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Legal Writing

June 30, 2011


Little Rock, AR
Drafting a Winning
Appellate Brief
Presenter: Gerry Schulze
Baker, Schulze, & Murphy
Selecting Issues
Identifying the Issues that Win on
Appeal
Select your Best Two or Three
What is the Court Likely to Consider
Strength of Record Below
Prejudicial Error
Has the Court indicated interest in the
issue?
The Caveat
Quotes
If Id had more time, my brief would
have been shorter.
Source unknown, but not original with me.
Theres no such thing as a final draft,
theres only the last draft done before
the brief is due.
Gerry Schulze
At least I think its original with me. I may have
heard it somewhere else, but I cant trace it.
Limiting the Number of Arguments
Avoid the Kitchen Sink approach.
Some recommend three points as the
maximum.
Others will let you get away with four.
The problem is, sometimes you dont
have the judgment [or psychic powers]
to know what argument will work.
Judge Arey
Appellate advocates must next exercise discretion and objective
detachment in deciding which of these issues will be raised on
appeal. One consistent admonition decries the kitchen sink
approach of raising every conceivable issue on appeal. A
storm of arguments--good, bad, and indifferent--can convince
the judges that there is no merit to the case, even if buried
in the deluge is a winning nugget. A competent appellate
advocate will evaluate the issues accordingly, select[ing] with
dispassionate and detached mind the issues that common
sense and experience tell him are likely to be dispositive. He
must reject other issues or give them short treatment.
Arey, D. Franklin, Competent Appellate Advocacy and Continuing
Legal Education, Fitting the Means to the End, 2 J.App.Prac. &
Process 27 (2000)
Standard of Review
Rules require you to lead off with this.
After that, dont feel free to ignore it.
A Concise Brief: Page Limits and
Other Considerations
Arkansas: Pages
Federal: Words
Usually, this should be no problem.
In very complicated cases, it can be a
problem.
Secrets to a successful argument:
Persuading without Exaggeration
Lawyers write for different purposes,
and it is essential to remember the
appropriate kind of writing for each
segment of the brief.
Kinds of Legal Writing
Informative
Persuasive
Functional
Informative
Letters to client
Not necessarily simple but not legalese
Explain terms
Interoffice memoranda
Opinion letter
understandable.
disclaimers
Informative parts of the brief
Jurisdictional Statement
Statement of the Case
Statement of Facts
Persuasive
Settlement Brochures
Argument portion of Briefs
Vary in complexity
Probably the most time consuming of all
documents
Different concerns with
Trial Courts
Appellate Courts
Administrative Agencies
Functional
This kind of document is one which is
supposed to create a result
Will
Deed
Complaint
Trust
Power of Attorney
Contract
Real Estate Documents
Functional part of briefs
Cover Page
Table of Contents
Table of Authorities
Legalese
Some say, never use legalese
I say, use it advisedly.
Legalese is particularly useful in
functional writing where it has an
accepted meaning
Even Latin is appropriate in some
occasions
Characteristics of Legal Writing
Clarity
Word choice
Organization
Avoid Legalese where possible
In functional writing, legalese is often preferable
In persuasive writing you can get by with it
when you have to
In informative writing it will seldom do much
good
Characteristics of Legal Writing
Conciseness
Strunks advice, Make each word tell.
Sometimes you have to balance the need
for completeness and the need for concise
writing
Avoid repetition
As to page limits, remember, this is not
high school. The Court does not expect
you to fill up your page limits.
Pleadings
Pleadings are generally functional
rather than persuasive.
It is more important to comply with the
form and to say all the right magic
words than to make your language
concise or enjoyable.
Pleadings are to be interpreted to do
substantial justice.
Characteristics of LegalWriting
Accuracy
Accuracy of Facts
Check your sources
Facts are often not what you know, but what
you can prove
Frequent references to testimony, affidavits,
depositions, exhibits, and other evidence can
help you maintain credibility as well as help you
keep accurate on the facts
Characteristics of Legal Writing
Accuracy of Authority
Double check cites
Shepardize or Keycite
Characteristics of Legal Writing
Proper form
Pay attention to Court Rules
Paper sizes and margins
Captions
Type size and font
Spacing
Pay attention to the Bluebook and other
sources
Citation forms
References for Legal Writing
The Bluebook. 19
th
Edition or ALWD
Citation Manual.
Court Rules.
Arkansas Supreme Court Stylebook
On its website.
Grammar
Strunk & White
Greggs Reference Manual
Anything by Bryan Garner
References in the Office
Make your own booklet of information
you need
Arkansas Bar Association Systems
Pick out books you like and keep them
handy
Greggs
Strunk & White
Elements of Legal Style
Grammar
I am about to or I am going to
die, either expression is used.
Grammarian Dominique Bonhours, on his
deathbed.
Analyze languages by
comparison to foreign languages
Problem: Many of us dont actually
know another language.
Solution: We all know a little Latin,
even though we should rarely resort to
it.
Res ipsa loquitur
Whats the Latin for thing or matter?
Res ipsa loquitur. The thing speaks for
itself.
Res judicata. The matter is decided.
In rem. Against the thing
In re. In the matter of
Rebus sic stantibus. In these
circumstances.
How about day?
The legislature adjourns sine die.
The legislators receive a per diem.
Case Singular Plural Singular Plural
Nominative res res dies dies
Genitive rei rerum diei, die dierum
Dative rei rebus diei, die diebus
Accusative rem res diem dies
Ablative re rebus die diebus
Locative ? rebus ? diebus
Vocative res res dies dies
Analyze the normal by using the
bizarre
We dont notice the normal.
Sometimes the only way to look at the
normal is to compare it to aberrations.
Examples of language usage in the
booklet, page 77 and following.
Grammar
Systematic study and description of a
language or dialect
Standard American English is a dialect
Legalese is a subdialect of Standard American
English
In English, the standard for grammar is set
by general acceptance in the community
Compare French and Spanish, for example,
in which proper usage is determined by
Academies.
Grammar: Prescriptive and
Descriptive
"Descriptive grammar" is the study
and description of a language as it is
actually used.
"Prescriptive grammar" is the study and
description of a language as it "should"
be used.
Grammar
"Should" implies that there is a right way
and a wrong way to use language. To the
scientific student of language, there is no
form which is inherently right, and no form
which is inherently wrong.
Right usage is simply usage which is
accepted by the language community as
right.
Style
Style is more than grammatical
correctness.
Develop your own style. It comes with
practice.
Making Your Case: The Art of
Persuading Judges, Antonin Scalia
and Bryan Garner
Recent (4/28/08)
Very good book.
Sections 39-54 deal
with style.
Even the authors
do not agree on
everything.
Scalia and Garner
39. Value clarity above all other
elements of style
40. Use captioned section headings.
41. Use paragraphs intelligently;
signpost your arguments
42. To clarify abstract concepts, give
examples
Scalia and Garner
43. Make it interesting.
44. Banish jargon, hackneyed
expressions, and needless Latin.
45. Consider using contractions
occasionallyor not.
46. Avoid acronyms. Use the parties
names.
Scalia and Garner
47. Dont overuse italics; dont use
bold type except in headings; dont use
underlining at all.
48. Describe and cite authorities with
scrupulous accuracy.
49. Cite authorities sparingly.
50. Quote authorities more sparingly
still.
Scalia and Garner
51. Swear off substantive footnotesor
not.
52. Consider putting citations in
footnotesor not.
53. Make the relevant text readily
available to the court.
54. Dont spoil your product with poor
typography.
Quick review of confusing points
of grammarin case anyone is
interested
Who and whom.
The subjunctive.
Non-rules. Myths.
Who and Whom

Who is a subject
It is like I, he, she, or they.

Whom is an object
It is like me, him, she, or them.

When who/whom is found in a clause,


the correct form depends on the
function the word plays in that clause
Who and Whom
Give the prize to whoever wins.
Give the prize to whomever the judges
choose.
The Subjunctive
People tend to think of the subjunctive
as an obscure, incomprehensible verb
form in English
It is somewhat difficult because most of
the time theres no difference between
indicative and subjunctive forms.
The Subjunctive
With the verb to be in the present
tense, the form is not am, is, or are
but be.
...that I be; that you be.
With other present tense verbs, the only
difference is in the third person singular,
where the characteristic -s is missing.
..that he walk.
The Subjunctive
In the past, the verb to be is always
were
. . . that I were; . . . that he were.
In the future, will becomes would
Otherwise, the form is identical to the
indicative.
The Subjunctive
Whats it for?
Expression of necessity, demand, strong
request.
It is necessary that these questions be
answered at once.
I demand that I be allowed to attend the
meeting.
The Subjunctive
Whats it for?
Wish clauses
I wish I were going to the meeting
Counterfactual statements
If statements followed by a statement that the
speaker suggests is not true.
Particularly useful in all kinds of arguments
Non-Rules/Myths
Do not end a sentence with a
preposition
Never split an infinitive
Never begin a sentence with:
And, but, or or
Because or however
Never write a one sentence paragraph
Preposition
This is the sort of arrant pedantry up with
which I will not put.
Winston Churchill
The preposition often seems to stand at the
end of the sentence or clause: 'I have lost the
pen I write with.'
George Curme, Syntax, 566 (1931)
Curme was a noted grammarian of the Germanic
languages. English is a Germanic language.
Split Infinitive
To boldly go where no man has gone
before.
Of course, that is incorrect.
It should be, where no one has gone before.
From: Garner on Language and Writing
Split Infinitive
Hardly any serious commentator believes
that infinitives should never be split. The
dispute is between those who believe that
split infinitives should be avoided when this
can be done with no sacrifice of clarity or
naturalness, and those who believe that no
effort whatever should be made to avoid
them.
Alt.Usage.English Frequently Asked Questions
entry on the split infinitive.
And/But/Or at Beginning of
Sentence
Bryan Garner challenged this myth
beautifully in Garner on Language and
Writing. He goes back to Chaucer
and works forward, showing that good
writers have always ignored this myth.
Word Usage
Less/Fewer
Conclusory
Enormity
Therefore/Therefor
Problem with Non-rules
Too many
readers
think
they are
actually
rules.
June Casagrande. Mortal Syntax 101: 101 Language Choices
That Will Get You Clobbered by the Grammar
Snobs--Even If You're Right
Conclusory
Conclusory Greenwood v.
Wierdsma, 741 P.2d 1079,
1086, n3 (Wyo. 1987)
After painstaking deliberation,
we have decided that we
like the word "conclusory,"
and we are distressed by its
omission from the English
language. We now proclaim
that henceforth "conclusory"
is appropriately used in
the opinions of this court.
Furthermore, its usage is
welcomed in briefs submitted for
this court's review. Webster's,
take heed!
Style
Emphasis belongs at the beginning.
Use short, simple sentences.
Use active verbs.
Do not overstate.
Do not offend.
Make each word tell.
Avoid equivocal language.
Get someone else to proofread
before printing the final draft
Spelling errors can distract the
reader.
Pleadings
Pleadings are generally functional
rather than persuasive.
It is more important to comply with the
form and to say all the right magic
words than to make your language
concise or enjoyable.
Pleadings are to be interpreted to do
substantial justice.
Fact Pleading
Arkansas is a fact pleading state.
You must plead facts sufficient to state a
cause of action
Merely stating conclusions is not enough
The Federal System is Notice
Pleading
This used to mean that a very skeletal
complaint was adequate.
Notice Pleading
The federal rules allow fairly vague
statements of facts, but . . .
Recent changes in the discovery rules
have made it advantageous to plead
facts so that the initial disclosures will
be more complete.
Matters which you must plead
Facts for jurisdiction
Its usually not that important in state court,
but sometimesespecially in courts of limited
jurisdictionmay be essential. It never hurts.)
Facts for venue
Identity of parties
Facts giving rise to the dispute
Notice
In some cases, such as contract cases,
exhibits must be attached and properly
identified
Necessary legalese
Sometimes it is necessary to use
formulas to properly allege a fact
Upon information and belief . . . .
Unnecessary legalese and/or
It is obvious this problem has arisen because the
interrogatory employed an imprecise term, and/or,
when precision was called for. The phrase has been
so soundly criticized as to have been driven almost
entirely from current usage. At best it has been
labeled equivocal, obscure and meaningless,
at worst slovenly, improper and a linguistic
abomination. It has no place in modern practice,
least of all in discovery interrogatories. Boren
v.Qualls, 284 Ark. 65 (1984) [citations omitted].
Briefs
You have to be careful to get
these right, because there is an
opposing counsel just looking for any
misstatement of fact, citation error,
typographical error, unclear language,
or any other fault that can be exploited
Citations
Citations are the way you tell the Court
the authority for the legal arguments
you are making.
Follow the applicable authority on
citation forms
Double check the citations
Shepardize or electronically check
each citation.
Be Respectful and Professional
Finally, I am compelled to mention that the appellees intemperate
response to the appellants rehearing petition was not only
inappropriate but was vile and slanderous. He argues, among other
things, that the majority was correct to allow the trial court to make a
custody decision based on his perception of the appellants religious
beliefs because not all religions are worthy of constitutional protection.
He denigrates Mormons, asserting that Mormons practice incest and
child marriages, and proclaims that Wicca is a cult, not a religious
belief. He admonishes that this court is committing a grievous error
if it allows cult activities to be protected and that the trial judge
appropriately ruled in this case after carefully considering the facts. In
light of the appellees further illumination of this issue, I simply cannot
say that the trial courts decision was appropriate. I lament that this
court has accepted the appellees invitation to embark on a grand
inquisition.
Hicks v. Cook, dissent on denial of rehearing
Be Respectful and Professional
Walker contends that the brief submitted by Ligon
shows a clear personal bias and is replete
with sarcasm and vituperation masquerading as
legal argument. Although we do not find any
impermissible bias in this case, we agree with Walker
that the Executive Directors brief is unprofessional
in tone and improper in some of its content. Ligons
brief contains unnecessarily sarcastic remarks and,
at one point, invites the court to look outside of the
record to examine matters that were not before the
special judge. This is improper argument.
Ligon, Executive Director Of The Supreme Court Committee
On Professional Conduct v. Walker (3/12/2009)
Purpose of Briefs
The overarching objective of a brief is
to make the courts job easier. Every
other consideration is subordinate.
Scalia and Garner, p. 59
Citations
Citations are the way you tell the Court
the authority for the legal arguments
you are making.
Follow the Bluebook
Double check the citations
Shepardize or electronically check
each citation.
Order of Citations
There are some general guidelines in the
Bluebook, but they were written with law
journals in mind.
Heres what Id suggest:
Most helpful first.
Most recent before older cases (the precedential
or persuasive effect is less likely to have been
diminished by more recent events)
Controlling before persuasive
Controlling before persuasive
The Arkansas Supreme Court controls on
questions of Arkansas law.
If there is no Arkansas Supreme Court
opinion, then you can go to the Arkansas
Court of Appeals
Thereafter, federal courts which have
interpreted Arkansas law under the Erie
doctrine
Thereafter other courts.
Other Authority
A constitutional provision on point
controls.
In the federal system, theres hardly a word
of the Constitution that hasnt been worked
over by the Courts
In the State system, there are a lot of
surprises in the Arkansas Constitution
Other Authority
A statuteunless its unconstitutional
controls.
Federal statutes may preempt state law.
Thats a federal Constitutional doctrine, and it
can get very confusing.
Statutes have often been interpreted in great
detail, and it may be more persuasive to cite
a case relying on the statute than the statute
itself, especially where the language of the
statute does not clearly say what the Courts
have interpreted it to say.
Secondary Authority
Law Reviews
American Law Reports (ALR)
annotations
Treatises (some more respected than
others)
Hornbooks are usually something
from Law School, but are occasionally
persuasive secondary authority.
Procedural phrases
In re means in the matter of The
phrase is used in one name styles,
but when theres an adversary party, it
should be left out
The only procedural phrase that should
be used when there are two parties is
ex rel which means for the benefit of
Abbreviations
If the whole name of a party can be
abbreviated by commonly recognized
initials, thats ok
NLRB v. Widgets, Inc.
Bluebook, 18
th
Ed. Rule 6.1(b)
Otherwise, do not abbreviate the first
word of a partys name
Abbreviations
In the text of the brief, as opposed to a
citation sentence, there are only a few
words that should be abbreviated
Abbreviations
When not part of the text, additional
abbreviations are permitted.
This would most commonly be in a
separate citation sentence or a string
cite.
Names of parties
With individuals, you usually just use
the last name.
Some foreign names create
complications.
Chinese names often start with the
surname. The tradition has been to give
the whole name.
Mao Zedong v. Li Po
Spanish and Portuguese Names
The surname is often composed of
the first surname of each parent. Just
remember that the last name of Juan
Snchez Rivera may be Snchez
Rivera. It gets confusing, and often
enough the courts or the publishers get
it wrong, too.
Cases from other states
Some stateslike Arkansas until recently
have official reporters.
Smith v. Jones, 343 Ark. 253, 55 S.W.3d 424
(1997).
Some states do not have official reporters.
Then you just give the Wests cite, and put
the state in parentheses.
Coyote v. Acme, Inc., 854 P.2d 423 (Colo. 1983).
Cases from other states
The new blue book rule is to only use
official reporters in the state in which
the brief is filed.
Therefore, in an Oklahoma Court, Smith v.
Jones would be Smith v. Jones, 55 S.W.3d
424 (Ark. 1997).
Arkansas is going to give the Blue Book
writers fits.
Law Reviews
The Bluebook changes, although not
much.
Example: In citing to law review articles
student authors names are to be used.
The old rule used to be that the students
name was left out, and you just used
designations like Note. or Comment.
Now why wont someone cite my
casenote?
Quotations
Remember the 50 word rule.
When a letter is changed from upper to
lower case or vice versa, indicate the
change with brackets.
When words are omitted, use three
periods separated by spaces
Citations go to the left margin after a
block quote
Table of Contents
I came across Elizabeth Blochs material for a
Texas CLE.
She said that some judges look to the table
of contents to see what the appeal is about.
So she recommends fleshing out the table
of contents with all your points, and write the
points so the judge who starts with the table
of contents will know what your case is about.
Statement of the Issues: Framing a
Picture, not a Puzzle.
Bryan Garners article.
All schemes have drawbacks. Garners
drawback is that it requires too much
work. Honestly, Im frequently too lazy
to do it right.
Still, if youre simply aware of this
methodology it will improve your
analysis.
Writing the Statement of Facts with
Simplicity and Relevance
Take off your advocate hat.
Hold it behind your back.
Tell the story objectively, but make sure
to get in all the details that the court is
going to hear.
That means getting the bad stuff out
up frontunless youre certain your
opponent has forgotten it.
Footnotes and Authority Citations
Again, Scalia and Garner are excellent.
Even when they disagree they are very
informative.
If theres any doubt, opt against
footnotes in Arkansas appellate courts.
Ive used footnotes in trial courts to
make sure Ive raised all the issues.
Ive used footnotes in appellate briefs
to discuss matters I contend are not at
issue, when I expect opposing counsel
to try to make those points.
The End
Thank you for coming to
see the show.

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