Category Archives: Appellate Briefs

Watch for Pesky Prepositions in an Appeal

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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 . . ..”

imagesMany 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 -

Don’t Create Zombie Nouns in an Appeal

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zombieLawyers 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:

  • replace a longer noun with a shorter verb
  • eliminate unnecessary prepositional phrases
  • avoid tepid be-verbs and the passive voice
  • humanize the writing by focusing on who is doing what

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 -

 

Killing Adverbs in Appeal Briefs

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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

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:

  • be superfluous
  • substitute for stronger verbs
  • editorialize

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’s 6 Questions for Writers

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George Orwell

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:

  • What am I trying to say?
  • What words will express it?
  • What image or idiom will make it clearer?
  • Is this image fresh enough to have an effect?
  • Could I put it more shortly?
  • Have I said anything that is avoidably ugly?

He then offered six rules:

  • Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
  • Never use a long word where a short one will do.
  • If it is possible to cut a word out, always cut it out.
  • Never use the passive voice where you can use the active.
  • Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
  • Break any of these rules sooner than say anything outright barbarous.

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.

 

 

 

 

Briefs on Appeal: Where’s the Theme?

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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.

 

 

Video of Michael Tigar’s Tips for Appeals

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Michael E. Tigar

Michael E. Tigar

Michael Tigar, co-author of Federal Appeals: Jurisdiction and Practice, offers his class at Duke University 12 tips on handling appeals. The video is below.

 

 

An earlier post also describes some of Tigar’s tips for brief writing. Anyone have other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

Using Introductory Signals for Citations

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imagesContext helps define words. In a tennis score, “love” means nothing. Lawyers often say “consideration” without meaning kindness.

The same is true for “see,” “see also,” “but see,” and the other ways of introducing citations in an appeal brief. These ordinary words carry specific meanings when introducing citations. The Redbook: A Manual on Legal Style (West, 2d ed. revised 2006), explains:

  • No signal - the cited authority contains the text’s quote, states the definition or proposition, or directly supports the proposition.
  • See - the cited authority implicitly supports the proposition.
  • See also - the cited authority in not mentioned in the text and provides additional supporting material
  • Cf. - the cited authority provides an analogy that indirectly supports the proposition
  • E.g. - the cited authority is one of many that similarly state or support the proposition.
  • Compare . . . with - the cited authority support the stated proposition in different ways or the authorities arrive alternative analysis and arrive at different conclusions.
  • Contra. - the cited authority directly contradicts the stated proposition.
  • But see – the cited authority implicitly contradicts or limits the proposition.
  • See generally – the cited authority provides useful background information.
  • Accord – the cited authority is not mentioned in the text and states or directly supports the proposition.

The Redbook on usage notes that the Bluebook and ALWD citation systems may differ on a signal’s precise meaning and that not all citation systems use all these signals. The point here is consistency.

by Antonin Scalia and Bryan A. Garner

by Antonin Scalia and Bryan A. Garner

Why care? Why quibble over using see or cf. or nothing at all? The book, Making Your Case: The Art of Persuading Judges, explains that it boils down to credibility. Without an introductory signal, you are telling the court that the cited authority holds — explicitly — what you just said. If the holding is only implicit, use the see; if only analogous, use the cf. 

 

 

Anyone else have trouble keeping “see” and “accord” straight? Please leave me a reply or reach me at www.attorneyroberthill.com.