LawProse Lessons

Statutes and Judicial Opinions: When, in Time, Do They Begin and End? In the Beginning. The traditional view is that statutes are prospective only, but judicial opinions operate retroactively. That’s because ex post facto laws are thought to be fundamentally unfair, and judicial opinions normally declare what the law is—as opposed to making it. This …

LawProse Lesson #257: Statutes and Judicial Opinions Read More »

Strategies with Names. Is it true that in a brief, you should use your client’s name for personalization and call your opponent by a legal label (e.g. “defendant”) for depersonalization? No—almost never. This “advice” is almost invariably unsound. Would it be better to call Cruella De Ville “Antagonist”? No: she’s memorably Cruella. Bad facts about …

LawProse Lesson #256: Strategies with Names. Read More »

Admittedly, the traditional conjugations are more blurred than ever. Mastering them has proved difficult for people. Nevertheless, here goes. Lay is a transitive verb—that is, it demands a direct object {lay your pencils down}. It is inflected lay–laid–laid {I laid the book there yesterday} {these rumors have been laid to rest}. (The children’s prayer Now …

LawProse Lesson #255: Lay vs. lie. Read More »

Persuasion is a complicated product of successful conscious and unconscious effects. As a brief-writer, your goal is to persuade the judge to rule in your client’s favor. Generally, to achieve this, you must do four things: 1. Get the judge’s attention. Don’t let your brief be one of those dense, befuddling aggregates of facts, law, …

LawProse Lesson #254: The four necessities of brief-writing. Read More »

If lawyers could remember to avoid just five common mispronunciations, what would they be? These are the words: applicable comparable often realtor substantive Say them aloud. Then see whether you used the preferable (PREF-uh-ruh-buhl) pronunciations: applicable (accent on the first syllable, not the second) comparable (same) often (silent t) realtor (two syllables, not three) substantive …

LawProse Lesson #253: Commonly mispronounced words. Read More »

What’s new in The Winning Brief? Three things. First, it’s being offered as a 10-part webinar series for the first time this summer. If you care about persuasive writing, you won’t want to miss it. Second, the third edition has all the substance from the first two editions, plus nine entirely new sections (including “understanding your …

LawProse Lesson #252: What’s new in “The Winning Brief”? Read More »

Three important considerations in legal editing. It’s best to use single-minded focus when editing the different parts of documents. Certain editing approaches may apply to particular sections of a document. Here are three practical examples: Revisit the issue presented. In your issue statement, you want to be sure that you don’t state as a fact …

LawProse Lesson #251: Considerations in legal editing. Read More »

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 »