In any good argument, it’s important to refute the obvious counterarguments that would naturally occur to an intelligent reader—even when you’re the first to argue. Why? Three reasons. First, doing so shows your readers or listeners that you’ve thought through the issue. The problem will have occurred to the judge, who may well view you …

LawProse Lesson #311: Preemptive refutation. Read More »

In this space, you’ve seen explanations of how to prepare good point headings, which are exceedingly rare. Three of the 100 tips in The Winning Brief illustrate first-rate point headings—which should be complete sentences set down-style (not in initial caps). More than 20 tables of contents from winning briefs appear as examples of how to …

LawProse Lesson #310: The Mastery of Point Headings. Read More »

Communicative fervor. That’s the answer to the question, What quality do most legal writers lack? Communicative fervor. To get your point across, you must ardently want to do so. Passionately. Fervently. That means understanding how readers will see the message—and this in turn requires psychological insight. It’s no mean feat to be understandable to others. …

LawProse Lesson #309: Communicative fervor. Read More »

Don’t quote dictum without noting that it’s dictum. Of all the problems in jurisprudence, one of the trickiest can be distinguishing between a court’s holding and its dictum. It often takes a close inspection of the court’s writing to make that distinction. Essentially, a holding is an appellate court’s determination of a matter of law …

LawProse Lesson #308: Acknowledging dictum. Read More »

It’s well known that readers tend to skip block quotations. This results partly from writers’ habit of failing to introduce them properly, and partly from readers’ skepticism about the applicability of others’ words to the problem at hand, especially if those words are numerous. If you quote in chunks of under 50 words, and you …

LawProse Lesson #307: Minimizing block quotations. Read More »

If you’re writing a brief to the Eleventh Circuit, don’t cite an Eleventh Circuit case (especially an unpublished one) and then add that it was quoting the U.S. Supreme Court. Instead, quote the U.S. Supreme Court and then add that the passage quoted has been explicitly followed by the Eleventh Circuit.

Continuing our series on quotations, let’s look at a technique that ensures precision. When quoting, you must make sure that every quotation is both correctly attributed and fully accurate—word for word and even character for character. It’s now possible to ensure absolute accuracy of the crucial legal instrument by photographically reproducing the precise provision at …

LawProse Lesson #305: Quotations: Photographic reproductions. Read More »

Last week, we discussed the “cleaned-up” quotation. Continuing our series on quotations, we should look at how—and why—to be as concise as possible. Effective legal writers make every quotation as succinct as possible, ruthlessly omitting everything but the pith of what’s needed. Quotations play mere supporting roles in your argument, even if they’re from the …

LawProse Lesson #304: Quotations: Be succinct. Read More »

Last week, we discussed the circumstances in which it’s permissible to tacitly change a quotation to regularize it to house style. This week, we’ll discuss another type of cosmetic alteration, something like a bibliographic face-lift: the “cleaned-up” quotation. In recent years, some legal writers have become so obsessed with noting every little bibliographic detail—for example, …

LawProse Lesson #303: Cleaned-up quotations and citations. Read More »

Is it ever permissible to fix a trivial mistake in a quotation without noting it in your citation? Less so in legal writing than in other types—as most legal writers would insist. Some nonlegal style manuals do allow writers to silently correct obvious errors such as missing periods, unclosed parentheses, or misspellings. For example, The …

LawProse Lesson #302: Quotations: Unnoted corrections. Read More »

Here’s our final “final” installment in this series of anomalies of spelling. amble but ambulate annual but biennial armorial but armoire Cambridge but Cantabrigian circumstance but circumstantial crustacean but patrician enforce but reinforce enviable but permeable epicurean but millenarian evidence but evidentiary fisc but bosk float but flotation Glasgow but Glaswegian grisly but gristly inequitable …

LawProse Lesson #301: One more on anomalies of spelling—by popular demand. Read More »

As we’ve seen over the last three LawProse lessons, English orthography is riddled with exceptions—ones that you should memorize or at least recognize as irregular. Here’s our final installment in this series of four. ascendable but descendible bombast but lambaste candle but candelabra comrade but camaraderie curious but curiosity dexterous but ambidextrous embarrass but harass …

LawProse Lesson #300: One last lesson on anomalies of spelling. Read More »

As we’ve seen over the last two LawProse lessons, English orthography is riddled with anomalous exceptions to what seem, by analogy, to be norms. A great example is idiosyncrasy, the only English word ending –crasy (as befits the sense of the term). All the words having to do with governmental forms (aristocracy, democracy, ochlocracy, plutocracy, …

LawProse Lesson #299: Still more anomalies of spelling. Read More »

Our last LawProse Lesson, on oddities of English spelling, sparked many e-mails suggesting additional candidates. Remember that there needn’t be an etymological association between the confusable words (although there often is). For present purposes, an appearance suggesting an orthographical association is enough to cause problems for people: archaeology but genealogy beautician but dietitian comme il …

LawProse Lesson #298: More anomalies of spelling. Read More »

English orthography, or spelling, is riddled with challenges. Because English speakers have plundered the vocabularies of so many different languages, English words have no common etymology. This diversity of origin has led to words that depart from patterns, or even adopting a source language’s grammatical patterns that are indiscernible to English-language monoglots. Take, for example, …

LawProse Lesson #297: Anomalies of spelling. Read More »

A learned correspondent of ours, Michael Eshleman, is the county attorney for Otero County, New Mexico. A member of both the New Mexico bar and the Ohio bar, he tells us that the New Mexico admission certificate calls him an “attorney and counsellor at law.” But the Ohio admission certificate calls him an “attorney and …

LawProse Lesson #296: Counselor vs. Counsellor Read More »

Unheralded shifts in voice are a common fault in quoting, as when the writer quotes a first-person reference (direct discourse) within a third-person passage (indirect discourse). Here’s a clear example of direct discourse: “The judge declared: ‘I see no genuine issues of material fact.’” And here’s indirect discourse: “The judge declared that she saw no …

LawProse Lesson #295: Shifts in Voice. Read More »

What’s in a Name (or Label or Designation)? In the past few decades, an unfortunate habit has formed within a substantial segment of lawyerdom: giving parties alternative shorthand names. A brief-writer will mention Harold Reynolds and then add, parenthetically, “(Reynolds or Plaintiff)”; a contract-drafter, in a preamble, will write “SFX Corporation” and then add, parenthetically, …

LawProse Lesson #294: Shorthand names Read More »

The English-language has so many homophones (sound-alike words) and near-homophones that it’s hard for people to keep them straight. Let me illustrate with a fictitious paragraph: You know I have a photogenic memory. After Easter observations a couple of years ago, I was at the church bizarre when I overheard someone making laudable remarks about …

LawProse Lesson #293: Word-Swapping Read More »

Write “you”-centered notes, not “I”-centered notes. In any short personal letter, try to ensure that “you” and “your” predominate over “I,” “me,” and “mine.” (Think of the sarcasm of the Beatles’ song “I Me Mine”—about self-centeredness.) Put yourself in the position of the recipient and consider how much better the second of these makes you …

LawProse Lesson #292: A secret for good personal notes. Read More »