 43 G. Orwell, Politics and the English Language (1946). 44 B. Garner, A Dictionary of Modern American Usage ("Dictionary") (1998) p. x. 45 Scalia and Garner, supra, p. 107. 46 William Ockham (1285-1349), a famed logician, wrote: "It is folly to do with many what can be done with fewer," and "Plurality ought never be posited without necessity." This principle was re-stated by Leonardo da Vinci (1452-1519) as: "Simplicity is the ultimate sophistication." A rephrasing attributed to Einstein is: "Everything should be made as simple as possible, but not simpler." The term "razor" refers to shaving away unnecessary information to reach the simplest explanation. en.wikipedia.org/wiki/Occam' s-Razor. 38

17

Judge Alex Kozinski: Judge Alex Kozinski of the Ninth Circuit Court of Appeals believes "simple, direct language is more persuasive," and that "simplifying" is "the essence of advocacy": I don' t like simple language just out of aesthetic preference. Rather, I find that simple, direct language is more persuasive than convoluted language. This is so for a number of reasons. First, simple language is more easily grasped. The more abstract the language, the more the mind has to work to grasp the concepts. The very process of understanding then distracts from the real point of the exercise, which is to change the reader' s mind. Second, abstract language has a tendency to be soft and ambiguous. The process of translating it into concrete examples during the drafting process reveals fuzzy thinking. Because concrete, simple language is much easier to grasp, it becomes very clear when the language used does not really make the point the writer hopes to make. This forces the writer to focus his thinking and sharpen the argument. Third, abstract language can be easily waved aside by someone who is leaning the other way. The very fuzziness of the concepts allows the reader to maintain his current thinking, because there is direct conflict between that thinking and the argument being made. It' s much more difficult to remain immune to an argument that' s made in concrete terms) the contradictions become immediately apparent and the reader has to find some way of reconciling them. This may, of course, result in an adverse decision, but at least the reader must come to grips with the argument on its merits. I can understand why lawyers may resist simple writing: It' s much harder to do than convoluted, abstract writing. Often, the attempt to simplify and clarify reveals weaknesses in your own argument, weaknesses that have to be addressed and shored up. But then, at least, you' re aware of those weaknesses and can deal with them while you have the leisure of thinking about it in your office. If you don' t do it then, they will probably come back to bite you at oral argument and, not having been aware of them, you won' t be able to address them. Worse, the judges may not be aware of them until they themselves sit down to write an opinion and, at that point, you' ll have no input into the process at all. So simplifying and clarifying is not just a nice thing to do to be kind to the judges. It' s really the essence of advocacy. Lawyers who refuse to do it are simply suffering from mind-sloth. 47

47

Email from Judge Kozinski to author, April 25, 2002 (emphasis added). 18

2. Simplicity is the trend. Simplicity is the trend in professional writing. The SEC' s "A Plain English Handbook" requires "plain English," "at a level the audience can understand." 48 SEC Rule 421 requires disclosure documents to use "definite, concrete, everyday words." In 2003 the California Judicial Council published new civil jury instructions, offering "a plain-English explanation of the law. 49 BAJI 2.21 CACI 107 Failure of recollection is People often forget things or make common. Innocent misrecollection mistakes in what they remember. is not uncommon. 3. Replace long, fancy words with simple, common words. Replace long or fancy words with simple, common substitutes. accompany endeavor obtain append establish occasion (v.) apprise expedite place (v.) approximately expend portion argument expiration possess assertion facilitate present (v.) assistance forthwith preserve attain gasoline proceed attempt henceforth provide cease implement purchase commence inaugurate receive complete indicate relate contention individual remain currently initial remainder depart initiate request (v.) desist inquire retain demonstrate institute secure (v.) discover interrogate terminate donate intimate (v.) transmit effectuate manner transpire elucidate necessitate utilize employ (a tool or numerous vehicle argument)

48

U.S. Securities and Exchange Comm' n, "A Plain English Handbook: How to create clear SEC disclosure documents" (1998), p. 7. www.sec.gov/pdf/handbook.pdf. 49 CACI Judicial Council of California, Civil Jury Instructions (2007), Preface, p. v. 19

2. Use short, colorful words that depict physical activity, often invoking a sound or image that reinforces their meaning. Avalanche: The rule will produce an "avalanche of litigation. " 50 Blunder: "The criminal is to go free because the constable has blundered." 51 Bob: "the book bobbed 52 up again in my life when Macmillan commissioned me to revise it . . . . " Cascade: "a cascade of exceptions that would engulf the rule . . . ." 53 Choked: "The streets were choked with protesters." Dazzle: "This may . . . serve to dazzle with the original' s music . . . ." 54 Erupt: A55"dispute erupted . . . between the Chippewa and the lumbermen . . . ." Fathom: "When we try to fathom the difference between 56 the two cases, it is clear that they did not go in different directions . . . ." Ferret: Free speech would be chilled if "state officials and courts [could] scan the publication to ferret out" beliefs in a divine being. 57 Fetch: "[T]he power to ` control' a corporation will fetch a substantial premium." 58 Foil: "and thus foil the Legislature' s intent . . . ." 59 Hatch: (to embark on a plan leading to mischief) Mangle: "McKinney didn' t exactly mangle Burg and Fuenning . . . . 60 Pluck: "Not only does the ` significant possibility' standard conflict with the 61 APA, but the Court plucks it out of thin air." Ploy: "a mere ploy to create further delay." 62 Pry: "And before we could pry into the phrase ` anything like that' ) which we felt it our duty to do) our young friend had blithely answered no, and it was all over." 63 Scuttle: He feared "` foreign enemies' would attempt to scuttle the Constitution . . . . " 64

50

n.1.

De Buono v. NYSA-ILA Medical and Clinical Services Fund (1997) 520 U.S. 806, 809,

51

People v. Defore (N.Y. 1926) 150 N.E. 585, 587. Strunk and White, supra, p. xiii. 53 Carlisle v. United States (1996) 517 U.S. 416, 430. 54 Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 589. 55 Minnesota v. Mille Lacs Band of Chippewa Indians (1999) 526 U.S. 172, 182. 56 United States v. Morrison (2000) 529 U.S. 598, 644. 57 Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 844. 58 United States v. Byrum (1972) 408 U.S. 125, 154. 59 Leavitt v. Jane L. (1996) 518 U.S. 137, 143. 60 Baker v. Gourley (2002) 98 Cal.App.4th 1263, 1270. 61 Metropolitan Stevedore Co. v. Rambo (1997) 521 U.S. 121, 147. 62 Hammer v. Gross (1991) 932 F.2d 842, 846. 63 R. Dale, ed., E.B. White) Writings from the New Yorker 1927-1976 (1991) p. 53 (reprinted in the Appendix). 64 McIntyre v. Ohio Elections Comm' n (1995) 514 U.S. 334, 362. 52

20

Smack:The State' s failure to justify the tax "smacks of an effort to ` penaliz[e] the citizens of other States by subjecting them to heavier taxation merely because they are such citizens.' " 65 Spasm: Petitioner claimed "his brief spasm of criminal activity in May 1981" was not likely to be repeated. 66 Vex: "The uncertainty may vex prisoners as well . . . ." 67 4. Exercises. Exercise # 1: Simplify this passage from a brief by Prof. Laurence Tribe. 68 Not since such decisions as Coppage v. Kansas, 236 U.S. 1 (1915), which suggested that inequalities of bargaining power are "but the normal and inevitable result" of liberty of contract, id. at 1718) decisions thoroughly repudiated by this Court for the last halfcentury) has it been doubted that regulation tending to offset the unequal bargaining power of employer and employee, or of landlord and tenant, see, e.g., Block v. Hirsh, 256 U.S. 135 (1921), is well within ordinary legislative authority. (68 words)

Exercise # 2: Simplify this statute. No person who has not attained the age of twelve years shall be competent to testify, provided that, if the court finds that any such person understands the nature and obligation of the oath.

65

Lunding v. New York Tax Appeals Tribunal (1998) 522 U.S. 287, 315. Graham v. Collins (1993) 506 U.S. 461, 475. 67 Carey v. Saffold (2002) 536 U.S. 214; 122 S.Ct. 2134, 2146 (dissent). 68 Laurence H. Tribe' s Brief for Appellants in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), p. 22, reprinted in S. Stark, "Writing to Win," The Professional Education Group, Inc. (1992). 66

21

E.

Clarity. Create a clear train of thought to create a tight connection between headings and text, between paragraphs, and between sentences. 1. Advocates of clarity. Scalia and Garner: "Literary elegance, erudition, sophistication of expression) these and all other qualities must be sacrificed if they detract from clarity. This means, for example, that the same word should be used to refer to a particular key concept, even if elegance of style would avoid such repetition in favor of various synonyms. It means that you must abandon interesting and erudite asides if they sidetrack the drive toward the point you are making. It means that you should never use a word that the judge may have to look 69up. It means that nothing important to your argument should appear in a footnote. C.S. Lewis: "I sometimes think that writing is like driving sheep down a road. If there is any gate to the left or right, the readers will most certainly go into it." 70 [Stay on message; don' t distract the reader.] Joseph Williams: "Readers may understand individual sentences, but if they cannot see how that series of sentences ` hangs together,' then no matter how clear individual sentences are, readers will not feel that they add up to a cumulatively coherent passage." 71 Hemingway: "The indispensable characteristic of a good writer is a style marked by lucidity." 72 F.L. Lucas: "And how is clarity to be achieved? Mainly by taking trouble; and by writing to serve people rather than to impress them." 73

69 70 71 72 73

Scalia and Garner, supra, p. 107. Quoted in Jacques Barzun, supra, face page to p. 1. J. Williams, Style: Ten Lessons in Clarity and Grace (6th ed. 1999) p. 101. John R. Trimble, Writing with Style, Conversations on the Art of Writing, p. 13. Ibid. 22

2.

How to achieve clarity. You create a clear train of thought in the following ways) presented in detail in other chapters. ! In the Introduction, give the factual and legal content needed to understand the issue(s) presented, state the issue(s) presented, then state your suggested resolution of the issue(s). ! Make the document' s structure explicit. 74 Explain the structure of your argument and in what sections of the document the argument' s points will be found. The wording of this "preview" should reappear in the headings (resonance). ! Start with familiar information to lead to new information. ! Lead with the point (don' t build up to the point)) at the start of a document, the start of a section or subsection, and the start of a paragraph or sentence. This technique alerts the reader to the purpose of supporting information. ! In headings, state the key terms or details you rely on (resonance). ! In the first sentence after the heading, echo its key terms (resonance). ! Repeat these key terms in subheadings and topic sentences (resonance). ! Develop points in logical sequence that is obvious or stated (no gaps). ! Begin a new sentence where the last sentence left off (continuity). ! Stay "on message." Eliminate detours (colorful but non-essential information). ! Use the same word or phrase for the same thought (avoid vague references like "second prong" or "latter factor"). ! In conclusions to sections, cite the details analyzed above (resonance). ! Avoid unfamiliar acronyms. Use a key word instead. ! In court documents, put citations in the text, at the sentence' s end. In other documents, put citations in footnotes, to strip clutter from the text. ! In cases with many parties or witnesses, periodically restate the identity or role of a party or witness, or provide a list of parties and witnesses.

74

S. Armstrong & T. Terrell, Thinking Like a Writer (2003), p. 38. 23

F.

Honesty. Lapses in honesty occur in many ways: exaggeration, misstatement, omission, or disregarding the standard of review. Avoid these pitfalls. As strategies they are ineffective and they can be costly to you and your client. 1. Enhance your credibility. Aristotle: "Persuasion is achieved by the speaker' s personal character when the speech is so spoken as to make us think him credible. . . . [The speaker' s] character may almost be called the most effective means of persuasion he possesses." 75 "Aristotle believed that the greatest speakers don' t just76persuade audiences to accept an argument) they get people to trust their judgment." Zinsser: "Credibility is just as fragile for a writer as for a President. Don' t inflate an incident to make it more outlandish than it actually was. If the reader catches you in just one bogus statement that you are trying to pass off as true, everything you write thereafter will be suspect. It' s too great a risk, and not worth taking." 77 Scalia and Garner: Be mindful of "[t]he human proclivity to be more receptive to argument from a person who is both trusted and liked. * * * * "Your objective in every argument, therefore, is to show yourself worthy of trust and affection. Trust is lost by dissembling or conveying false information)not just intentionally but even carelessly; by mischaracterizing precedent to suite your case; by making arguments that could appeal only to the stupid or uninformed; by ignoring rather than confronting whatever weighs against your case. Trust is won by fairly presenting the facts of the case and honestly characterizing the issues; by owning up to those points that cut against you and addressing them forthrightly; and by showing respect for the intelligence of your audience." 78 Toulmin: "The words of some . . . are trusted simply on account of their reputation for caution, judgment and veracity. . . . [W]e are confident that any claim they make weightily and seriously will in fact prove to be well-founded, to have a79sound case behind it, to deserve) have a right to) our attention on its merits."

75

R. McKeon, ed., The Basic Works of Aristotle, Rhetoric, Bk. I: Ch. 2 (1941) p. 1329. Aristotle wrote that the writer' s character ("ethos") was one of the three methods of persuasion. The other two are reason ("logos") and emotion ("pathos"). 76 David Brooks, "The Happy Populist," The New York Times (Jan. 27, 2004) p. A27. 77 Zinsser, supra, p. 78. 78 A. Scalia and B. Garner, supra, pp. xxiii-xxiv (2008). 79 S. Toulmin, The Uses of Argument p. 11 (2005). 24

2. Ethical requirement. Fed.R.Civ.Proc. 11(b). An attorney, by signing a filed document, "certifies to the best of the person' s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information." ABA Model Rules of Professional Conduct: Rule 3. 3, "Candor Toward the Tribunal." (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.] * * * * (c) The dut[y] stated in paragraph[] (a) continue[s] to the conclusion of the proceeding . . . . (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. California Rules of Professional Conduct: Rule 5-200. Trial Conduct. In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law; (C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision; (D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional[.]

25

Cal. Bus. & Prof. Code § 6068: "It is the duty of an attorney to do all of the following: . . . (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." Violations of section 6068 at oral argument led one California Court of Appeal to refer counsel to the State Bar: "Recently, some appellate counsel appearing at oral argument in this court have found it convenient to misrepresent the state of the record. . . . [¶] These cavalier mischaracterizations of the record must stop." Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367, 1374 (opinion referred the offending attorney to the State Bar of California under Bus. & Prof. Code § 6068, subd. (d)). California Rules of Court, Rule 8.204, subd. (a): (1) Each brief must: * * * * (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.

26

G.

Emulate Holmes's plain style, not Cardozo's ornate style. 1. Holmes. A judge whose writing style merits imitation is Justice Oliver Wendell Holmes, Jr. Though Holmes was raised in a literate household80 and was a brilliant legal scholar, he preferred plain English to the "solemn fluffy speech" that, in his view, made judicial opinions "so dull." 81 Consider these samples of his plain writing. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. 82 It is something to show that the consistency of a system requires a particular result, but it83is not all. The life of the law has not been logic; it has been experience. This is an action for personal injuries. The defendant denied the injuries, and, two days before a second trial, was permitted to send two doctors, who made a thorough examination of the plaintiff in company with the doctors employed by the plaintiff. After the plaintiff had closed his case, and after the defendant had called its two doctors as witnesses, it asked the court to order the plaintiff to submit to an examination by another doctor named by it. The plaintiff objected on the ground that his relations with that doctor were unfriendly, but offered to allow an examination by any other physician whom the defendant might select. The defendant declined the offer, and thereupon the court refused to make the order, ruling that it84had no power or right to make it under the circumstances. The defendant excepted.

80

Justice Holmes' s father, Oliver Wendell Holmes, Sr., was a well-known writer and literary figure, whose circle included Henry James, William James, John Ruskin, Henry Wadsworth Longfellow, and Ralph Waldo Emerson. M. Coper., The Path of the Law: A Tribute to Holmes, 54 Ala. L. Rev. 1077, 1080 (2003). 81 "The Speech of Judges: A Dissenting Opinion," 20 Va. L. Rev. 625, 631 (19421943)(written by Jerome Frank; see Frank, "Some Reflections on Judge Learned Hand," 24 U. Chi. L. Rev. 666, 672, n. 18 (1957). 82 Schenck v. United States, 249 U.S. 47, 52 (1919). 83 Oliver Wendell Holmes, Jr., The Common Law 1 (1881). 84 Stack v. New York, N.H. & H. R. Co. 58 N.E. 686 (Mass. 1900). 27

2. Cardozo. Though law students may admire the ornate writing style of Justice Benjamin Cardozo, his style resembles 18th century British English more than contemporary American idiom. As a result, his writing often creates difficulty for the reader. Consider these examples: "The decree under review protects85the petitioner with sedulous [constant] forethought against an oppressive inquisition." "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio [a nice point86 of conduct] of an honor the most sensitive, is then the standard of behavior." "I find no better organon [method] where the subject matter of discussion is the construction of a will with all the filigree [delicacy] of tentacles, the shades and nuances of differences, the slender and fragile tracery [ornamental interlacing] that must be preserved unmutilated and distinct." 87

85

Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689, 697 (1933) (emphasis added). 86 Meinhard v. Salmon (N.Y. 1928) 164 N.E. 545, 546 (emphasis added). 87 Benjamin N. Cardozo, Law and Literature, 52 Harv. L. Rev. 472, 481 (1939) (discussing the "refined" style of writing) (emphasis added). 28

H.

Additional benefits: Clarify your thinking; manifest your competence; please the client. 1. Clarity of expression requires clarity of thought. 2. Competence in writing implies competence in research, analysis, and character. "[Y]our brief writing conveys not only your argument to the court, but it also conveys a sense of your credibility and the care with which you put together your case." 88 Thoreau: "The best you can write will be89 the best you are. . . . The author' s character is read from title-page to end." Safire: "The way you write reflects the way you think, and the way you think is the mark of the kind of person you are." 90 Younger: If a lawyer fails to write with clarity, "to that extent the lawyer' s language is a confession of incompetence." 91 3. By making the client' s cause readily understandable, you please the client.

88

Attributed to U.S. Supreme Court Chief Justice John G. Roberts, Jr. Kornblut, In Re Grammar, Roberts' s Stance is Crystal Clear, New York Times (Aug. 29, 2005) p. A13 (National Edition). 89 T. Rambo and L. Pflaum, Legal Writing by Design, 225 (2001). 90 William Safire, quoted in J. McQuain, Power Language (1996) p. 149. 91 I. Younger, Persuasive Writing (1990) p. 2. 29

3.

Drafting and editing. You will reach the final draft more quickly and easily with these tips for drafting and editing. 1. Drafting. 1. Brainstorm your possible points, then turn your points into an outline. 2.

First write: Issues presented; Statement of Facts; Procedural History. These establish the boundaries of your arguments.

3.

Use the Introduction as your roadmap) draft it early and keep revising it.

4.

Find a pattern of research and writing that motivates you and stick to it. Some tackle the most difficult argument first; others start with the point they feel most strongly about; some revise a paragraph until it is perfect; others cover as much ground in the first draft as possible, leaving revisions for later. Write during the time of day that works best for you. Allow no interruptions. To speed drafting, use these keyboard macros. Your goal is avoid the mouse. Instead, keep your fingers on the keyboard with macros. Macro for headings at every level. alt + b = indented bullet with blocked paragraph. alt + c = Cal.App. alt + d = dash () ) alt + e = (emphasis added). alt + i = Italics alt + n = Page number command (centered; arabic numerals) alt + q = Blocked quote (left and right indent; 1.25 spacing) alt + s = § alt + x = single space alt + y = 1.5 space alt + z = double space Cures for writer' s block: Handwrite the roadmap for the entire section. Move to a new location. Write other sections first. Revise the outline for that section. Edit what you have already written. Exercise. Get some fresh air. Do more research. Write the hardest section first. Put the project aside for a day or two.

5.

6.

30

2.

Editing. a. Advocates of editing. Writing experts advocate vigorous and repeated editing to make your writing concise, simple, clear, and fresh: William Zinsser: "Rewriting is the essence of writing well; it' s when the game is won or lost. . . . The newly hatched sentence almost always has something wrong with it. . . . [C]lear writing is the result of a lot of tinkering." 92 Samuel Johnson: "What is written without effort is in general read without pleasure." 93 Isaac Babel: "I work like a pack mule, but it' s my own choice. I' m like a galley slave who' s chained for life to his oar but loves the oar. . . . I go over each sentence, time and again. I start by cutting all the words it can do without. You have to keep your eye on the job because words are very sly, the rubbishy ones go into hiding and you have to dig them out) repetitions, synonyms, things that simply don' t mean anything." 94 Hemingway rewrote the last page to "A Farewell to Arms" 39 times because he had trouble "[g]etting the words right." 95 b. Match thought and expression. Repeated editing will help you to match the thought to the expression. For example, the most famous line in Pres. Kennedy' s inaugural address) "And so, my fellow Americans, ask not what your country can do for you; ask what you can do for your country" ) went through seven revisions: The New Frontier "sums up not what I intend to offer the American people, but what I intend to ask of them." (July 15, 1960). "[T]he call of the New Frontier . . . is not what I promise I will do; it is what I ask you to join me in doing." (September 3, 1960) "The New Frontier is not what I promise I am going to do for you. The New Frontier is what I ask you to do for our country." (September 3, 1960) "We do not campaign stressing what our country is going to do for us as a people. We stress what we can do for the country, all of us." (September 20, 1960) "So ask not what your country is going to do for you. Ask what you can do for your country." (November 24, 1960) "My fellow Americans, ask not what your country will do for you, ask rather what you can do for your country." (January 10, 1961)

92

Zinsser, supra, p. 85. Quoted in Jon Winokur, Writers on Writing (2d ed. 1987) p. 111. 94 F. Prose, "The Bones of Muzhiks; Isaac Babel Gets Lost in Translation," Harper' s, November 2001, p. 79 (quoting Konstantin Paustovsky' s "Years of Hope"). 95 Writers at Work: The Paris Review Interviews, 2d Series, ed. George Plimpton (1977) p. 222. 93

31

"And so, my fellow Americans: ask not what your country will do for you) ask what you can do for your country." (January 17, 1961)96 President Reagan' s famous statement, "Mr. Gorbachev, tear down this wall," was first conceived as: "Herr Gorbachev, bring down this wall." 97 The importance of the perfect fit between thought and expression is illustrated by Thomas Paine' s memorable sentence, written six months after the Declaration of Independence: "These are the times that try men' s souls." 98 This thought could be given other expressions) all grammatical) but none with the same impact: Times like these try men' s souls. How trying it is to live in these times! These are trying times for men' s99souls. Soulwise, these are trying times. In short, continue to revise until your text cannot be improved upon.

96

T. Clarke, "Ask Not" (2004), pp. 36-37, 76-79. D. Brinkley, "The Boys of Pointe du Hoc" (2006) p. 211. 98 T. Paine, "The American Crisis," collected in "Thomas Paine: Collected Writings" (Foner, ed., 1995) p. 91. 99 Strunk and White, supra, p. 53. 97

32

The benefits of editing: The Declaration of Independence The Declaration of Independence was edited by Jefferson and the Continental Congress to improve the fit between the thought and its expression. Virginia's Declaration of Rights100

Declaration of Independence

That all men are born equally free and independent,

that all men are created equal

and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity;

are endowed by their creator with certain unalienable rights

life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

life, liberty, and the pursuit of happiness;

Jefferson's "original Rough Draught"101 When in the course of human events it becomes necessary for a people to advance from that subordination in which they have hitherto remained

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,

all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life

all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life

a history of unremitting injuries and usurpations, among which no one fact stands single or solitary to contradict the uniform tenor of the rest, all of which have in direct object the establishment of an absolute tyranny over these states, to prove this, let facts be submitted to a candid world, for the truth of which we pledge a faith yet unsullied by falsehood.

a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

100

P. Maier, American Scripture: Making the Declaration of Independence (1997) p. 126. Jefferson' s "original Rough draught" was reconstructed by Professor Julian Boyd. See www.loc.gov/exhibits/declara/ruffdrft.html. 101

33

c. Tips for editing your own writing. 1. Edit the hard copy (editing on screen is less effective). 2. Edit headings in the table of contents. 3. Edit away from the office) at home, a restaurant, or library. 4. Ask a colleague unfamiliar with the case to edit. 5. Read important parts aloud (especially the introduction). 6. Edit one level at a time (all the headings, all the roadmap paragraphs; all the topic sentences). 7. Complete the project early, then leave it for a day before the final edit. d. Tips for editing the writing of others. When editing someone else' s writing, minimize the writer' s feeling of being criticized (and maximize the writer' s opportunity to learn) by following these steps: 1. Ask permission: "Would this be a good time to review your document?" 2. State your positive intention: "Let' s discuss ways to make your document more persuasive." 3. Praise what the writer did well. 4. Refer to objective standards (e.g., your firm' s requirements or the principles in this manual) so the writer does not feel he or she is losing a power struggle based on seniority or your personal preferences. 5. Thank the writer for receiving your feedback. 6. If you and the writer are not face-to-face, send a cover letter or e-mail that incorporates steps (3), (4), and (5), above.

34

e. Editing exercise: U.S. v. Microsoft Corp. Apply the goals of brevity, simplicity, and clarity to Microsoft' s Opening Brief on appeal from the judgment in United States v. Microsoft Corp., 97 F.Supp.2d 59 (D.D.C. 2000). INTRODUCTION This case arises out of Microsoft' s competition with Netscape from 1995 to 1998) the so-called "browser wars." In competing with Netscape to satisfy increasing demand for Internet functionality, Microsoft (i) developed new versions of its Windows operating system that included Internet technologies, (ii) distributed those technologies widely, and (iii) encouraged third parties to design their software products to take advantage of those technologies. Consumers clearly benefitted from this competition. As the district court found, Microsoft' s conduct contributed significantly to (i) improving the quality of Web browsing software, (ii) lowering its cost, and (iii) increasing its availability. Microsoft' s inclusion of Internet technologies in Windows also benefitted the thousands of software developers that create applications that run on the operating system. At the same time, nothing Microsoft did limited Netscape' s ability to compete: Netscape' s Web browsing software remained "fully interoperable" with Windows, and Netscape had unimpeded access to "every PC user worldwide." In fact, Netscape' s customer base grew dramatically during the period in question. To sanction Microsoft for improving its products and promoting and distributing them vigorously) as the district court did) would stifle innovation and chill competition, contrary to the purposes of the antitrust laws.

35

Trouble spots: INTRODUCTION This case arises out of from Microsoft' s competition with Netscape from 1995 to 1998 [dates not important yet]) the so-called "browser wars." [jargon] [first sentence fails to lead with the point] In competing with Netscape [redundant of "competition" in first sentence] to satisfy increasing demand for Internet functionality [jargon], Microsoft (i) [use Arabic] developed new versions of its Windows operating system that included Internet technologies, (ii) distributed those technologies widely, and (iii) encouraged third parties to design their [implicit] software products [redundant] to take advantage of [wordy] those technologies. Consumers clearly [hollow intensifier] benefitted from this competition [assertion needs authority]. As the district court found, Microsoft' s conduct contributed significantly to [hollow intensifier] (i) improving the quality of Web browsing software, (ii) lowering its cost, and (iii) increasing its availability. Microsoft' s inclusion of Internet technologies in Windows also benefitted the thousands of software developers that create applications that run on [wordy] the operating system. At the same time [weak connector obscures logic of text to come], nothing Microsoft did limited Netscape' s ability to compete: Netscape' s Web browsing software remained "fully interoperable" [cite?] with Windows, and Netscape had unimpeded access to "every PC user worldwide." [cite?] In fact, Netscape' s customer base grew dramatically [vague; give specific numbers] during the period in question [end with point of emphasis]. To sanction [skunked term; opposite meanings] Microsoft for improving its products and promoting and distributing them vigorously [omits that Microsoft did not impair Netscape's ability to compete]) as the district court did [long intro clause; misplaced modifier; weak subject]) would [conditional is weak] stifle innovation and chill competition, contrary to the purposes of the antitrust laws [shorten to possessive construction].

36

Possible Revision:

INTRODUCTION

The judgment below erroneously punished Microsoft for competing with Netscape to improve consumer access to the Internet) even though the competition benefitted consumers and did not impair Netscape' s ability to compete. During this competition (1995-1998) Microsoft: (1) Put new Internet technologies (Web browsing software) in its Windows operating system; (2) Distributed those technologies widely; and (3) Encouraged third parties to design software for those technologies. By these competitive strategies, Microsoft benefitted consumers (as the district court found): (1) Improving the quality of Web browsing software; (2) Lowering its cost; and (3) Increasing its availability. [Cite to district court opinion.] Also, Microsoft' s inclusion of Internet technologies in Windows benefitted thousands of software developers that create applications for the operating system. [Cite.] Moreover, Microsoft did not limit Netscape' s ability to compete. Netscape' s Web browsing software remained "fully interoperable" with Windows, and Netscape had unimpeded access to "every PC user worldwide." [Cite.] Indeed, during this period Netscape' s customer base grew by ??? [Cite.] In short, Microsoft improved Internet access for consumers without impairing Netscape' s ability to compete. Yet Microsoft was punished by the judgment below, a judgment that stifles innovation and chills competition, thus violating the antitrust laws' purposes. Accordingly, the judgment must be reversed.

37

4.

Headings. Before writing: 1. Brainstorm possible arguments. 2. Put the arguments in logical order. 3. Create headings (formatted for the Table of Contents). Summary for persuasive headings: 1. Assert a complete point, using key terms and details. 2. Be brief (two lines or less). 3. Use parallel structure. 4. Follow the heading with a sentence using the heading' s key terms and details. 5. Format: Bold and lower case. 6. Edit headings repeatedly in the Table of Contents. 1. Assert a complete point, using key terms and details. Scalia and Garner: "[M]any judges look at [the Table of Contents] first to get a quick overview of the argument. That' s one reason you should make your section headings and subheadings full, informative sentences." 102 Headings should assert a complete point rather than a topic or category (e.g., "Damages"). For example, plaintiff' s attorney should describe a plaintiff' s post-accident recovery favorably) not "Brown' s recovery" ) but: Brown's recovery was long and painful. Defendant' s attorney should advocate what favors defendant: Brown's recovery was complete. Don' t just say a ruling was erroneous or proper. Give enough detail to sell the point: Because plaintiff failed to object, his objection to admission of the evidence was waived.

102

Scalia and Garner, supra, p. 89. 38

Example: A.

Error: Allowing a new defense violated the rule against affirmative defenses that are not pleaded. 1. Three statutes bar unpleaded affirmative defenses. 2. Unpleaded affirmative defenses are waived. 3. Over objection, defendant proved the impleaded defense of laches.

B.

Prejudice: The unpleaded affirmative defense of laches was Jackson' s only defense.

2. Be brief (two lines or less). A persuasive heading is a snapshot, not a discussion. Eliminate what is unnecessary, redundant, or implicit. Don' t repeat information from the prior heading level. A wordy example (with possible deletions): A. Collateral estoppel barred plaintiff' s claims. 1. Collateral estoppel bars relitigation of claims that were litigated and determined. 2. Plaintiff is barred because his claims were litigated. 3. Plaintiff is barred because his claims were determined. 3. Use parallel structure. Parallel structure makes headings easier to grasp. Example: A. Collateral estoppel barred plaintiff's claims. [text: road map paragraph] 1. Claims that were litigated and determined are barred. [text: discussion of rules] 2. Plaintiff's claims were litigated. [text: application of rule] 3. Plaintiff's claims were determined. 103 [text: application of rule]

103

In points 2 and 3, the preference for the active voice is less important than putting the point of emphasis at the end and achieving parallelism with first subheading. 39

4. In text after the heading, use the heading's key terms. For a clear train of thought in the text after the heading, expand on the point in the heading, using the heading' s key terms. A bad example (starting by quoting a statute): A. Former Civil Code section 3601 entitles the Bank to summary judgment. When this transaction occurred, the original version of former Civil Code section 3601 (in effect from January 1, 1977 to December 31, 1996) provided: (a) Where a depositor agrees that objections to a forged signature must be lodged with the bank within seven days of the mailing of the depositor' s statement for the month in which the item was negotiated . . . . A possible revision: A. Former Civil Code section 3601 entitles the Bank to summary judgment. Former Civil Code section 3601 supports summary judgment by requiring depositors to object to forged signatures within 30 days of mailing the bank statement. Plaintiff' s objection) made after the 30-day period expired) was not timely. 5. Format: Bold (only) and lower case. Make headings easy to read) use only bold and lower case. Don' t use initial caps, underline, or all caps: "[W]ords consisting of only capital letters present the most difficult reading) because of their equal height, equal volume, and, with most, their equal width." 104 A heading at the bottom of a page should be followed by at least three lines of text (if not, put the heading at the top of the next page). Separate headings from prior text by putting extra space above the heading. For past events, don' t use the present tense in an attempt to create tension or immediacy) e.g.: "Johnson runs the red light." Because the text must use the past tense, using the present tense in headings creates a distracting switch in tense.

104

Josef Albers, Interaction of Color (New Haven, rev. ed. 1975), p. 4. 40

6. Exercises. Make these headings shorter, simpler, and clearer. Exercise # 1: From U.S. v. Philip Morris USA, Inc (2006 D.D.C.) 449 F.Supp.2d 1. V. DEFENDANTS DEVISED AND EXECUTED A SCHEME TO DEFRAUD CONSUMERS AND POTENTIAL CONSUMERS OF CIGARETTES IN MOST, BUT NOT ALL, OF THE AREAS ALLEGED BY THE GOVERNMENT A. Defendants Have Falsely Denied, Distorted and Minimized the Significant Adverse Health Consequences of Smoking for Decades. B. Defendants Publicly Falsely Denied that Nicotine is Addictive and Continue to Do So. C. Nicotine Manipulation: Defendants Have Falsely Denied that They Can and Do Control the Level of Nicotine Delivered In Order to Create and Sustain Addiction. D. The Government Has Failed to Prove by a Preponderance of the Evidence that Defendants Deliberately Chose Not to Utilize or Market Feasible Designs or Product Features that Could Produce Less Hazardous Cigarettes. E. Defendants Falsely Marketed and Promoted Low Tar/Light Cigarettes as Less Harmful than Full-Flavor Cigarettes in Order to Keep People Smoking and Sustain Corporate Revenues. F. From the 1950s to the Present, Different Defendants at Different Times and Using Different Methods, Have Intentionally Marketed to Young People Under the Age of Twenty-One In Order to Recruit "Replacement Smokers" to Ensure the Economic Future of the Tobacco Industry.

41

Exercise # 2: Defending Hawaii' s statute under eminent domain: The Hawaii Land Reform Act is classic socioeconomic legislation, designed to serve purposes recognized as vitally public from the very founding of our republic. Exercise # 3: Advocating a standard of review. Whether a state' s overt exercise of the taking power to transfer property interests between private groups serves a public purpose is likewise reviewable by a federal court only for minimum rationality. Exercise # 4: Defending summary judgment on the employee' s claim of retaliatory termination. Even if the statements at issue are found to be protected and the city had not provided sufficient evidence of a greater interest in government efficiency, there was no triable fact concerning a nexus between such speech and the termination decision and thus there was insufficient evidence of retaliation to be tried before a jury.

42

5.

Paragraphs. Summary: 1. Start with a topic sentence, stating one point. 2. Limit the paragraph to the one point in the topic sentence. 3. Keep a clear train of thought. 4. In drafting, put extra space between the paragraphs. 5. Use visual alternatives) photos, charts, diagrams, lists, tables, graphs. 6. Intensify with a short sentence or one-sentence paragraph. 1. Limit the paragraph to one point, stated in the topic sentence. Limit each paragraph to one point, stated forcefully in a concise topic sentence. Example: Johns-Manville contributed to plaintiff' s cancer in three ways. First, it issued false public denials of the link between asbestos and cancer. Second, it concealed evidence that asbestos caused cancer. Third, it influenced industry groups to set a dangerously high threshold for permissible asbestos exposure. Or: Johns-Manville contributed to plaintiff' s cancer in three ways: ! Issuing false public denials of the link between asbestos and cancer. ! Concealing evidence that asbestos caused cancer. ! Influencing industry groups to set a dangerously high threshold for permissible asbestos exposure.

43

a. Exercise. Revise the topic sentences in the memo below. Limit each paragraph to one point, stated in a topic sentence. The Insurer's Extra-Policy Obligations It is well-established that a covenant of good faith and fair dealing is implied in every insurance policy. Frommoethelydo v. Fire Ins. Exch., 42 Cal.3d 208 (1986). It was held in Communale v. Traders & Gen. Ins. Co., 50 Cal.2d 654 (1958), that this implied covenant mandates that an insurance carrier refrain from doing "anything which will injure the right of the [insured] to receive the benefits of the agreement." A carrier must give the interests of the insured at least as much consideration as it gives its own interests. If it does not, then its conduct "may not only breach the implied covenant of good faith and fair dealing but also can be treated for tort purposes for a basis for exemplary damages where it occurs in a context of malice, fraud or oppression." Betts v. Allstate Ins. Co., 154 Cal.App.3d 688 (1984). Malice will be deemed to exist if a carrier acts with a "willful and malicious" disregard of an insured' s rights. See College Hosp. Inc. v. Superior Court, 8 Cal.4th 704 (1994). A carrier will be deemed to have acted with such a "willful and conscious" disregard if it was aware of the probable harmful consequences of its conduct and willfully and deliberately failed to avoid those consequences. See Taylor v. Superior Court, 24 Cal.3d 890 (1979). Notwithstanding these established standards, many carriers have argued that they need not consider the interests of the insured other than as to those claims that are covered by a policy. For example, many carriers contend that they need not consider the potential negative impact upon an insured' s business reputation of not settling a potentially covered claim against the insured. However, this argument ignores the fact that an insurance carrier may be liable when its conduct causes harm to an insured' s business. Indeed, even if an insurance carrier ultimately pays for a covered judgment against an insured, it is not immunized from liability for other damage that it may cause by how it investigates or handles a claim. As one court of appeal has explained: "There may be cases in which the insurer' s delay in paying the claim or other misconduct causes special harm to the insured even though the claim is ultimately paid or settled. Such payment fulfills the insurer' s contractual obligations. However, under appropriate circumstances, tort liability may still be imposed for the insurer' s misconduct apart from performance of its contract obligation." Dalrymple v. United States Auto. Ass' n, 40 Cal.App.4th 497 (1995). The classic situation in which courts have found that insurance carriers must consider their insureds' interests in how they handle claims against their insureds is in the context of rights that the insured might have against a claimant. For example, courts have long ruled that an insurance carrier cannot, in settling the claim against an insured, compromise the insured' s claim against the claimant. See Barney v. Aetna Cas. & Sur. Co., 185 Cal.App.3d 977 (1986)(an insurer has "a duty of good faith and fair dealing, by virtue of its fiduciary relationship, to do nothing to interfere with [an insured' s] rights" against a party who has sued the insured). 44

Insurance Memorandum (cont.) California courts also have held that even if a carrier does not compromise an insured' s claim against another, it cannot ignore the insured' s other interests. For example, in Ivy v. Pacific Automobile Ins. Co., 156 Cal.App.2d 652 (1958), the carrier, without the insured' s consent, stipulated to a judgment against the insured in excess of the policy limits. The carrier attempted to protect the insured by obtaining an agreement from the claimant that it would not execute on the judgment. The Court of Appeal ruled that while a carrier has the legal right to protect its own financial interests, it "must in good faith, give consideration to the interests of its insured. It has no right to sacrifice the interests of the insured in order to protect its own interests." The Ivy court held that the carrier' s act was "clearly a breach of the duty" that it owed to its insured and "was bad faith closely akin to a fraud." The court also recognized that the insured was entitled to offer evidence that, because of the carrier' s conduct, which admittedly protected the insured against the covered claim, the insured' s credit had been impaired and that he consequently was unable to enter into certain business transactions. Subsequent decisions have recognized that a carrier not only cannot ignore its insured' s rights in the conduct of settlement negotiations but must affirmatively consider those rights in assessing whether to settle. Larraburu Brothers, Inc. v. Royal Indemnity Co., 604 F.2d 1208 (9th Cir. 1979), is instructive. In the Larraburu decision, the insured, an owner of a San Francisco bakery, was sued when one of its trucks struck and severely injured a child. Before trial, the insured apprised its carrier, Royal, of the possibility of a judgment in excess of policy limits and requested that it settle. It also advised Royal that its business was in a precarious financial situation and that any news of a judgment against it in excess of policy limits could run a risk to plaintiff' s credit. Despite this information, Royal refused to tender its limits. Thereafter, a judgment was entered against the insured in the suit against the insured. However, Royal rejected the insured' s request that it announce publicly that it would accept responsibility for the amount of the judgment over the covered amount. As a result, the insured' s creditors began to refuse additional credit and called in obligations simultaneously, causing the insured to go into bankruptcy. On its motion for summary judgment, Royal argued that any breach of its duties under the covenant of good faith and fair dealing exhibited by its earlier conduct had been cured when it paid the full amount of the coverage, plus the judgment in excess of its total coverage. The Ninth Circuit rejected this argument, explaining that the carrier' s refusal to guarantee to creditors its payment of the excess of the ultimate judgment, while of course reserving the right to challenge the verdict, was tortious conduct if the failure to guarantee was unreasonable in light of the earlier management of the settlement negotiations. Thus, an insurance carrier cannot refuse to take into account the adverse consequences that its insured might suffer if the carrier does not timely effect a reasonable settlement of a suit. Not only should the carrier consider those consequences in deciding whether to accept a settlement demand, but it bears responsibility for those consequences should it unreasonably fail to settle a case. 45

Revised Insurance Law Memorandum. (Topic sentences are shown in bold only for teaching purposes.) Every insurance policy contains an implied covenant of good faith and fair dealing. Frommoethelydo v. Fire Ins. Exch., 42 Cal.3d 208 (1986). This covenant bars an insurer from doing "anything which will injure the right of the [insured] to receive the benefits of the agreement." Communale v. Traders & Gen. Ins. Co., 50 Cal.2d 654 (1958). Under the good faith covenant, an insurer must give the insured' s interests as much consideration as it gives its own interests. If the insurer breaches the good faith covenant with "malice, fraud, or oppression," the court may award punitive damages. Betts v. Allstate Ins. Co., 154 Cal.App.3d 688 (1984). Malice exists if an insurer acts with a "willful and malicious" disregard of an insured' s rights. See College Hosp. Inc. v. Superior Court, 8 Cal.4th 704 (1994). A "willful and conscious" disregard exists if the insurer was aware of the probable harmful consequences of its conduct and willfully and deliberately failed to avoid those consequences. See Taylor v. Superior Court, 24 Cal.3d 890 (1979). The good faith covenant requires insurers to consider the insured's interests beyond the policy's express benefits. Even if an insurer ultimately pays a covered judgment, the insurer may still be liable if the insurer' s misconduct damages the insured' s other interests. "Under appropriate circumstances, tort liability may still be imposed for the insurer' s misconduct apart from performance of its contract obligation." Dalrymple v. United States Auto. Ass' n, 40 Cal.App.4th 497 (1995). Courts have required the insurer to protect the insured' s interests beyond the policy' s express benefits in three circumstances. 1. Protecting the insureds' rights against a claimant. When the insurer settles a claim against an insured, it can' t compromise the insured' s rights against the claimant. The good faith covenant prevents an insurer from doing anything "to interfere with [an insured' s] rights" against the party suing the insured. Barney v. Aetna Cas. & Sur. Co., 185 Cal.App.3d 977 (1986). 2. Obtaining the insured's consent to a stipulated judgment in excess of policy limits. Where an insurer agrees to a judgment in excess of policy limits, with a provision barring execution on the excess portion, the insurer is required to obtain the insured' s consent. Ivy v. Pacific Automobile Ins. Co., 156 Cal.App.2d 652 (1958). In Ivy, the insured claimed the excess judgment impaired his credit and prevented entering into certain business transactions. Despite the claimant' s agreement not to execute on the excess portion of the judgment, Ivy held that the stipulation to an excess judgment was "clearly a breach of the [insurer' s] duty" and "was bad faith closely akin to a fraud." Id. at p. 661. Ivy ruled that an insurer "must in good faith, give consideration to the interests of its insured. It has no right to sacrifice the interests of the insured in order to protect its own interests." Id. at 659. 3. Forcing the insured into bankruptcy. An insurer owes a duty in negotiating a claim to avoid forcing the insured into bankruptcy. Larraburu Brothers, Inc. v. Royal Indemnity Co., 604 F.2d 1208 (9th Cir. 1979). In Larraburu, the insured' s truck severely injured a child, who sued. Before trial, Larraburu told Royal that a judgment in excess of 46

Revised Insurance Memorandum (cont.) policy limits was possible, that, because Larraburu' s finances were precarious, an excess judgment could damage Larraburu' s credit, and asked Royal to settle. Yet Royal refused to tender its limits in settlement. After Larraburu suffered an excess judgment, Larraburu asked Royal to announce publicly that it would pay the entire judgment. Royal again refused. As a result, Larraburu' s creditors denied additional credit and called in obligations, forcing Larraburu into bankruptcy. Later, Royal paid the entire judgment before it became final. Larraburu's bad faith claim was vindicated. Though Royal obtained summary judgment on the ground that it eventually paid the excess judgment, the Ninth Circuit reversed. The Ninth Circuit ruled that Royal' s refusal to guarantee to creditors payment of the excess judgment would be tortious if the refusal to guarantee payment was unreasonable in light of its earlier management of the settlement negotiations. In sum, if an insurer unreasonably fails to settle, the insurer is responsible for the adverse consequences to the insured in addition to the denial of policy benefits.

47

2. Maintain a clear train of thought. After the topic sentence, support the topic sentence with a clear train of thought: 1. Arrange supporting information according to its logic or its importance (e.g., strongest to weakest, chronology, or cause and effect). 2. Highlight the paragraph' s structure with signals, numbered sentences, or bullets. 3. Maintain continuity and cohesion. Eliminate gaps) develop the discussion step by step, point by point, sentence by sentence. Eliminate detours) delete everything not essential to supporting the paragraph' s main point. The second sentence should flow from the topic sentence in an obvious way. a. Exercise. This paragraph seeks U.S. Supreme Court review of an award of punitive damages against Ford Motor Co. Revise the sentences after the topic sentence to create a clear train of thought. Where and how did the writer stray from supporting the topic sentence? Because Ford believed, reasonably and in good faith, that its roof design met federal safety standards and industry custom, the $290 million punitive damage award violated BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). In BMW the jury found that defendant' s policy with respect to the disclosure of factory repairs constituted "` gross, oppressive, or malicious' fraud" even though that policy was consistent with statutes defining disclosure obligations in about 25 states. 517 U.S. at 565. Alabama had no such disclosure statute, and this Court "accept[ed] . . . the jury' s finding that BMW suppressed a material fact which Alabama law obligated it to communicate." 517 U.S. at 579-80. Nevertheless, this Court recognized that BMW, in attempting to determine what it was required to disclose, "could reasonably rely on [other] state . . . . statutes for guidance." Id. at 579. The Court also noted that the "diversity" of state laws "demonstrates that reasonable people may disagree about the value of a full disclosure requirement." Id. at 570. The Court concluded that a failure to disclose is "less reprehensible . . . when there is a good faith basis for believing that no duty to disclose exists," id. at 579-80, and when "a corporate executive could reasonably interpret" the law to allow nondisclosure. Id. at 578. 105

105

Based on Petition For A Writ of Certiorari, Ford Motor Co. v. Romo, 02-1097, pp. 11-

12. 48

3. In drafting, put extra space between the paragraphs. In drafting, put extra white space between the paragraphs to ensure that each paragraph is limited to one point, and that the body of the paragraph supports the one point made in the topic sentence. 4. Intensify with a short sentence or one-sentence paragraph. A short sentence or a one-sentence paragraph catches the reader' s attention. The short sentence is highlighted in bold for teaching purposes only. a. Short topic sentence. Jones did all she could to stop the discrimination and harassment. She appealed the denial of her promotion. She complained to Human Resources. She complained to her union representative. She told her supervisor to stop "hitting" on her and got an unlisted home phone number. But nothing worked. Her appeal was rejected, Human Resources refused to investigate, the union did nothing, and her supervisor retaliated by assigning her to the night shift. b. Short second sentence. In 1998 Johnson learned the asbestos manufacturers had concealed a fatal risk. He developed mesothelioma. c. Short sentence at paragraph's end. A short sentence at the paragraph' s end can reinforce the paragraph' s point. Examples: 1. Phyllis Brown suffered discrimination and harassment from her supervisor and his paramour. Brown lost a promotion to the less-qualified paramour. The paramour criticized Brown in front of Brown' s subordinates and cut back Brown' s responsibilities. When Brown complained, the paramour assaulted Brown verbally and physically, and the supervisor called Brown a "cry baby" and "not a team player." Devastated, Brown quit. 106 2. The terrorists' ability on 9/11 to seize control of four planes raises the question why cockpit doors had not been retrofitted with locks. The answer is that airlines determined the cost of one plane blowing up was cheaper than overhauling the entire fleet. After 9/11, this cost-benefit analysis was reinforced when courts ruled airlines were not responsible for injury to persons on the ground, only for the passengers. Negligence is cheaper. 107

106

Based on Miller v. Department of Corrections (2005) 36 Cal.4th 446. Based on K. Breitweiser, "Wake-up Call: The Political Education of a 9/11 Widow" (2006) pp. 83-84. 107

49

3. After World War II, Walter Reuther, national president of the United Auto Workers, and Charlie Wilson, president of General Motors, negotiated on whether health and retirement benefits would be borne by each company (as Wilson wanted), or shared by a large and diverse group of companies (as Reuther wanted). Wilson' s plan was adopted. But as American' s mature companies became more efficient, reducing their workforce, retirees vastly outnumbered workers. In 1962 General Motors had 11 workers for every retiree; today, for every GM worker there are three retirees (453,000 retirees in all). By contrast, Toyota has just 258 retirees. With the benefits risk placed on the individual company, many companies are moving toward bankruptcy. But if the risk of retirement benefits were shared by all employers, companies could succeed or fail based on performance, not on the number of retirees. Charlie Wilson was wrong; Walter Reuther was right. 108 d. One-sentence paragraph. Susan Thornton' s future with the company looked bright. After graduating first in her business school class, she was hired from a pool of 200 applicants, became employee of the year for 2001, and was promoted faster than any regional vice-president in company history. But when Thornton refused the president' s demand to have sex with him, her career was ruined.

108

Based on M. Gladwell, "The Risk Pool," The New Yorker, August 28, 2006. 50

Replace paragraphs with visuals) photos, charts, diagrams, lists, tables, and graphs. Visual depictions are more persuasive than prose. So replace paragraphs with 109 photos, charts, diagrams, lists, tables, and graphs.110 "[T]he design logic of the display must reflect the intellectual logic of the analysis." "What is to111be sought in designs for the display of information is the clear portrayal of complexity." The power of visual displays of evidence is seen in one hospital' s tactic to get doctors to wash their hands. Though hospital infections are a leading cause of death for the 44,000 to 98,000 Americans who die yearly from medical errors, one hospital' s verbal appeals to promote hand-washing achieved only 80% compliance. But when the hospital took cultures of the doctors' hands, photographed the cultures) showing colonies of bacteria) and turned these photos into screen savers on112 every computer in the hospital, the doctors' hand-washing rate increased to nearly 100%. Example #1: Instead of a paragraph, create a list. Paragraph: During her father' s home auto repairs, Ms. Thomas was exposed to asbestos in many ways. She assisted with repairs and often cleaned up the dust. She commonly played in the driveway next to the garage and, on entering or leaving the house, she passed through the repair zone in the driveway and garage. She shook and laundered her father' s dusty work clothes and was close to his dusty clothes when he was in the house. List: During her father' s auto repairs in the garage, Ms. Thomas was exposed to asbestos by: 1. Assisting with auto repairs in the garage; 2. Cleaning up asbestos dust afterwards; 3. Playing in the driveway next to the garage; 4. Entering or leaving the house via the driveway and garage; 5. Shaking and washing her father' s dusty work clothes; 6. Being close to her father' s dusty clothes when he was at home. 5.

109

For a judicial opinions using a list, see California Concrete Co. v. Beverly Hills Savings & Loan Assn. (1989) 215 Cal.App.3d 260, 268-269 (listing the complaint' s 14 causes of action). 110 E. Tufte, Visual and Statistical Thinking: Displays of Evidence for Making Decisions (1997) (www.edwardtufte.com) (See Tufte' s chart linking low temperature to O-ring failure that could have predicted the 1986 Space Shuttle Challenger explosion.) 111 E. Tufte, The Visual Display of Quantitative Information (2d. ed. 2001), Epilogue. 112 S. Dubner and S. Levitt, "Selling Soap: How do you get doctors to wash their hands?" The New York Times Magazine (Sept. 24, 2006) pp. 22-23. 51

Example #2: Instead of a paragraph, put data in columns. Paragraph: "Air blowing" of brakes creates asbestos concentrations thousands of times greater than rural background concentration (.0001 fibers/cc.) The air "5 to 10" feet away from air blowout contained "3 to 5" fibers/cc) 300,000 to 500,000 times rural background. The air "10 to 20" feet away contained "0.4" to "4.8" fibers/cc) 40,000 to 480,000 times rural background. And even as far

52

away as "75 feet," the air contained 0.1 fibers/cc) 10,000 times rural background.

53

Columns: "Air blowing" of brakes creates asbestos concentrations thousands of times greater than the rural background concentration (.00001 fibers/cc): Location Fibers/cc Times rural background 5-10 feet away 3-5 fibers/cc 300,000-500,000 10-20 feet away 0.4-4.8 fibers/cc 40,000-480,000 75 feet away 0.1 fiber/cc 10,000 6. Other paragraph structures. Other paragraph structures include: ! State the contrary premise and then refute it. ! Open with striking facts. ! Open with a quote. ! Ask a question and then answer it. a. State your adversary's point and refute it. State your opponent' s premise, then refute it immediately) e.g.: "Johnson is wrong to claim that . . . because . . . ." Or: "Johnson claims that [elements of opponent' s claim]. But this claim is refuted by [details refuting opponent' s claim]." b. Start with striking facts. Example: Jones had brought a gun to work, had a felony record, was angry at being fired, and someone sounding like Jones called the restaurant threatening to attack. These facts) known to the restaurant' s owner ) made Jones' s later shooting at the restaurant foreseeable to the owner.

54

c.

Start with a quote.

Example: "[T]he patient' s right of self-decision is the measure of the physician' s duty to reveal." Cobbs v. Grant (1972) 8 Cal.3d 229, 245. Accordingly, physicians must disclose all material information that a reasonable patient needs to give informed consent to a particular treatment. d. Start with a question. An opening question sparks the reader' s interest. Follow the question with a focusing comment, or with your answer (immediately or at the paragraph' s end), or with your opponent' s answer and then your answer. Examples: 1. Question followed by a focusing comment: When does a salary reduction become intolerable, constituting a constructive discharge? That is the issue raised by defendant' s $1,500 reduction in Ms. Jenkins' s monthly salary. 2. Question answered immediately: Was Dr. Malcolm qualified to state the cause of Thompson' s disease? Yes. The doctor had 15 years experience diagnosing lung diseases, and he had published 18 peer-reviewed articles on lung disease. 3. Question answered at the end (preceded by details supporting the conclusion that the reader might otherwise resist): Did the trial court abuse discretion in allowing Dr. Malcolm to state the cause of Thompson' s disease? Dr. Malcolm has diagnosed and treated lung diseases for 15 years. And in peer-reviewed journals he has published 18 articles on lung disease. In light of these qualifications, the order permitting his testimony was not an abuse of discretion. 4. Question followed by opponent' s answer, then by your answer: Was it error to grant summary adjudication on Brown' s claim of age discrimination? Defendants say "no," arguing that (1) Brown was never terminated, (2) her salary reduction matched her reduced duties, and (3) her vacated position was never filled, let alone by a younger employee. But substantial evidence showed age discrimination: (1) Brown was constructively terminated because the salary reduction left her with an unlivable wage; (2) her salary reduction was not matched by a reduction in job duties; and (3) she was replaced by a much younger employee. Hence, to bar Brown' s age discrimination claim before trial was error.

55

6.

Sentences. Summary for persuasive sentences: 1. Start with a link to prior text when needed. 2. End with the point of emphasis. 3. Put the subject at or near the start. 4. Use a strong subject and verb. 5. Keep subject, verb, and object close together. 6. Put parallel ideas in parallel structure. 7. Keep the sentence short. 8. Punctuate for brevity and emphasis. 9. Make your prose vivid. Paradigm of persuasive sentence structure: Short clause or signal* strong subject (familiar)* point of emphasis (new). 1. Start with a link to prior text when needed. For a clear train of thought, you may need to start a new sentence or paragraph with a link to the prior sentence or paragraph. A link is needed if the reader might otherwise miss the connection between sentences or paragraphs. The link makes the connection explicit. Linking is achieved in three ways: a. Echo links. Start the new sentence with key words from the prior sentence. Example: Appellant challenges the refusal to instruct on comparative negligence. But comparative negligence is not a defense to an intentional tort. b. Pointing words. Start the new sentence with "this . . .. that . . ., these . . ., those . . .," referring back to prior text. Example: Appellant asserts error in several trial court rulings) denying defendant' s motions in limine, excluding defendant' s evidence, and rejecting defendant' s instructions. But these rulings were not error.

56

c.

Signals. Signals create an express connection to prior text:

Addition: Again; And; Also; Besides; Beyond; First/Second/Third; Further; In addition; Likewise; Moreover; Next; Too;. Authority: According to, As mandated by, As xx teaches, In light of; Under. Cause: Because; In view of; On account of; Thanks to; When. Chronology: "Six weeks later . . ." [state the lapse of time between events. Avoid a string of dates whose relationship the reader is forced to calculate.] Comparing (for similarity): Applying the same rationale; By analogy; For the same reason; In like manner; Likewise. Conceding: Admittedly; Even if; Given that; Granted; No doubt; Of course; To be sure; While. Concluding: Finally; In sum; To conclude; To summarize. Contrast: But; Conversely; Despite; Even if; Even so; In contrast; Instead; On the contrary; Still; Though; Yet; Emphasis: (as here); Certainly; Here; Indeed; Indisputably; In fact; Here; In truth; Of course; Without exception; Without dispute/doubt/question. Effect or result: So; Thus; Hence; Accordingly; As a result; Therefore; It follows that. Example: For example; To illustrate; In particular; One instance. Restating: As noted; In short; In other words; In plain English; More simply; Simply put; This means; That is; To clarify; To rephrase. Similarity: Similarly; Likewise; In the same way. Summarizing: In sum; To summarize; As shown

57

Use only short signals113: Long Although However Consequently Therefore Furthermore Inasmuch as Nevertheless Notwithstanding Notwithstanding the fact that Subsequently

Short Though But So, Thus, Hence So, Thus, Hence, Further, And Because Yet, Still, Even so, But Despite Though Later

2. End with the point of emphasis. The most emphatic position is the sentence' s end. The sentence builds to a climax, and the period creates a pause, driving the point home. Moreover, the end position is where the reader expects to find the point, so don' t squander the end position on a date, case name, party name, or qualifying phrase unless that is the point. "In phrasing sentences, try to put the punch word at the end. Instead114of writing ` She held a knife in her hand,' write ` What she held in her hand was a knife.' "

113 114

Incorrect Yesterday a 15th-century statue of Adam by Venetian sculptor Tullio Lombardo shattered after falling at the Metropolitan Museum in New York. (From NY Times, Oct. 9, 2002, p. A1)

Correct Yesterday at New York City' s Metropolitan Museum, a 15thcentury statue of Adam by Venetian sculptor Tullio Lombardo fell and shattered.

If the court were writing on a clean slate, the issue would be debatable. The slate is not clean, however.

If the court were writing on a clean slate, the issue would be debatable. But the slate is not clean.

Precedent contravenes the rule proposed by Jones.

The rule proposed by Jones is contrary to precedent.

B. Garner, The Winning Brief, p. 241 (2d ed. 2004). Scalia and Garner, supra, p. 122. 58

Exercise: Revise these sentences to put the point of emphasis at the end. Incorrect The court affirmed his conviction, rejecting many constitutional and statutory arguments.

Correct

Philip Morris knew, but concealed from the public, that smoking causes cancer. Exception: For clarity, the point of emphasis may start a long sentence: Example: Incorrect While working first in the field and later at the plant as an apprentice and then as an engineer under Jones, Brown, and Martin, Simpson received outstanding reviews ("exceeded expectations").

Correct Simpson received outstanding reviews ("exceeded expectations") for his work in the field, later as an apprentice in the plant, and finally as an engineer under Jones, Brown, and Martin.

3. Put the subject at or near the start. The reader wants to know the sentence' s subject as soon as possible. Hence, put the subject at or near the start, the sentence' s second most emphatic position. a. Avoid long introductory clauses. Limit introductory clauses to three or four words. Incorrect In determining whether to transfer venue to a more convenient forum under § 1404(a), the court may weigh and balance a variety of factors.

Correct When courts determine whether to transfer venue to a more convenient forum under § 1404(a), they may weigh and balance a variety of factors.

59

b. Avoid introductory clauses modifying the subject. A clause modifying the subject burdens the reader, who does not yet know who or what the clause modifies. Use an introductory clause to modify the subject only if the subject is obvious in context. Incorrect Correct If not thoroughly prepared, a Witnesses who are not thoroughly witness will give a poor deposition. prepared give poor depositions. Aware the statute of limitations would be an issue, the attorney urged plaintiff to settle.

Because the attorney knew the statute of limitations would be an issue, she urged the plaintiff to settle. Exercise: Revise this sentence by putting the subject as close as possible to the sentence' s start. Then put remaining information after the subject and verb. This revision, by putting cause before effect, strengthens and simplifies the sentence. By strangling the supply of house lots for sale in fee simple and so driving residential land prices well beyond the reach of all but a few Hawaii residents, the legislature found, the land monopoly had contributed to general inflation in the price of consumer goods and had enabled the large landowners to exact exorbitant rents on leaseholds. 115 c. Avoid throat clearing. Eliminate hollow introductory clauses that add nothing of value. Incorrect Correct At the end of the day [omit] Having said that [omit] It is important to recognize that Significantly,

115

This sentence is from Laurence H. Tribe' s Brief for Appellants, p. 4, in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), reprinted in S. Stark, "Writing to Win," The Professional Education Group, Inc. (1992). 60

4. Use a strong subject and verb. A strong subject and verb depict a person or thing taking action. Avoid weak subjects such as "There is [was/will be] . . ." or "It is [was/will be] . . ." or "The reason that . . . is . . . ." Incorrect Correct It was the defendant' s viceDefendant' s vice-president president who approved the false approved the false press releases. press releases. There is testimony from Dr. Johnson that Dr. Brown should have given steroids.

Dr. Johnson said Dr. Brown should have given steroids.

Exercise: Revise these sentences to start with a strong subject and verb: The reason that the accident happened was the flat tire. There is agreement among the parties on this point. 5. Keep subject, verb, and object close together. The muscle that gives a sentence power is the subject acting through the verb on the object. Make this action obvious by keeping subject, verb, and object close together deleting clutter and dividing a long sentence in two. Incorrect Correct The company, having conducted The company' s tests showed that tests linking smoking and cancer, smoking causes cancer. Yet for the disseminated for the next 40 years next 40 years, the company misled to politicians, teachers, and doctors politicians, teachers, and doctors by the false claim that whether smoking claiming that smoking' s causation of causes cancer is an open question. cancer was still an open question.

61

6. Use parallel structure. 6.1 Parallelism adds power to a point the reader might resist. Examples: "The life of the law has not been logic; it has been experience." Oliver Wendell Holmes, Jr. "[G]ive me liberty or give me death." Patrick Henry "He [George III] has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people." Thomas Jefferson "As I would not be a slave, so I would not be a master." Abraham Lincoln "[A]sk not what your country can do for you; ask what you can do for your country." John F. Kennedy "Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and success of liberty." John F. Kennedy "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character." 116 Dr. Martin Luther King, Jr. 6.2

Parallelism makes complex information easier to grasp. Incorrect Whites and blacks are murdered in about equal numbers. Yet 80 percent of the more than 840 people put to death in the U.S.A. since 1976 were convicted of crimes involving white victims, compared to the 13 percent who were convicted of killing blacks.

Correct Whites and blacks are murdered in about equal numbers. Yet the execution of their murderers is not racially proportional. Since 1976, killers of whites constitute 80 percent of executions, while killers of blacks constitute 13 percent.

116

The correlative expressions "not by" and "but by" should be placed consistently just before the phrase they modify: "will be judged, not by the color of their skin, but by the content of their character." 62

6.3

Parallelism clarifies comparisons. "Both parties deprecated war; but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish." Abraham Lincoln "Upon this point a page of history is worth a volume of logic." "The life of the law has not been logic; it has been experience." Oliver Wendell Holmes, Jr.

6.4 Five forms of parallelism: 1. Repeating at the beginning of successive clauses: Defendant waived this defense by failing to allege it in the answer, by failing to prove it, by failing to argue it to the jury, and by failing to include it in the verdict. 2. Repeating at the end of successive clauses: "that government of the people, by the people, for the people, shall not perish from the earth." Lincoln' s Gettysburg Address. 3. Repeating at the end of one clause and the start of the next: The breach was costly; costly should be the remedy. 4. Repeating in reverse order: "Let us never negotiate out of fear, but let us never fear to negotiate." John F. Kennedy' s Inaugural Address. 5. Juxtaposing opposite ideas: Though slovenly in appearance, he was meticulous in business. 6.5

Tips for achieving parallel structure: Use articles and prepositions consistently: either once at the beginning or repeatedly throughout) e.g.: "The rule' s validity was assumed by the lawyers, by the trial judge, and by the appellate court." Where words take different prepositions, state all prepositions) e.g.: "The expert stated his disagreement with and scorn for the laboratory' s methods and conclusions." After correlative expressions (both, and; not, but; not only, but also; either, or; first, second, third), use the same construction.

63

Parallelism in legal writing: Example # 1 (comparing the instant case to precedent): For State Farm to invoke substantive due process resurrects the discredited "substantive due process" rationale of Lockner v. New York, 198 U.S. 45 (1905). Lockner applied due process to abrogate legislative protections for workers. State Farm applied due process to abrogate judicial protections for consumers. Example # 2: The evidence on whether decedent paid the note is unsatisfactory because, under the dead man statute, the lips of one party were closed by death, and those of the other party were closed by law. 117 Example #3 (bullets): The insurer waived its reformation claim by: ! Waiting four years to allege reformation against the co-insurer. ! Waiting three years to allege reformation against the insured. ! Waiting two years to take discovery on reformation. Example # 4 (headings): 1. The statute' s plain meaning. 2. The statute' s legislative history. Exercise: State the following points in parallel form. Incorrect It was a long closing argument and emotional.

Correct

Either the court must strike the evidence or grant a mistrial. Defendant objects first that the statute is inequitable, and second on the ground of its unconstitutionality.

117

Paraphrased from Light v. Stevens (1911) 159 Cal. 288, 292. 64

7. Keep sentences short. Aim for 10 to 20 words (one to two lines) because shorter sentences are easier to comprehend. A sentence fragment is permissible: "Not so." "On the contrary." "Just the opposite." "True enough." 118 a. Tips for shorter sentences. 1. Delete what is unnecessary, redundant, or implicit. 2. Condense clauses into phrases and phrases into words. 3. Eliminate adjectives and adverbs; use stronger nouns and verbs. 4. Eliminate introductory clauses or limit them to three words. 5. Use simple sentences, each limited to a single point. Or contrast two points with a subordinate clause and an independent clause. Example: Though plaintiff' s expert testified to a design defect, the jury exonerated the manufacturer. 6. Avoid compound sentences (two independent clauses joined by "and"). Example: Plaintiff' s expert admitted plaintiff would regain full use of his left leg, and the rehabilitation doctor said plaintiff can now walk and run normally. 7. Divide a long sentence into two or more sentences. Example: In spite of the pleadings in the underlying action, which were sufficient to demonstrate a potential for coverage under the homeowner' s policy issued to Jones, the trial court determined, on the insurer' s demurrer, that there was no coverage under the policy and that the stipulated judgment agreed to by Jones and Brown was "contrived." (54 words) Possible revision. Though Brown' s complaint showed a potential for coverage under Jones' s homeowner' s policy, the trial court found no coverage and rejected the stipulated judgment between Jones and Brown as "contrived." (29 words)

118

"Adidas dismisses [two federal decisions] as addressing only express preemption. True enough. But insofar as . . . ." Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 943, n. 7. 65

b. Omit "that" and "who is/which is." Omit "that": "That + verb" can be replaced with "verb + ing." E.g.: Instead of "authority that holds," write "authority holding." Omit "that" where it is unnecessary: "He knew that the spraying destroyed the crop." But retain "that" if its omission creates ambiguity) e.g,: "He knew that the defendants' cost-cutting practices violated industry standards." Omit "who is" and "which is": Incorrect Correct His brother, who is a member of the His brother, a member of the same firm, same firm, Soule, which was the Supreme Soule, the Supreme Court' s most Court' s most recent decision on recent decision on instructional instructional error, error, c. Condense "of" constructions. 1. Use the possessive form) e.g.: Not "decisions of the court," but "the court' s decisions." 2. Eliminate redundancy) e.g.: Not "The Corporations Code requires directors of a corporation . . . ," but "The Corporations Code requires directors . . . ." 3. Replace a prepositional phrase with an adjective) e.g.: not "a study of the statutes of California," but "a study of California statutes." 4. Create a more forceful construction) e.g.: not "The attorney told the client of the lack of a legal basis for the claim," but "The attorney told the client the claim lacked a legal basis." 5. Eliminate nominalizations) e.g.: not "He worked for the elimination of fraud," but "He worked to eliminate fraud." d. Refer to cases by one name only. After giving the full cite, refer to the case by one name only. Omit "court," "case," "decision," or "opinion." Incorrect In the Barker decision The Barker court held that

Correct In Barker Barker held that

66

e. Exercises to shorten sentences. Delete what is unnecessary, redundant, or implicit: A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. [BAJI 3.76] A plethora of federal and state courts have adopted inconsistent rationales and reached conflicting results as to whether state claims are preempted by federal copyright law. The proper analysis of this issue is relatively straightforward. It is important to note that this issue was addressed in Jones v. Smith. 8. Punctuate for brevity and emphasis. Punctuation can promote brevity (by replacing text) and create emphasis by showing graphically the logical relation between pieces of information. a. Dash. The dash emphasizes a point that expands, contrasts with, or summarizes other points. Example: In the 1950s, that asbestos caused lung disease was known by asbestos manufacturers and medical authorities) but not by the public. Format: Use the dash symbol; a dash is not two hyphens. Don' t leave a space on either side of the dash (newspapers leave a space only to allow the line to wrap in narrow columns). If a line of text breaks at the dash, attach the dash to the end of the upper line, not the start of the new line.

67

b. Colon. The colon emphasizes a point or series to follow. Just before the colon put the noun that corresponds to the information after the colon. Example: Johnson' s liability for the ex-employee' s shooting rests on Johnson' s knowledge of four facts: the firing made the ex-employee angry; he was armed; he had a felony record for using a weapon; and an "angry" caller sounding like the ex-employee had warned of the shooting. Incorrect Correct The employee devised a new To oppose his supervisor' s strategy to oppose his supervisor' s mistreatment, the employee devised mistreatment: file an agea new strategy: file an agediscrimination complaint with the discrimination complaint with the Department of Fair Employment Department of Fair Employment and Housing. and Housing. c. Bullets. Bullets forcefully state key points in parallel phrases or sentences. Bullets are appropriate for the Introduction and in the "roadmap" that introduces an argument. Example: The statute of frauds fails to support reversal because: ! The statute was waived by Johnson' s failure to assert it at trial; 119 ! The statute does not apply because of Brown' s part performance; ! The statute does not apply to employment agreements; ! The statute (if applicable) was satisfied by Johnson' s journal entry. In the Declaration of Independence, Jefferson' s charges against the King resemble bullet points (here revised with bullets): ! He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers. ! He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries. ! He has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance. ! He has kept among us, in times of peace, standing armies without the consent of our legislatures.

119

The passive voice here allows parallel structure. 68

David Boies used bullets to advance his claim that Bush v. Gore (2000) 531 U.S. 90, "abandoned virtually every rule the Court ordinarily follows" by: ! Disregarding a state supreme court' s interpretation of state law; ! Barring Florida from recounting ballots before a decision on the merits; ! Intervening before the Florida process was complete and a record fully developed; ! Deciding issues not fully and fairly litigated in the courts below; ! Allowing appellant to raise arguments not made below and contrary to arguments made below; ! Ignoring normal requirements for record evidence and findings to support factual determinations; ! Ignoring appellant' s admissions and concessions in the courts below; ! Assuming that Florida' s procedures for uniformity, including judicial supervision and single-judge review of disputed interpretations, would not work (without waiting to see whether they in fact worked). 120 One Court of Appeal used bullet-like paragraphs to summarize evidence supporting punitive damages against a car maker that intentionally designed a weak fiberglass roof, which crushed in a rollover, killing three occupants: However, other evidence permitted a reasonable trier of fact to conclude that defendant' s decision to put the unreinforced fiberglass roof was despicable because defendant knew that: ) unlike convertible passenger cars, the high center of gravity of truck-based utility vehicles made them more likely than passenger cars to roll over; ) defendant' s safety engineers previously had concluded unreinforced fiberglass should never be used for a part of a vehicle intended to enclose the passenger compartment and had concluded no utility vehicle should be produced without a roll bar ) and that the original design for the 1978 Bronco, in fact, included a roll bar as standard equipment; ) the competitor' s removable fiberglass roof did contain metal reinforcement; ) defendant' s own testing conducted after production and delivery of the 1978 Bronco (testing defendant consciously decided not to undertake in order to bring the product to market more quickly, despite such testing as a routine part of product development for other vehicles) showed the roof failed to meet defendant' s safety standards and led defendant to include steel reinforcement in the 1980 Bronco. Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1144-1145. d. Italics. For emphasis, use italics, but sparingly. In a block quote, use italics to highlight the key words. e. Semicolon. A semicolon shows that two points are closely connected. Example: The drug company' s failure to warn of fatal side effects was not negligent; after reports of 83 deaths, it was intentional.

120

D. Boies, Courting Justice, pp. 253-254 (2004)(revised by this author for brevity, simplicity, and clarity). 69

f. Parentheses. Parentheses present incidental facts with a minimum of interruption. Examples: The cigarette manufacturers mailed to people of influence (doctors, teachers, editors) pervasive denials of the link between asbestos and lung disease. Summary judgment is barred where (as here) a triable fact issue exists. g. Minimize commas. The comma creates a stop, impeding the reader. Hence, avoid the comma where no ambiguity results, such as after an introductory phrase of three words or less) e.g.: "In deposition Jones said . . . ." Avoid full dates and omit commas in abbreviated dates: "In December 1941" or "On December 7." But in a series, put a comma before the last item to prevent ambiguity) e.g.: "His symptoms included low back pain, neck stiffness, and immobility of the knee." Use commas to separate a nonrestrictive clause (providing nonessential information)) e.g.: "The witness, who was not deposed, was difficult to impeach." The phrase "who was not deposed" is incidental and could be deleted without loss of meaning. Omit commas with a restrictive clause (making a distinction that is essential)) e.g.: "The witness who was not deposed was difficult to impeach." Here the phrase "who was not deposed" distinguishes this witness from one or more witnesses who were deposed. h. Minimize hyphens. Use hyphens only to aid clarity, as in joining words for a single concept (e.g., fraud-on-the-market). Omit hyphens if a compound modifier is well known ("new trial motion") and where the modifier follows the noun ("the phrase was well known"). Unfamiliar compound modifiers require hyphens if, without the hyphen, the first word could misleadingly modify the noun) e.g.: "unfair-practices charge." Join prefixes to the main word without a hyphen, except where ambiguity would result (pre-judicial career; re-sign the contract) or to separate the same vowel (pre-existing).

70

i. Minimize ellipses. Because lawyers' credibility low, beware of ellipses, which can create in the judge' s mind a suspicion that the lawyer has deleted adverse information. An alternate method for shortening a quote while maintaining full disclosure is to insert a concise paraphrase in brackets. 9. Use vivid prose. Vivid prose keeps the reader' s interest. a. Concrete details. Facts stimulate emotions, driving the reader to your conclusion. So the most persuasive part of your document is the facts, not your conclusions. Use specific facts to imply the correct conclusion: "Suggestion is powerful, since people believe a conclusion more readily if they think they have helped to reach it or have reached it themselves." 121 Abstract Concrete No Swimming. Dangerous Don' t Swim Here. In 2002 the Undertow. undertow caused Susan Parks, Tom Sims, and Jennie Lucas to drown. The change made the employees discontented. This is not, as State Farm would have it, a case about a state court' s overzealous attempt to impose an idiosyncratic moral code on the nation by punishing a company for a scattering of mostly lawful and unrelated instances of sharp dealing throughout the country. This is, rather, that rare specimen: a case about a company caught red-handed using a previously well-concealed fraudulent policy whose very existence the company steadfastly and disingenuously denied.

121

Higher production quotas made the workers angry. State Farm paid claims adjusters to reduce claims payouts to meet preset annual limits. Hence, when Curtis Campbell, State Farm' s insured, was sued on a valid wrongful death claim, State Farm refused to offer his $25,000 policy in settlement. The resulting $135,000 judgment, which State Farm refused to bond above $25,000, risked the loss of the Campbells' home and health. State Farm concealed its fraudulent claims practice by destroying internal documents and falsifying claim files.

F. Thomas & M. Turner, supra, p. 60. 71

Abstract Objective consideration of contemporary phenomena compels the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must inevitably be taken into account.

Concrete I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favor to men of skill; but time and chance happeneth to them all.

In proportion as the manners, In proportion as men delight in customs, and amusements of a battles, bullfights, and combats of nation are cruel and barbarous, the gladiators, will they punish by regulations of its penal code will be hanging, burning, and the rack. severe. The third abstract example above is from Prof. Lawrence Tribe' s Brief of Respondents in State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003). The fourth abstract example is from Herbert Spencer' s Philosophy of Style. The fifth abstract example is George Orwell' s bureaucratic rendition of Ecclesiastes 9:11-12. 122 b. The order of time, cause and effect, and climax. Writing is more persuasive when it obeys the laws of nature, logic, and drama by following the sequence of time, cause and effect, and climax. 123 Incorrect Correct He jumped to his death, crazed with Crazed with jealousy, he jumped to jealousy. his death. Exercise: Revise these sentences to reflect the sequence of time, cause and effect, and climax: The erroneous instructions, which were not prejudicial, do not require reversal because Cal. Const. Art. VI, § 13, allows reversal only for a miscarriage of justice. The trial court granted a new trial to vacate a summary judgment in favor of a corporation on a complaint by the administrator of a decedent' s estate that alleged wrongful death and personal injury from the decedent' s exposure to asbestos.

122 123

Spencer and Orwell are quoted in Strunk and White, supra, p. 23. D. Lambuth, The Golden Book on Writing (1987) p. 18. 72

c. Put the "because" clause (the cause) before the effect. Multiple effects. If a "because" clause is placed after two possible effects, ambiguity or misreading results) which effect does the "because" clause refer to? For clarity, put the "because" clause before and next to the effect it relates to. Incorrect Correct Plaintiff waived the claim of denial Plaintiff waived his claim) that of due process because the judgment because the judgment rested on rested on defendant' s false defendant' s false declaration, declaration. plaintiff was denied due process. The court erred in awarding Jones Because attorney fee awards require attorney fees because the award statutory support, the award of required statutory support. attorney fees was error. Negative effect. If a "because" clause is placed after a negative effect, ambiguity results. Revise to put the negative term into the phrase about the cause. Incorrect Correct Waters was not fired because she Waters' s firing was not caused by had an affair with a supervisor. her affair with a supervisor. [Did the affair prevent the firing? Or was she fired, but not because of the affair?] d. Replace nominalizations with verbs. Avoid nominalizations, which are nouns made from verbs by adding a suffix: -tion, -sion, -ing, -ment, ) ity, -ence, -ance. The verb is the better choice because the verb is shorter, more vigorous, and depicts people taking action. Incorrect placed reliance on are in violation of make a decision make a distribution provide appropriate information draw a comparison between ordered the reversal

Correct relied on violate decide distribute inform compare reversed

73

e. Use the same word for the same concept. Avoid "elegant variation." Using different words for the same point is a burden, setting the reader to "wondering124 what the significance of the change is, only to conclude disappointedly that it has none." But change the word: (1) To avoid using the same word with different meanings. Don' t write: "At the meeting they passed their time passing resolutions." (2) To avoid applying the same idea to different objects. Don' t write: "The board regretted the regrettable outbreak of violence." f. Describe court filings by the action, not the title. Avoid stating the full title of filed documents) e.g.: "Jones filed a motion for summary judgment or, in the alternative, for partial summary adjudication." Instead, describe the action) e.g.: "Jones sought summary judgment or partial summary adjudication" (or "opposed, objected, agreed, answered, disclosed, amended, stipulated"). g. Use the active voice. The passive voice depicts something being acted upon without identifying the actor ) e.g.: "Mistakes were made." The active voice) depicting a person or thing taking action) is stronger, is often shorter, and supplies thoughts in the order the reader expects. Incorrect Correct During repairs on asbestosWhile Jones repaired asbestoscontaining motorcycle brakes in the containing motorcycle brakes in his garage, asbestos dust was generated garage, he inhaled asbestos dust. that was inhaled by Jones. There is no evidence that any No evidence shows that Thomas improper influence was sought to be tried to influence any official exercised by Thomas over any decision. official decision. Exceptions: The passive voice may achieve an offsetting benefit by starting the sentence with a link to prior text, putting the point of emphasis at the end (by reversing the word order), or achieving parallelism. To spare the reader hardship, use the passive voice only if the actor is understood, unimportant, or unknown.

124

H.W. Fowler, Modern English Usage (2d ed. 1965) p. 149. 74

h. Refer to parties by name. Parties have names) use them. "To make briefs clear," Fed.R.App.P. 28(d) encourages using parties' names or designations in the lower court or a descriptive term, such as "employee" or "taxpayer" or "stevedore." At the start, establish each party' s status) e.g.: plaintiff, defendant, appellant, respondent, petitioner, real party in interest. Then refer to adult parties by last name only (without Mr./Mrs./Ms.). If parties have the same last name, then use Mr./Mrs./Ms. or first names. Refer to minors by first name. But if your opponent is more sympathetic than your client, then refer to the parties by their procedural title (e.g., plaintiff and defendant). i. Use positive constructions. Use positive constructions because negative constructions burden the reader: (1) They are difficult to understand) the reader must cancel the negatives to uncover what is asserted. (2) They say what something is not, rather what something is. (3) They feign intellectual understatement, alienating the reader (implying the writer is too sophisticated to write directly, leaving us lesser mortals to unearth the meaning for themselves). Incorrect Correct There is not a medical school in Every medical school in American America that cannot increase its can increase its enrollment without enrollment without lowering its lowering its standards. standards. A bad example: When English Professor Donald Foster was shown to be wrong in attributing to Shakespeare the poem, "A Funeral Elegy," he responded with this double negative: No one who cannot rejoice in the discovery of his own mistakes deserves to be called a scholar. 125 The positive construction is clearer: Only those who rejoice in discovering their mistakes deserve to be called scholars.

125

New York Times, June 20, 2002, p. 1, col. 6; p. 2, col. 6. 75

Replace negative phrases with positive phrases: Negative phrase Positive phrase not accept reject not unlike similar, alike does not fails to does not have lacks does not include excludes, omits not many few not often rarely not the same different not . . . unless only if not . . . except only if not . . . until only when Exercise: Recast the statements below in positive form. Incorrect Correct Plaintiffs, except those injured before June 5, 1986, may not assert joint and several liability for noneconomic damages. Almost no aspect of the case was unaffected by this error. j. Before a quote, state its point. Help the reader by first stating the point of a quote in your own words; then give the quote. Don' t precede the quote simply with a neutral statement of the source. Incorrect Correct Soule stated: "expert testimony on . As Soule held, experts may testify . . what the product' s actual to a consumer' s safety expectations: consumers do expect may be "expert testimony on . . . what the proper." product' s actual consumers do expect may be proper."

76

k. Avoid block quotes. A block quote slows the reader down, burying the point in dense, single-spaced text not tailored to your case. Instead of a block quote, incorporate the key phrase in a sentence. If a block quote is needed, help the reader, as follows: 1. Before the block quote, state its point or effect and quote the key words. 2. Make the quote as short as possible. 3. In the quote, italicize key words. 4. Make the quote easy to read by using at least 1.25 spacing. 5. After the block quote, apply the quote to your case, again quoting key words. Example: Defendant ignores the test for causation) a "reasonable medical probability" that the asbestos product contributed to the injury: [T]he standard [of causation in asbestos cases] should be the same as used in other negligence cases: is there a reasonable medical probability based upon competent expert testimony that the defendant' s conduct contributed to plaintiff' s injury. [Citation.] Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416 (emphasis added). Here, a "reasonable medical probability" was created by Dr. Thompson' s testimony that exposure to defendants' products was a substantial factor in causing Johnson' s disease. l. Avoid vague or ambiguous constructions. Vagueness and ambiguity burden the reader, who must scour the context to discern your meaning. (1) Use specific terms to refer back. Referring back) Don' t refer back to a prior point by using a vague phrase such as: "the first prong"; "the latter" (or "former"); "the second element"; "Barker' s test"; "the statute' s requirement"; "the test in section 6304.5." These vague references make the reader go back to prior text to recall what you are referring to. Hence, when discussing the point the first time, summarize it with a specific phrase. Then, when referring back to that point, use that specific phrase. Incorrect The product violated Barker' s first prong.

Correct The product violated Barker' s consumer expectation test.

The instruction omitted the statute' s second element.

The instruction omitted the statute' s "30-day notice" requirement.

77

To refer back to elements in a document (e.g., a settlement), create a defined term for each element, then use that defined term to refer back. Example (defined terms in bold): Under the settlement with the New York Attorney General, Merrill Lynch must disclose four facts that could influence research recommendations: 1. Past compensation: Merrill must disclose compensation paid by the subject company to Merrill or the analyst in the prior year. 2. Future business: Merrill must state that the investor should assume Merrill will seek the company' s investment banking business. 3. Other companies: Merrill must disclose its recommendations on all stocks in the subject company' s industry and all corporations in the industry that Merrill worked for in the past year. 4. Termination of coverage: Merrill must report its decision to stop covering a company and its rationale. (2) For words with multiple meanings, use just one meaning consistently. Since) Use it for "from the time when"; for causation, use "because." While) Use it to mean "during"; to introduce opposites, use "though." (3) Avoid the restrictive/nonrestrictive modifier dilemma. That v. Which) For essential modifiers, delete "that" and use the "-ing" form of the verb. For nonessential (nonrestrictive) modifiers, delete them as not essential. Essential modifier Delete "that" clause The document that bore the The document signed by the employee' s signature contradicted employee contradicted him. him. [distinguishing this document from others] Nonessential modifier The document, which bore the employee' s signature, contradicted him. [The signature is not an essential fact.]

Drop the nonessential modifier The document contradicted him.

78

(4) When stating your adversary's position, say so. Stating your adversary' s position without attributing that position to your opponent creates ambiguity)Are you stating your own position? Or your adversary' s position? Instead, introduce the opposing point by attributing the position to your adversary: "Though [my adversary] claims," then rebut the point in the main clause. Or: "[My adversary] is wrong to claim" or "erroneously claims that . . . ." This requires more words, but the added clarity is worth it. Incorrect Correct Punitive damages are not Though Jones claims punitive recoverable in a contract action. damages are not recoverable in a But the finding of fraud supported contract action, the punitive award punitive damages. rested on fraud, an independent tort. (5)

Put modifiers immediately next to the person or thing modified. "[H]ow swiftly meaning departs when words are wrongly juxtaposed." 126 Incorrect Correct The police had a DNA sample from The police had the suspect' s DNA the suspect frozen in the lab. sample frozen in the lab. COURT: Please banish all present COURT: Please banish from your information and prejudice from your minds all present information and minds, if you have any. prejudice. Put "only" next to the word or phrase it modifies. A change in placement changes the meaning. Examples: Only he saw the tall officer signal to the first driver. He only saw the tall officer signal to the first driver. He saw only the tall officer signal to the first driver. He saw the tall officer only signal to the first driver. He saw the tall officer signal only to the first driver. Only section 598 permits the court to order the trial of liability first. Section 598 only permits the court to order the trial of liability first. Section 598 permits the court only to order the trial of liability first. 127 Section 598 permits the court to order the trial of only liability first. Exercise: Put "only" immediately before the clause it modifies: Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. Altria is only named in Johnson' s suit because it is the parent company of Philip Morris.

126

Strunk & White, supra, p. 31. This construction correctly places "only" next to "liability," the issue allowed to be tried first. 127

79

m. Condense step-by-step sentences. Step-by-step sentences contain too little information to make a persuasive point. Instead, condense the information into one strong sentence with a main point. Subordinate or omit minor information. Examples: Incorrect Correct After the sergeant got the call, he After the sergeant got the call, at assigned officer Brown to respond. 6:19 a.m. he dispatched officer Brown was dispatched at 6:19 a.m. Brown. Defendant Johnson Trucking Company' s main customer was Frozen Foods. Johnson carried 24 loads a day for Frozen Foods. Johnson was negligent. It failed to inspect its trucks' brakes. It failed to train its drivers. It avoided mandatory safety inspections. It over scheduled its drivers, depriving them of sleep. On October 24 Nelson turned left on Highway 24. One of Johnson' s drivers was coming in the opposite direction. Johnson' s driver was unable to stop in time, causing the accident. (10 sentences; 77 words)

Johnson Trucking Company was negligent by: failing to inspect brakes; failing to train drivers; avoiding mandatory safety inspections; and overscheduling its drivers, depriving them of sleep. Hence, when Nelson turned left on Highway 24 in front of a Johnson truck, Johnson' s driver failed to stop, causing the collision. (Two sentences) one on negligence; the other on causation. 50 words)

80

n. Use the right tone. Adopt a tone that is respectful, neutral, and informal (not stuffy; not chatty). Adopt the calm, analytical tone of most judicial opinions. Because the judge wants to identify and resolve the issues, it is neither helpful nor persuasive to attack the opposing party or counsel, to conceal, to exaggerate. or to trumpet your opinions and emotions. Scalia and Garner: "[Y]ou show yourself to be likable by some of the actions that inspire trust, and also by the lack of harsh and combativeness in your briefing and oral argument, the collegial attitude you display toward opposing counsel, your refusal to take cheap shots or charge misbehavior, your forthright but unassuming manner and bearing128at oral argument) and, perhaps above all, your even-tempered good humor." (1) Show respect. Respect for the court. Show respect for the court' s important responsibility and empathy for the difficulty of its task. Writing concisely, simply, and honestly is a big step in this direction. Show "[r]espect for the court . . . by the nature of your argument129(by avoiding repetition, for example, and by refraining from belaboring the obvious)." Be less of an advocate and more of a helpful consultant. Avoid a dogmatic or assertive tone, which implies that the court is passive, needing only to be told what to do. Avoid a formal tone, which creates distance between you and the reader. When challenging a prior judge' s ruling, be respectful of that judge. Explain sympathetically how your adversary misled the judge into error. Respect for the subject. If you are seeking to remedy (or prevent) an injustice, don' t show anger or outrage, which damage your credibility. A more trustworthy tone is bewilderment at the inexplicable circumstance that requires the court' s attention. If you are the responding party, defending the status quo, don' t show arrogance, which also damages your credibility. A more trustworthy tone is matter-of-fact, showing that existing principles (or their logical extension) support your position. Respect for your opponent. "The lawyer' s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect." Commentary to ABA Model Rule of Prof. Conduct 1.3. Avoid sarcasm, scorn, accusations, anger, and their allies. Criticizing opposing counsel distracts the judge from the information needed to resolve the issues. As Judge Kozinski writes, when the lawyers are fighting, "[p]retty soon I [find] myself cheering for the lawyers and forg[e]t all about the legal issues." 130 Castigating opposing counsel also damages your credibility, implying that you are ignorant of the court' s needs. Instead of criticizing the lawyer, criticize the argument. Hon. Harry Pregerson: "Generally, you injure yourself and your client' s case if, in your brief or at oral argument, you vilify or belittle your opponents or their legal positions. A shrill tone in a brief diminishes its persuasive force. The reader wonders why disparagement is necessary. Is it a device to divert attention from a vulnerable position? If your position is strong and your client' s cause just, there is

128 129 130

Scalia and Garner, supra, p. xxiv. Scalia and Garner, supra, p. 34. Hon. A. Kozinski, The Wrong Stuff, Idaho State Bar Advocate (March 2002) 10, 11. 81

no need to subject the court to a barrage of abusive argument. This approach is unpleasant, ineffective, and counterproductive." 131 Respect for yourself. Present yourself as an officer of the court, striving to present a helpful analysis. Don' t call attention to yourself) avoid a pompous tone (implying selfimportance) and avoid a chatty or breezy tone (implying inappropriate familiarity with the court). (2) Avoid emotion. Scalia and Garner: "Appealing to judges' emotions is misguided because it fundamentally mistakes their motivation. Good judges pride themselves on the rationality of their rulings and the suppression of their personal proclivities, including most132especially their emotions. And bad judges want to be regarded as good judges." "Cultivate a tone of civility, showing that you are not blinded by passion. Don' t accuse opposing counsel of chicanery or bad faith, even if there is some evidence of it. Your poker-faced public presumption must always be that an adversary has misspoken or has inadvertently erred) not that the adversary has deliberately tried to mislead the court." 133 Displaying emotion suggests the weakness of your case requires you to distract the court from the facts and the law. But judges don' t rule based on the lawyer' s emotions. On the contrary, your display of emotion separates you from the reader and undermines your credibility. Instead of displaying your emotion, create emotion in the reader by your persuasive portrayal of the facts and the law. Trust that the indicative will give rise to the imperative. (3) Advocate sound judicial administration and fairness. Judges seek the rule that is right for the judicial system (predictable and economical) and fair to the parties and to society. Hence, show that the result benefitting your client will promote fairness and sound judicial administration.

131 132 133

Hon. H. Pregerson, supra, at 436. Scalia and Garner, supra, p. 32. Scalia and Garner, supra, p. 34. 82

(4) Use gender-neutral language. Gender-specific terms ("he"; "chairman") can distract or offend the reader. Because your credibility is paramount, don' t risk alienating the reader with language that may be perceived as biased. To avoid he, his, him, himself, choose one of the following solutions: 1. Delete the pronoun: "Every attorney should read court orders as soon as they are delivered to him." [delete to him]. 2. Change the pronoun to an article: "A California attorney should follow the California Style Manual in preparing his [read a or the] brief." 3. Pluralize. Change he, him, his to they, them, theirs: "California attorneys should follow the California Style Manual in preparing their briefs." 4. Repeat the noun in place of the pronoun: "A California attorney should follow the California Style Manual in preparing the attorney' s brief." 5. Recast an if clause with a who clause: Instead of: "If an attorney fails to use the California Style Manual, he risks improper citations." Write: "An attorney who fails to use the California Style Manual risks improper citations." 6. Titles. Choose a gender-neutral form. Avoid "-man." E.g., chair (for chairman), workers (for workmen), staffed by (for manned by), drafter (for draftsman). Avoid feminized titles for women (e.g., executrix, heiress, poetess, waitress). Use executor, heir, poet, and waiter for everyone.

83

(5) Use informal constructions. An informal tone is direct, suggesting you won' t obfuscate to protect a weak position. Also, an informal tone creates rapport by bringing the reader closer. When judges present the "bottom134line," they put it in "plain English," using an informal tone to get the reader' s attention. Moreover, an informal tone sustains the reader' s interest by keeping the pace brisk, allowing the reader to become immersed in your story and lose the awareness of reading. To achieve an informal tone, consider the following devices. 1. Splitting infinitives. 135 You may split infinitives: (a) To avoid an awkward construction, preserving a modifier' s natural position before the term modified. Example from the California Supreme Court: "[T]he function of punitive damages is not served by an award [that] exceeds the level necessary to properly punish and deter." Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928 (emphasis added). "If any part of the complaint seeks relief to directly benefit the plaintiff . . . the section 425.17(b) exception does not apply." Club Members for an Honest Election v. Sierra Club (2008) __Cal.4th__(emphasis added). The issue is whether a fiduciary relationship arose "when City of Hope . . . entrusted a secret scientific discovery to Genentech . . . to commercially exploit." City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 380. (b) To avoid ambiguity by keeping the adverb before the verb where not splitting would put the adverb after the verb, thus allowing the adverb to be misread as modifying the following phrase.

134

E.g., Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 556, fn. 14 ("Or, in plain English, ` if you have to do a lot of work to make a second unit, you might as well add on a parking space while you' re at it.' "). 135 Modern stylists allow splitting infinitives. B. Garner, Dictionary, pp. 616-617; Texas Law Review, Manual on Usage & Style (1995) p. 4; T. Bernstein, The Careful Writer (1975) pp. 424-427; H.W. Fowler, A Dictionary of Modern English Usage (1926) p. 558. On this once-contentious point, the old guard has relented: "[T]he intelligent and discriminating [splitting of infinitives is] a legitimate form of expression . . . . [I]n many cases clarity and naturalness of expression are best served by a judicious splitting of infinitives." The Chicago Manual of Style (14th ed. 1993) p. 76, n. 9. 84

Example: Instead of "to prepare better effective experts," write "to better prepare effective experts." (c) To preserve a term of art. Example: "to sexually harass." 2. Put prepositions at the end to avoid awkwardness. E.B.White: "[T]he preposition [is] acceptable at the end . . . ." 136 End with the preposition if the alternate construction would be awkward, formal, or would diminish the impact. Incorrect Correct "This is the sort of English up with This is the sort of English I cannot which I cannot put." (Churchill) put up with. Jones failed to identify any fraudulent statement he heard and upon which he relied.

Jones failed to identify any fraudulent statement he heard and relied on.

A claw hammer, not an ax, was the A claw hammer, not an ax, was the tool with which he murdered her. tool he murdered her with. In the last example, E.B. White preferred ending with the preposition because that construction sounded "more violent, more like murder. A matter of ear." 137 3. Contractions) probably not. Justice Scalia dislikes contractions because they may give offense. "Formality bespeaks dignity. . . . [S]ome judges . . .will take [contractions] as an affront to the dignity of the court. . . . And those judges who don' t take offense will not understand your brief, or vote for your case, one whit more readily. There is, in short, something to be lost, and nothing whatever to be gained." 138 Garner, however, advocates contractions to "enhance readability" because (he says) "uncontracted words will distract or subliminally repel readers . . . ." 139 Garner believes contractions catch the reader' s attention with a tone that is confident and direct: "one 140 intelligent being to another. It' s so unusual that it can be 141 genuinely refreshing." Judges 142 and journal writers use simple contractions) e.g.: "can' t," "didn' t," "doesn' t," 143

136

Strunk & White, supra, p. 77. Strunk & White, supra, p. 78. 138 Scalia and Garner, supra, p. 118. 139 Scalia and Garner, supra, p. 115-116. 140 B. Garner, Legal Writing in Plain English (2001) p. 49. 141 Pacheco-Camacho v. Hood (9th Cir. 2001) 272 F.3d 1266, 1267 (a prisoner "can' t wait" to year' s end for his credit.); Huizar v. Carey (9th Cir. 2001) 273 F.3d 1220, 1223 (an offer, once accepted, "can' t thereafter be revoked."). 142 People v. Sinohui (2002) 28 Cal.4th 205, 209 (Westlaw version) ("[S]he was afraid and didn' t want to upset defendant.") 143 Swenson v. Potter (9th Cir. 2001) 271 F.3d 1184, 1197 (Though "the investigation was competent, it ultimately doesn' t matter."). 137

85

"don' t," 144 "isn' t," 145 "it' s," 146 "wasn' t," 147 and "won' t." 148 But avoid complex or ugly contractions) e.g.: "would' ve" or "it' d." 4. Start sentences with "And," "But," or "Because."149 Sentences may start with a conjunction. 150 Examples: Genesis: "And151 God saw the light, that it was good; and God divided the light from the darkness." Churchill: "Now this is not the end. 152 It is not even the beginning of the end. But it is, perhaps, the end of the beginning." Declaration of Independence: "But when a long train of abuses and usurpations . . . evinces a design to reduce them under absolute despotism," mankind has a right to institute a new government." U.S. Constitution: "But in all such cases the votes of both houses shall be determined by yeas and nays," with a record of each vote. U.S. Const., Art I, § 7. California Supreme Court: "[S]ome tourist use lawfully existed prior to the 1982 and 1987 zoning restrictions. But the lawful temporary rental of vacant residential 153 units . . . was not authority to use the hotel' s rooms full time for tourist use . . . ." "Because the plaintiff had not offered any evidence that her obesity resulted from [a disorder affecting] a154 body system . . . she did not meet the FEHA' s definition of physical disability." 144

A. Kozinski & S. Reinhardt, "Please Don' t Cite This! Why We Don' t Allow Citation to Unpublished Dispositions," Cal. Law., June 2000, at 44. 145 In re Bassett (9th Cir. 2002) 285 F.3d 882 ("the fallacy that language not in capitals isn' t conspicuous."). 146 S. Gross, "Update: American Public Opinion on the Death Penalty) It' s Getting Personal" (1998) 83 Cornell L. Rev. 1448. 147 Baker v. Gourley (2002) 98 Cal.App.4th 1263, 1270 ("McKinney didn' t exactly mangle Burg and Fuenning, but loose language in the opinion would impliedly extract from those cases a proposition that wasn' t in them."). 148 Carey v. Saffold (2002) 122 U.S. 2134, 2140, 122 S.Ct. 2134, 2140 ("Won' t our interpretation of the federal tolling rule [apply to] other states . . . ?"). 149 But is a contrasting conjunction that may connect sentences: "There is a widespread belief) one with no historical or grammatical foundation) that it is an error to begin a sentence with a conjunction such as and, but, or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing being with conjunctions. . . . To sum up, then, but is a perfectly proper way to open a sentence, but only if the idea it introduces truly contrasts with what precedes. For that matter, but is often an effective way of introducing a paragraph that develops an idea contrary to the one preceding it." The Chicago Manual of Style (15th 3d. 2003) pp. 193-194; see also, B. Garner, Dictionary, p. 39, 631-632. 150 The Chicago Manual of Style, p. 193-194 (¶ 5.191) (2003). 151 Genesis 1:4 (New King James Version). 152 Winston Churchill, Speech at the Lord Mayor' s Day Luncheon, November 10, 1942. 153 San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 660 (court' s emphasis omitted; italics added). 154 Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1028. 86

On "but": "there is no stronger word at the start. It announces total contrast with what had gone before, and the reader is primed for the change." B. Garner, "On Beginning Sentences with But," Michigan Bar Journal (October 2003), p. 43 (quoting William Zinsser). "But" is preferable to "however." At the start, "however" is formal and may be misread for its second meaning: "However you get there, be on time." In the sentence' s middle, "however" delays the change in direction, to the reader' s detriment. 5. "Who" versus "whom." Use "who" (not "whom") when it is the subject of its own clause) e.g.: "The defendant, who the jury decided was lying, was convicted." Compare: "He conspired with his employer, whom he had known for 30 years." A simple test for "who" (nominative) or "whom" (objective) is to recast the phrase in a declarative manner and substitute a personal pronoun for "who" or "whom." The foregoing examples would become "he was lying" (nominative) and "he had known him" (objective). 155 6. "Will" versus "shall." Use "will" (not "shall") for the first person simple future tense. 156 7. "Whose" versus "of which": "Whose" serves as the possessive pronoun for animate and inanimate objects) e.g.: "The testimony, whose relevance was doubtful, was admitted anyway." This avoids the formal "of which" construction: "The testimony, the relevance of which was doubtful, was admitted anyway." 157 Don' t feel skittish about using "whose" to refer to an inanimate object; this usage is "an idea whose time has come." 8. Past Perfect Tense: The past perfect tense is unnecessary where it is obvious that one event occurred before another ) e.g.: "He ran [not "had run"] out of gas before the car stalled." 158 (6) Avoid word gaffes. affect, effect. Affect is most often used as a verb ("to influence" or "have an effect on"). Effect as a verb means "to create" or "bring about"; as a noun, it means "consequence or result." actual, actually. Misused when modifying something that could exist only in reality, e.g.: the actual facts. as, because, since. To show causation, use because. It is stronger than "since" and will not be misread as referring to the passage of time, thus avoiding ambiguity. Examples: Not: "Since he was released from prison, he stole a car." (causation or time?) Not: "He drove onto the sidewalk as the pedestrian was crossing the street." (causation or time?) Instead: "Because the pedestrian was crossing the street, he drove onto the sidewalk."

155

T. Bernstein, The Careful Writer (1975) pp. 477-479. "Will is better than shall for expressing the future tense." Texas Law Review, Manual on Usage & Style (1995) p. 69. "Shall" is declining in legal usage to denote a mandatory duty because of ambiguity created by lawyers' misuse. See B. Garner, "A Dictionary of Modern Legal Usage" (2d ed. 1995) 939-941. 157 B. Garner, Dictionary, p. 695. 158 T. Bernstein, The Careful Writer (1975) p. 410. 156

87

as to. As to is either an awkward substitute for a simple preposition (e.g., "on") or may be deleted. between, among. Between denotes one-to-one relationships between specific things (can be more than two). E.g., "a treaty between three nations." Among denotes a vague or collective relationship. E.g., "disagreement among scholars"; "The three couples had 25 grandchildren among them." both . . . and. This construction is overused. Reserve "both . . . and" for instances where the coexistence of two qualities or facets is truly surprising, and so warrants emphasis. compare. Compare with means "note differences and similarities." Compare to means "like" or "note only the similarities." E.g., "this frost compares to the winter of 1907." comprise, include, compose. Comprise and include mean "consist of" or "contain." Use comprise when you are listing all components; if not, use include. The phrase is comprised of is wrong; instead use is composed of or comprises. damages, damage. Damages is the noun; damage is the adjective) e.g., "the damage award." different from, different than. Different from is preferred. ensure, insure, assure. These all mean to make certain. But in American English, a contractual guarantee of indemnification insures; assure usually requires a person as its direct object. even, only, just. Put these words next to the word or words they limit. A different placement changes the meaning. farther, further. Use farther to refer only to distance. Use further in all other contexts. forego, forgo. Forego means "to precede," as in "the foregoing analysis." Forgo means "to voluntarily relinquish." however. Avoid however; instead use "but." At the start, "however" is formal and may be misread for its second meaning: "However you get there, be on time." In the sentence' s middle, "however" delays the signal of changing direction, to the reader' s detriment. impact. Avoid as a verb; instead use affect, change, influence, or shape. As a noun, impact means "effect" or "significance," as well as "collision." imply, infer. Imply means "to suggest indirectly." Infer means "to derive a conclusion from." These words are not interchangeable. less, fewer. Less means "not as much." Fewer means "not as many." Use less when referring to large amounts of money or units of time. oral, verbal. Oral means "spoken." Verbal includes both oral and written expressions. plead, pleaded, pled. The preferred past tense and past participle is pleaded. principle, principal. A principle is a truth, rule, or standard. A principal is a primary actor, or corpus of a fund. Principal as an adjective means "primary" or "main." proved, proven. The preferred past participle of prove is proved. Proven is an adjective. sanction. Its opposite meanings) "to punish" and "to approve" ) create ambiguity. Hence, sanction is a skunked term; avoid it. such. Avoid such in the sense of "before-mentioned." That usage is formal and vague. Limit its use to "of this kind." E.g., "Court papers should not be filed late. Such a mistake is costly." 88

who, that, which. Who (and whom) refer to persons; which and that refer to places and things. while. For clarity, limit while to "during" and "whereas." Do not use while as a substitute for "although." who, whom. Who acts as the subject of a verb. Whom acts as the object of a verb or preposition. E.g., "Here is the baby whom I heard crying." whose. Whose can refer to both animate and inanimate objects. E.g., "The car, whose tire exploded, crashed."

89

10. Exercises. Make these sentences short and simple, with a clear train of thought. Follow these steps: (1) Identify the sentence' s central point. (2) Delete everything not essential to that point. (3) Revise as suggested in this chapter. An insurer justifies terminating disability benefits: First and foremost, it should be noted that by plaintiff' s own admission, she not only operated her chiropractic business, Stockton Chiropractic, in the latter half of 1997 and 1998 after she went on disability, but also took a draw of $18,000 from the business in 1998. Where plaintiff claimed sexual harassment by Mr. Jones: Mr. Jones admitted in deposition that as vice-president, the Director of Human Resources moved him from store to store in response to allegations of harassment. Explaining why statutory fees should be enhanced. It has long been recognized, however, that the contingent and deferred nature of the fee award in a civil rights or other case with statutory attorney fees requires that the fee be adjusted in some manner to reflect the fact that the fair market value of legal services provided on that basis is greater than the equivalent noncontingent hourly rate. Seeking affirmance of an attorney fee award as sanctions. The trial court' s order granting plaintiff Susan Johnston her attorney' s fees based on defendant Tommy Simpson' s unreasonable refusal to admit basic facts about his liability and Johnston' s damages should be affirmed.

90

Jury instruction on negligence: One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he would have foreseen or anticipated that someone might have been injured by or as a result of his action or inaction. If the answer to that question is "yes," and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence. 159 A court begins an opinion on a sink manufacturers' liability for defects. Briggs Plumbing Products, Inc., doing business as Briggs Industries; Verson Allsteel Press, the predecessor of Allied Products Corporation (together Allied); and CR/PL, Inc., manufactured inexpensive bathroom sinks, hundreds of which the Fieldstone Company installed in residential developments throughout San Diego County in the 1980' s. 160

159 160

Based on Cal. Book of Approved Jury Instructions (BAJI) 3.11. Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.3d 357, 362. 91

7.

Structuring briefs and motions. 1. Universal structure. All legal documents should cover the following subjects in the following order. Vary the emphasis given to each part, according to your reader' s particular needs in learning the facts and the law. 1. Introduction. a. Background. b. Issues presented. c. Summary of argument. 2. Statement of Facts. 3. Procedural History. 4. Discussion/Argument. 5. Conclusion. 2. Introduction. At the start, the judge is eager to know three things: a. Background. b. Issues presented. c. Summary of argument (facts and law that resolve the issues presented). a. Background. Summarize the key events between the accrual of plaintiff' s claim and the filing of your document. Give enough factual and legal information to orient a judge unfamiliar with this area of law. Example: This appeal is from a judgment after jury trial. Plaintiff Susan Johnston worked for defendant White Corporation and its successor, Black Corporation, for 37 years (1965-2003). Her satisfactory performance is undisputed. When Black Corporation took over in 1999, its managers orally promised Johnston that "as long as you performed, you would keep your job." RT 1914:1417. Johnston reasonably believed this was an express promise by Black Corporation not to terminate her except for good cause. Hence, she accepted this offer and went to work for Black Corporation. But in February 2003 Black Corporation fired Johnston, claiming she had misrepresented her reason for taking a 3-day vacation. Substantial evidence showed this claim was a pretext) that the employer was in fact retaliating for Johnston' s twomonth, statutorily-authorized medical leave (on doctor' s orders) to cure an open foot wound aggravated by diabetes.

92

The jury found the firing lacked good cause and breached the contract. The jury awarded damages to Johnston. From the ensuing judgment, Black Corporation appeals, raising the following issues. b. Issues presented. Next, state the "issues presented." The court wants to know the issues it must decide. A statement of the "Issues Presented" is required in federal appellate courts and the California Supreme Court, and is good practice in state appellate courts. Mark the "Issues presented" for the Table of Contents, so that judge can see the issues at first glance. Scalia and Garner: "[B]ecause seasoned legal readers are always impatient to find out what the case is about, opening a brief with the deep issue satisfies a real need." * * * * "You want to state the issue fairly, to be sure, but also in a way that supports your theory of the case. A well-framed issue statement suggests the outcome you desire." * * * * "The most persuasive form of an issue statement) the so-called deep issue161) contains within it the syllogism that produces your desired conclusion." Consider this "issue presented" by an ex-wife seeking to retain past support payments: Under Louisiana law, a husband is presumed to be the father of his wife' s child and must support the child unless he denies paternity within one year of the child' s birth. Rousseve did not deny paternity until five years after Aleigha' s birth. [Issue]: Was he obligated to support Aleigha until he proved that he was not her father?162 The ex-husband' s "issue presented" might read as follows: Under Louisiana law, a husband who is not the father of his wife' s child is not obliged to pay support for that child. Five years after Aleigha' s birth, blood tests showed that Rousseve is not Aleigha' s father. Issue: Is he entitled to recover past support payments from Aleigha' s mother? A short example: Did the trial court properly exclude plaintiff' s damages expert simply because her report was submitted late (30 days before trial), though still in time for her deposition by defendant? In complex cases, a longer "Issue Presented" may be needed. Don' t use one long sentence starting with "whether." Instead, first provide the relevant facts or procedural history in short sentences, then state the issue in 75 words or less.

161 162

See Garner, The Winning Brief, pp. 53-97 (2d ed. 2004). Scalia and Garner, Making Your Case, pp. 83-88 (2008). 93

A complex example: Defendant' s drug label gave no dosage for infants or warning that an overdose could cause liver damage. Hence, plaintiffs unknowingly gave their baby repeated overdoses, destroying her liver. The mother and a doctor declared that if the warnings had been adequate, they would have prevented the overdose. Issue: Did these declarations raise a triable issue whether the lack of warnings contributed to the overdose? c. Summary of argument. For each issue presented, show briefly why the court should rule for your client. d. Cite to the record. Even in the introduction, briefs must "support any reference to a matter in the record by a citation to the record." Cal. Rules of Court, Rule 8.204, subd. (a)(1)(C). City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 (claims lacking record citations will be disregarded). If the Introduction' s assertions are not documented by cites to the record, some judges will simply skip the Introduction. e. Create a theme. A theme unites the major elements of your argument into a single rationale. The theme should be restated in all sections of the brief. Sample themes: Because the court excluded [name of defendant]' s relevant evidence and admitted [name of plaintiff]' s irrelevant evidence, the jury was prevented from learning that the product did not perform safely. Because the insurer conducted an adequate investigation and reasonably relied on two doctors' reports that Brown was not disabled, the insurer cannot be liable for bad faith.

94

3. Statement of facts. The Statement of Facts is often the most persuasive part of a brief because: (1) The judge is more open your facts than to your recitation of the law. (2) The facts are the only legitimate way to elicit favorable emotions. (3) The facts often answer the question, "who should win?" The Statement of Facts is so important that in "doubtful cases" U.S. Supreme Court Justice Brandeis wrote the facts himself, letting his clerks write the law. Shannon & Luchs v. Mellon Bank (W.D.Pa. 1988) 690 F.Supp. 419, 420, n. 3. He found that "by preparing a careful and comprehensive statement of the facts . . . the controlling principles of law will gradually emerge and become discernible." Ibid. a. Be complete. The Statement of Facts must "provide a summary of the significant facts" (Cal. Rules of Court, Rule 8.204, subd. (a)(2)(C)) under the applicable standard of review. Appellant must present the evidence and inferences supporting the adverse judgment. Appellant' s failure to fairly and completely state the evidence may lead to rulings of waiver and sanctions. Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97 (waiver); Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-886 (sanctions). Don' t hold back key facts only to discuss them later in the argument. b. Structure the facts to match the legal arguments. Organize the facts according to your legal argument. For example, in an appeal challenging a will on the ground of incompetence and undue influence, organize the facts under separate headings on (1) competence and (2) undue influence, rather than chronologically. c. Persuade, within the bounds of honesty. Persuade "by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each. Rhetorically speaking, you' ll be putting some facts in high relief and some in low relief) and you' ll be omitting others altogether. You' ll be engaging in what Aristotle called amplification and diminution. You will amplify the163 facts that suggest your desired outcome by placing them prominently in the narrative." Maintain fairness by including "relevant facts adverse to your case," 164 but soften the impact of bad facts by surrounding them with good facts.

163 164

Scalia and Garner, supra, p. 94. Scalia and Garner, supra, p. 95. 95

d. Use frequent headings and subheadings. Help the reader with frequent headings and subheadings. If you don' t have at least one heading on each page, ask yourself if the reader will recognize the point made on that page without the assistance of a heading. Sample headings in the Statement of Facts: A. Fibreboard' s concealment was a cause of Johnson' s asbestos disease. 1. Fibreboard' s intentional concealment. a. Fibreboard knew the risk of lung disease. b. Fibreboard concealed the risk of lung disease. 2. Effect on the public: Purchasers and workers were ignorant of the risk. 3. Effect on Johnson: Unaware of the risk, Johnson worked with and around asbestos without protection, later developing mesothelioma. 4. Procedural history. The judge needs to know the key procedural events that led to the current motion or appeal. State that procedural history here, and later revisit it where relevant to particular arguments. 5.

Argument. a. Understand the syllogism. Understand your argument' s syllogism) major premise; minor premise; conclusion. The major premise is usually a rule of law. The minor premise is usually a fact that invokes the rule. For example: Major premise: All men are mortal. Minor premise: Socrates is a man. Conclusion: Socrates is mortal. Major premise: Suits must be filed within two years of an accident. Minor premise: This suit was filed more than two years after the accident. Conclusion: This suit is time-barred. Motions and briefs can be about (1) what the rule is, or should be (major premise), or (2) whether the facts invoke one rule or another (minor premise)) or (3) both. 165 You can help the court by explaining which disputes your case presents.

165

O.C. Jensen, The Nature of Legal Argument 20 (1957) (cited in Scalia and Garner, supra, p. 42). 96

b. Select and organize arguments from strongest to weakest. Put your strongest point first) while the reader still has interest and an open mind. Then present your next-strongest point. This principle (from strongest to weakest) applies to arguments, to points within each argument, to points within a paragraph, and to lists. Deciding which point is strongest requires your judgment: one argument may have the strongest factual basis; another the strongest legal basis; another may support the broadest relief; another may be easiest for the reader to agree with. Use your judgment to select and organize arguments. "Select the most easily defensible position that favors your client. Don' t assume more of a burden than you must." 166 Weak arguments are risky: "[A] weak argument does more than merely dilute your brief. It167 speaks poorly of your judgment and thus reduces confidence in your other points." On the other hand, the law is what a majority of judges say it is) so an argument you consider weak may provide a basis for forming a majority. State your affirmative points first, then refute any of your opponent' s points not yet addressed. c. State the standard of review. Hon. Harry Pregerson: "The standard of review is the keystone of appellate decision making. Many brief writers fail to realize how seriously judges take the standard of review. When 168 I start to read the briefs, the first question I ask is ` What is the standard of review.' " Scalia and Garner: "When the standard of decision favors your side of the case, emphasize that point at the outset of your discussion of the issue) and keep it before the court throughout. Don' t let the discussion slide into the assumption that you and your adversary are on the level playing field when in fact the standard of review favors you. * * * * "When the standard of decision is against you, acknowledge the difficulty but demonstrate concretely why the standard is met. . . . Cite a case in which an appellant met that standard and compare it to your own." 169 The standard of review guides the court in evaluating evidence and applying the law. For example, on summary judgment, the court looks for a dispute over material facts. On appeal, the standard of review determines whether the appellate court defers to the trial court (e.g., "substantial evidence" or "abuse of discretion") or decides the matter afresh ("de novo review"). In federal court, stating the standard of review is required. FRAP 28(a)(9)(B); Ninth Circuit Rule 28-2.5. In state court, citing the standard of review is a best practice.

166

Scalia and Garner, supra, p. 19. Scalia and Garner, supra, p. 21. 168 H. Pregerson, "The Seven Sins of Appellate Brief Writing and Other Transgressions," 1986 UCLA Law Review 431, 437. 169 Scalia and Garner, supra, pp. 11-12. 167

97

d. An argument's five parts. Each argument should have five parts: Road map (a one-paragraph nutshell or preview) Rules Apply rules to facts Anticipatory refutation Conclusion. (1) Road map) orient the reader. After each argument' s main heading, provide a "road map" to orient the reader by summarizing that argument' s syllogism) the rules, the application of the rules to the facts, and the conclusion. If needed, remind the reader of the procedural context that raises the issue. Example # 1: I. The parents' ignorance about Tylenol's risks created a triable issue whether their consent was informed. A triable issue of fact bars summary judgment. Defendant Dr. Nelson' s failure to disclose the known risks of Infant Tylenol raised a triable issue whether the parents' gave informed consent to that drug. Because of this triable issue, the summary judgment must be reversed. Example # 2: I. The award of attorney fees was unsupported by contract or statute. The order that Jones pay Turner' s attorney fees violated Cal. Code Civ. Proc. § 1021. Under this "American Rule," each party must pay his or her attorney fees. But the trial court violated this rule by awarding Turner attorney fees as "part of the cause of action for legal malpractice." Hence, the fee award must be reversed.

98

Avoid common faults. Fault # 1. Starting with an abstract legal discussion, citing the logical or historical beginning of the argument, failing to orient the reader to the relief you seek and the reasons supporting that relief. Example: I. Lorillard is entitled to a new trial under the 1969 Act's preemption of state causes of action. In 1969 Congress enacted the Act "to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health . . . ." 15 U.S.C. § 1331. This opening, starting with a statute, fails to state the argument' s syllogism. Possible revision: The trial court committed prejudicial error by rejecting Lorillard' s requested instruction that the immunity in the 1969 cigarette labeling Act that barred Lorillard' s liability. The Act "establish[es] [etc.]." Fault # 2. Starting with your opponent' s position, which confuses the reader, who expects you to be advocating your position. In the following example, a city seeks reversal of a plaintiff' s judgment for a police officer' s unjustified use of deadly force. Example: I. As a matter of law, defendants cannot be liable in negligence for Theresa's death. The essence of plaintiffs' theory was that officer Jones' s pre-shooting conduct escalated the situation, leading to his use of deadly force. In other words, if the police had handled the crisis differently, Theresa would not have taken the actions that prompted the police to shoot her. Possible revision: Plaintiffs are wrong to claim that Theresa' s death resulted from officer Jones' s assertedly negligent escalation of the situation. (2) Rules) discussed neutrally. Next, state the rules of law and their rationales neutrally. Do not argue that the rules support your client; argument comes in the next section. Your neutrality in stating the rules enhances your credibility. In discussing the rules, develop a concise test for easy application in the next section. Strive to start with "an explicit statement of your major premise in governing or persuasive cases." 170 Refutation: If your opponent (or the lower court) stated the rules incorrectly, show why the contrary view is wrong. Finally, distinguish or limit rules that appear to be against you. 170

Scalia and Garner, supra, p. 53. 99

(3) Apply rules to facts. Next, apply the rules and their rationales to your case. Here is where you argue that the rules support your client. Present your points from strongest to weakest. (4) Anticipatory refutation. After stating your affirmative points, refute the opposing arguments that your adversary (or the court) may offer. Anticipatory refutation is essential for five reasons: 1. If the judge thinks of objections before your raise them, the judge will believe you' ve overlooked obvious problems with your argument. 2. As to obvious objections to your argument, letting your opponent raise them first makes you appear reluctant, rather than eager, to confront them. 3. By systematically demolishing counterarguments, you put your opponent on the defensive. 4. By refuting in advance, you frame the opposing argument in your terms, establishing the context for later discussion. 5. By addressing counter-arguments, you appear evenhanded and trustworthy. 171 In the opening brief, refute in the middle, so that the reader is left with your affirmative points. In the responding and reply briefs, refute at the beginning to clear the reader' s mind to consider your affirmative points. 172 (5) Conclusion. Conclude with a summary applying the rules to the facts of your case, advocating the result sought by your client. Scalia and Garner: "The art of rhetoric features what is known as the peroration) the conclusion of argument, which is meant to move the listener to act on what the preceding argument has logically described. * * * * "The trite phrase ` for all the foregoing reasons' is hopelessly feeble. Say something forceful and vivid to sum up your points. * * * * "We think you should be more ambitious. You must include the request for relief, to be sure. But you can preface that with a true conclusion to your argument) one or two paragraphs encapsulating your winning syllogism in a fresh and vivid way. Try to make it more than a pro forma short regurgitation of what has preceded. It173 should be, so to speak, the distance runner' s devastating kick at the end of the race." Incorrect For the foregoing reasons, the triable issue of fact requires that the summary judgment be reversed.

171 172 173

Correct In sum, because Dr. Nelson admittedly failed to disclose the safer alternative treatment, a triable issue of fact exists whether Dr. Nelson obtained informed consent. This triable issue requires the summary judgment to be reversed.

Scalia and Garner, supra, p. 16 Scalia and Garner, supra, pp. 15, 17 (quoting Aristotle). Scalia and Garner, supra, pp. 37, 38, 100-101. 100

6. Footnotes: Minimize substantive footnotes. Forcing the reader to look to the bottom of the page to parse a footnote creates a strain on the reader. Hence, Garner urges: "Put no substantive point in a footnote) none, at least, that you consider important to your argument." 174 Scalia agrees: 175 "It is assuredly true that nothing really important to the decision should be in a footnote." Hence, footnotes are not the place to refute your adversary' s argument. Use footnotes only to fully quote statutes or testimony, to cite a string of cases (e.g., out-of-state authority), to explain minor procedural complications, and to address arguments that your adversary never made but the court might think up. 7. Citing cases. Cite the most recent authority and the highest authority in the jurisdiction. Do not cite a case you have not read. Cases cited in other cases or commentaries may not be cited accurately, may be subject to later criticism, and may not be the latest or highest authority on point. Do not cite a case based only on what you see on the screen; the text on screen may not reflect the case' s holding.

174 175

Scalia and Garner, supra, p. 129. Scalia and Garner, supra, p. 130. 101

a.

Note the precedent's similarity (or dissimilarity) to your case. Be aware that a case' s authority is improved or diminished by the following factors: 1. How the procedural posture and the standard of review affected the holding. (E.g., If the appellate court affirmed a trial court' s exercise of discretion, that does not mean a contrary trial court ruling would have been error.) 2. Whether the cited holding was prompted by facts or equities present in (or absent from) your case. 3. Whether the quotes or rationale you rely on compelled the result in the cited case. Avoid cases whose results conflict with your client' s position. 4. Whether public policy and equitable arguments were stated in the cited case. 5. Contrary authority may be distinguished on the facts or by the foregoing factors, or may be criticized as not stating the best rule. 6. Check every case for later criticism or overruling. b. Hierarchy of authority. Some courts are more authoritative than others. The most authoritative governing court is your jurisdiction' s supreme court; next is the court you are appearing in. Scalia and Garner rank the persuasive power of nongoverning case authorities as follows: "dicta of governing courts (quote them, but be sure to identify them as dicta) and the holdings of governing courts in analogous cases. Next are the holdings of courts of appeals coordinate to the court of appeals whose law governs your case; next, the holdings of trial courts coordinate to your court; finally (and rarely worth pursuing), the holdings of courts inferior to your court and courts of other jurisdictions." 176 As for cases from the same court, "the most persuasive within each category will be those in which the party situated like your client lost in the trial court but won reversal in the appellate court. . . . The next most persuasive decisions will be those in which the 177 party situated like your client won in the trial court, and the appellate court affirmed." c. Citations belong in the text) but minimize clutter. In court documents put citations in the text. Most judges and their staff dislike citations in footnotes. They want citations in the text) next to the assertion they support for ready verification. Though Garner claims that putting citations in footnotes makes the reader' s job easier by cleaning up the text, Scalia disagrees: "[F]ar from enabling the reader' s eyes to run smoothly across a text uninterrupted by this ugly material, [putting citations in footnotes] force[s] the eyes to bounce repeatedly from text to footnote. * * * *

176 177

Scalia and Garner, supra, p. 53. Scalia and Garner, supra, p. 53. 102

"If in this respect legal-writing style differs from other writing style, it is only because lawyers must evaluate statements not on the basis of whether they 178 make sense but on the basis of whether some governing authority said so." Indeed, the Court of Appeal in Riverside (Fourth Appellate Dist., Div. Two) warns lawyers that "a brief will be rejected if citations are regularly placed in footnotes." (Bold in original.) So don' t put citations in footnotes, even though that is the practice of law reviews, treatises, and a few judicial opinions. 179 In internal memos or client communications, your audience will not be researching your cases. Hence, you may put citations in footnotes to unclutter the text and clarify your train of thought. 180 To minimize clutter from citations in the text, employ these techniques: 1. Put the citation at the end of the sentence. If you need to identify the court, start with: "As the Supreme Court ruled, . . . ." Incorrect It was held in State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003) that . . .

Correct As the Supreme Court ruled, . . . . State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003).

2. Revise a paragraph cluttered with citations into bullet points. Instead of: Today, more than 100 years later, the statement of the Westervelt court on the purpose of what is now section 24, Fifth, remains current. (See, e.g., Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089; Mardula v. Rancho Dominguez Bank (1996) 43 Cal.App.4th 790, 793-794; Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 689; Mackey v. Pioneer Nat. Bank (9th Cir. 1989) 867 F.2d 520, 526; Alegria v. Idaho First Nat. Bank (1986) 111 Idaho 314, 316. The provision' s object is "to give" national banks the "greatest latitude possible to hire and fire their . . . officers" (Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526), indeed, to allow

178

Scalia and Garner, supra, p. 134. Decisions putting citations in footnotes are in the minority. Papa v. United States (9th Cir. 2002) 281 F.3d 1004; People v. Nat. Auto. & Cas. Ins. Co. (2002) 98 Cal.App.4th 277; In re Raymond E. (2002) 97 Cal.App.4th 613; Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212; Jefferson v. California Dept. of Youth Authority (2001) 87 Cal.App.3d 1357; People v. Dey (2000) 84 Cal.App.4th 1318; McGray Constr. Co. v. Office of Workers Comp. Programs, 181 F.3d 1008 (9th Cir. 1999); United States v. Parsee, 178 F.3d 374 (5th Cir. 1999); State v. Martin (Wash. 1999) 975 P.2d 1020; M.P.M. Enters. v. Gilbert (Del. 1999) 731 A.2d 790; Minneapolis Publish Housing Auth. v. Lor (Minn. 1999) 591 N.W.2d 700; Wasden v. Hoar Const. Co. (Ga. 1998) 507 S.E.2d 428; Miller v. Miller (Ok. 1998) 956 P.2d 887; Polylok, Corp. v. Valley Forge Fabrics, Inc. 670 F.Supp. 1210 (S.D.N.Y. 1987); Alizadeh v. Safeway Stores, Inc. 802 F.2d 111 (5th Cir. 1986); Aguchack v. Montgomery Ward Co., Inc. 520 P.2d 1352 (Alaska 1974). 180 This is the view of Judge John Minor Wisdom of the Fifth Circuit: "Citations belong in a footnote: even one full citation such as 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), breaks the thought; two, three, or more in one massive paragraph are an abomination." John Minor Wisdom, "How I Write," 4 Scribes J. Legal Writing 83, 86 (1993). 179

103

them "to remove and replace" them "at will" (Mardula v. Rancho Dominquez Bank, supra, 43 Cal.App.4th at p. 793), in order to "maintain" their "stability" (Alegria v. Idaho First Nat. Bank., supra, 111 Idaho at p. 316), all with an eye toward securing and preserving the "public trust" (Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526). (See Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089.) Peatros v. Bank of America (2000) 22 Cal.4th 147, 161. Use bullets: Today, over 100 years later, courts embrace Westervelt' s statement that current section 24, Fifth, allows national banks: ! To have the "greatest latitude possible to hire and fire their . . . officers" (Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526); ! "[T]o remove and replace" officers "at will" (Mardula v. Rancho Dominquez Bank, supra, 43 Cal.App.4th at p. 793); ! To "maintain" their "stability" (Alegria v. Idaho First Nat. Bank., supra, 111 Idaho at p. 316); ! To secure and preserve the "public trust" (Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526). (See Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089.) Peatros v. Bank of America (2000) 22 Cal.4th 147, 161.

104

3. To create a clear train of thought, draft and edit with citations in footnotes. Then in the final draft restore citations to the text. Example: Putting citations in footnotes reveals clutter in text: Today, more than 100 years later, the statement of the Westervelt court on the purpose of what is now section 24, Fifth, remains current. 181 The provision' s object is "to give" national banks the "greatest latitude possible to hire and fire their ... 183 officers," 182 indeed, to allow them "to remove and replace" them "at will," in 184 order to "maintain" their "stability," all with an eye toward securing and preserving the "public trust." 185 Revised to eliminate the clutter (at the end restoring citations to the text): After 100 years, Westervelt' s statement of the statute' s purpose remains current: "to give" national banks the "greatest latitude possible to hire and fire their . . . officers" "at will" to "maintain" their "stability," thus securing and preserving the "public trust." (Footnotes omitted for this example.) 4. If a sentence has two citations, put them at the end with parentheticals. Incorrect Correct Though we give the Board' s Though we give the Board' s interpretation of workers' interpretation of workers' compensation statutes "significant compensation statutes "significant respect," Avalon Bay Foods v. respect," we review the Board' s Workers' Comp. Appeals Bd. (1998) rulings of law de novo. Avalon Bay 8 Cal.4th 1165, 1174, we review Foods v. Workers' Comp. Appeals the Board' s rulings of law de novo. Bd. (1998) 8 Cal.4th 1165, 1174 Barnes v. Workers' Comp. Appeals ("significant respect"); Barnes v. Bd. (2000) 23 Cal.4th 679, 685. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685 (de novo review).

181

See, e.g., Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089; Mardula v. Rancho Dominguez Bank (1996) 43 Cal.App.4th 790, 793-794; Aalgaard v. Merchants Nat. Bank, Inc. (1990) 224 Cal.App.3d 674, 689; Mackey v. Pioneer Nat. Bank (9th Cir. 1989) 867 F.2d 520, 526; Alegria v. Idaho First Nat. Bank (1986) 111 Idaho 314, 316. 182 Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526. 183 Mardula v. Rancho Dominquez Bank, supra, 43 Cal.App.4th at p. 793. 184 Alegria v. Idaho First Nat. Bank., supra, 111 Idaho at p. 316. 185 Mackey v. Pioneer Nat. Bank, supra, 867 F.2d at p. 526). (See Wells Fargo Bank v. Superior Court, supra, 53 Cal.3d at p. 1089. 105

d. Help the reader. Avoid string cites. A case from the highest court and the most recent case will

1. suffice. 2. Avoid long parentheticals. Instead, turn a long parenthetical into a declarative sentence before the citation. Incorrect Correct Zhang v. American Gem Seafoods, One court affirmed a 7:1 ratio of Inc. (9th Cir. 2003) 339 F.3d 1020 punitive damages to $360,000 in (affirming a 7:1 ratio of punitive compensatory damages for racial damages to $360,000 in discrimination, without citing a compensatory damages for racial pattern of misconduct. Zhang v. discrimination, with no mention of a American Gem Seafoods, Inc. (9th pattern of misconduct). Cir. 2003) 339 F.3d 1020. 3. Except for a hornbook rule of law, give more information than just the cite. Explain enough about the cited case to show the reader why the cited case is (or is not) analogous to your case. 4. In arguing from precedent, make your analysis of the cited case and the instant case parallel. Example: State Farm, by invoking substantive due process, resurrected the discredited "substantive due process" rationale of Lockner v. New York, 198 U.S. 45 (1905). Lockner applied due process to abrogate legislative protections for workers. State Farm applied due process to abrogate judicial protections for consumers.

5. Quote, don' t paraphrase. Quotes are more credible. 8. Avoid repetition. Don' t start a section, paragraph, or sentence by repeating the previous point. Such repetition obscures your new point. Instead, make each point just once, in the most telling way. Then link the old point to the new point with a signal or a signal plus a short phrase referencing the prior point) e.g.:"In addition, . . . "; or "In addition to the statute' s plain meaning, the legislative history shows that . . . ." 9. Reply briefs. Special attention should be given to the reply brief) it is the most important, and the most difficult to draft. The reply brief is the most important because (1) it is the last word before oral argument, and (2) many judges read it first ("retro-reading")) to learn what are the appellant' s best arguments. Because judges may read the reply brief 186 first, it must be a self-contained document, to avoid sending the judge187 to earlier briefs. If you fail to file a reply brief, judges will infer you have a weak case. The reply brief is the most difficult to write with a clear focus because it must show concisely why the respondent' s arguments in defense of the trial court' s asserted errors are

186 187

Scalia and Garner, supra, p. 74. M. McKee, Reply Briefs) Really Necessary?, The Recorder, July 30, 2008. 106

wrong and why the appellant' s affirmative points are right despite the respondent' s attempted refutation) all without sounding repetitive. 10. Appendix to the brief. If your case depends on documents that cannot be readily summarized and cited in the text) e.g., statutes, regulations, contracts, exhibits, texts) then put these in an appendix at the end of your brief. "If the statutory or other material is lengthy, put it in an appendix to the brief. (Placing some or most of it in a Joint Appendix is not enough; judges are distracted and annoyed 188 by having to flip back and forth between volumes for material that is central to the case.)"

188

Scalia and Garner, supra, p. 135. 107

8.

Memos. 1. Clarify the assignment. 1. What issue (or issues) are you to address? 2. Is the research limited to one jurisdiction? 3. What facts give rise to the issue or issues? 4. Alert the assigning attorney at once if your research shows (1) that facts not discussed (or not yet available) will be critical, and (2) that the issues are different, more complicated, or more time-consuming than they first appeared. 5. Address your memorandum to all attorneys on the case (unless directed otherwise) in order of seniority. 2. Format. Orienting paragraph(s) Issue(s) presented Summary ) Brief answer for each issue presented Procedural history (if relevant) Facts (flag for future discovery facts not yet developed but potentially relevant) Rules Application of rules to facts Conclusion 3. Citing cases. Give ample information about the cited case' s procedural posture, facts, holding, rationale, and result, so an another attorney may rely on your presentation without have to read the cases. If a few cases are key, attach them to the memo. Be candid about a case' s possible weaknesses. Acknowledge contrary authority, and show how it might be distinguished, limited, or criticized. Put citations in footnotes.

108

Sample letter (cont.) 9.

Letters. Use 1. 2. 3. 4. 5. 6.

the following techniques to achieve brevity, simplicity, and clarity. State the letter' s purpose. Summarize the letter' s key points. Use headings and sub-headings. At the start of each section, lead with the point. Put citations in footnotes. Conclude with a summary of analysis or recommendation. SAMPLE LETTER

Ms. Florence Q. Simpson City Manager, City of Pleasantville 350 Willow Avenue Pleasantville, CA 94102 Re: Johnson v. City of Pleasantville; L045167 Dear Ms. Simpson: This letter recommends that the City instruct our office to file a petition asking the Supreme Court to review the above-cited Court of Appeal decision. We believe a petition for review will have an above-average chance of being granted because the rule applied by the Court of Appeal (1) creates a patently unfair result for diligent litigants, and (2) creates conflict among published decisions, depriving courts and litigants of clear guidance, as explained below. Trial court dismissal) no ruling on objections. This suit by former City employee Sybil Johnson for alleged wrongful termination and defamation by the City was dismissed by the trial court under the anti-SLAPP statute. The trial court found (1) the City' s allegedly defamatory statements were constitutionally protected free speech and (2) Johnson could not demonstrate a probability of success on the merits. Though we objected to portions of Johnson' s declaration, the trial court did not rule on our objections. Court of Appeal reversal) objections deemed waived. The Court of Appeal reversed the dismissal, citing Johnson' s declaration as raising a probability Johnson would prevail on her defamation claim. Because the trial court did not rule on our objections to Johnson' s declaration, the Court of Appeal deemed our objections waived, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, n. 1. Grounds for Supreme Court review. The appellate decision provides three reasons why the Supreme Court would grant review. 1. The waiver rule is unfair to diligent litigants.

109

Sample letter (cont.) The appellate court' s finding of waiver is unfair ) visiting waiver on a party only because the trial court failed to rule on timely (and, as in Ann M., perhaps valid) evidentiary objections. Even the most diligent litigant cannot force trial judges to make rulings. The issue gains importance on appeal because, when objections are waived rather than overruled, the party challenging the admissibility of the evidence cannot argue the merits of those objections. 2. Appellate decisions conflict. Our appellate decision conflicts with other published decisions. Some courts (as in our case) adhere to a hard-and-fast, bright-line rule: the lack of a trial court ruling waives the objection on appeal. 189 In other cases, when the objecting party sought a ruling, the reviewing courts decline to find a waiver. As the Sambrano court said, refusing to find a waiver: "That approach seemingly transfers the evidentiary ruling job to the appellate court. This is not always a simple task, and not one suitable to this court, normally190sitting as a three judge panel committed to reviewing issues of law, not fact." Additional conflict exists over the rule in the Biljac case that trial courts may avoid specific rulings on each objection by stating they considered only admissible evidence. 191 This rule is an understandable reaction to parties who lodge tens, if not hundreds, of objections to an opponent' s evidence. But one court has criticized and disagreed with Biljac, calling it "cause for concern" because "it is not the function of an appellate court to make such evidentiary rulings in the first instance . . . ." 192 Yet, despite Sambrano' s concerns about and disagreement with Biljac, Sambrano found such a trial court statement sufficient to avoid a waiver. See id. at 241 ("if the Biljac theory is accepted, the evidence was not admitted, and summary judgment should be upheld. We believe that is the only appropriate approach on this record."). Regardless whether the Biljac approach is sound, the solution should not be to foreclose a party from meaningful appellate review by equating the trial court' s failure to rule with a waiver. 3. Uncertainty for parties and courts. Because of these conflicting rulings, parties have no certainty as to what they must do to preserve evidentiary objections in summary judgment or antiSLAPP proceedings. If parties make an objection and ask for a ruling, will that be sufficient to preserve the issue? Must a request for a ruling be made at the hearing? How many times must a party request a ruling? If the trial court

189

See, Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 648; Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 874, n. 2. 190 Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236; see also, City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 783-784. 191 Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419. 192 Sambrano, 94 Cal.App.4th at 229, 235. 110

Sample letter (cont.) states it has considered only admissible evidence (as in Biljac), is the objection preserved for appellate review? Nor do trial courts have certainty about their obligations. Must they rule on all objections, even without a separate oral request that supplements the written objections? May trial courts use the Biljac approach? Does the Biljac approach avoid a waiver? Recommendation. The foregoing analysis leads us to recommend that you instruct us to file a petition asking the Supreme Court to review our case to resolve these conflicting rulings and provide clear guidance to litigants and trial courts on preserving evidentiary objections for appeal. Very truly yours, Pamela Partner

111

10.

E-mails. 1.

Subject line: Avoid all caps (all caps is "yelling"). Start with the client name or case name first (to facilitate retrieval). When the subject changes, create a new subject line and consider deleting the past e-mail chain. 2. Text: Start by stating your purpose) to inform? to elicit a decision or action? Keep sentences and paragraphs very short. Compose in full screen. Use lists or bullets. For lengthy analysis, use an attachment (easier for drafting and reading). Use a large font (14 pt). At the bottom put all your contact information (even in replies). Attachments) remember to attach them. Consider the possible misuse of your e-mail by others. 3. Protocol: Activate spell check. Review the list of recipients before hitting "send."

112

11.

Future work and study. Voice mail: Make your outgoing message as short as possible. Email: Revise your emails. Omit needless words. Use lists and bullets. On your computer monitor put "Brevity, Simplicity, Clarity, Honesty." Refer to "List of shorter words and phrases," Chapter 12. References: W. Zinsser, On Writing Well (6th ed. 2001). Antonin Scalia & Bryan A. Garner, Making Your Case (2008). B. Garner, A Dictionary of Modern American Usage (2d ed. 2003). Reading: "As you read, so will you write." 193 The following writers display brevity, simplicity, and clarity. Jean-Dominique Bauby, "The Diving Bell and the Butterfly" (Vintage 1997) Hendrik Hertzberg in The New Yorker and "Politics: Observations & Arguments 1966-2004" (2004). Alice Seebold, "Lucky: A Memoir" (First Back Bay 2002) R. Dale, ed., "E.B. White) Writings from the New Yorker 1927-1976" (1991). E.B. White, "Charlotte' s Web" (Harper Collins 1952) Philip Van Doren Stern, ed., "The Life and Writings of Abraham Lincoln" (Modern Library 2000)

193

Scalia and Garner, supra, p. 61. 113

12.

Humor: Self-cancelling advice. Pronouns must agree with its noun. Prepositions are not the type of word to end sentences with. And don' t start a sentence with a conjunction. It is wrong to ever split an infinitive. Avoid clichés like the plague. Also, always avoid annoying alliteration. Be more or less specific. Parenthetical remarks (however relevant) are (usually) unnecessary (as shown above). Also too, never, ever use repetitive redundancies. No sentence fragments. Contractions aren' t needed and shouldn' t be used. Foreign words and phrases are not apropos. Do not be redundant; do not use more words than necessary; it' s highly superfluous. One should never generalize. Comparisons are as bad as clichés. Don' t use no double negatives. Avoid ampersands & abbreviations, etc. One-word sentences? Eliminate. Analogies in writing are like feathers on a snake. The passive voice is to be avoided. Eliminate commas, that are, not necessary. Parenthetical words however should be enclosed in commas. Never use a big word when a diminutive one would suffice. Kill all exclamation points!!! Use words correctly, irregardless of how others use them. Understatement is always the absolute best way to put forth earth-shaking ideas. Use the apostrophe in it' s proper place and omit it when its not needed. Eliminate quotations. As Ralph Waldo Emerson said, "I hate quotations. Tell me what you know." If you' ve heard it once, you' ve heard it a thousand times: Resist hyperbole; not one writer in a million can use it correctly. Puns are for children, not groan readers. Go around the barn at high noon to avoid colloquialisms. Even if a mixed metaphor sings, it should be derailed. 114

Who needs rhetorical questions? Exaggeration is a billion times worse than understatement. Proofread carefully to see if you any words out.

115

13.

List of shorter words and phrases. A at the end of = after (is) able to = can at the same time = while (was) able to = could at this time = now absent/in the absence of = without attain = get, gain, reach accompany = go with attempt = try (in) accordance with = with author (v.) = write according to = under, by, said (in) addition to = besides, also B advise = tell, inform, write, say (the) balance = the rest afford = give (is) based on = rests on aforementioned, aforesaid = this, that (on the) basis of = because of (run) afoul = violate (the reason is) because = the reason is that albeit = though, although begin = start all but = almost (the issue) being addressed is = the issue is all of = all bestow = give (and) also = also biannually, bimonthly, biweekly = twice a alter(ation) = change year, month, week amongst = among both of them are = they are (in the) amount of = of, for by itself = alone analogous = similar by no means = not and also = and (rose or fell) by 2 percent = rose or fell 2 and which = which percent annex (v.) = attach by way of ~ing = to ~ anterior = before anticipate = expect, foresee, C append = add, attach cannot help not = can only apprise = tell, inform capability = ability approach (n.) = way, method (is) capable of = can approximately = about (in that) case = then as a consequence (result) of = so, with, from, case in point = example because of (than is the) case with = than with as a way to = to (in) cases in which = if, when as a whole = entire cease = stop as can be seen from = as shown by ceiling = limit as little as = just (a) certain ~ = a ~ as long as = if (is of a ~) character = is ~ as of = starting cognizant = aware as per = on, for, about, in accord with commence = start, begin as regards = on, for, about, regarding comparable to = the same as ~ as such = ~ compensate = pay as to = in, of, on, for, about compensation = salary as to whether (why, how, what, who) = complete = finish whether (why, how, what, who) component = part as well as = and, also comprises = consists of ascertain = find, find out, make sure conceal = hide assist, assistance = help (the) concept of ~ = ~ associated with = of (so far as ~ is) concerned = for ~ (in) association with = with (where ~ is) concerned = for ~ assuming that = if concerning = at, of, on, for, about assure someone that = ensure that (the) conclusions reached = the conclusions at that time = then confident of = sure of, sure that 116

(in) connection with = on, for, about conscious (efforts) = efforts (general) consensus = consensus consensus of opinion = consensus consequence = result, effect consequently = so, hence, thus considerable = many, much considerably greater = far greater (take into) consideration = consider constitute = be, are, make up contained in = in contribute to = add to converse = reverse, opposite cooperation = help counteract = counter (in the) course of = in, during culmination = climax, peak currently = now

expenditure = cost expiration = end extend = give (the) extent of ~ = the ~ extinguish = put out

D decrease [n. or intransitive v.] = drop, fall decrease [transitive v.] = cut, reduce demonstrate = show depart = go, leave desist = stop despite the fact that = although detain = hold discover = find donate = give

fundamental = main, basic (will in the) future = will

E (may have the) effect of increasing = may increase effectuate = carry out (in an) effort to = to employ (an instrument) = use employment = job, work encounter = meet encourage = urge endeavor = try, attempt engage in = do, work on ensue = follow enter into = enter espouse = hold establish = show (in the) event that = if evince = show evolve = change, develop exacerbate = sharpen, make worse (in) excess of = over, more than existing = current exit = leave expedite = hasten expend = spend

I impact (noun) = effect (reserve "impact" for its literal use: "the stone' s impact on the ground") (have an) impact on = affect, influence implement = start, adopt, carry out (is of) importance = is important (located) in = in in accordance with = by, under in addition = and, also in addition to = besides in an effort to = to inasmuch as = because inaugurate = begin in cases in which = if, when included in = in in connection with = on, for, about increase (n. or i.v.) = rise indebtedness = debt indicate = say, show, mean, suggest indication = sign (is) indicative of = indicates indicia = signs individual = person

F facilitate = ease (despite the) fact that = though, although (due to the) fact that = because fell by $48 = fell $48 (in the) field of = in first of all = first firstly = first following (prep.) = after for the purpose of = to for the reason that = because, since forthwith = now, promptly

117

H half of all the ~ = half the ~ have an effect/impact on = affect he himself = he help make evident = make evident henceforth = from now on (by) herself = alone

inform = tell, write in instances in which = if, when (~) in length = ~ long initial = first initially = at first initiate = start, begin in order that ~ might = for ~ to in order to = to inquire = ask in regard/relation/respect to = on, about inside of (prep.) = inside insofar as [to the extent that] = so far as insofar as ~ is concerned = about ~ in spite of = despite in spite of the fact that = though, although (in most) instances = most ~ institute (v.) = begin, start, set up (was) instrumental in ~ing = helped ~ in support of = to, for in ~ terms = ~ly in terms of = about interrogate = question in the event that = if (is) in the form of ~ = is ~ (will) in the future = will in the near future = soon in the past was = was in the sense that = in that in the vicinity of = near, about, close to in the way of = in intimate (v.) = suggest in view of = because involving = of involved in ~ = of ~ ~ in width = ~ wide irregardless = regardless is because = is caused by (in) isolation = alone it is ~ that/which is = ~ is (by) itself = alone (the ~) itself = the ~ J join together = join (at this/that) juncture = now/then L a large part of = many, much last but not least = finally later on = later (~ in) length = ~ long lengthy = long (the) level of ~ = the ~ (in) lieu of = rather than likewise = so, also 118

limited = few linkage = link locate = find located at (or in) = at, in lots of = much, many M (decisions) made by = decisions by made up out of = made of magnitude = size, extent (the) magnitude of ~ = the ~ (the) majority of = many, most, most of make changes = change manage to (do so) = do so (in a ~) manner = ~ly manner = way maximize = raise, increase minimize = lower, reduce, decrease minimum = least, lowest, smallest mode = way, method must inevitably/necessarily = must N (is of a ~) nature = is ~ necessitate = need, require not the same = different not un~ = ~ notwithstanding = despite (a) number of = many, several, numerous = many O objective (n.) = end, aim, goal, purpose obtain = get occasion = cause off of = off on a regular basis = regularly on an annual basis = yearly, annually on the basis of = by, on, because of On the other hand = Yet, But on the part of = by, of, from (the list is a long) one = the list is long opt for = choose optimal = best, most, greatest optimum = best on the order of = about originate from = come from other than = except (starting) out with = starting with outside of = outside (when the ~ was) over = after the ~ (the) over ~ = the ~ owing to = caused by, because of owing to the fact that = because

P parameter = limit, boundary (a large) part of = much, many (on the) part of = by, of, from partially = partly (in the) past was = was pending = until (over a) period of three years = over three years period of time = period, time pertaining to = about place (v.) = put plays a major role = contributes to, is important (at this) point in time = now, at this point, at this time point of view = view, viewpoint (from the) point of view of ~ = for ~ portion = part possess = own, have (is) predicated on = rests on (is) preliminary to = precedes (is) prepared to = is ready to (is a) prerequisite to = is needed for present (v.) = give (at) present = now (the) present ~ = the ~ presented in this ~ = in this ~ preserve = keep prevalent = common previous to = before previous(ly) = before, earlier primarily = mainly principal(ly) = main(ly), chief(ly) prior (adj.) = earlier prior to = before prioritize = set priorities for proceed = go procure = get pronounced (adj.) = great (the greater) proportion of = most (a large) proportion of = much, many (a small) proportion of = some proves to be = is provide = give, say provided (providing) that = if (in close) proximity to = near, close to purchase (v.) = buy (for the) purpose of ~ = to ~ Q (the ~ in) question = the ~ (the) question of whether = whether quite a few = many 119

R ranging from . . . to = including rapidity = speed (the conclusion) reached = the conclusion (the) reason is because = the reason is that (by) reason of = because of (for the) reason that = because, since (the) reason why = the reason receive = get, have (is the) recipient of = got reduce (reduction) = cut (with) reference to = of, on, for, about reflect = show (in) regard to = of, on, for, about regarding = on, for, about (as) regards = in, on, for, about (in the) region of = near, about, close to relate = say, tell (in) relation to = on, about remain = stay remainder = rest render = give, make replicate = copy, reproduce represents = is, makes up request (v.) = ask require = need, want, call for requirement = need requisite (adj.) = needed reside = live (in, with) respect to = on, for, about result in (v.) = lead to (as a) result of = from, because of retain = keep reveal = show rose by ~ = rose ~ S (not the) same = different secure (v.) = get seek = try, look for semi(weekly, monthly, annually) = twice a week, month, year serve to ~ = ~s set forth = give shall = will since = because (reserve "since" for time) (a) single ~ = one ~ (a) small part, percentage, proportion of = some so as not to ~ = to ~ (the words filling the blanks must be opposites) so as to = to (in) spite of = despite (in) spite of the fact that = (al)though

state (v.) = say (will take) steps to ~ = will ~ still remain = remain straightforward = clear subsequent = later subsequent to = after subsequently = later, then substitute = replace succeed in ~ing = ~ (on) such factors as ~ = on ~ (until) such time as = until sufficient(ly) = enough suggest = say (the) sum of ~ = ~ sum total = total (in) support of = to, for T (will) take steps to = will (both facts) taken together = both facts (is) tantamount to = means target = aim, goal, objective (have a) tendency to = tend to terminate = end termination = ending (in) ~ terms = ~ly (in) terms of = by, in, of, for, with, under, through,

120

the manufacture/production of = manufacturing, producing There are ~ reasons for = The ~ reasons for thereafter = then, after that therefor = for it therefore = so, thus therefrom = from it therein = there, in it thereof = its, of it thereto = to it, about it this means that = so this type of = such those ~ that = ~ that those people who = those who, people who (at that point in) time = then, at that time (at this point in) time = now, at this time (changes over) time = changes (at the) time when = when to a large extent = largely to what extent = how much together with = with toward = to transmit = send transpire = occur, happen typically = often, usually U ultimate = last, final ultimately = finally, in the end unless and until = unless (high) unlikely = unlikely unnecessarily = needlessly until such time as = until upon = on utilize = use V (a) variety of = many, several, different vast majority of = most (in the) vicinity of = near, about, close to (in) view of = because (in) view of the fact that = because (with a) view to ~ing = to ~ virtually = nearly, almost virtually all = most (by) virtue of = by visualize = see, think of, imagine (the) volume of demand for ~ = the demand for ~ W (in the) way of = in (by) way of ~ = to ~ when and if = if [possibility], when [time] 121

when the ~ was over = after the ~ whereas = but, though whether or not = whether (~ in) width = ~ wide will in the future = will will take steps to = will with a view to ~ing = to ~ with reference/regard/respect to = of, on, for, about within = in Y (in the) year ~ = in ~

Bibliography Essential references: B. Garner, A Dictionary of Modern American Usage (2d ed. 2003). D. Lambuth, The Golden Book on Writing (1987) Hon. H. Pregerson, The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L.Rev. 431 (1986). Antonin Scalia & Bryan A. Garner, Making Your Case (2008). W. Strunk & E.B. White, The Elements of Style (4th ed. 2000) W. Zinsser, On Writing Well (6th ed. 2001) Other useful resources: J. Barzun, Simple & Direct, A Rhetoric for Writers (1985) G. Block, Effective Legal Writing (1981) N. Brand & J. White, Legal Writing: The Strategy of Persuasion (1976) W. Burton, Legal Thesaurus (Reg. ed. 1981) B. Christensen, Notes Toward a New Rhetoric (2d ed. 1978) E. Corbett, Classical Rhetoric for the Modern Student (2d ed. 1971) B. Garner, The Winning Brief (2d ed. 2004) B. Garner, The Elements of Legal Style (2d ed., 2002) B. Garner, Legal Writing in Plain English (2001) G. Gopen, Writing from a Legal Perspective (1981) E. Gressman, Winning on Appeal, Criminal Justice (Winter 1987) p. 10. D. Hacker, Rules for Writers (2d ed. 1988) C. Hoving, "The Art of the Appellate Brief," 72 ABAJ 52 (Jan. 1986) Hon. A. Kozinski, "The Wrong Stuff," 1992 B.Y.U. L. Rev. 325. P. Maier, American Scripture, Making the Declaration of Independence (1998) D. Mellinkoff, The Language of the Law (1963) M. Moskovitz, Winning an Appeal (Rev. ed. 1985) L. Payne, The Lively Art of Writing (1969) E. Re, Brief Writing and Oral Argument (4th ed. 1974) B. Ross-Larson, Effective Writing (1999) B. Ross-Larson, Edit Yourself (1996) R. Stern, Appellate Practice in the United States (1981) A. Tate, "The Art of Brief-Writing: What a Judge Wants to Read," ABA Section of Litigation, The Litigation Manual (1983) Texas Law Review, Manual on Usage and Style (10th ed. 2005) J. Venolia, Write Right! (1982) H. Weihofen, Legal Writing Style (2d ed. 1980) J. Williams, Style) Ten Lessons in Clarity and Grace (6th ed. 1999) F. Wiener, Briefing and Arguing Federal Appeals (1967) R. Wydick, Plain English for Lawyers (5th ed. 2005) I. Younger, Persuasive Writing (1990)

122