Tag Archives: appellate briefs

So Lead with Conjunctions

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What do Chaucer, Einstein, and the Grammar Girl have in common? They begin sentences with conjunctions. And they are not alone.

Matthew Salzwedel, a blogger over at The Lawyerist, recently collected some of the authorities which agree that it is perfectly proper to begin sentences with conjunctions. His scholarly post lists among other authorities Bryan A. Garner, John Trimble, H.W. Fowler, William Zinsser, and The Chicago Manual of Style.

The Chicago Manual of Style puts it this way -

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 begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.

On first-rate writing from centuries ago, the Manual could have cited Chaucer, Shakespeare, Swift, and Shelley. All used conjunctions to begin sentences. In Garner on Language and Writing, Garner reports that Jonathon Swift began his sentences with conjunctions more than one-fifth of the time.

Yet the purported prohibition lingers (see here and here). Why? And where did the rule against it come from?

Salzwedel notes that writing authorities are unsure how the purported prohibition started. The simplest reason seems best, and that is the rule was created to avoid sentence fragments. But you can begin with a conjunction without creating a sentence fragment. And it makes writing powerful.

Because a danger exists, however, the technique should be used sparingly. Garner reports that contemporary journalism begins sentences with conjunctions in about 15% of sentences. That seems right. Using conjunction-starters more often may render the writing too choppy. Or it may not.

Does anyone have thoughts on using conjunctions? Please leave me a reply or reach me at www.attorneyroberthill.com. In the meantime, please enjoy the video –

Who Is He, She, and It?

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pronoun_1ab Pronouns are wonderful. No one wants to keep repeating someone’s name or a company’s title over and over if “she” or “it” will do the work. But problems come when the antecedent that the pronoun is replacing is missing, obscure, or ambiguous.

Ask yourself five questions to make sure your judges on appeal know who he, she, or it is.

Is the person, place, or thing explicit?

Lawyers may talk about “the law” or some other abstraction and then refer to “it” when they mean a particular rule or statute. Spelling out the antecedent help readers know what it is.

Is the noun first?

Use the noun before the pronoun. Consider, Defendant Smith narrowly lost the appeal. Because he was afraid of further review, Plaintiff Jones settled. Who was afraid of further review? Does “he” mean Smith or Jones?

Are there multiple nouns?

Problems may arise when there is more than one candidate for he or she. Take a simple example. Jim Doe and John Roe sued the widget company. He then dropped the case. Who dropped it? Doe or Roe?  Or say — Jane Doe asked her attorney about an appeal; she then filed a notice of appeal. Does “she” mean Doe or Doe’s attorney? Is the appeal pro se? It is again hard to say.

Are there multiple pronouns?

A similar issue comes up when the same pronoun refers to two or more antecedents. Say, Attorney Smith left his telephone in his car, so Lawyer Jones lent him a phone that was lent to him. The first “him” is Smith and the second “him” is Jones. Or is it?

Is there an apostrophe s?

Lastly, pronouns substitute for nouns, not adjectives. This simple rule becomes tricky with possessive nouns because they function as adjectives. Say — The brief’s table of contents needs proofing, but otherwise it reads well. “It” refers to the table of contents and not the brief. The brief is the adjective. The table of contents is the noun. May need to say, The brief’s table of contents needs proofing, but otherwise the brief reads well.

Kudos to The Redbook: A Manual on Legal Style, for these tips. The illustrations are mine, so they may not prove the point nearly as well as the manual.

Anyone have other tips on how to avoid pronoun confusion? Please leave a reply or reach me at www.attorneyroberthill.com. Until then, please enjoy the video on pronouns –

 

Judge Diane Wood’s Brief-Writing Tips

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Judge Diane P. Wood of the Seventh Circuit offers 6 tips on brief writing:

  • get a command of good writing
  • keep the brief as concise as possible
  • tell a story in the statement of facts – what happened and why the reader should care
  • identify the standard of review
  • explain how the rule advocated will operate
  • engage the other side’s argument so that you are not ships passing in the night

Do you have other tips to add? Please leave a reply of reach me at www.attorneyroberthill.com.

 

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.