In Memoriam

A tribute to my father, an avid though compelled reader of this blog, and request for donations to a cause he supported.

A Must Have Book for Every Advocate

A golf pro once told me that there is much to learn from watching a professional golfer swing a club. Legal writing is no different. Ross Guberman (Legal Writing Pro) has provided advocates everywhere an invaluable tool to help us continue improving our legal writing. This week, we review Ross’s book and provide readers with a first in Prayer for Relief history—an short interview with the author.

This is an exciting way to bring our series on readability to a close (see here, here, and here for prior posts). First, the book, Point Made: How to Write Like the Nation’s Top Advocates (affiliate link), is both unique and stuffed with incredible observations. Ross studies the techniques of fifty of the nation’s top advocates in both trial and appellate advocacy. Most of the names will be familiar to readers: John Roberts, Thurgood Marshall, Ted Olson, David Boies, Jamie Gorelick, Seth Waxman, and Miguel Estrada, just to name a few.

The book is broken down into five parts: The Theme, The Tale, The Meat, The Words, and The Close. Let me provide a little description of each part and follow that with one particular section that I found interesting. The Theme covers setting the stage, the big picture, in trial and appellate briefs. I got the most out of learning how top advocates give the court a reason to want to find for the advocate (here’s a hint, it doesn’t include battering the court with case citation after case citation). The Tale shows us how these advocates set out the Facts portion of a legal document. The best advocates tell a great story . . . and leave out dates as much as practical. Their facts mesmerize you. The Meat part is intense—as it should be—and the nation’s top advocates do not fail us. Here you’ll find how they use headings, structure their sections, analogize and distinguish cases, use parentheticals and block quotations, and finally how they use footnotes. The Words part is, in my opinion, the most fun. It’s where the creativity and style of the nation’s top advocates really come to life. But just as importantly, readers learn that persuasively writing is as much science as it is style. The great advocates seem to use the same techniques, and through this book we can learn them. Finally, the Close shows us that every section counts. Even here, in the closing section of our documents, the nation’s top advocates give judges something to think about—something to remember. It seems that ending with a provocative quotation or pithy thought is popular amongst these writers.

Recently, Ross Guberman took time out of his schedule to answer a few questions for Prayer for Relief readers:

Ross,

Thanks so much for agreeing to answer a few questions about your book, Point Made: How to Write Like the Nation’s Advocates. I know you’ve been in demand as various blogs have sought to interview you regarding the book, so we are really appreciative of your time.

1. Your book is quite refreshing in that it focuses on what good writing looks like, rather than the opposite. Why did you choose this particular approach?

Think about cooking. If you avoid burning a steak, it will be edible, but not necessarily delicious.  It’s the same with writing: avoiding the passive voice might make your writing functional, but it won’t make it soar.    

More generally, I think that our profession focuses too much on what goes wrong (bad lawyers and bad lawyering) and not enough on what goes right (great lawyers and great lawyering).

2. I loved the book and learned so much in reading it. But I was surprised to see a section on rhetorical questions. Before reading your book, I did not think that using rhetorical questions was a technique an advocate should consider, but top advocates clearly use this technique at the right time. Are there any techniques in the book that surprised you when researching the top advocates?

I had the same reaction to some of my own book!  But I try to be empirical rather than to impose my own views.  So if many of the top advocates use rhetorical questions, I point that out.  If many use breezy language, I direct you to those examples as well.

Context matters, of course.  As I point out in the book, the great lawyers who use rhetorical questions do so to provoke thought about legal issues, not to take a potshot at the parties or their lawyers.

3. How has Point Made been received? What kind of feedback have you received?

So far so good: the sales have been extremely strong and the critics have been generous in their praise.  More important, I’ve heard from a lot of lawyers—from newbies to some of the nation’s most prominent lawyers—who tell me that the book has helped them a great deal in their day-to-day work.

I’ve also received some reasonable criticisms that I’d put into three categories.  One criticism relates to my choice of lawyers.  I’ve been accused of profiling too many women and minorities in an effort to be “politically correct.”  I disagree, but I’ll let the short biographies in the back of the book speak for themselves.  Some people also think I included too many former solicitors general.  On that one I probably agree.

A second criticism is that great writing and great advocacy are an art, not a science that can be taught.  I’m sure that’s true on the margins, but I don’t think that writing a good summary-judgment motion is as artsy as writing a good sonnet.

A third criticism is that many people contribute to a motion or briefs, and yet I give credit only to the “famous lawyer” who signed it.  I plead guilty, but I could hardly go back in time to reconstruct who wrote which sentence.  And I’m not sure it matters: if I include an example, it’s because I think it would help my readers regardless of who penned the actual words.

4. You mention readability in the book and elsewhere. Shorter words and sentences are easier to read, but how much weight should advocates give to readability scores? How should these statistics be used?

We lawyers love to make writing subjective, so I try to do what I can to give people objective metrics.  Readability statistics are a great example.

If you select “show readability statistics” in your spelling and grammar options, you’ll get an index score of between 1 and 100.  Strive for 30 or higher.  The statistics reflect four writing realities that matter for lawyers: length of sentences, length of paragraphs, length of words, and percent of passive sentences.

5. Many Prayer for Relief readers work in government agencies and small to mid-sized firms. Everyone should definitely purchase and read the entire book, but what section or technique would you recommend the busy advocate study first that will make the biggest impact right away?

Many lawyers are great at details but struggle with context. Very few motions and briefs stick to central messages designed to anchor the document and even remain in the court’s mind hours or days later.  In that regard, I would recommend Part One of my book, which will give you four concrete ways to structure your introduction and to develop your theme of the case. 

Thank you, Rodrigo, for recommending my book and for giving me chance to reach out to your readers!

I cannot recommend this book enough. A copy (preferably more) should be in every law library and on every advocate’s desk. It should also be a mainstay in every moot court program’s library. I also recommend legal research and writing professors should definitely check out this book and find ways to incorporate its lessons into the curriculum. It is certainly affordable. I purchased the Kindle edition, but will be adding the print version to my Christmas list.

Click here to purchase the book from Amazon (affiliate link). Also, check out The Top Advocates for more information about the book.

For more information on Ross Guberman, check out Legal Writing Pro. Finally, for those interested in reading more interviews, below are links to other similar posts regarding Ross’s amazing book:

Virginia Appellate Law
Scotus Blog
The Cockle Bur
First Friday Book Synopsis
Illinois Appellate Lawyer Blog (Part 1) (Part 2)
Georgia Criminal Appellate Lawyer Blog
Ari Kaplan Advisors (audio interview)

Seal Team Six Infiltrates Thomson West to Discover Headnote Secrets

Okay, not really. But have you ever wondered how West goes about creating headnotes and other editorial enhancements? Wonder no more.

A 345-word Sentence, Kindergarten Class, and an Intra-Bench Slap

I think these have all made the rounds now, but in case you missed it, here are a few from the funnies that we all hope never to star in.

Publication Alert: Overcriminalization and Sex Offender Registration

Professor Elizabeth Megale (a great professor, scholar, and moot court coach) has posted “The Invisible Man: How the Sex Offender Registry Results in Social Death,” (forthcoming in The Journal of Law and Social Deviance) on SSRN. Below is the abstract:  

This Article establishes that over-criminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits which arise when over-criminalization exists, and further shows how these characteristics and traits are present with respect to the sex offender registry. This Article offers critical insight into the relationship between over-criminalization and repressive control systems and concludes that over-criminalization exists when repressive governmental controls seize power and render non-existent informal social controls. It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.

Congratulations, professor!

H/T: CrimProf Blog

And the Golden Pen Award Goes To . . .

There will never be a legal writing awards show, but Ross Guberman (Legal Writing Pro) did his best to offer us Oscar-style highlights from the last Supreme Court Term. The categories? Best verb (tie), Best wit, Best hypothetical, Best short sentences (tie), Best rhetorical question, Best eerily identical transition sequence, Best tongue-in-cheek ending.

Storytelling and Learning Not to Hate Your Parents

Due to spending some time on my death bed and then trying to catch up on everything I fell behind on due to said death bed, it’s been a few weeks. As I finish up the series on brief readability (see here, here, and here for the first three in the series), I figured I’d sprinkle in a few posts on some interesting stories circling around the blogosphere. What does telling stories, writing for busy people, and getting mad at your parents have in common? Read on.

Publication Alert!

As noted on the CrimProf Blog, good friend and former co-clerk Michael Serota posted his recent essay, “Stare Decisis and the Brady Doctrine,” (published in the Harvard Law & Policy Review) on SSRN. Below is the abstract:

An array of federal district court judges frustrated with the limited scope of the Supreme Court’s approach to constitutionally mandated disclosure – otherwise known as the Brady doctrine – has reinterpreted it so as to eliminate the materiality requirement in the pretrial context. After witnessing the prosecutorial abuse and chronic underdisclosure that Brady’s materiality requirement invites, as well as observing the failure of discovery reformers to remedy the doctrine’s shortcomings through other channels, these judges have provided a judicial solution by ignoring Supreme Court precedent in order to avoid the limitation on the government’s disclosure obligation that the materiality requirement creates. This practice amounts to nothing less than an abrogation of stare decisis based on the view that policy concerns necessitate this much-needed reform of the criminal discovery system. The question that remains – and that I explore in this Essay – is whether the instrumentalism underlying their decisions is acceptable, or even desirable, in light of the constitutional and normative foundations upon which stare decisis rests.

This Essay proceeds in three parts. Part I provides a brief introduction to the Brady doctrine with a particular emphasis on the problems caused by the materiality standard’s application in the pretrial context, and then discusses the unsuccessful efforts that have been made to reform the rules of discovery governing the pretrial disclosure of evidence in criminal cases. Part II first contrasts the Supreme Court’s post-Brady cases with the doctrinal approach that some trial judges have taken to eliminate Brady’s materiality requirement in the pretrial context, and then concludes with a discussion of several federal district and appellate court decisions that have rejected this approach to Brady reform. Part III presents the doctrine of stare decisis and discusses its constitutional foundations as well as the rule of law and judicial economy benefits it redounds to our legal system. With these benefits in mind, I then explore the viability of the instrumentalist approach to stare decisis employed by the trial judges who have eliminated the materiality requirement. I conclude that it is not viable, and that criminal discovery reform must therefore proceed through other means.

Congratulations, Michael, on another publication!

Petition to Forgive Student Loan Debt

A reader forwarded a link to a petition to me and I thought it may be of interest to readers of this blog.

Congressman Hansen Clarke, along with thirteen co-sponsors, introduced a resolution that proposes to “cut the United States’ true debt burden by reducing home mortgage balances, forgiving student loans, and bringing down overall personal debt.” (emphasis added) From what I can gather from the text of the resolution, the sponsors argue that businesses will forego hiring so long as consumers continue to focus primarily on debt reduction (or debt management). So, forgiving debt is the easiest way to free up cash for what really drives our economy – consumer spending. The sponsors point to Asian economies as proof that “high personal savings economies tend to be high growth economies.” They also argue that current laws allow corporations to write off this debt. I believe that in the case of student loans, the Federal Government would be that corporation.

A petition has been started intended to be delivered to Congress and the President once it has 345,000 signers. As of my last check, it has 340,843 signers. Here is a quote from the petition itself:

For over 30 years, the rich have gotten richer, the poor have gotten poorer, and the middle class is slowly but surely being squezzed out of existence. Instead of more of the same corporate welfare/”trickle-down” economics that have been an abysmal failure for the middle class, why not try a trickle-up approach to rebuilding our economy by targeting relief at those most likely to actually help grow the economy?

I cannot speak to the merits of this proposal. It specifically mentions undergraduate student loans, but no mention of loans for graduate education (though I believe many of the programs are the same). However, it is a timely and relevant topic to our readers, so I thought it best to pass it along and provide you the links so you can read for yourself and decide whether you want to get involved.

Links

–          House Res. 365
–          The link to the petition
–          Sponsor List

DISCLAIMER: Relevant and constructive comments will be posted. Talking points, political vitriol, or otherwise bashing will not. All editorial decisions are made by me.

Persuasive Writing Can Be A Lot Like Job Hunting

Why do we submit our resumes on fancy resume paper that contains a watermark? And why do we spend so much time creating that “perfect” cover letter? Certainly the “merits” of our professional lives speak for themselves and employers look to hire the best person (most meritorious?) for the job. So why not use copier paper, instead? Why submit a cover letter at all (putting aside the obvious, “because it’s required” answer). I imagine it’s because we want to present our “merits” in the best light possible so that it will be easy for the reader to see just how qualified we are and how great a fit we will be. Briefs are no different.