why a prose writing should not be judged as an attorney writing case law

What if the judge is unable to produce a sample opinion?

writing because to do so would ignore the fundamental differences between judges and lawyers as legal writers and between the legal prose each group writes. The failure to distinguish between judges and lawyers and their respective prose would not only have the effect of subjecting judges to undeserved criticism more appropri-

How do you write a legal argument to a judge?

The court found that the attorney’s work was not of high quality because it did not reflect the preparation time claimed to have been invested in drafting the legal memoranda, it was replete with spelling and grammatical errors, and it contained conjecture and hyperbolic editorializations, which do not belong in legal pleadings.

Can legalese be avoided in legal writing?

Mar 01, 2013 · HERE’S THE REASONING. Let me posit a few conclusions about practicing lawyers as writers: 1) The profession suffers from a pervasive Dunning-Kruger problem. 2) Although lawyers in all areas of ...

What is the writing style of a judge?

Mar 21, 2018 · For example: “party A may sue party B for damages in the event of a breach” does not need to become “if party A has complied with the contract, party A may sue party B for damages.” The addition is a mere statement of obvious contract law. You have not proofread your writing: No attorney is infallible, and most of us acknowledge that ...

What is a prose in law?

What are the two legal responsibilities that writers should avoid?

Why is correct writing so important in law?

How is legal writing different from other forms of writing?

Can you sue someone for writing a book about you?

How can I protect my writing legally?

How do lawyers use writing?

Do lawyers have to be good at writing?

What writing do lawyers do?

Is legal writing technical writing?

How does legal writing differ from academic writing?

Why did the court find that the attorney engaged in unprofessional conduct?

The court found that the attorney engaged in unprofessional conduct because he demonstrated “a lack of writing skill” by producing legal pleadings that were incomprehensible due to their numerous spelling, grammatical, and typographical errors. Id . at 171.

Which court reduced plaintiff's attorney fees?

The United States District Court for the Middle District of Florida greatly reduced the plaintiff’s attorney fees requested in accordance with 42 U.S.C. §406 (b) and the Equal Access to Justice Act (EAJA) .

Why was an attorney inactive in Illinois?

The Supreme Court of Illinois placed an attorney on inactive bar status, concluding that he was “incapable of adequately serving the public” because he “lacked the fundamental skill of drafting pleadings and briefs.” Id. at 1281. The court ordered that the attorney come up with a rehabilitation plan, which could include obtaining the aid of “teachers or such other professions and disciplines.” Id. The attorney was ordered to remain inactive until he “demonstrated competence sufficient to engage in the practice of law.” Id.

Why did the defendants file a motion to dismiss the plaintiff's discrimination claims?

The court granted the motion to dismiss partly because the plaintiff’s complaint was poorly written and lacked organization. Id. at 235. The court stated, “A complaint may be so poorly composed as to be functionally illegible. This is not to say that a complaint needs to resemble a winning entry in a writing contest…. However, the court’s responsibilities do not include cryptography, especially when the plaintiff is represented by counsel.” Id. at 234.

Which court ordered the plaintiffs to amend their complaint in compliance with Federal Rule of Civil Procedure 8 (a) (2)?

The United States District Court for the Southern District of Georgia ordered the plaintiffs to amend their complaint in compliance with Federal Rule of Civil Procedure 8 (a) (2)’s “short and plain statement” requirement.

Who said a lawyer over the course of a career will probably write as much as a productive novelist?

As the great William Prosser once said, a lawyer over the course of a career will probably write as much as a productive novelist. But it takes years before one starts talking about “the course of a career.”. Junior lawyers are neophytes. With newly minted law degrees, many of them think they’re ready to go.

What is a junior lawyer?

Junior lawyers are neophytes. With newly minted law degrees, many of them think they’re ready to go. In fact, though, what they’re now ready for is an apprenticeship. May they be fortunate enough to have good mentors.

Do bad golfers know they are bad?

Funny thing, though. Bad golfers do tend to know they’re bad. Mediocre golfers tend to know they’re mediocre. In golf, there are qualifying tournaments. The four major championships aren’t weighed down by incompetent pretenders. But with an unscored activity like writing, the field gets crowded with the unskillful who have no idea that they’re unskillful.

Do contract drafters get their papers graded?

And practicing contract-drafters rarely get their papers “graded” as compared with litigators. Consider the highly publicized cases in 2012 alone in which courts thoroughly excoriated litigators who filed subpar briefs. That’s a strong motivator to do better. Transactional lawyers rarely suffer this negative experience.

Is the legal profession a Dunning-Kruger problem?

1. The legal profession suffers from a pervasive Dunning-Kruger problem. This is puzzling but true. While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools.

Is the incidence of a new lawyer higher?

3) Although all experience levels of the practice are affected, the incidence is much higher among newly licensed lawyers than it is among experienced practitioners.

Do law schools teach contract drafting?

Although the three drafting errors I’ve just mentioned have been well-documented in the literature for more than a century, they’re still ubiquitous in law practice. Most law schools don’t even teach the practicalities of contract drafting.

Why do lawyers write like lawyers?

Lawyers often feel the need to write like a lawyers, so that they will earn respect. This is different from intentionally making the document difficult to read to protect a trade guild’s insularity. In his early days, one of our partner’s supervising attorneys rejected his draft, not because of its substance, but because it supposedly sounded “like two people talking in an elevator.” This comment was clearly not meant as a compliment, but it should have been.

When writing a legal document, should you ask yourself questions?

When you write a legal document, you should first ask yourself several big picture questions that can immediately affect the quality of your legal writing before even getting into small details.

Why are lawyers so famous?

Lawyers are famous for their use of complicated and hard to understand writing. Sometimes when ordinary people (read: non-lawyers) receive lawyers’ emails, documents or contracts they pass over the document without developing a deep comprehension of the material.

What is the first rule of writing?

The first rule of any form of writing is to know your audience. Popular young adult novels such as Harry Potter and the Hunger Games would have never made it past the publishers if they read like high literature such as Les Miserables or Ulysses. The same is true of legal writing.

Is it important to avoid the vernacular?

If the information in your parenthetical does not deserve its own sentence, it is not important. You avoid the vernacular for some reason. : Vernacular speech is simply the progress of language development over time. In a sense, vernacular speech is the cutting edge of language arts.

Is legal writing read by judges?

The same is true of legal writing. Not everything you write is going to be read by judges and legal academics. As litigators, most of our writing is read by other lawyers and ordinary people. The content, tone, vocabulary, and vernacular grammar should all adjust accordingly to convey the necessary message.

Do you proofread legal writing?

You have not proofread your writing. : No attorney is infallible, and most of us acknowledge that fact. Even so, proofreading is not particularly common in everyday legal writing like emails. A good trick is to read what you have written out loud to yourself slowly.

What questions should I ask myself when writing a document?

Planning: Think about who you’re writing the document for, by asking yourself these questions: “Who is my reader?” “What is my reader’s relationship to me?” and “Why am I writing this? Is it to inform, persuade or to accomplish some other end?”

Why is it important to write in the active voice?

Writing in the active voice is clearer, more concise and easier for the reader to understand. Writing in the passive voice makes the reader “struggle to figure out what you’re saying,” he said. Placement matters. “Put the modifying words as close as you can to the words you’re modifying,” Spratt said.

How to avoid double negatives?

Aim for clarity. Avoid double negatives: if you have no reason to use it, don’t use it. Words such as “not insignificant” and “not uncommon” generally confuse the reader and slow them down. In addition, one word can often easily replace several. Spratt used the examples of “in light of the fact that…” could easily read “because.” Replace “in order to” with “to” and “in the vicinity of” with “near.” By tightening your writing, you free up valuable space for substance. “These multiple word propositions do nothing but cloud your writing,” he said.

Where should the verb come after the subject?

Note word placement. “The verb should come after the subject and be as close to the subject as possible,” Spratt said.

Is legal writing one size fits all?

The legal writing process is not “one size fits all” and “people need to find the one that fits them best, David Howard Spratt, professor of legal rhetoric at American University Washington College of Law, said in the recent “ Landslide Webinar Series: Take Your Legal Writing from Good to Great—Drafting Tips from the Pros ”. The webinar was sponsored by the ABA Section of Intellectual Property Law and ABACLE.

Do you use the Oxford comma in legal writing?

Use the Oxford comma. “People fight this one all the time because sometimes in previous professions or in nonlegal writing – I call it ‘illegal writing’ – you don’t use the Oxford comma, but lawyers like to speak in terms of elements, and punctuation is very important,” said Spratt.

What is ghostwriting in law?

Ghostwriting gives litigants unfair advantage in that pro se pleadings are construed liberally and pro se litigants are granted greater latitude in hearings and trials. Ghostwriting also results in evasion of obligations imposed on attorneys by statute, code, and rule, and involves lawyers in litigants' misrepresentation ...

What is a special appearance in court?

The appellate court found that an attorney making a special appearance represents the client's interests and has a professional attorney-client relationship with the client. Further, the voluntary appearance created a limited representation status and not a true "special appearance". Armor v.

Can an attorney represent a sheriff?

Attorney representing sheriff enters limited appearance on behalf of his official capacity. Court finds that attorney cannot enter limited appearance on behalf of sheriff's official capacity. Attorney representing sheriff must act for the entire person, including individual and official capacities.

Did pro se plaintiffs sign pleadings?

Over a period of time, pro se plaintiffs submitted pleadings that had been written by attorneys pursuant to discrete-task representation contracts. The attorneys did not sign the pleadings, and in most cases did not appear as counsel of record.

How to break adverse case law into a paragraph?

If you break adverse case law into a separate section or paragraph, you may find yourself arguing the other side’s case , no matter how carefully you distinguish that law. Instead, weave opposing authority into your argument and present it offensively by using transitional words such as however and although.

What is the meaning of "discussing case law"?

Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding. Discussing patterns in the case law is even more challenging so certain well-used phrases—such as this court squarely addressed or this court has long recognized— are helpful. (Click here for a list of the Lingo for Talking About Cases.)

What did Justice Roberts say about Brown v. Board of Education?

No. 1, 551 U.S. 701, 748 (2007), Justice Roberts summarized the law before Brown v. Board of Education of Topeka with a gifted economy of words. He explained simply, “Before Brown children were told where they could and could not go to school based on the color of their skin.” 551 U.S. at 747. If Justice Roberts can reduce decades of constitutional jurisprudence to a few pithy words, you should be able to discuss a statute-of-limitations case or the doctrine of piercing the corporate veil in a sentence or two.

Why do lawyers use shorthand?

Lawyers use shorthand to avoid cumbersome references to case law or procedural history. Think of your cases as places and use here to refer to your client’s case and there and where to refer to the precedent, as in There, the court held that . . . . or Here, by contrast . . . . Avoid phrases such as the instant or present case. Simply say this case.

How to avoid clunky legalese?

. . . ” or “There, the court refused to . . . .” Avoid phrases such as “the instant case”or “the present case.” They are clunky legalese. Simply say “this case.”

What is the job of a judge?

Judges and senior attorneys already know the law cold. Your job is to explain how the law plays out in the real world of people and facts. Therefore , focus on the facts and results in the cases, rather than vague statements of law.

Do you waste a parenthetical?

Don’t waste a parenthetical on simply quoting the part of the case that supports your previous prose sentence. The quote adds nothing new and suggests that you don’t trust your own prose paraphrase.

What are the mistakes to avoid in legal writing?

7 legal writing mistakes to avoid. When it comes to legal writing, the stakes are high. Hard-to-read or understand court filings can harm cases and, sometimes, lead to sanctions from the court. It’s vital, therefore, that legal writing is as clear and succinct as possible. Less is more when it comes to good legal writing, ...

Why is it important to rephrase sentences with pronouns?

It’s best to rephrase sentences containing pronouns like “her” and “him” to make it clear which pronoun refers to what. For example: “Laura has a letter for Diane, but couldn’t deliver it because Petra was blocking Laura’s way”.

What is an ambiguous pronoun?

An ambiguous pronoun occurs when a pronoun may refer to more than one antecedent (a prior word in the sentence), leaving readers uncertain as to your intended meaning (hence this error sometimes called an unclear antecedent).

What is legal document?

A legal document that can convey its message in as little space as possible is more useful than one that rambles for many pages. When you have something to say, get right to it! Inflating your sentences and paragraphs with unnecessary words or pointless filler only obfuscates what you mean to say.

How to cut back on legalese?

One of the simplest ways to cut back on legalese is to refrain from using redundant couplets ( or worse, triplets!). Why say “null and void” when just “null” would do? Why write “convey, transfer and set over” when just “convey” would do? A tiny handful of these phrases exist in statute, and so should be retained, but the vast majority serve little or no purpose. Cut them out.

How to streamline writing?

So, streamline your writing by following a few rules: First, use the active voice over the passive. Second, use concrete rather than abstract language. Third, cut out all of those word-wasted idioms so beloved of the legal profession (“he was aware of the fact that” instead of “he knew”, for example ).

Which voice is better, active or passive?

In general, prefer the active voice over the passive. Using the passive voice — where an outside force acts on the subject of the sentence — can cause confusion. It’s best to have the subject of your sentence do the acting and have it precede the action.

Who is the judge of the Ninth Circuit?

Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit, Judge John

What documents do judicial clerks draft?

documents judicial clerks are most commonly asked to draft for a . judge-opinions, bench memoranda, jury instructions, and orders. Keep in mind though that the documents a judge may ask a clerk to . draft will vary depending on whether the clerk is at the trial or .

How long does it take for a lemon law case to get to the jury?

It can take over a year for even a simple lemon law case to actually get to the jury trial point. (Let alone more complex litigation.)

Does Andrew Smyth care about ghostwriting?

Andrew Smyth. They don’t that much. They do care about a lawyer ghostwriting a brief for an in pro per client, ie. someone who represents themselves. Once a lawyer filed a motion for sanctions against me for doing that in a 9th Circuit Case.

Can an attorney talk to a judge?

Attorneys cannot talk to judges ex parte. If someone is representing themselves, then they should be included in all conversations that the other lawyer has with the judge. Similarly, if the pro se party wants to speak to the judge, the other lawyer must be included. Someone acting pro se has all of the same rights and responsibilities as ...

Can a judge rule on a motion?

Until the response time has run, the judge shouldn’t make a ruling. Then sometimes a party will ask for an oral argument, which can push the ruling out even further…. And occasionally, judges never rule on a motion. (If a judge doesn’t rule, the motion is considered denied.)

Do you cite your authority in legal writing?

Well, as a practical matter, the legal writing process has a protocol that if you make a legal point, you “cite your authority.”. If this is “secondary” legal authority, you would cite the work. The law is the one field where you don’t get points for originality, usually.

Is copyright a form of plagiarism?

Copyright does not exist in ideas themselves but in their expression or formulation. Briefs or motions are often required to be expressed in prescribed forms. Doing so is not plagiarism because regulation requires it. Many briefs are so standardised as to have become ‘precedents’ and therefor in the public domain.

Can a pro se party speak to a judge?

Similarly, if the pro se party wants to speak to the judge, the other lawyer must be included. Someone acting pro se has all of the same rights and responsibilities as the opposing party’s lawyer. On extremely rare occasions there may be motions that allow one side of the other to speak to the judge privately.