Judge Diane P. Wood of the Seventh Circuit offers 6 tips on brief writing:
Do you have other tips to add? Please leave a reply of reach me at www.attorneyroberthill.com.
Appellate judges often say that they want concise briefs. But how to trim without losing meaning? One way is to watch when you say “of,” “in,” and “by.”
Lawyers often read stuff overfilled with prepositions. Stuff like, “In the event that a party wishes to appeal, the party shall make a filing of the notice of appeal in the office of the clerk of court for the Supreme Court within thirty days of the date of the day of the entry of the order being appealed, unless the thirtieth days falls on a weekend, in which case the notice of appeal shall be filed before the end of the next business day.” Say what?
Why not say, “Parties wishing to appeal an order must file a notice of appeal with the Supreme Court clerk within 30 days from that order’s entry. If the 30th day falls on a weekend, the party may file that next Monday.” The revision cuts a 75-word monster almost in half without a loss in meaning.
What happened?
Replace of phrases – the biggest savings came from replacing the of-phrases. I changed thirty days “of the date of the day of the entry of the order being appealed” into 30 days “from that order’s entry.” Using the possessive transformed four of phrases with fourteen words into one four-word phrase. The “office of the clerk of court for the Supreme Court” similarly became the “Supreme Court clerk.” Changing the prepositional phrase into an adjective saved seven words.
Replace or cut in phrases - I also dropped the “in the event that” beginning because it adds nothing. I could have translated the phrase “if,” to begin “If a party wishes to appeal . . ..”
Many in phrases have one-word replacements, such as “in order that” = so; “in accordance with” = by or under; “in reference to” = about; “in relation to” = about; and “in the course of” = during. In § 11.2, The Redbook: A Manual On Legal Style trims these and many other phrases to one word. Other authors have similarly translated what they call “hideous prepositional phrases” in their article, How to Write Good Legal Stuff.
Eliminate “by” phrase (passive v. active voice) – I also looked for the word “by” because it often signals the passive voice. Changing the voice, by putting the focus on the actor doing the filing and not the object being filed, saved words and strengthened meaning,
Resurrect verbs – I lastly changed “the party shall make a filing” to “must file.” Last Friday’s post discussed how lawyers are bad about creating zombie nouns by burying verbs. Resurrecting buried verbs often trims the word count and makes for stronger writing.
Anyone have other suggestions on how to trim the fat? Please leave a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy this video on prepositions -
Lawyers are bad about creating zombie nouns by burying verbs. In drafting a brief for an appeal, we never mediate or litigate; we always engage in mediation or litigation. We never examine a witness or object to her testimony; we conduct an examination and make an objection. And we rarely settle a case but rather effectuate a settlement.
We will throw a suffix on most anything, transforming a perfectly fine verb into a weak noun.
Creating nouns from verbs and other parts of speech is called “nominalization.” It is one of the things that grade-school teachers warn about. Legal writing gurus do too.
In his book, The Winning Brief, Bryan A. Garner traces the legal profession’s penchant for turning verbs into nouns back to Jeremy Bentham’s “noun-preferring” principle. Garner advocates that we flip this thinking to choose verbs over nouns when we can. Almost every time we do, Garner explains, we:
Steven Stark, author of Writing to Win: The Legal Writer, agrees that lawyers should use strong verbs. If your verbs are weak, he concludes, so is your prose.
And lastly, Ross Guberman, author Point Made: How to Write Like the Nation’s Top Advocates, observed that top lawyers use colorful verbs. It is hard to use colorful verbs when you bury them with suffixes, leaving the work to more tepid verbs.
Does this mean never nominalize? No. Author Henry Hitchings recently makes the case here and here that some nominalizations are fine. It is their overuse that strips the humanity out of what we write and say.
The key is recognizing what we are doing when we do it. In editing a brief, I almost always spell check for -tion, -sion, -ment, -ence, -ance, and -ity. These suffixes may uncover buried verbs that are capable of resurrection. Or should I say buried verbs that I may resurrect?
Any thoughts on turning verbs into nouns? Please leave a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy this video on zombie nouns -
What do Supreme Court Justice Anthony Kennedy and horror-novelist Stephen King have in common? Both disdain adverbs. Lawyers who write appeal briefs may consider joining them.
Justice Anthony Kennedy
“Adverbs are a cop-out[,]” Justice Kennedy told an interviewer. “They’re a way for you to qualify, and if you don’t use them, it forces you to think through the conclusion of your sentence. And it forces you to confront the significance of your word choice, the importance of your diction.” 13 Scribes Journal of Legal Writing 92-93 (2010).
Stephen King goes further. In On Writing: A Memoir on the Craft, King exclaimed that he would “shout from the rooftops” that “the road to hell is paved with adverbs.” He likens them to dandelions in that one is pretty but the lawn is soon filled with them. And then you see them for the weeds they are.
Why the hard feelings? Let me suggest three reasons. Adverbs may:
I have read, and have unfortunately authored, briefs on appeal that use adverbs as intensifiers when they really do not intensify. Oops – I just did it again. The adverb “really” adds nothing to the statement. An intensifier that does not intensify is as bad as one that really does not. It is the armed gunman.
A stronger objection is Justice Kennedy’s concern about word choice. A more precise verb is better than an adverb. Why tell a Supreme Court that the defendant drove his vehicle into your client forcefully when you can say he crashed into her? Why say a witness testified “tearfully” when you can say he sobbed or wailed?
A last objection, and the strongest one for me, is that adverbs editorialize and may exaggerate. Adverbs describe. And descriptions are subjective. I, for example, often see in appeal briefs the infamous adverbs “clearly,” “obviously,” and the like. When my opposing counsel begins a sentence “Clearly x, y, and x, I search the record or law for something showing the opposite. And I normally find it. And point it out to the Court.
If something is obvious or clear, prove it without saying that it is obvious or clear. Show, don’t tell.
Are you an adverb lover, hater, or agnostic? Please leave me a reply or reach me at www.attorneyroberthill,.com. In the meantime, please enjoy this video -
George Orwell
In April 1946, the journal Horizon published George Orwell’s article, “Politics and the English Language.” In it, Orwell chastised bad writing, attributing it to insincerity and self-perpetuating imitation.
He offered an illustration by first quoting the King James version of Ecclesiastes 9:11:
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, not yet favor to men of skill; but time and chance happenth to them all.
He translated the verse:
Objective considerations of contemporary phenomena compel 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 invariably be taken into account.
Comparing the two versions, Orwell observed that the whole tendency of modern prose is away from short, concrete, and vivid words toward foreign words and phrases. In a simpler example, Orwell noted the tendency away from saying “I think” to saying “In my opinion it is not an unjustifiable assumption that . . ..”
How did we get here? Orwell suggested that writers are not asking themselves six questions:
He then offered six rules:
When drafting an appeal brief, I try to discipline myself by answering Orwell’s questions and applying his rules. The hardest rule for me is the flat ban on the passive voice. As a more recent writer noted wryly, “The passive voice should never be employed.”
Does anyone else apply Orwell’s questions when writing an appeal brief? Please leave a reply or reach me at www.attorneyroberthill.com.
I recently read almost 10 pages of an appellate brief before learning what the appeal was about. Even then, I did not know why the author thought his client should win.
It took me a little longer to realize that the problem was the brief’s lack of a theme. There was no underlying focus or theory of the case that came through, at least not clearly.
Senior Circuit Judge Ruggero J. Aldisert’s treatise, Winning on Appeal: Better Briefs and Oral Argument, describes the brief’s theme as its unifying focus and heart. It answers the question, “What in the heck is the message?!.”
Judge Aldisert explains that this unifying focus sets the flavor and mood of the argument. “It directs the judge’s attention immediately to where the trial court’s error took place and explains straightaway why the trial court was wrong or, when used by the appellee, why it was right. It tells the appellate court what relief you want.”
You are shooting for an elevator pitch. Could you tell a lay person in a few sentences what the case is about, what relief you want, and why you should get it? That is your theme.
You sometimes have choices. In a recent appeal, I was blessed with a sympathetic plaintiff, favorable statutory language, and abundant case law construing the statute my way. What is the theme? Should the focus be on the parties, thus pitting a greedy defendant against the sympathetic plaintiff? Or is the focus on the rules, pitting the defendant against the statutory text and stare decisis?
It was a tough call. In the end, I chose to focus on the statute’s text and the decisions construing it favorably. This was a judgment call based on my knowledge of my audience. The South Carolina Supreme Court has held, “Legislative intent, once determined, is ‘permanently settled’ absent subsequent action by the General Assembly to effect a change in the statutory law.” Wehle v. The South Carolina Retirement System, 363 S.C. 394, 403, 611 S.E.2d 240, 244 (2005).
I have my fingers crossed that stare decisis will win the day
How do you all decide on a theme for your appeal? Please leave me a reply or reach me at www.attorneyroberthill.com.
Judges of the SC Court of Appeals
Say your client lost on summary judgment and you moved to reconsider. You know that the motion is a long shot, and now want to withdraw it so that you may go ahead and appeal. But you are concerned that withdrawing the motion means that you lose the motion’s normal tolling effect on the time to appeal. Do you?
The South Carolina Court of Appeals grappled with this issue last week. In Drexler v. CitiMortgage, Inc., Op. No. 2013-UP-164 (S.C. Ct.App. filed April 24, 2013), Drexler filed a Rule 59(e) motion for the trial court to reconsider a summary judgment order. As earlier posts explain (here and here), timely Rule 59 motions normally toll the 30-day time to appeal until a ruling on the motion.
Drexler then created a wrinkle. While her motion was pending, she submitted a consent order that the trial court believed withdrew the Rule 59 motion. Drexler then appealed over 30 days after the summary judgment order’s entry but within 30 days of the Judge’s ruling that she withdrew her motion. On appeal, Citimortgage argued in part that a withdrawn Rule 59 motion does not toll the time to appeal. It contended, in essence, that the withdrawn motion never existed.
The Court of Appeals disagreed. It ruled in part that the 30 day period to appeal did not begin to run until Drexler received written notice of the ruling that the Rule 59 motion was withdrawn. The Court of Appeals reasoned that the Rule 59 motion could not be withdrawn until the court ruled it was withdrawn, and that the time to appeal is tolled until then.
Anyone else been caught in the same bind? Drexler suggests a way out — make a formal motion to withdraw the Rule 59 motion, wait until the trial judge rules on the motion to withdraw, and then appeal within 30 days of that ruling.
Do you see another way out? Please leave me a reply or reach me at www.attorneyroberthill.com.