LawProse Lessons

One thing that persuasive advocates do is to pitch their tone at the right level: their degree of confidence, their firmness of position, and their analytical keenness. They know when and how to concede points, and when and how to assail their opponent’s points. With the judicial audience, they’re neither condescending nor kowtowing: they approach …

LawProse Lesson #249: The advocate’s mindset toward the judge: respectful intellectual equality. Read More »

The ancient Romans called it tu quoque, meaning “you also” or “you’re another.” It’s pronounced /too kwoh-kwee/. Today we see this tactic prominently in both politics and law. A few examples. If one politician says that he or she wants to raise the standards of ethics, an opponent will say that that politician has engaged …

LawProse Lesson #248: Today’s most popular rhetorical gambit. Read More »

It’s the principle that the title and headings within a legal instrument are permissible indicators of meaning—unless the instrument expressly disclaims their influence. Contractual drafters often include a version of this housekeeping clause: “Headings are for convenience only and do not affect the interpretation of this agreement.” Many states have a constitutional provision (called the …

LawProse Lesson #247: What is the title-and-headings canon of construction? Read More »

Textualism remains the primary interpretive method used by most American judges. On Tuesday of last week, the United States Supreme Court issued two of its most thoroughly textualist opinions ever: a majority opinion by Sotomayor J. and a dissent by Kagan J. Both are marked by exceedingly close and lengthy analysis of the text. The …

LawProse Lesson #246: Last-Antecedent Canon vs. Series-Qualifier Canon. Read More »

Often you’ll find yourself trying to decide whether to include something in expository prose—an extra argument, another illustration, a brief aside, an interesting tangent, etc. The sage wisdom of ancient rhetoricians is to omit everything that doesn’t have some demonstrable benefit. You can see this principle as a form of utilitarianism: include only what is …

LawProse Lesson #245: Whatever doesn’t help positively hurts. Read More »

At LawProse, we recommend extensive fact-checking. For most briefs, the prudent approach is to plan a full day of fact-checking before the brief is due. So if the brief is due Wednesday, all day Tuesday will be devoted to fact-checking—and the writer must plan to have a polished draft Monday (in other words, the brief …

LawProse Lesson #244: The importance of fact-checking. Read More »

Why did Justice Brennan mistakenly write “just desserts”? No one knows. It’s the only misspelling of the phrase just deserts (= what one rightly deserves) in the annals of Supreme Court opinions. Twenty-one times, in fact, the Supreme Court has used the correct phrase, just deserts. But in 1989, Justice Brennan used the demotic misspelling in …

LawProse Lesson #243: Just deserts. Read More »

In Lesson #235: Learning to write by sedulous aping, we saw how useful it is to try replicating a choice passage from an excellent writer. It’s perhaps the best way to develop your writerly chops. Many readers requested more lessons with similar exercises. I’m happy to oblige. Among the best academic writers today is Felipe …

LawProse Lesson #242: Replicating Good Prose from Memory. Read More »

The Timing of a Joke. Should you be able to tell a joke? Sure, if you’re a rhetorician. It’s all about wording and timing. It’s also about understanding that the punch word must come toward the end of a phrase. Here’s a nine-word joke in which the listener’s mind is caught for a moment on …

LawProse Lesson #241: The Timing of a Joke. Read More »

What’s the biggest flaw in a motion for rehearing? The answer is the failure to understand that judges must be allowed to come around to your position without losing face. Although the strategy makes no sense, it is common for advocates to demand that they “must” be reheard because the judge’s decision is “arbitrary, capricious, …

LawProse Lesson #240: Advice on motions for rehearing. Read More »

Following up on last week’s Lesson #238 (“Are you coordinated, or subordinated?”), we’ve found some striking examples to illustrate the point that subordinate clauses are crucial to persuasive writing. As we saw last week, it’s often useful to avoid merely joining two independent clauses of equal importance with a conjunction such as and. Instead, a …

LawProse Lesson #239: More on subordination. Read More »

People like being coordinated; they dislike being subordinated. So the terminology of the following tip is a little counterintuitive: subordination is good, coordination often less so. One of the elementary points of composition that really could be called “advanced” (given how many writers overlook it) is the importance of using subordinate sentence structures as opposed …

LawProse Lesson #238: Are you coordinated, or subordinated? Read More »

More than 50% of judges and lawyers read almost exclusively on a computer screen. What does this mean for legal writers? Three things, primarily: 1. Summarize. It’s important to learn the art of summarizing concretely. Avoid airy generalizations and instead make pithy, practical, vivid summaries. These should always appear at the fore. (By the way, …

LawProse Lesson #237: More than 50% of judges and lawyers Read More »

The No-Monkey Rule If you’ve cite-checked a brief lately, you’ve probably concluded that your colleagues are unclear about what they’re doing with brackets at the beginning of a quotation. When do you bracket the opening letter or word of a quotation, and when don’t you? Let’s recognize first of all that lawyers are the only …

LawProse Lesson #236 Read More »

What did David Foster Wallace and Robert Louis Stevenson have in common? They taught themselves to write better using the same technique: reading short passages from superb writers, trying to re-create from memory the passages they’d just read, and then assessing how their own versions compared with the originals. The assumption was always that the original …

LawProse Lesson #235: Learning to write by sedulous aping. Read More »

Like plead, the verb strike causes lawyers and judges to hesitate in forming the past participle: has the judge struck something from the record or stricken it from the record? English-language authorities have long said that the verb strike should be inflected strike > struck > struck, hence today I strike, yesterday I struck, many …

LawProse Lesson #234: Stricken from the record or struck from the record? Read More »

More often than you might think, a lawyer will say to me: “Why care so much about tiny points of correctness? A judge isn’t going to rule against you just because you’ve misspelled de minimis.” True enough, but naive. This view disregards the science behind the “halo effect”: a strong showing in matters of form strongly …

LawProse Lesson #233: Can’t judges just look past trivial errors? Read More »

Why are point headings so crucial to effective brief-writing? I explain why—and how to create powerful ones—in two recent columns in the ABA Journal. You’ll find them here and here. See for yourself why so many lawyers have been circulating these columns to their colleagues. That’s the point of this week’s lesson. For more information on …

LawProse Lesson #232: The power of point headings. Read More »

What’s your conclusion of choice:      1. Wherefore premises considered, Defendants demand this Court grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      2. For all the foregoing reasons, Defendants request this Court to grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      3. The problem presented by this case is …

LawProse Lesson #231: Are you coming or going? Read More »

If we’d thought a moment about it before sending last week’s LawProse Lesson, we’d have foreseen the onslaught of lawyers’ vehement, overheated defenses of pursuant to. It is, after all, the phrase that legalese lovers crave most. They’re addicts who can’t bear a moment of withdrawal. “I use it pursuant to standards of good writing, …

LawProse Lesson #230: The most addictive phrase in legalese. Read More »