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Advanced. Legal Writing & Editing Abridged Edition A LawProse™ Seminar presented by Bryan A. Garner @ LAWPROSE ‘We're changing the way lawyers communicate. This coursebook is proprietary material belonging to Bryan A. Garner and LawProse, Inc. It is not to be used except in LawProse seminars. Any request for permission to reproduce a portion of the coursebook must be directed to Karolyne H. Cheng, General Counsel, LawProse, Inc., 14180 Dallas Parkway, Suite 280, Dallas, TX 75254. Published by LawProse, Inc. 14180 Dallas Parkway Suite 280 Dallas, TX 75254 214-691-8588 ‘wwvelawprose-org Copyright 2013 by Bryan A. Garner & LawProse, Inc, All rights reserved Printed in the United States of America X Prtack Aer e Advanced Legal Writing & Editing Abridged Edition (02013 by Bryan A. Garner & LawPse, In All sights reserved “Read much, discuss much, ponder most, write a little.” —Professor Edward H. Warren! Harvard Law School “[AJn illiterate lawyer is a bad lawyer, and any lawyer becomes a better law- yer as his literacy increases.” —GWV. Nichols! “A carefully prepared, carefully stated, lawyer-like written argument is a work of art and a joy forever.” —E, Barrete Prettyman® 1 The Rights of Margin Customers Against Wrongdoing Stockbrokers and Some Other Problems in the Modern Law of Pledge vi (1941) 2 Of Writing by Lawyers, 27 Can. B. Rev. 1209, 1227 (1949). 3. Some Observations Concerning Appellate Advocacy, 39 Va. L. Rev. 285, 296 (1953). Contents Preface v Introduction. Fi Chapter 1: Three Conditions Precedent..... 5 1. Learn to read closely—always with an eye on technique, 6 § 2. Study nor just good writing, but also good books on writing. 10 § 3. Wrice letters frequently—and make them really good. 18 Chapter 2: Four Unshakable Tenets... e 2 $4. You must see things from your reader's position. 22 $5. You must economize with words. 27 $6. You must learn correctness. 31 $7. You must make ic interesting —with well-chosen words, identifiable characters, and a clear story line. 35 Chapter 3: A Solid Lead .. a $8. Leatn the deep-issue technique. 48 $9. Ina memo, summarize the analytical issues and your answers on page one. 54 § 10. Ina brief or motion, open with up to three persuasive issues. 64 § 11, Practice framing deep issues. 73 Chapter 4: A Lucid Train of Thought 7 § 12. Use headings effectively: make them pithy but substantive. 78 Chapter 5: A Potent Conclusion...... S13. Wrap up freshly —avoiding perfunctory goodbyes and verbatim recaps. 86 Chapter 6: Managing Yourself ........ § 14. Understand the four phases of writing. 92 § 15. For the inicial phases, try a nonlinear outline first—and then assemble your main propositions into a linear order. 101 § 16. Once you have an outline, write quickly. 109 § 17. Edit painstakingly. 111 Appendix: Model Documents... - ° H7 (0) Typed personal letcer 118 @) Research memo 120 @) Motion 126 Key to Exercises....... . 132 (©2013 by Bryan A. Garer & LawPr Inc. All sight reserved (©2013 by Bryan A. Garner & LPs Tne. All ight reseed Preface ‘This CLE coursebook has grown over 20 years as the text accompanying the most widely attended CLE course in the United States. From 1991 to 2010, more than 116,000 lawyers and judges attended the course. They helped me learn how best to develop and proportion the parts of the seminar in ways that made pedagogical sense. Teaching the course so widely, through 35 states, has given me a unique perspective on why lawyers tend to write so poorly—and what can be done to improve their skills, person by person. Originally, the developers of the course were Professor John R. Trimble, Professor Betty Sue Flowers, and me. Although I ended up taking the laboring oar with LawProse seminars, their seminal efforts gave us a sound start. Their own teaching experience is thoroughly imbued in the course materials. Many lawyers attend Advanced Legal Writing & Editing year after year, insisting that they take away fresh ideas each time. Effective writing instruc- tion is like that: it’s always tailored to one’s own struggles at a given time and place. And struggles there will always be as we seek to communicate ideas from one mind to another. Anyone alert to the ordinary experience of everyday life is familiar wich these struggles. Bryan A. Garner LawProse, Inc. 14180 Dallas Parkway, Suite 280 Dallas, TX 75254 (©2015 by Bryan A. Garner & Lavras, Ine. ll ightreserved BRYAN A. GARNER 14180 Dallas Parkway, Suite 280 Dallas, Texas 75254 Tel. (214) 691-8588 Fax: (214) 691-9294 Employment President, LawProse Ine; Dallas, Texas: Dec. 1990-present Speaker in public and private CLE programs; consultant on lega-writing and legal-drafting projects Distinguished Research Professor of Law, Southern Methodist University Dedman School of Law Visiting Associate Professor of Law, University of Texas, 1988-1990 Associate at Carrington, Coleman, Sloman & Blumenthal, Dallas, 1985-1988; Hiring Comm., 1987-1988 Lav clerk to Judge Thomas M. Reaviey, Fifth Circuit, 19841985 Author Garner's Modern American Usage (Oxford Univ. Press, Ist ed, 1998; 2d ed. 2003; 3d ed. 2009) (abridged as The Oxford Dictionary of American Usage and Style (2000)) The Winning Brief Oxford Univ. Press, Ist ed. 1999; 2d ed. 2004; 3d ed. 2013) The Wining Oral Argument (West, 2009) The Elements of Legal Style (Oxford Univ. Press, 1st ed. 1991; 2d ed, 2002) Gamer's Dictionary of Lega! Usage (Oxford Univ. Press, Isted. 1987; 2d ed. 1995; 3d ef, 2011) The Redbook: A Manual on Legal Style (West, Ist ed, 2002; 2d ed. 2006) Legal Writing in Plain English (Univ. Chicago Press, Ist ed. 200; 2d ed, 2013) The Rules of Golf in Plain English (Univ. Chicago Press, Ist ed. 2004; 2d ed. 2008) (coauthored with Jeffrey Kuhn) Ethical Communications for Lawyers (LawProse, 2009) Securities Disclosure in Plain English (CCH, 1999) “Grammar and Usage” chapter, Chicago Manual of Style (15th ed. 2003; 16th ed. 2010 ) Garner on Language and Writing (ABA, 2009) (with a preface by Justice Ruth Bader Gins- burg) HBR Guide to Better Business Writing (Harvard Business Review, 2013) Making Your Case: The Art of Persuading Judges (West, 2008) (coauthored with Justice Antonin Scalia) Reading Law: The Interpretation of Legal Texts (West, 2012), (coauthored with Justice Antonin Scalia) Editor in Chief Black's Law Dictionary (West, 7h ed. 1999: Sth ed, 2004: 9th ed. 2009: pocket eds. 1996, 2002, 2006, 2011; abridged eds. 2000, 2005, 2010) A New Miscellany-cat-Law, by Si Robert Megarry, retired Vice Chancellor of England and ‘Wales (2005) (completed and edited the book for 96-year-old friend who could no longer read) Texas, Our Texas: Remembrances of the University (Eakin Press, 1984) Professional Drafting consultant te: Activities + Judicial Conference ofthe United States (responsible for restyling the Rules for Judicial-Conduet and Judicial-Disability Proceedings), 2007-2008 + Standing Committee on Rules of Practice and Procedure, Judicial Conference of the United States (responsible for restyling amendments to federal rules, including wholesale rewrites of the Civil Rules, Appellate Rules, and Criminal Rules), 1992-1999 + United States Court of Appeals for the Tenth Circuit (restyling of local rules), 1998 * United States Court of Appeals for the Eleventh Circuit (restyling of criminal & civil jury instruetions), 2008-2013 (©2013 by Bryan A, Garner LawProse, ne Al righ eer Awards Education Clubs + Supreme Court of Delaware (restyling of Delaware civil and criminal jury charges), 196-2003 + Supreme Court of Texas (restyling of Texas Rules of Appellate Procedure), 1995-1996 + California Judicial Couneil (restyling of California Rules of Appellate Procedure and Judi cial Couneil Rules), 1997-2000 + California State Bar Court (restyling procedural rules for lawyer discipline), 2009-2010 Board of direetors, Texas Law Review Association, 20002009 Editorial advisory boards: + The Chicago Manual of Stple (15th ed, 2003—and chapter author) + The Copy Editor (journal), 2002-present + The Green Bog (journal), 2004~present Columnist, “Garner on Words,” ABA Journal, Aug. 2012-present Columnist, “Legal Writing,” Student Lawyer (ABA), 1999-present Founding editor, The Seribes Journal of Legal Writing (editor in chief 1990-2000) President, American Society of Legal Writers Scribes), 1997-1999 ‘Member, American Law Institute, 1992—present; ‘member and lead reviser, Special Committee on Bylaws and Council Rules, 1993-1994 (Chair, Plain-Language Committee, State Bar of Texas, 1989-1995 Consultant to the Oxford Dictionary Department, Oxford, England, on various dictionaries Including the Oxford English Dictionary 1988-present Life fellow, Texas Bar Foundation Member, Philosophical Society of Texas Visiting scholar: University of Salzburg, June 1995, July 1998; University of Glasgow, July 1996; University of Cambridge, Wolfson College, July 1997 2011 Canyon High School Hall of Fame (Canyon, Texas) 2010 Burton Award: Legal-Writing and Reference-Book Author of the Decade (Washington, DC, presented at the Library of Congress) 2010 Benjamin Franklin Book Avsard, given by the Independent Book Publishers Association (for Garner on Language and Writing, 2009) 2009 Burton Award for Outstanding Book in Law (Washington, D.C.) (for Making Your Case: The Art of Persuading Judges, coauthored with Justice Antonin Scalia) 2005 Lifetime Achievement Award, Center for Plain Language (Washington, D.C:) 2000 Seribes Book Award for Research and Writing (for Black's Law Dictionary, 7th ed) 1998 Outstanding Young Texas Ex Award 1997 Clarity Award for Clear Legal Writing, State Bar of Michigan (for role as principal sty listic reviser ofthe Federal Rules of Appellate Procedure) 1994 Henry C, Lind Award, Association of Reporters of Judicial Decisions (for significant contributions o the improved reporting of American judicial decisions) B.A,, 1980, University of Texas at Austin Phi Beta Kappa; Special Honors in Plan Il; Junior Fellows, 1D, 1984, University of Texas at Austin Texas Law Review, associate editor, 1983-1984; Friar Society, Abbot, 1983-1984 Honorary degrees: LL.D, Thomas M. Cooley Law School, Lansing, Michigan, 2000 LL.D. University of LaVerne, Ontario, California, 2007 LL.D, Stetson University College of Law, Gulfport, Florida, 2010 (May 2010) Grolier (NY), Cosmos (Washington, DC) Bent Tree (Dallas) vil (©2013 by Bryan A. Garner & Lose Ine. Al ight reseed CoG CCorer Got Crtamecntesnt an 59500790000 1G9000 YO Some writing is goods some is bad. Ie’s pretty easy to evaluate, Below are Introduction cight passages. Four are good, and four are bad. You'll probably readily see which ones fall into each category. In some the meaning will be immediarely clear to you; others will baffle you with their obscurity. Some will appeal to your ear; others you'll find repugnant. You be the judge. In the margin, mark the good ones with a G, the bad ones with a B: 1 603 wate 5 walk peadesy Feel tas, «© hygF 9, ATS ashes reeadear teal Ova 6 A signature on a pleading constitutes a certificate by the signator that the instrument is not groundless or brought in bad faith or for the purpose of harassment, except that a signature on a general denial will not provide a basis fora violation on these grounds. This case squarely presents questions of considerable importance. The Eighth Circuit’ opinion retroactively imposes an unconstitutional punishment without the kind of fair notice mandated by the Due Pro- cess Clause. While purporting to uphold an arbitration agreement that expressly precluded punitive damages, the Eighth Circuit reinstated an award of punitive damages 3,000 times greater than Stark’s actual dam- ages. This holding contravenes three important federal policies, each of which would independently warrant this Court's protection. First... In the case of a consignment that is not a security interest when the filing and notification requirements have not been met, the interests ofa person delivering goods to another is subordinate to a person who would have a perfected security interest in the goods if they were the property of the debror. . Nevertheless, che fact that the Named Plaintiffs likely cannot also be ‘members of the Repair Fee Subclass or the Recent Purchaser Subclass does not mean that their claims are not typical ofthe claims of the mem- bers of these proposed subclasses. 5, Constitutional guarantees have real meaning to those accused of crime: the shields raised by the Constitution do not dissolve upon the utterance of ritualistic words, and its promises mean what their plain language con- veys. (©2015 by Bryan A. Garner 8 LawPese In. All igh reserved 2 Advanced Legal Writing & Editing 6. Here we have more than the inconceivably slow unfolding of a “conspir- acy” These two years saw a continuing struggle for customers between In- & terborough and the 13 new wholesalers. Ar times Interborough gained; at others it lost. During the last yea, the struggle was intensive enough for Meyer to characterize it as a “dogfight.” That someone may lose this sort Jo ofstruggle is pechaps a regrettable feature of the free-enterprise economy. nM" Bue the word for what happened is not “conspiracy. It is “competition.” fe oi 7. The question whether a product accused of infringement is an “equiva- lest" ofthe daimed invention isan tse of fact, and this Court gave & specific guidance to the Federal Circuit on how to review such a factual determination, But the Federal Circuit balked, threw up its hands, and instead, in Judge Michel's words, “by-passed the all-elements rule alto- gether.” This is profoundly wrong in law, in logic, and in policy. 8. Of even greater significance, would be the plaintiff who claims he has “0 lung cancer and is a member of atrial group that is comprised of himself and four other plaintiffs complaining of pleural plaques compared to another plaintiff who also complains of lung cancer but is joined in atrial group of himself and four other plaintiffs complaining of mesothelioma In my experience, most seminar participants have little trouble intuitively dis- tinguishing the good from the bad. Buc they have a hard time providing con- crete reasons for their preferences—apart from using adjectives such as unclear, confusing, and incoherent, ox clear, straighsforward, and interesting. One major purpose of this seminar is to enhance your ability to analyze the stylistic quali- ties that make some writing good and other writing bad. Of course, no writer produces bad work on purpose. The writer just doesn’t know how to do betier. Offering advice and suggestions —such as eliminating redundancy, replacing fancy expressions with simple ones, and introducing signposts —makes little if any impression if the writer can’t recog- nize redundancy, see opportunities to simplify, ot see the need for signposts. All these things require judgment. And while rules can be taught, judgment is a trickier matter: judgment is a matter of when to apply the rules. That's not something that you can memo- tize. Judgment isn’t so much something that you can be taught so much as it is (©2013 by Bryan A, Garner & Laws, In. All ight reserve Introduction 3 something you can develop, perhaps by yourself'and pechaps with the help of training. If you want to improve your style, you must develop stylistic judgment. You must learn to distinguish good writing from bad. (Accept that in law, you'll see much more bad writing than good.) You must become and then stay sensitized to bad writing. And you must keep this critical sense active in all your reading, whether it's a newspaper, a law journal, a biography, a novel, or a treatise on eminent domain. “Ifyou love language, it will love you back.” ‘Again and again, whatever the genre, you'll see the —John Simon truth in Professor John Trimble’s maxim: good writing makes readers feel smart, while bad writing makes readers feel stupid. (Re- member that name—John Trimble—and look him up in the bibliography) If you can't understand something you're reading, you shouldn't assume that you're dull-witted or that the subject is simply over your head. Instead, you can safely assume that the writer isn’t much of a writer. A good writer who knows a subject well can make almost any point seem readily intelligible, even with an arcane topic. By the way, some lawyers question whether they should write really well— by the standards developed in this course—or should instead mimic the wood- en style of the courts they're writing for. Ie’s a rather puzzling question. Do you suppose that just because most people can't write interesting, first-rate novels, a professional novelist should try to write uninteresting, mediocre (or worse) nov- els, with poorly developed characters and a muddy story line? Would any good writer really suppose that this is what the public clamors for? No. Nor do judges clamor for mediocre briefs. Far from it. Yet they see litele else—and, of course, that impairs their own ability to turn out excellent judicial opinions. ‘This seminar teaches how to give all your readers something well above the mediocre legal writing that inundates most law offices and most courts. It explains how to consistently achieve excellence wich the written word. (©2013 by Bryan A. Garner 8 LawPese Inc. Al gh reserved 4 Advanced Legal Writing & Editing ‘That's half the lawyer's job because there are only two things lawyers get paid for: writing persuasively and speaking persuasively. It’s not as if those are two important things among many. They are the only two things. That’ it. And your writing comes first. When you improve your writing, your speaking will automatically become better, ‘The contrary isn’t necessarily true at all, Now let’s return briefly to those eight passages. Of the four good ones, two were written by Jay Topkis of New York City; one by ‘Theodore B, Olson of Washington, D.C, and one by Robert H. Bork, also of Washington, D.C. ‘These writers share a habit of clear, bright exposition and argument. In that, of course, they stand well above the crowd. ‘And what exactly isthe crowd like? Having spent over two decades closely studying legal writing, particularly that of practicing lawyers, I'd say that 80% of lawyers have a style akin to that of the four bad passages. (Most of these actually believe that they're good writers) Perhaps only 2% can produce prose similar to that of the four good passages. And perhaps 18% are somewhere in between. “The habit of writing clearly and persuasively isn’t one you're born with. Almost anyone can cultivate it to a significant degree. Ie’ true that not every- ‘one can become a masterly stylist. Not everyone has the patience and fortitude to develop the necessary knowledge and skill. But almost everyone can become competent, most can become better than competent, and a few will become true experts. A big part of competence is attitude. To do a job well, you must take pride in what you're doing, If you believe that, then you'll probably come to believe in the importance of doing things better than they've customarily been done. (02013 by Bryan A. Garner 8 LawProi, ne Al ight seve CHAPTER 1 Three Conditions §1. §2. §3. Precedent Learn to read closely—always with aneyeontechnique. 6 Study not just good writing, but also good books on writing. 10 Write letters frequently—and make them really good. 18 (©2015 by Bryan A. Garner & LawPsse Ea. Al elghts reserved 6 Advanced Legal Writing & Editing § 1. Learn to read closely—always with any eye on technique: You need to get serious about reading, Read every day. Savor what you take in, Read a short piece once for substance, then again for style. Pay atten- tion, Notice how sentences begin, and how they end. Notice the tran- “Start by reading the books that write) 4 xs read, What are those bone? Te sitional words, Notice the variety in begin with, there are six: the Bible, sentence lengths. Notice the verbe— the plays of Shakespeare, Bullfnch’s | how seldom or how often the writer Rueben iHome neGat uses i, are, was, and. were. Count plays, and Ruch Benedict’s Parterns of | the sentences beginning with And, 1 But, So, and Yet. How many of these Culture, Bach person trying to become educated should own these books and | begin paragraphs? See whether the end of the piece somehow ties in with the beginning—and consider how the writer managed the tie-in, have them on his own shelf, along with a good dictionary or two. He cannot know these six books too well.” —Donald J. Lloyd & Harry Warfel ‘What should you read? First- pene rate newswecklies are a great start. He expansion The New Yorker, pethaps. Or The Atlantic Monthly, The New ‘ork Review of Books, or The New Republic. When you like ot dislike some- thing, ponder why that is. It probably won't be the subject matter: it will be the writer's treatment of the subject. When you know that much, you're starting to read for technique. You might want to take stock of your reading to date. Do you know who the following people are (or were)? Can you name something that each one has written? James Agee James Baldwin Jorge Luis Borges Isabel Allende Jacques Barzun Joseph Brodsky Kingsley Amis Saul Bellow Bill Bryson Barbara Armstrong Arnold Bennett Christopher Buckley Matthew Arnold Daniel J. Boorstin James Branch Cabell (©2015 by Bryan A. Garner 8 LawProse, Ine: Al igh esevd Chapter 1: Three Conditions Precedent 7 Robert A. Caro G.K. Chesterton Winston Churchill Norman Cousins Michael Crichton Sir Arthur Conan Doyle Will Durant Barbara Ehrenreich Umberto Eco Albert Einstein T.S. Eliot Joseph Epstein Jonathan Franzen Doris Kearns Goodwin A. Herbert Christopher Hitchens John Irving Pico Iyer Randall Jarrell Pauline Kael Alfred Kazin ER. Leavis Nicholas Lemann Primo Levi C. Day Lewis Even if you haven't read their work, you'd know something about them if you've spent any appreciable time reading widely. Te would be hard ro escape that know!- edge. If most of those names draw a blank for you, don’t be dismayed. Start read- CS. Lewis ‘Walter Lippmann David Lodge Dwight Macdonald Gabriel Garcia Marquez Cormac McCarthy David McCullough Larry McMurtry John McPhee George Meredith James Michener Christopher Morley Toni Morrison VS. Naipaul Vladimir Nabokov George Orwell Cynthia Ozick Dorothy Parker George Plimpton Norman Podhoretz VS. Pritchett Annie Proulx Arthur Quiller-Couch Herbert Read LA. Richards Andrew A. Rooney Salman Rushdie Bertrand Russell Carl Sagan David Sedaris George Bernard Shaw Logan Pearsall Smith Muriel Spark Stephen Spender Robert Louis Stevenson James Thurber E.MW. Tillyard Calvin Trillin Barbara Tuchman Mark Twain John Updike Charles Van Doren David Foster Wallace Robert Penn Warren HG. Wells E.B. White Oscar Wilde Tom Wolfe Virginia Woolf Ben Yagoda “The best way of learning how to write is first ro read the best examples in their kind and try to profit from the technique of the masters.” —S.P.B. Mais ing more, Read good magazines—whatever you happen to enjoy. Just be sure youre reading for technique. Baeticadl (©2013 by Bryan A. Garner & Lawson: lights seed 8 Advanced Legal Writing & Editing Let's say you're interested in deepening your legal literacy: you want to learn more about our legal culture and heritage. You'd do well to read books by these authors. Google them to find out which ones pique your interest. To the well-read lawyer, these are familiar names whose books form part of the core of superb legal literature: Carleton K. Allen Leon Green Tom Bingham Gerald Gunther Charles L. Black HLA. Hart WW. Buckland William Holdsworth Benjamin N. Cardozo Oliver Wendell Holmes Arthur Corbin ‘Tony Honoré Rupert Cross Robert H. Jackson Clarence Darrow GW. Keeton Lord Denning Robert E. Keeton Patrick Devlin Karl Llewellyn Frank H. Easterbrook EW. Maitland E. Allan Farnsworth Harold R. Medina CHS. Fifoot Robert E. Megarry Jerome Frank John Mortimer Paul A. Freund Wesley N. Hohfeld Lawrence. Friedman Louis Nizer Lon Fuller John T. Noonan Grant Gilmore John V. Orth Ruth Bader Ginsburg David Pannick Arthur Goodhart ‘Theodore FT. Plucknett John Chipman Gray Frederick Pollock Roscoe Pound ‘Thomas Reed Powell E. Barrett Prettyman Max Radin Fred Rodell John Salmond ‘Antonin Scalia Jacob A. Stein James Fitzjames Stephen Kathleen Sullivan Paul Vinogradoff Timothy Walker Elizabeth Warren Francis L. Wellman John Henry Wigmore Glanville Williams Samuel Williston Diane Wood Charles Alan Wright Lord Wright of Darley Charles Wyzanski ‘There are some great books about cultivating your literary tastes—how to read astutely, what to look for, and how to deepen your ctitical insights. Some of my favorites are these: © Mortimer Adler, How to Read a Book (rev. ed. 1972). Arnold Bennett, Literary Taste: How to Form It (1911) (dated but still valuable). © Harold Bloom, How to Read and Why (2000). © Francine Prose, Reading Like a Writer (2006). @ LA. Richards, How to Read a Page (1942). © Denys Thompson, Reading and Discrimination (tev. ed. 1955). (02013 by Bryan A. Garner & Larsen. All ight served Chapter 1: Three Conditions Precedent 9 1 Takeaways Checklist: Take stock of yourselfas a reader. Y Learn all chat you can about legal literature, v Vow to read more and better nonfiction—as wel as fiction, ifyou like. Listen to suggestions about what to read, but decide for yourself what appeals to you. Avoid reading from a sense of “duty”: read what you like. Y Meanwhile, seek to upgrade your tases, ¥ Ingrain the habic of reading for technique. Further Reading: The Elements of Lge Ses 221-22. Garner on Language ana Writing at 6-17, 709-47, Writing with Spe 5-6. (©2013 by Bryan A. Garner & Laws In. All ight seed 10 Advanced Legal Writing & Editing § 2. Study not just good writing, but also good books on writing. ‘Although you learn a skill by doing i, you'll improve your habits by ex: posing yourself to wise instruction. And when it comes to writing instruction, there are two major types of books. First is the desk reference that deals with all kinds of minutiae about phrasing. Have ready access to at least three of these: © The Chicago Manual of Style (6th ed. 2010). © Fowler's Modern English Usage (Ernest Gowers ed., 2d ed. 1965). © Garner's Dictionary of Legal Usage (3d ed. 2011). © Garner's Modern American Usage (3d ed. 2009) Browse them. Consult them. Get to know them a little bit aa time. They give guidance on countless pesky questions of wording. You'll need to browse pre- cisely to know what those questions are. “Letno man .... look down on the elements of gram- But then you also need a second type of book: a chapter-by-chapter analysis of good writing. Read one per quarter. Here’s a suggest- ed three-year reading plan; SS John R. Trimble, Writing with Style (3d ed. 2011). . William Strunk & E.B. White, The Elements of Style (4th ed. 1999). . David Lambuth, The Golden Book on Writing (rev. ed. 1976). Sir Ernest Gowers, The Complete Plain Words (ir Bruce Fraser ed., 1973). 5. Robert Graves & Alan Hodge, The Reader over Your Shoulder mar as small matters.” —Quintilian ee (©2015 by Bryan A. Garner EL XL 1, Tne Al igh eserved. Chapter 1: Three Conditions Precedent a 6. Rudolf Flesch & A.H. Lass, The Classic Guide to Better Writing (50th anniv. ed. 1996). G@ Patricia T. O'Conner, Woe Js (3d ed. 2010). (Anne Lamott, Bird by Bird: Some Instructions on Writing and Life (1995). 9. Bryan A. Garner, The Elements of Legal Style (2d ed. 2002). (GD William Zinsser, On Writing Well (30th anniv. ed. 2006). 11. Richard Mitchell, Less chan Words Can Say: The Underground Grammarian (1979). 12. Stephen King, On Writing: A Memoir of the Craft (10th anniv. ed. 2010). Ifyou want a jump-start, try one a month. You'll have made great strides in a year. I promise. You want an even more in-depth knowledge, you say? Then let’s continue with a dozen more. I can enthusiastically endorse these over thousands of oth- ers I've read. Thousands? Yes: The LawProse library contains 3,000 to 3,500 books devoted to the art of writing, These are among the very best: 13. Henry Seidel Canby, Better Writing (1926). 14, Charles W. Ferguson, Say It With Words (1959). 15. James J. Kilpatrick, The Writer's Art (1984). 16. Betsy Lerner, Forest for the Trees: An Editor's Advice to Writers (2000). 17, Richard Marius, A Writer's Companion (1985). 18. Gorham Munson, The Written Word: How to Write Readable Prose (1949). 19, Lucile Vaughan Payne, The Lively Art of Writing (1965). 20. Stephen Wilbers, Keys to Great Writing (2000). 21, John Gardner, On Writers and Writing (1994). 22,Norman Mailer, The Spooky Art: Some Thoughts on Writing (2003). (©2013 by Bryan A. Garner &LaProse Tne. All rights reseed 2 Advanced Legal Writing & Editing 23, Joyce Carol Oates, The Faith ofa Writer (2003). 24, Ayn Rand, The Art of Nonfiction (Raymond Mayhew ed., 2001) (published posthumously from lectures given in 1969). Of the thousands of other books available on writing, I might briefly mention two others that are out of print. The first is Walter S. Campbell’s Profesional Writing (1938), which has wonderfal tips on reading for technique. ‘The other is Robert Gunning’s The Technique of Clear Writing (tev. ed. 1968), which is chock-full of stunning examples “Contrary tall schools ofarcand ) how to defog prose in business and aesthetics, writing issomething | government. By the way, if you want to onecan learn, There is no mystery | Puild an inexpensive library of books on feat writing, the Internet has made it casy —Ayn Rand | fF yout go to or, and you'll find the cheapest copies available, In the four pages that follow, you'll see samples of what these superb books hold in store for you. And remember this: “Never make the mistake of assuming that good writing is beyond your capacity. Many students have been discouraged by the misconception that one either knows how to write or one does not.”* Ie time: anyone with normal athletic ability can learn to shoot a basketball or hit a golf ball. Anyone with normal musical aptitude can learn to play a musical instrument competently. And anyone of verbal intelligence can learn to write well. “GY. Nichols, Of Whiting by Lauyers, 27 Can. B. Rev. 1209, 1227-28 (1949). (©2013 by Bryan A. Garner & LawPron In. All ight served Chapter 1: Three Conditions Precedent B Sample page from The Chicago Manual of Style (16th ed. 2010). PROPERTIES OF VERBS ivepropertias of verbs. A verb as lveproperties: voice, mood, tense, per- son, and number, Active and passive oice. Voice shows whether the subjectacts (active voice) orisacted on passive voice)—thatis, whether the subject performs orre: ceives the action ofthe verb. Only transitive verbs are said to have voice, ‘The lausethe udge levied a $50 fines in the active voice because the sub- ject judge is acting, But the tre’ Branch was broken by the storm is in the passive voice because the subject branch does notbreakitself—itisacted ‘on by the object storm. The passive voice i always formed by joining an inflected form of be (o, in colloquial usage, gt) with the verbs past par- ticiple, Compare the ox plls the car active voice) withthe cartis pulled by the ox (passive voice) A passive-voice verb in a modifying phrase often. ‘has an implied be-verb inthe advice given by the novelist, the implied (or understood) words that was come before given; so the passive construc tion is was given. Although the be-verb is sometimes implied, the past participle must always be expressed. Sometimes the agent isn't named {his tires were slashed). Asa matter of style, passive voice (the matter will be given careful consideration) is typically, though not always, inferior to active voice {we will consider the matter carefully). The choice between active and passive voice may depend on which point of view Is desired. For instance, the mouse was caught bythe eat describes the mouse'sexpe- rience, whereas the cat caught the mouse describes the cat's Progressive conjugation and voice. If an inflected form of be is joined with another verb's present paticiple, a progressive conjugation is produced {the ox i pulling the cart). The progressive conjugation is inthe active voice because the subjects performing the action, not being acted on, “Mood. Mood (or mode! indicates the manner in which the verb expresses an action or state of being. The.three moods are indicative, imperative, and subjunctive. Indicative mood. The indicative mood is the most common in English. It {susedto express factsand opinionsand toask questions (amethysts cost very litle} {the botanist lives in a garden cottage? {Does that bush produce yellow roses?) Imperative mood, The imperative mood expresses commands (Goaway!), directrequests {bring thetray in here}, and, sometimes, permission {Come int}. The subject of the verb, you, is understood although the sentence 25 (©2013 by Bryan A Garner & Lawre, In, Al ight reeved ui Advanced Legal Writing & Editing Sample page from Garners Modern American Usage (3d ed. 2009). ‘this pronounce fl. Whether the version wth fut the medial f (th) 8 mispronsneition, @ Ist pronunciation, or «easel pronunciation Is . The ‘ierence placement between he as baton hardy fand he was ry beaten set enough fo lina R& Feat 7 TrLowen kar opm Te neprrckae 6. ese Heo: ym Care Ayan, the eau real bores ay syekare G ae Te cle! pechkat free %50 000 ae ‘Take this one from 52 words to 14 or fewer words (no change in meaning, please). Arbitration asa.means of settling disputes selating to contractual disputes was ac‘dné time viewed by thecourts with disfavor, but -in-the current legal arena-arbitration is heing-used frequently, with full judicial approval, for the resolution of litigated issues in J disputes that have arisen out of contracts. See Ag hitaaTiee wtb Cree vite Th Sa rhnaon ee ED cond Ea ReyD) abraatnn ot sae oo. hE re eat gpa Coepocetts ured nt 7 uw ATK of ages ele gil Toa fas peesreactea € yp ler, % Hn eadoare Then, (©2013 y Bryan A. Garner & LawProe, In, All ight ered 30 Advanced Legal Writing & Editing § 5 Takeaways Checklist: VY Besevere with yourself about cutting extra words. Y Be wary of verbose expressions such as is able o for ean make adjustments to for adjust, and provide protection to for protect. Y Make ica habit before finishing a document to read it for no purpose other than eliminating unnecessary words. Further Reading: The Flemens of Lega Seat 93-57, 198-203. Garner on Language and Writing a 10, ¥49-50, 443-44. Legal Writing in Pin English at 24-27, 50-57. ‘Making Your Case The Are of Perualing Judge at 23-25, 182 The Redbook: A Manual on Legal Syleat 176-77, 183-94, 320, The Wenning Briefe 212-15. (©2013 by Bryan A. Gare LewProse, Ine. All igh esered. Chapter 2: Four Unshakable Tenets 31 § 6. You must learn correctness. Sloppy, substandard, ungrammatical language irks educated readers. It distracts them and makes them less likely—even averse—to aligning them- selves with you. Wrong words are like wrong notes in music: they spoil the tune. And wrong words make readers stop thinking about your message and start pon- | “A lawyer isa professional .. . dering your educational deficits. in whom poor English should not be tolerated.” What has your schooling taught you ee eee aver about writing? Much of what you remember may well be wrong, And in any event, you couldn't possibly have learned all that you need to know if your goal is to write to professional standards. Try this simple quiz: A. How might we help [() affect, @ (Detect) a _ reconciliation between these litigious siblings? Vo. How [(a) big of a, (b) big a] lawsuit is it? @ Tellme B) have] either of our clients artived yet 4, Neither of your answers (a) ne comect.. esses eee Nether you nor gaa are} responsible... Have you ever (@) swath, (swam in that pool?........ 7. In the end, all the defendants got their just (@) deserts, (b) desserts}... eeeevseeeeeeeeees 8. She's one of those lawyers who (@pdon’s, (6) doesn) give up easily... sees A: Sell continue the questioning «ill,@) "ll three o'clock... aee Gina Sheri the precise prob (©2013 by Bryan A. Garner 8 LawProse In, All ight reseed 32 Advanced Legal Writing & Editing T'll tell you the answers. If you correctly scored 80%, congratulations: you've learned pretty well. If you scored under that number, you have some serious work ahead of you. It can be a humbling experience. Remember the desk references mentioned in § 2? They supply ready answers to cach of the quiz questions, and to thousands mote. Over time, you must sensitize yourself to al the nuances of word-choice that need checking out. Know your weaknesses and turn to these references often. And assure yourself that you really do know the difference between a linguistic foul ball and a fair one. "You can’t gain your reader's confidence by making mis- takes, no matter how slight.” —Jerome H. Perlmutter ‘The fact is that there is more to English grammar and usage than you'll be able to remember. But let’s say you'd like a firm grasp on the top usage points that pointedly distinguish refined from sloppy language. Here’s my top-25 list, which you'd do well simply to memorize. Asterisks here mark constructions chat typify uneducated English. 1. Right: [el bad. Wrong: “I feel badly Right: [fel good. (This means “I feel contented.”) Right: Ife! well. (This means “l feel healthy.”) Right: Just between you and me, — Wrong: Just *berween you and yoR BN Right: He expected Helen and me Wrongs *He expected Helen and I 10 help him. t0 help him. 6. Right: [couldn't care less. Wrong: I *could care less. 7. Right: I'm going to lie down. Wrong: I'm going to “lay down 8. Right: Yesterday I lay out in the — Wrongs Yesterday "laid out in the sun. sun. 9. Right: Many times Ihave lain Wrong: Many times Ihave “laid out out in the sun. in the sun. 10. Right: [played well. Wrong: “played good. (©2013 by Bryan A, Garner & Lawiose, Inc. All sgh reseed Chapter 2: Four Unshakable Tenets 33 18. 19. 20. 21. 2. 23. 24, 25. 26. 27. 28. 29. 30. . Right: I'm doing wel. Right: Where are you? . Right: If had been there... . Right: I'm a lawyer; as such, Thave fiduciary duties . Right: The letter was sent by accident. Right: / wish I were smarter. ~. Right: Learning grammar is more fan than learning algebra. Right: / could have done it. Rights in regard to. Right: fewer items. Right: smaller number of people. Right: two pairs of shoes. Right: Anyway, he denied it Right: He was undoubtedly guilty. Right: preventive. Right: There are lots of reasons. Right: as best she can. Right: regardless or irrespective. Right: If had gone there years «go, I would have saved so much money. Rights: mischievons. Wrong: I’m “doing good. ‘Wrong: *Where are you at? Wrong: IfT*had have been there... Wrong: I've been hired on the case; "as such, Ihave fiduciary duties. Wrong: The letter was sent “on accident. Wrong: “I wish I was smarter. Wrong: Learning grammar is *funner shan learning algebra. Wrong: “could of done it. Wrong: “in regards to. Wrong: ‘less items, Wrong: “smaller amount of people. Wrong: “no pair of shoes. Wrong: "Anyways, he denied it Wrong: He was *undoubtably guilty. ‘Wrong: “preventative. Wrong: *There’ lots of reasons. ‘Wrong: “as best as she can. Wrong: “irregardless. Wrong: [fT “would have gone there years «ago, I would have saved s0 much money. Wrong: *mischievious. (Am asterisk precedes invariably inferior linguistic forms) (©2013 by Bryan A, Garner 8 Law Pro In. All ight seed 34 Advanced Legal Writing & Editing § 6 Takeaways Checkti ‘Take stock of your real knowledge of English usage. Rid yourself of linguistic superstitions. Bolster your linguistic know-how. Have enough self knowledge to check out your hunches about good usage by consulting reputable authorities. a». a4 Further Reading: The Element of Legal Seat 99-147 Gayneron Language and Writing a. 218-235, 493-96, 616-17. Legal Writing in Plain English at 165-68. The Redbook! A Manual on Legal Sole at 24546. ‘The Winning Briefe 391-93, (©2013 by Bryan A. Gamer & LaProe, Tne. Alsight eserved Chapter 2: Four Unshakable Tenets 35 § 7. You must make it interesting—with well-chosen words, identifiable characters, and a clear story line. §7.1 Brighten your style. ‘To be interesting, writing must have three qualities: (1) choice phrasing, (2) vivid depictions, and (3) characters who do things. True, some types of egal matters are more intrinsically interesting than others, But any case can be dramatized. Choice “All subjects, except sex, phrasing and vivid depictions require a thorough | are dull until somebody grounding in word-choice, Sound characterization | makes them interesting,” requires sensible choices in naming the actors in —Paul Roberts your narrative. And explaining to your reader (such as.a judge) how matters got to this stage requires considerable story-telling skills. ‘The way you phrase your ideas is critical. A nondescript version can induce sleep—as here: “This argument assumes that the plaintiff receives the EAJA fee, then gives itto the attomey, who then gives it back to the client if tis less than the § 406(b) fee. There is no evidence that Congress contemplated EAJA fee checks being involved in transferences back and forth between attorneys and their clients. But if you word the ideas as real writer would, your readers will snap to atten- tion—as with this rewrite: This unlikely scenario has the plaintiff receiving the EAJA fee and hand- ing it over to the attorney, who then shuffies it back to the client ifie is less than the § 406(b) fee. There is no evidence that Congress contem- plared such antics, (©2013 by Bryan A. Garner & Law Peo In. Al ight exer 36 Advanced Legal Writing & Editing This is not just an idiosyncratic opinion. Consider what Chief Justice John Roberts said when I interviewed him in 2007: Every lawsuit is a story. I don't care ifi's about a dry contract interpre- tation; you've got two people who want co accomplish something, and they're coming together—that’s a story. And you've got to tell a good story. ... [Alnd you want it to be litle bic of a page-turner, to have some sense of drama, some building up to the legal arguments. A big part of story-telling depends on timing and pacing, but another big part is word-choice and phrasing. All these qualities, plus characterization, deter mine how well you dramatize your ideas. § 7.2. Expand your verbal repertoire. Ifyou want to write really well, you must stock your mind with an ample vocabulary. You need words at your disposal. Lots of them. Interesting words. Apt words. Your real vocabulary is measured not by how many words you can recognize, but by how many you can call up and use. Adopt this little fiction: there’s a right “A rich vocabulary has its word for every place in the text, and your job embarrassments, but these} isto find that right word. My own mentor in are tobe preferred tothe | che practice of lav, Marvin Sloman, held this embarrassments of poverty.” | yiew—and I'm sure he helped instill it in me.? —G.H. Vallins You may well decide to forgo the word exiguous—preferring meager or scanty instead—but you should know the word. For that matter, you should know all the “SAT words,” which aren’t really mouth-stretchers at all; they should be part of your everyday word choices, even in speech. (Believe it or not, writers work at this, though many commonly disclaim ic) My own view is that every child in your household ought to be exposed to abstemious and bumptious and facetious and garrulous and jejune and 1 Interview of Chief Justice John G. Roberts, 13 Scribes J, Legal Writing 16 (2010). 2 See Garner, Finding Good Writing Mentors, Scudent Lawyer Jan. 2011, at 20, 21-22. (©2013 by Bryan A. Garner 8 LawPros Inc.All ihe served Chapter 2: Four Unshakable Tenets 37 lachrymose and perfidious and remonstrate and stygian? Why? Because you live there. And you're a professional wricer. That's how I see it. Now maybe thar'sa stretch. Bur you'd do well to enrich your vocabulary. Accomplished writers cultivate the tools of their trade. You'll want a much big- ger vocabulary as a reader than you'll actually use as a writer, For one thing, you'll bea more astute reader. (A typical high-school ‘There used to be studies finding that the more graduate knows about successful the person, the bigger the vocabulary— 60,000 words; a whatever the field of endeavor.‘ It seems to be true in} literate adult, perhaps business, in the arts, and certainly in law. Whether or | twice that number.” not that correlation would hold up in contemporary —Steven Pinker scudies—and I wager it would—you'd do well to as- sume that it’s true. ‘Ac the University of Texas at Austin, the Harry Ransom Center holds the noted writer David Foster Wallace's papers, among which are vocabulary note- books that he used for building his word-stock. Many writers do this kind of word-collecting, My own adolescent vocabulary notebooks are eerily similar to ‘Wallace's. Here’s a page from my longest notebook, of some 600 pages, written, when Iwas 16 years old: 3. Did you know there’sa word for using lots of ands in a listing this way? Sure. Ic’ called polyiyndeton fpabl-ee-sin-di-rah. 4 See Johnson O'Connor, English Vocabulary Builder xii-xv (1948). Cf. Cecil W. Mann, “Vocabulary and Intelligence.” in Twentieth Century English 116, 121 (William S, Knickerbocker ed., 1946) (“Sufficient evidence has accumulated to demonstrate that intelligence is manifested in the use of Funesional language, and that vocabulary— qualitatively and quantitatively—is one important measure of intelligence.”). (©2013 by Bryan A. Garner 8 LawPeoe Inc Alrights esecved 38 Advanced Legal Writing & Editing ” arith 2 porton adoled hb lyial apt Ve sot ob polanie ctbchsm— breakehy, down 5 raphe onkte te delror «bug. or graudibaent oro aE i dan —h make poetlst dace Sayer itr del Aimee gla el Yonencte — poiton; to abject with « Shrie subabmue grrtclent— hay, « strony or AMbasive smell; rank; SebH. recrehian — long hived. ralitom — tars; mechedithn Paurteou— Khevally beibmoed. sontily — te rondhe wsiversal omnist — believer in all rehiyoas sbolous — sandy 5 ot Frampth— old-Hshinned; doudhy <~ crac P. Ines — syphil, —— luehc, leheely isnt — dnb 5 heat Beheldin — indebted nourse — not he all. cthude——h Beer, pres, 0 pack ont vepine—h feel = Seo ial 0 dbcoitedt: soldas —dligual; niga. aaa elise —%b mack as gpuribas anleg Cin lis 2) te Leela ou subeqent olelpwostt cla] — excremoal. espobl Che Sop ot 1) prrsading tome abot desmned, X Sample page from a vocabulary notebook. (©2013 by Bryan A. Garner 8 LawProse, Ine. All igh reserved Chapter 2: Four Unshakable Tenets ED Maybe you feel as if you should have started long ago. Yet it never too late. All you must do is consider ita mortal sin to read past a word you don’t know. You must record it, look ic up in a reliable dictionary at the next opportune mo- ment, copy down its definition, and (ifs potentially useful) commit ieto | “By keeping their sense for words alert, memory. Then try to use it conver- and refined, good writers constantly sationally (I kid you not) within the | enlarge and enrich their vocabulary.” next 48 hours. (Make sure your ex- —John F, Genung perimenting does not take place dur ing oral argument!) At first you may feel alittle foolish, but in time you'll realize that this is an important part of your continued intellectual growth. Start analyzing the English vocabulary. Ies natural to dislike unnecessarily difficult words for ordinary ideas (such as esurient for hungry) and to appreci- ate words that have no simpler equivalent (such as coterie or enthymeme). You'll soon become a connoisseur (not to say a “cognoscente”) of English words, and your well-supplied mind will call up words with greater and greater facility. Every effective writer undergoes this type of personal growth. Oh, and you'll never be caught in the embarrassment of thinking that enervate means “to invigorate” (jt means “to weaken”) or that proseribe means “to require” (it means “to prohibit”). People who aren’t verbally conscious com- monly mistake the meanings of words. A lawyer ought to have at the ready thousands of such serviceable words as these—with absolutely no hesitation about how co pronounce them: abhorrent antithesis blithe countenance aboveboard apocryphal bowdlerize cynosure adornment ascetic braggadocio dally adulation asperse calumny decrepitude affectation athwart chimerical deign affliction atonement circumvent denouement aleruism bagatelle commodious _disinter anathema bellicose contrite dross And we're only scratching the surface of A-D. (©2013 by Beyan A. Gamer 8 LawPzoe In. All ight reed 40 Advanced Legal Writing & Editing Effective writers make their subjects interesting; ineffective writers make them dull. It comes down to that. So you must fret over your phrasing and worry about whether you've said what you want to say in the best possible way—both truthfully and elegantly. In good writing, you'll typically find mostly small, ordinary words defely ficted together. But then you'll hit upon the one or two choice words that make all the difference—a slightly offbeat, pi- quant phrasing that most average writers would never hit upon. It’s not difficult to spot the attention-getting word choices in these passages: © “Bentham used co igi violently against the phantoms produced by this artificial treatment of evidence and the ceavesty of right that was often pro- duced by it. His philippig were nor in vain, and a great many simplifications and improvements have been achieved since his time.” Paul Vinogradoff, Common-Sense in Law 92 (1925). © “Independence does not mean CabtaiiKerOusnes, and a judge may be a strong, judge without being an impossible person. Nothing is more distressing on any bench than the exhibition of a €apti6ls, impatient, quer spirit.” Charles Evans Hughes, The Supreme Court of the United States 68 (1928). 1 “[Nlo advocate can be a great pleader who has not a sense of literary form and ‘whose mind is not stored with the treasures of our great literary inheritance upon which he may draw at will. The fortune of an argument depends much more than is commonly realized on the literary gab in which itis presented.” Rt. Hon, Lord Macmillan, “Some Observations on the Art of Advocacy” (1933), in Law and Other Things 200, 210-11 (1937). © “Learning the lawyers’ talk and the lawyers’ way of thinking—learning to discuss the pros and cons of, say, pure food laws in verms of ‘affection with a public interest’ as against “interference with freedom of contract’—is very much like learning to work GI¥ptOgAaNRE or play bridge. Ie requires concen- tration and memory and some analytic ability, and for those who become proficient ic can be a stimulating intellectual game. Yet those who work cxyptograms or play bridge never pretend that cheir mental effores, however difficule and involved, have any significance beyond the game they are play- ing. Whereas those who play the legal game not only pretend but insist that their intricate FatiGEiRAEIOHS in the realm of pure thought have a necessary relation to the solution of practical problems. It is through the medium of their weird and wordy mental gymnastics chat the lawyers lay down the rules uunder which we live. And it is only because che average man cannot play their (©2013 by Bryan A. Gamer & LawProt, Ine Al ight serve Chapter 2: Four Unshakable Tenets 41 game, and so cannot see for himself how intrinsically empry-of meaning their playthings are, chat che lawyers continue to get away with it.” Fred Rodel, Woe Unto You Lawyers! 15 (1938). “I note with deep and increasing regret that some jurists on the bench and many jurists off the bench evidence no instinct for simplicity or €SCHES of expression. They clothe their thoughts with a pr6digality of drapery that ‘ought to be repulsive to the wholesome-minded.” Edward H., Warren, The Rights of Margin Customers Against Wrongdoing Stockbrokers and Some Other Problems in the Modern Law of Pledge v (1941). “We need intelligent public opinion. I don’t mean the periodic, Spasiniodie indignation at wrong. ‘That won't give us good government. Its necessary to force the people to think of this corruption and the great need of action for the public good.” Louis Brandeis, in The Words of Justice Brandeis 151 (Soto- mon Goldman ed., 1953). “During all che centuries and across all ofthe lands, man has produced a great many devices for inducing humility. Fasting, pmOstration, the French guillotine are great levelers, but I insist that as a means of reducing the spirit of man to its lowest common denominator, I would bank the 20th-cencury Illinois petition for rehearing against any of them.” Hoon, Walter V. Schaefer, Appellate Advocacy, 23 Tenn. L. Rev. 471, 472 (1954), “To be concise is not necessarily to be dull. For you must write your brief not only to be understood, but, if possible, to be relished. Again and again you return to the judge's point of view and not yours. Thus, is not the init: ‘9A of the advocate's zeal based partly upon his knowledge of the case and of his client and of his client's ery for justice? Ic is easy to forget what a weary wasteland of interminable briefs che judges inhabit. A concise brief that is an obvious work of art in its GOREIION is a pleasure to an appellate judge. Ics like an oasis in the desert. And its language need nor be dull and lifeless. Ie may have the happy phrase that goes straight to the heart of the matter and also illuminates the landscape. The writer may have some of the gift of phrase of Holmes, some of the SFE skill of Bacon, some of the flashing insight of the poet. These stand in good stead and help on the way to the hearts as well as the heads of the determining judges.” Ben W. Palmer, Courtroom Strategies 199-200 (1959). “A dose of good, thliftipihig sarcasm, spiced with a short, sharp rhetorical {question or two, has always been one of the most effective weapons in the advocates aemiouy,” Richard Du Cann, The Are of the Advocate 171 (1964), (©2013 by Bryzn A. Garner Law Prose, ne. Al igh esecved 2 Advanced Legal Writing & Editing © “When an advocate aligns his proposition with che known wants and values of his audience, he can expect the audience, in general, to perceive his com- ‘munication in a way or ways likely to further his aim: if he runs counter to existing wants and values he can expect perception to be distorted in ways iim co his purpose.” Wayne C. Minnick, The Art of Persuasion 100 (2d ed. 1968). © “An insipid, note-cluttered, nicpicking rebuttal statement is far worse than none at all.” Prentice H. Marshall, “Oral Argument,” in Iinois Civil Practice After Trial §§ 9-1, 9-25 (1976). © “Objectionable speech habits impair the advocates’ delivery and should be climinated. A judge irritated by a profusion of ‘you know? ‘aah,’ ‘like,’ ‘T ‘mean, will not appreciate any argument replete with these WeXatiOWS interjec- tions.” TW, Wakeling, The Oral Component of Appellate Work, 5 Dalhousie LJ. 584, 609 n.187 (1979). At LawProse, we have over 250 vocabulary-building books among our 10,000-volume linguistics library. My own favorites are these hardy perennials: Charles Harrington Elster, Verbal Advantage (2000). @ Peter Funk, /t Pays to Increase Your Word Power (1968). © Wilfred Funk, Six Weeks to Words of Power (1953). © Wilfted Funk & Norman Lewis, 30 Days to a More Powerful Vo- cabulary (rev. ed. 1970). @ Maxwell Nurnberg & Morris Rosenblum, How to Build a Better Vocabulary (1983) (a book with terrific cartoons throughout). © Johnson O'Connor, English Vocabulary Builder, 3 vols. (1948). @ S. Stephenson Smith, How to Double Your Vocabulary (1974). You can easily acquire inexpensive copies, even of out-of-print books, at or, ‘And remember, properly viewed, there's no real contradiction between having an ample vocabulary and adhering to plain English. You must have a bigger vocabulary than you actually use. There's no reason to use autochthonous instead of native or indigenous—but there’s no harm in knowing the word, either. And you'll never want to use a fancy-pants word that has an everyday equivalent. Yet neither should you encounter fancy-pants words in someone (02013 by Bryan A. Garner & LawPrse In. Allright seed, Chapter 2: Four Unshakable Tenets 4a else's writing without immediately recognizing them and knowing how to translate them into simpler words. ‘That’ part of being fully literate in the higher sense. Let me caution you here about an egregiously arcane legal writer not to be emulated: Judge Bruce Selya. He has the highly peculiar habit of introducing high-fown words that (1) have nothing to do with the subject at hand, and (2) almost invariably have simpler, more straightforward equivalents. He'll never write examination, preferring instead perserutation—and the same goes for de- curtate (his word for shortened), eschatocol (his word for a conclusion), impuissant (his word for powerles or feeble), inconcinnate (his word for unsuitable), paralogi- cal (his word for illogical), vaticinate (his word fox prophesy ox forecell), exc? No sensible person, after all, is impressed by big-word ostentation of this kind—written perhaps by a Selya protégé on the South Carolina bench: ‘The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relation- ship. The quintessence and clixir of the peer review process is confidenti- alicy® Ler that serve as a warning to all word-besotted pedants! 5. See Garner, “Smelling of the Inkhorn," in Garner on Language and Writing 19-24 (2009). 6 Wreters . Bon-SecoursSt. Francis Xavier Hosp, Inc, 662 S.E.24 430, 436 (S.C. Cr. App. 2008) (per Anderson, }.) (©2013 by Beyan A. Garner & Law Prose In. Allright reserved 44 Advanced Legal Writing & Editing §7.3 Identify your characters memorably. Follow this basic rule: Use real names for parties, not procedural labels. For example, refer to “Bleister,” not “Third-Party Defendant.” And do this for all parties, even your op- “Don't keep saying ‘appellant’ and ‘appellee.’ | ponents. ‘Two exceptions: (1) By the time the reader gets to the third page | when an opponent is extremely he becomes completely confused as to which | sympathetic; and (2) when is which. Those two words have no meaning | multiple parties are aligned in except technical, procedural one.” such a way that a single name —E. Barrett Prettyman | is simply inaccurate—as in a class action. Consider this before-and-after example, Ie comes from a brief responding to a grievance filed by a former employee for wrongful termination, The em- ployer argued that he was fired for insubordination. The lawyer gave everyone but the grievant a name—who is called by the nondescript label “Grievant” throughout. Notice how anodyne the Grievant's actions seem: Grievant's supervisor, Ms. Fischer, told the Grievant thac the parts needed to be oiled before he left work for the day. The Grievant's initial response was, “I don’t give a damn, have somebody else do it.” Ms. Fischer told him chat it was not break time, he was not done working, and he should oil the parts, The Grievant responded, “No, let Jamie Bied [a dis- paraging nickname] do that.” ‘When Ms. Fischer explained chat Jamie was not a parts maker that day, the Grievant became belligerent, The Grievant left without doing the job. ‘A few days later Ms. Fischer approached the Grievant to talk about this incident. The Grievant said that he had been on his break and there vwas “no damn reason” for her to have even asked him to do the job. The Grievant became very agitated and started making profane, derogatory remarks about Ms. Fischer. The Grievant called Ms. Fischer a “stupid liar” and told her that she was a “dumb witch.” Each time Ms. Fischer tried to (©2013 by Bryan A. Garner & Law Prose, le Allsighs reserved Chapter 2: Four Unshakable ‘Tenets 4% say something, the Grievant told her to shut up and yelled, “Bull! You're nothing but a damn liar” “The Grievanc either denies his insubordination or feigns “amnesia.” Why? Because the Grievant still wil not admit, much less accept responsi- bility for, just how bad his attitude and behavior were. Sounds like insubordination, But ital slides right off him, The court is lefe with a grievant and a bunch of bad actions. The grievant won't take respon- sibility for his actions and this lawyer never gives him a name. So why would the court make him take responsibility? Notice how the bad facts stick to his real name much better than they stick to a legalistic term such as grievant: Bock’ supervisor, Laurie Fischer, told him that the parts needed to be oiled before he left work for the day. Bock’s initial response was, “I don't give a damn, have somebody else do it.” Ms. Fischer told him that it was not break time, he was not done working, and he should oil the parts. Bock responded, “No, lec Jamie Bitd [a disparaging nickname] do that” When Ms, Fischer explained that Jamie was not a parts maker that day, Bock became belligerent. He left without doing the job. A few days later, when Ms. Fischer approached Bock to talk about the incident, he became agitated and started shouting profane, derogatory epithets. He called her a “stupid Liat” and told her chat she was a “dumb witch.” Each time Ms. Fischer tried to speak, Bock told her to shu up and yelled “Bull----! Youre nothing but a damn lia” Much of his other language is unprintable, but it can be found on pages 26~29 of the trial transcript, Bock either denies his insubordination and claims to suffer from “am- nesia.” Why? Because Bock still will noe admit, much less accept responsi bility for, just how bad his atticude and behavior were. (©2013 by Bryan A. Gamer &LawProse Ine Al ight tered 46 Advanced Legal Writing & Editing Although there are exceptions to this rule about real names (see the first paragraph of this section again), they are minor. Work hard to develop a catchy nomenclature for your characters. § 7 Takeaways Checklist: Strive to phrase your ideas interestingly. Develop a knack for choosing just the right wore. Realize that you need a much bigger vocabulary than you'll actually use. Call parties by name. KS 8KK Fret about ever boring your readers. Further Reading: The Eemens of Leal Seles 1-13. Legal Writang in Plasn English x 5-60 ‘Making Your Cae: The tof Persuading Judges 6,112 ‘The Winning Briefs 181-85, 225-27. (©2013 by Bryan A. Garner 8c LawProve, ne All igh eerie CHAPTER 3 A Solid Lead §8. Learn the deepssue technique. 48 §9. Inamemo, summarize the analytical issues and your answers on page one, 54 § 10. Inabrief or motion, open with up to three persuasive issues. 64 § 11. Practice framing deep issues. 73 fs 6 AO comment poles CosPagelt To weatarcal caetenth i oe Table of coterie Th conten Th “pe Teh [3.6 = Ee Te a2 a “A holy yor Aucsite The Stavetens of ot contaaP Fe see Vr wher ree 47 (©2013 by Bryan A. Garner & LawOrot, Ine Allrights eve 48 Advanced Legal Writing & Editing § 8. Learn the deep-issue technique. § 8.1 Introduction ‘Though critical to good legal writing, issue-framing is a subject mired in confusion. In fact, anyone seeking to learn how to frame a legal issue is certain to hear some hogwash such as, “Phrase ic in a single sentence,” or “Stare with the word whether.” or “Omit all particulars.” Largely because of all this benighted ad- vice, lawyers’ memos and briefs (as well as judges’ opinions) often read like long- winded impromptu sermons, the point being only faintly discernible. Indeed, “Tom Shroder | P00! issue-framing is the most serious defect in modern legal writing. “First, you have to go through hell to know exactly what you're writing about, inside and out. Then you have to leave most of it out... . Just keep in mind a varia- tion of Thoreau’s great imperative: We need a new paradigm. The well-written issue—a “deep” issue— should: © Consist of separate sentences. © Contain no more than 75 words. © Incorporate enough detail to convey a sense of story. End with a question mark, © Appear at the very beginning of a memo or brief—not after a state- ment of facts. © Besimple enough that a stranger, preferably even a nonlawyer, can read and understand it ‘This model leads to tighter, more cogent writing by putting the context before the details. And just as important, it helps test how sound the ideas are, (©2013 by yan A. Garner 8c LawProse, nc Al ihe served Chapter 3: A Solid Lead 9 $8.2 The Clarity of a Deep Issue ‘A deep issue is simply a multisentence issue-starement culminating in a question mark by the 75th word, critical facts having been included in chrono- logical order. It is concrete: it sums up a case in a nutshell, [es difficule co frame but easy to understand. By contrast, a “surface” issue is abstract: it requires the reader to know everything about the case before it can be truly comprehended, and is therefore easy to frame but hard to understand. ‘Assume that a defendant is moving for summary judgment. Which of the following statements is more helpful? ‘Whether Jones can maintain an action for fraud? nia law, a plaintiff must show that the de fendanc made a false representation. In his deposition, Jones concedes that nei- ther Continental nor its agents or employ- ees made a false representation. Is Continental entitled to summary judg- ment on Jones’ fraud claim? ‘To maintain a fraud claim under ear} {8 nearly worthless words} ajo promise ‘Ninor promise Concsion ending vith (46 invaluable words) question at “The shorter version sends the reader elsewhere to learn what, precisely, the issue is; the longer version asks the reader to do considerably less work. Whereas the surface issue says next to nothing about what the court is really being asked to decide, the deep issue explains precisely what that something is. To put it differently, the surface issue does not disclose the decisional premises; the deep issue makes them explicit. It yields up what Justice Holmes once called the “implements of decision.”* * Quoted in John W.. Davis, “The Argument of an Appeal,” in Advocacy and the King’s English 212, 216 (George Rossman ed., 1960). (©2013 by Bryan A. Garner & LawProe Inc.All igh reseed 50 Advanced Legal Writing & Editing “The goal is ease of understanding, Generally speaking, the more abstract the issue is, the more superficial itis: the reader must learn much more to make any sense of it. The more tangible the issue is, the deeper itis: the reader need hardly exercise the brain to understand. Consider another set of examples—different versions of the same issue presented by the same side of the case: Does the cessation-of production clause modify the habendum clause in an oil- and-gas lense? Since first considering the issue 30 years ago, this Court has consistently held that the word “produced”—as used in the hhabendum clause of an oil-and-gas lease— means “capable of being praduced in pay- ing quantities.” The oil-and-gas industry has widely relied on this interpretation. [16 words} Major premise ‘Minor premise Should the Court leave its carlier holding, undisturbed? [58 words} Concison ening wih ‘question mark. “The first is a dry legal question seemingly devoid of any real interest to anyone but oil-and-gas experts, The second, in addressing what are probably the judges’ true concerns, defines the issue in a way that anyone can understand: the prem- ises are explicit. You'll have noticed the labels accompanying the wo preceding examples in the “But this” boxes. Each deep issue amounts to a syllogism: first, a major premise (a legal rule); then, a minor premise (a factual statement that shows the rule to be applicable); then, a conclusion ending with a question mark—but without any new premises added. The syllogism, as old as Aristotle, is the basis of all logical thinking. And lawyers who make the syllogism their friend do well as advocates. To syllogize is to summarize incomparably well. (©2013 by Bryan A Garner 8 LawProse, ns Al ight eserves Chapter 3: A Solid Lead 51 § 8.3 The Brevity of a Deep Issue Besides being clear, a deep issue must be brief. Typically, a deep issue will range from 50 to 75 words. Ideally, 75 words is the upper limit. ‘Why? Because whenever an issue exceeds 75 words or so, the writer loses focus and the reader loses interest. If you can’t frame your issue in 75 words, you probably don’t know quite what the issue is. Working out the 75-word issue can be excruciatingly difficult. Sometimes, in a “You can usually blame a bad complex piece of litigation, it can take days to | essay ona bad beginning, If refine the statement. But it’s well worth the your essay falls apart, it prob- effort because you're more likely to spot prob-. | ably has no primary idea, no lems in the logic, and you'll certainly write thesis, to hold ie together.” more cogently. —Sheridan Baker But is the 75-word limit always achiev- able? In our experience at LawProse, it is. In fact, all the memo examples and briefing examples in this courscbook—and hundreds of other issues we've looked at—have met this standard. We haven't yet encountered the legal issue that couldn't be framed in 75 words. Ie may exist, but we haven't found it. § 8.4 The Point of Separate Sentences ‘The purpose of the mulkisentence format and of limiting the issue to 75 words is to help the reader. A one-sentence issue of 75 or so words is difficult to follow, especially when the interrogative word begins the sentence and the end is merely a succession of disjointed facts—eg, ‘A Badly Phrased (One-Sentence) Issue Did Anton Dalby’s legacy bequeathed by Fitzherbert Giles, his paternal biological grandfather, lapse because of the intervening adoption of Anton Dalby by Timothy Dalby, his stepfacher, who adopted the child on May 2, 2010, when the testamentary bequest had occurred in a document dated February 28, 2010, given that at the time of the making of the will, Herb Giles, the son of Ficzherbert, had still nor terminated his parental rights? (©2013 by Bryan A. Garner 8 LawProse, cA ighs ested 52 Advanced Legal Writing & Editing ‘That's a muddle. Readers forget the question by the time they reach the ques- tion mark. Part of the reason is that the time is out of joint: we begin with a present question, then back up to what happened, and then, with the question ‘mark, jump back to the present. ‘The berter strategy is to follow a chronological order, telling a story in miniature, Then, the pointed question—which emerges inevitably from the story—comes at the end: A Well-Phrased (Multisentence) Issue Ina testamentary bequest, an adjective used for identification purpos- es does not limit the gift. The will of Anton Dalby’s paternal biological grandfather provides bequest to “my grandson Anton.” After the will ‘was executed, Anton was adopted by his stepfather, and the biological fa- ther’s parental rights were terminated. In the will, does the adjectival use of “grandson” make the gift contingent on the ongoing legal relationship, ot does it merely help identify the legatee? Instead of one 70-word-long sentence, we have four sentences with an average length under 14 words. The information is presented in a way that readers can easily understand. ello, remy ple ae wee ole MOA pueatthel, Te ty pty RIT Live Zo MAT Oe patente (©2013 by Bryan A. Gamer & Laws, Ine. llrightsreserved, Chapter 3: A Solid Lead 53 Checklist: Understand how flawed single-sentence issues arc from the perspective ofa first-time reader. Learn the statement-statement-question technique SA Insist on a 75-word limit. ¥ Find issue-starements with a question mark—they're not mere assertions of prayers. ¥- Appreciate the importance of starting with an issue—not with an answer ot an extended prologue ora full statement of facts, ¥ Ensure that you can tell a major premise (legal rule) from a minor premise (critical fact) so that you can master the sy! # | togism. Further Readi The Elements of Legal Seleat 183-87 Garner on Language and Writing x. 120-48, Logal Writing in Plain Enlishat 73-78. Making Your Case: The Are of Perak Jkdge a 83-88. The Winning Briefs 3-77. (©2013 by Beyan A. Gasner 8 LawPsse In. All ight esd 54 Advanced Legal Writing & Editing §9. Ina memo, summarize the analytical issues and your answers on page one. Perhaps the most important part of any presentation is an intelligent state- ment of the problem. That's the “why” of your writing: why you're writing, and why someone should read. A deep issue—and, specifically for purposes ofa legal memo, an analyti- cal issue—is a multisentence issue statement culminating in a question mark by the 75th word, with facts stated at che outset (preferably in chronological order). The preliminary sentences orient the reader and serve as premises that ensure comprehension of the question. ‘The all-too-familiar one-sentence abstract question is never illuminating: ‘Whether Fulmer’ second marriage was outlawed by the bigamy laws? ‘There's potential interest there, of course, because of the subject matter. But who knows what this is all about? Some lawyers would put that one-sentence question after two pages of facts. Others would put it before two pages of facts. Either way, we're asking for unnecessary work on the part of the reader. But consider what happens if the question follows about 60 words of fac- tual explanation, so that a brief context is supplied. The premises are considered an integral part of the issue: Under Tennessee law, a judgment is not final until ic is stamped “filed” by the court clerk. Fulmer was orally granted a divoree on November 10, 2009, and he “remarried” 30 days later. Yet the court clerk did not file- stamp the order from the November divorce until January 18, 2010. Is the remarriage valid? Has Fulmer commiteed bigamy? Now shat's interesting. We're all curious to know the answer. Piquing curiosiry, in fact, is a big advantage that deep issues have over the traditional one-sentence whether-issues. Those legalistic dinosaurs are impos- sible to construct consistently well because they destroy the story line with their tunchronological factual elements. They either weigh down the sentences with (©2013 by Bryan A. Garner 8 LawPros Ine. All ight served Chapter 3: A Solid Lead 55 unwieldy facts or else omit them altogether and create an empty, dull, ungram- matical, and unenlightening “issue.” Hence the insistence here on deep issues. Master them: they'll change the way you approach legal writing, Insist on having them up front—as the very first thing that the reader encounters. You'll look like a smart, organized writer because youre pacing the information well as it enters the “Your work starts long before you make reader's consciousness a motion toward your pen. You must be ‘And don't forget the 75- | properly briefed, and that i a joint respon- word limi, ether, That's pare | sibility of you and your boss. You must and parcel of the deep-isue know exactly what is wanted and why it is technique. wanted, Requests for reports should refer i i to definite and limired problems.” ‘But yOu my ap —Royal Bank of Canada “Should all issue starements follow the same pattern?” With minor variations, yes. To make an analytical issue, which is what should ap- pear in the memo, you write an uncompleted syllogism—the major premise to which is found in the brief answer, as here: Question Presented Statement of the minor premise—the factual situation that gives rise to the problem to be analyzed (e.., “Our client Socrates is a man”). Then the conclusion ending with a question mack (eg, “Is he mortal?”). Brief Answer Statement of the governing major premise—the rule thar controls the situation you've depicted in the question presented (eg., “Yes, Socrates is mortal because the courts in our jurisdiction have consistently held that all men are mortal”) ‘That's the essence of it. You always know your client's situation when beginning your research. What you're looking for is the major premise—the rule that governs the situation, (©2013 by Bryzm A. Garner & Lavra Ine. Al ight eters 56 Advanced Legal Writing & Editing Whilea persuasive issue—the type intended for a motion or brief—is always syllogistic (major premise, minor premise, conclusion?) the issue in a memo, called an “analytical issue,” invariably presents a different arrangement. ® Ieean take cither of two forms. First, a Type #1 analytical issue has a factual setup followed by a question whether a certain result applies, without any strong hint about what that result should be: ‘© In 2007, Microtech Corp. and Sonic Co. signed a consent decree in which Microtech admitted the validity and infringement of certain Sonic patents. In 2010, Microtech significantly changed its product de- signs but faces another infringement claim from Sonic under the same patents. Can Microtech challenge the validity of the Sonic patents in the currenc lawsuit? © Fredista, a Virginia corporation located in Virginia, has entered into an agreement to acquire Oakley Co., a Louisiana corporation located in Louisiana. A condition in the agreement is that all former Oakley employees who will now work for Fredista must agree to Fredista’s covenant not to compete. Would Virginia or Louisiana law prohibic Fredista from imposing this condition? Hippocratic Corp. operates a Macon County hospital that was funded by county-issued bonds. When the bonds are fully paid, in three years, Hippocratic must transfer the hospital to the county. If che parties want to have Hippocratic continue operating the hospital after the transfer, whar steps, ifany, must the county take to sell or lease the hospital back to Hippocratic? «First Savings Bank, Chicago InvestBank, and Banca Italiana formed a syndicate to underwrite a US-registered securities offering, Before the offering, Banca Italiana released a report that violated SEC disclo- sure rules and was asked to leave the syndicate. Could an investor who relied on the report sue First Savings and Chicago InvestBank on the theory that the banks profited from it? (©2013 by Bryan A. Gamer & LawProse, Al ight serve, Chapter 3:A Solid Lead Ed A Type #2 analytical issue doesn’t begin with a fact; instead, it begins with the law. It consists of a major premise (@ legal rule), a concrete minor premise (factual scenario) that might or might not fit within the major premise, and a question whether the premise controls. The reader may yearn to know the answer, but the issue again suggests no single, invariable answer: © Arizona law defines a “dangerous instrument” as any object capable of causing death. ‘The sentence for committing a crime with a dangerous inserument is automatically enhanced by 10 years. Ellen Brown struck her husband Ed with a frozen leg of lamb, and he died of massive head injuries. Should Ellen's sentence be enhanced by 10 years because the leg of lamb was a dangerous instrument? ‘ederal law mandates that recipients of federal funds not deny equal ‘access to services to individuals with limited English-language capa- bilities. Dr. Jones has non-English-speaking Medicare and Medicaid patients who require an interpreter; he schedules these patients only oon Tuesdays to ensure that an interprecer will be present. Does this ar- rangement deny those patients equal access to services? ‘© Some federal courts hold that it violates the Establishment Clause to conditioirany privilege or benefit on the applicant's religious conduct or beliefs, Alcoholics Anonymous is fellowship of people who rely con a “higher power” (whatever the member understands that to be) to help them stay sober. The Oregon parole board requires some parolees to participate in AA before they may be paroled. Does this practice violate the Establishment Clause? © Under the Warsaw Convention, an ailine is strictly liable for an “ac- cident” on an intemational Right if it results in “bodily injury” co a passenger. On a British Airways flight from New York to London, a sudden loss of cabin pressure forced the pilot to reduce altitude by 30,000 feet in one minute. Sandra Hensen, a passenger, has suffered from panic-induced migraines ever since. Did she suffer a bodily injury under the Convention? You might, from time to time, study those two types of deep analytical issues, They're artfully constructed, and none has a wasted word. If you cut words, you start damaging the meaning by making the statement either more £02013 Bryan A. Gamer 8 LawPrse Ine, Alsights resrved. 58 Advanced Legal Writing & Editing vague (and less understandable) or less cogent (again, less understandable). The lawyers who wrote those issues showed considerable skill, and you'd be well advised to keep them handy when you're framing an issue for a legal memo, issue has the following advantages: > c& hn sum, a memo containing a de: Because the premises are explicit, the assigning attorney will typically be able to spot any etroneous assumptions. Both primary and secondary readers will be able to read and understand the memo. It won't read like a conversation between insiders, ‘The memo will be more comprehensible, even to the insiders, a year or two after it’s written Colleagues researching similar points in different cases will find the memo more helpful. The analytical issue can be readily transformed into a persuasive issue, and thus the memo into a brief Tf you want the fuller context of what to do—and what to avoid— compare the examples that follow. The righthand column consistently shows a deep analytical issue followed by an answer. That’s hard to beat for an in- teresting, understandable, and credible opener. The left-hand column illustrates various types of analytically impoverished openers—ones that ensure thar the memo will have minimal enduring value to the law office in which it is prepared. Further, such “Nothing quite so annoys a hard-pressed reader as going on and on in a piece of prose, not knowing what the writer wanes tosay and not seeing the point.” | ° ic — Richard Marius | impoverished openers are more likely to introduce flawed reasoning since they make it less likely that the researcher has even un- derstood the problem that the memo purports to address, So if you're looking for great models, stay to the right side of the following examples. {©2013 by Beyan A. Gomer & Larose ne All rights sere, Chapter 3: A Solid Lead 59 Iyer: Question You have asked me co analyze whether it is constitutionally permissible under the First Amendment's Establishment Clause for the hospital authority to hold Alcoholics Anony- ‘mous meetings at General Hospital Answer Yes, with limitations. It is permissible for the hospital authority to hold Alcoholics Anony- ‘mous meetings at General Hospital as long as the hospital authority narrowly tailors their 2c- tions to ensure that an Establishment Clause Violation does not occur, this: Question ‘The Detroit Hospital Authority wants to use public funds to provide Alcoholics Anony- mous meetings at a publicly funded hospi- tal. AA requires its members to believe in a “greater power.” and it specifically invokes God. Would these AA meetings be permis- sible under the First Amendment's Establish- mene Clause? Answer Probably, but to be constitutional, the pro- gram must meet three tests. First, a govern- ment-funded activity must reflect a secular purpose, Second, the activity’s primary effect ‘may neither advance nor inhibit religion. Fi- nally, the program cannot advocate partisan or ideological points of view. Offering an AA meeting location would serve a secular pur- pose by helping people reduce their depen- dency on drugs and alcohol. Although AA incorporates spirituality into its programs, members need not profess or adhere to any particular religion to participate. Buc itis un- clear whether the program would involve pro- hibited indoccrination in a viewpoint. Gener ally, a government-Funded healthcare program that has one religious element but is primarily focused on treating a health problem does not impermissibly advance religion. Encouraging people to atrend AA meetings solely for health reasons would be acceptable, but encourag- ing or requiring attendance for other purposes probably would not. (©2013 by Bryan A. Gamer 8 LawProne Tn. Al ight reserved 60 Advanced Legal Writing & Editing Not Question Answer the call with Wagner. Whether Johnsonius’s recording of the con- versation with Wagner was legal? And regard less of the answer to that question, what are the potential ramifications of disclosing its ex- iscence, or its contents in the Anderson litiga- “The law bodes well for Johnsonius, asthe rel- cevant law is favorable to him. As discussed be- low, he should not have to face criminal or civ- il action in Massachusetts for tape-recording ainas Question On August 12, 2009, Mark Johnsonius placed a telephone call from New York to Massachu- setts. He spoke to Francis Wagner, an observer at the National Marine Fisheries field office in ‘Woods Hole, recording the conversation with- cout her knowledge or consent. We are consid- ering including the tape-recording in our doc- ‘ument disclosure in the Anderson case. [F we do, are we exposing Johnsonius to possible le- gal action in Massachusetts under the state's ‘wiretapping statute? Answer No. Although Johnsonius might face a crimi- nal or civil action in Massachusetts, he would almost certainly prevail in either case because New York law applies. True, Massachusetts prohibits taping without the consent of all parties, bur New York permits ic if one par- ty consents. State and federal cases have held that the law of the state where an “intercep- tion” takes place governs the legality of a rap- ing, Although these cases deal mainly with civil actions or evidentiary disputes, there are no wiretapping cases to suggest that a state with an all-party-consent rule may prosecute someone who legally capes a call in another state. Several Massachusetts cases have held that the state can prosecute a defendant who commits acts outside Massachusetts intended to have an effect in the state, But we can dis- tinguish these cases, which involve activities that are crimes in both Massachusetts and the state where they occurred. So New York's law should control any legal action arising in Mas- sachuserts asa result of the taping (©2013 by Bryan A. Garner 8 Law?eos Ine. Al ight served Chapter 3: A Solid Lead a Introduction ‘This memorandum addresses pivotal issues relative to the treatment of former employ- ces in Illinois courts, including the ability of counsel to lead a former employee as an ad- ‘verse witness while that former employee is giving testimony in the instant case. The relevant statute reads in pertinent part. .. {long block quotation follows) Question ‘At cial, we plan to call as witnesses former high-ranking employees of our adversary, Sie- gelson Corp. Can we treat a former employee as an adverse witness and ask leading ques- Answer Probably not. The relevant code provision on cross-examination does not mention former employees and doesn’t clearly apply to them. By its plain language, the statute allows us to treat only current employees as adverse wit- nesses, and then only ifthe employee isan of- ficer, director, managing agent, or foreman, But courts have extended the statute to fore mer employees under either of two narrow ex- ceptions: (I) if the witness, chough no longer employed, maincains close financial connec- tions with the companys and (2) ifthe cialis “extremely delayed” and (a) the time between the filing ofthe lawsuit and the testimony is at least 3 years; (b) the witness was employed at the outset ofthe litigation; and (@) che witness ‘was employed until near the time of the testi mony. (©2013 by Bryan A. Garner & Law Prose, In. Al righ serve a Advanced Legal Writing & Editing Question Presented Can seller disclaim warranties extended under state law by UCC 2-318? Discussion ‘The drafters of the UCC provided three al- ternatives of § 2-318 for states to adopr, all of which contain the language that reads in per- sient part: “a seller may not exclude or limit the operation of the section.” UCC § 2-318 (2010). In jurisdictions thac have adopted one of these alternatives, parties who may have reasonably been expected to use, consume, or be affected by a product may mainsain a cause of action against the original seller for breach of warranty. The absence of privity ... Question UCC § 2-318 provides that every warranty, whether express or implied, extends to “any person who may reasonably be expected to use, constume, or be affected by the goods and who is injured by breach of the warranty.” And: “a seller may not exclude or limit the op- eration of this section.” Benson Corp. has dis- claimed all express and implied warranties for two of its products. Is this disclaimer effective for end users? Answer Yes, To the extent that a contract of sale con- tains effective warranty disclaimers, those dis- claimers operate also against potential down- the-line users, That is, § 2-318 does not create third-party beneficiaries for warranties that are not otherwise extended to chose in direct privity with a seller. The last sentence of the section—"A seller may not exclude or limit the operation of this section”—docs not preclude a seller from excluding or disclaiming a war- ranty that might otherwise arise with the sale. The purpose of the last sentence is to forbid a seller from limiting liability to the persons to whom the warranties, having been made to the direce buyer, would also be extended un- der this section, (©2013 by Bryan A. Garner 8c LawPtose, ne. Alsighs served, Chapter Solid Lead 6 Rhetorical Templates for Page One of a Research Memo: Example #1 Question Presented [Multtisentence issue statement not exceeding 75 words] Brief Answer No. Under the law of this circuit, a plaintiff fails to state a claim who alleges no more than that. . We should therefore succeed on a § 12(b)(6) motion— although X may well amend to cure the defect at this point in the litigation. Example #2 Question Presented [Multisentence issue statement not exceeding 75 words] Brief Answer Probably not—but the issue is one of first impression in this State, and courts in other jurisdictions are divided. Some state high courts have held that __. Others have reasoned that _—and have therefore decided that _. The majority view, which is increasingly considered the better view, is that On balance, it seems likely that the courts of this State would hold that ___ because _ Checklist: ¥ Ina memo, use one or more “analytical” issues—ones that are objectively stated, without suggesting their answers. J Use a Type #1 issue-statement if the facts are known but not the aw. Y- Use a Type #2 issue-statement if the law is known but the application of the rule is unclear. Y Keep each answer with its question—and embed the major premise (the “because”-starement in your answer) Further Reading: Gameron Language and Writing at 120-26. Legal Waiting in Plain Engluhat 73-78 The Redbook: A Manual on Legal Siyleat 395-96, 397 (©2015 by Bryan A, Gamer & Law Prose Tn. All ight tered 6 Advanced Legal Writing & Editing § 10. In a brief or motion, open with up to three persuasive issues. ‘Many advocates seem not to appreciate fully that the outcome of a case rests on how the court approaches the issues presented. As an advocate, you want to state the issues fairly, co be sure, but also in a way that supports your theory of the case. A good persuasive issue, in other words, should answer itself Karl Llewellyn made this point—and two others—in pethaps the wisest statement ever made on the subject of brieF-writing: Of course, che first ching thac comes up is the issue and the first ar is the framing of the issue so that if your framing is accepted the case comes out your way. Gor tha? Second, you have to capture the issue, because your opponent will be framing an issue very differently. ... And third, you have to build a technique of phrasing your issue which will not only capture the Court but which will stick your capture into the Coure’s head so that ie can’t forget ie* Bur how can it be that getting your question answered means that you'll win the case? That happens when you use a syllogistic issue statement—either 2 complete syllogism or an enthymeme. Asan advocate, you want to find the premises that will pull the court toward your conclusion, and then make your premises explicit. If the court decides to answer the question you pose, then the court will probably reach the conclusion you urge. A noted lawyer—who, exactly, is unclear because the quotation is various- ly attributed to Rufus Choate, Clarence Darrow, and John W. Davis, among others—once said that he'd gladly take either side of any case as long as he could pick the issues. If you pick the issues that are actually decided, you ought to win, Ie’s that simple. Even though a persuasive issue should answer itself, i’s much more than a mere statement of the conclusion, Ie should contain the entire analytical frame- “Karl N. Llewellyn, A Lecture on Appellate Advocacy, 29 U. Chi. L. Rev. 627, 630 (1962). (©2013 by Bryan A. Garner 8 Law Prose Tne. All ight reserve Chapter 3: A Solid Lead a 65 work, in a nutshell. The advocate comes forward asking the court to address a straightforward question. Some briefs take 20 pages to deliver the information contained in a deep- issue formulation, And you still can’t find a concise statement even on page 20. Instead, you find the relevant tidbits strewn amid other facts throughout the first 20 pages. To figure out the issue, the judge would have to read slowly, and with intense concentra- tion. Thats quite a demand to impose on busy judges. And yet brief writers seem to make this imposition rou- tinely. “The major reason anything is impor tant to anybody is the existence of a problem, and the best way for a writer to stimulate his reader’ interest is by defining and stating his problem.” —Ernst Jacobi A big part of the problem seems to stem from fear—fear that if the judge doesn't see the issue in the same way as the advocate, the advocate is sunk. “How do I know what the judge will larch onto?” the diffident advocate asks. “I won't state the issue in a single way, but rather talk about the case and the parties in a way that gives the judge several handles on the case. But I'm not going to marry myself to a single issue or set of issues.” Unfortunately, the result of this understandable fear is thae the advocate has no clearly framed issues—no theory of the case. [And the judge becomes frustrated. Why? Because, ar first, only one thing matters to the judge: “What question am I supposed to answer in this case? If Ican figure that out,” thinks the judge, “I'll be ready to decide the case. But until I find out what that is, I'm just groping for it.” Framing the deep issue at the outset is a way of capturing the judicial imagination, Whoever does that well is most likely to win. Indeed, a well- framed issue can often become the starting point for the court’ opinion. So how do the issues look in practice? Often there are several in one case. Following are four persuasive issues that Lewis F. Powell III and Trey Sibley framed in a Fourth Circuit case. So successful was their effort that the appel- (©2015 by Bryan A. Garner & LawProse Ine: All ight rosted 66 Advanced Legal Wri 1g & Editing lees settled before their brief was due. It would have been hard to overcome the cogency of these issues. STATEMENT OF THE ISSUES Constitutional Malice. Under the Supreme Court’ First Amendment hold- ings, a defendant in a defamation case cannot be subjected to punitive dam- ages unless che offending statement was published with “constitutional ac- tual malice,” which is substantially different from, and much harder to prove than, “common-law actual malice.” The trial court refused to instruct the jury about the constitutional actual-malice standard and instead mandated the long-discredited common-law formula. Can the jury’ decision to punish Podzemeny stand? . Subjective Belief of Truth. To prove constitutional actual malice, a plain- tiff must show chat che defendant knew that the statement was false or else subjectively doubted the truthfulness ofthe statement but published anyway. “The evidence was crystal clear that the Podzemeny employee who sent the e— mail thought that it was true. Can the jury’s decision to punish Podzemeny stand? . Due-Process Standards. Under the Due Process Clause, any award of puni- tive damages must satisfy exacting standards of fairness, must be proportional to the reprehensibility of the defendane’s conduct, and except in rare cases must never be more than nine times the compensatory damages. Despite the lack of evidence of anything but Podzemeny’s negligence, the jury awarded punitive damages of 30 times the amount ofits compensatory award. Can the jury's decision to punish Podzemeny stand? Because seasoned legal readers are always impatient to reach the issue, opening with the deep issue satisfies a need that virtually all readers feel. Let's examine some deep issues derived from a wide array of litigated points. Some naturally call for a “yes” answer, and some for a “no.” Although some practitio- ners have taken the dogmatic approach of insisting that persuasive issues must call for a “yes,” its a straitjacketing position that can result in some extremely awkward phrasings. You're better off simply putting the question as starkly and (©2013 by Bryan A. Garner LawPros Inc, Al ight seve. Chapter 3: A Solid Lead oa as fairly as you can—without argumentative words—and seeing which way calls for the more demonstrative answer. Sample Persuasive Issues Calling for &“Yes” © Under federal law, an expired arbitration agreement is enforceable if the majority of material facts giving rise co the claim predate the agreement's expiration, Turbo Washer’ arbitration agreement with Frank Jones expired in 2011, but 10 of the 12 material facts in Jones's complaint occurred in 2010, before che arbitration agreement expired. Is Turbo Washer’ arbitea- tion agreement enforceable against Jones? (61 words) © Article 36 of the Vienna Convention requires nations to immediately no- tify foreign nationals detained for any length of time by law-enforcement officials of their ight to seek consular assistance, Mr. Gonzalez, Colom- bian national, was arrested, tried, and convicted of murder in Oklahoma without ever being cold he could seck consular assistance. Does Mr. Gon- zalez have a claim for a violation of Article 36 of the Vienna Convention? {68 words} © When a corporate executive communicates with in-house counsel, the attorney-client privilege protects only those communications made for the purpose of obtaining or rendering legal advice. Mr. Jones, vice president of ‘Widget Co., had a 45-minute meeting with Mr. Smith, in-house counsel for Widget Co., in which Mr. Jones sought both business and legal advice. ‘Are the portions of that conversation pertaining to business advice discov- erable? [66 words] © Under Washington law, an appointed civil servant cannot be given an em- ployment contract whose duration exceeds the elective terms of the com- missioners authorized to approve that contract. Smith is a city manager appointed by the commissioners, who awarded Smith a five-year employ- ‘mene contract despite their own three-year terms. Were the commissioners acting beyond their authority in awarding Smith the five-year contract? (62 words} (©2013 by Bryan A. Garner & LanPrese, ne Al ighes exer 68 Advanced Legal Writing & Editing Sample Persuasive Issues Calling for a “No” Answer © In the Fairview Public School System, the written policy is thar the Sys- at/ tem will expel a student who “brandishes any object resembling a gun on Gls ins school property.” Jamie, a fifth-grader at Fairview Elementary, formed his __ hands into che shape of a gun and then allegedly mimed the shooting of ayer potari¢ 4 fellow student. The System has now expelled him. Did he “brandish an meres potaclt object,” and is he properly expellable? [68 words] velista? © Under Missour’s Trade Secret Act, a secret is prorectable only ifan employ- ex takes reasonable precautions to keep it a secret. Johnson Corp. required all employees to sign a confidentiality agreement before attending product meetings that discussed new-product designs. But Jobnson allowed attend- ees to share the product information generally with a 25-member sales force who had not attended the meeting and had signed no nondisclosures. Did Johnson take reasonable precautions? [72 words] © Under Vermont law, a document that would normally be protected from disclosure to opposing counsel by the work-product doctrine will not be protected if that document has been voluntarily disclosed to opposing, counsel, On December 3, 2010, Mr. Zichterman’s assistant accidentally ‘e-mailed a draft brief instead of the final version to opposing counsel. Has ‘Mr. Zichterman voluntarily waived the work product privilege as to that draft? [65 words} ‘© While New York law requires two disinterested witnesses for the valid ex: ecution of will, Delaware law requires only one—but Delaware's foreign- wills act requires a will executed outside Delaware to have been validly executed in the state where execution takes place. Mr. Williams's will was witnessed in New York by his daughter (a will beneficiary) and by his law- yet. Can Williams's will be probated in Delaware? [67 words] And how does this technique play out in the context of motions and briefs that get filed? Here are some typical transformations: (©2013 by Bryan A. Garner & LanProte, Ine. Al ihe eer Chapter 3: A Solid Lead Introduction On August 12, 2009, appellants Nona, Cedric, and Hyram Pugnassion (hereinafter the “Pugnassions’) filed this action under 42. US.C. § 1983 alleging violations of their Fourth and Fourteenth Amendment rights under the Uniced Scates Constitution and seeking an award of damages for the injuries they sustained in a traffic collision that oc- ‘curred on August 17, 2008, with a mot who was fleeing from Los Angeles County Sheriff's deputies. ‘The Complaint named as defendants Sher- iff Herman Black, the individual members of the Los Angeles County Board of Supervi- sots, the County of Los Angeles, and Sheriff's Deputies Daniel Spinner, Laurel Bates, and Brian Jones. On November 20, 2009, the District Court granted che County Defendants’ motion ro dismiss without leave to amend, which order was entered on November 24, 2009. The Pug- nassions appealed from that order pursuant 0 the Federal Rules of Appellate Procedure. ‘On September 26, 2009, .... Introduction Although the Pugnassions’ bref lists three appellate issues, the entire appeal essentially turns on a single point Ina § 1983 claim based on injuries resule ing from a police chase, a plaintiff must show that the police conduct “shocks the conscience.” Here police chased an erratic, reckless driver for about 60 see- ‘onds over a9-block span, but they never exceeded 45 mph. The police were two to three blocks behind the suspect when his car collided with the Pugnassions’ car. Does their 45-mph “chase” rise to the level of “shocking the conscience”? The trial court understandably granted summary judgment on this issue. Alehough under Ninth Circuit easelaw this Court is to review che question de nove, the facts are as undisputed now as they were below—and we believe that che Court will find the record clear and the disposition straightforward. neg a The tle The toonT toby meealy Te ple gy. Be telly, 2 (©2013 by Bryan A. Gamer 8 LawPrse, In. All igh eserved Advanced Legal Writing & Editing trai [Untitled opening words of a defendan pellant ina criminal appeal, John Rothschild was charged by informa- ion with cwo counts of unlawful use of weap- ons for an incident occurring on February 17, 2008, On January 31, 2009, Rothschild proceed- ed before the Court as petitioner in a motion to quash arrest and suppress evidence. Roth- schild testified that on February 17, 2008, he went to the Gordon Grammar School in Posen to speak with the assistant principal about a problem that had occurred with his son on the day preceding on a school bus. Rothschild’s wife had called and arranged this meeting with the assistant principal, a Mr. Gerald Milsap. But when Rothschild ar- rived at the school, he was able to speak only with the principal, who told Rothschild thae the matter had been taken care of. Rothschild told the principal that he had come to speak (o the assistant principal, but che principal insisted on discussing the matter personally, without delegation of responsibilities for these discussions. Unsatisfied with the progress of the meeting, Rothschild turned to walk out of the building, Then, when he was outside the building, still walking away from the build~ ing, Rothschild was met by the principal, the assistane principal and a third man who incroduced himself ro Rothschild as a police officer. The officer asked Rothschild if he had a problem. Rothschild said he did not. The officer then took Rothschild’s jacket from his hhand and searched ic. Then the officer began to search Rothschilds person. The officer pat- ted him down. Rothschild then gave him 2 pistol that was in one of his pockets. He was then told to go back into the principals office. He was not handcuffed but was told he was under arrest But Introduction “This appeal turns on a mixed question of law and fact having constitutional repercus- sions. Yer the point is easy to grasp: Under the Supreme Court's search-and- seizure law, a police officer is held to a more stringent standard than a private security guard. Officer McGee, a po- liceman working as a security officer, stopped a parent at Gordon Grammar School, flashed his badge, and identi- fied himself as a Chicago policeman, ‘When Officer McGee demanded to see Rothschild’s jacket, Rothschild handed i over, exposing a gun in his vest. Was Officer McGee acting primarily asa pri- Although Officer McGee and two other school officials have admitced these facts, they contend—along wich the prosecution— that Officer McGee was acting primacily as a school official and not as a police officer. If they are right, the gun was concededly admis- sible as evidence. But if they are wrong, as we will show that they are, the gun was inadmissi- >ble—and the conviction must be overturned. (©2013 by Bryan A. Garner & LawProse, Ine. All igh eerved. Chapter 3: A Solid Lead nm One last thing about persuasive issues: they typically begin with the deci- sive legal proposition. They'e fully completed syllogisms, with the conclusion expressed as a question, You've seen it again and again in the preceding pages. But there isa variant type: the enthymeme, which is simply a syllogism with an implied major premise. Use this type only when every conceivable reader already knows the legal rule on which you rely (for example, that em- ployers aren't liable for employees’ conduct outside the scope and course of the employment). Here’s an example: At 7:30 one morning last spring, Father Michael Prynne, a Roman Cath- olic priest, was on his way to buy food for hirnself at the grocery store when his car collided with Ed Grimley’s truck. The Catholic Church neither owned Father Prynne’s car nor required its priests to buy groceries as part of their priestly functions. Was Michael Prynne acting as an agent for the Church at che time of the accident? [71 words] IF your readers necessarily know the legal premise as part of their basic men- tal makeup, skip the rule and go straight to the facts (again, in chronological order, arriving at the question mark by the 75th word), The usual wording of your deep issue will be a fully elaborated syllogism; sometimes, though, you should use the enthymeme. Tf you want to read all about enthymemes, get a copy of Aristotle's Rheto- ric, Enthymemes are discussed on nearly every page! (©2013 by Bryan A. Garner & LawPrse, In. All ight reseed R Advanced Legal Writing & Editing § 10 Takeaways v Further Reading: Checklist: Understand that your goal in persuasive writing is to state the issue as quickly as possible. Open cither with a section called “Questions Presented” or an introductory statement such as this: “In deciding this motion [for appeal, etc.], the Court is presented with the fol- lowing issues: ... Understand that an issue containing a factual predicate must be limited to 75 words—and that an exhaustive statement of facts, iit s even necessary, must follow the issue statement Know that your reader’ early impressions of the case are critical. You want to predispose the judge—but never say anything on page one (or anywhere else) that you can't bear our. Ifyou have many issues, know that you must hew them down to three or four. Know that if you consider this impos- sible, you're grappling with a difficuity that all good writers confront. ‘Whenever you have multiple issues, devise a one- to four word heading for each issue-statement. If the legal rule on which you rely is exceedingly well- known, word your persuasive issue as an enthymeme. Garner en Language and Writing 120-23, 126-30. The Winning Brifat 98-104, 477-81, (©2015 by Bryan A. Garner & LawPrese In. All ight serve Chapter 3: A Solid Lead B § 11. Practice framing deep issues. You can’t possibly get too much practice in issue-framing—unless it begins seriously interfering with your domestic tranquility. A good means of enhancing your legal agility is to pose issue statements for both sides of cases— even for popular cases you read about in the press. Take an example that every- one is familiar with but that has faded from the national spotlight: the Clinton impeachment issue as it existed in 1998. The chief issue-framers were Kenneth Start (together with Henry Hyde) and James Carville (together with Paul Be- gala). Here’s how the two sides posed the problem: ‘The Starr—Hyde Issue: “The President, being the highest law-enforcement officer in the country, must be seen to uphold the law. President Clinton obstructed justice by ly- ing under oath about not having “sexual relations” with Monica Lewinsky and cagily encouraged her and other witnesses to perjure themselves. Given these criminal offenses, should President Clinton be removed from office? (54 words} ‘The Carville-Begala Issue: Under the U.S. Constitution, the President may be impeached only for “high crimes and misdemeanors” in any governmental functions. President Clinton deceived questioners about an extramarital affair—a private pec- cadillo that vircually any married person would lie about. Given the pri- vate, personal nature ofthis transgression, did President Clinton commit a “high crime or misdemeanor” involving governmental functions? [58 words} Clear analysis is enhanced through this type of boiled-down exposition. ‘The Republicans were strong on facts but weak on law; the Democrats were strong on law but weak on facts, The Republicans had an insuperable prob- lem: they were relying on little more than common decency. No constitutional premise existed that would resule in President Clinton's removal from office. ‘Additionally, of course, the President benefited from a pervasive red herring: in (©2013 by Bryan A. Garner 6 LawProe, nel ight reseed “4 Advanced Legal Writing & Editing the popular mind, the Republicans wanted to remove him “because he had an affair.” not “because he committed perjury.” The lacter was enough to result in disbarment, but not in conviction by the Senate. If you're writing a persuasive issue (one directed to an adjudicator), try stating; (I) the rule, as precisely as you can—but only as it relates to your case (chat is, no factors listed that don’t matter); (2) the facts, in chronological order, that make the rule you've stated applicable; and (3) a pointed question —with- out any new facts (as briefly as, “Did the court ert?” or “Is this correct2”). Look at the models on in §§ 8 and 10. If you're writing an analytical issue, state the problem as specifically as you possibly can within the confines of 75 words. Put the facts in chronological order. Look at the models in § 9. Exercise: Write your own deep-issue statement. On a separate piece of paper, draft an issue in fewer than 75 words. Select something that has arisen in your practice, Put it in the form statement-state- ment-question. At the top of the page, label it either “Analytical” or “Persua- sive.” At the bottom of the page, give your word count. Please change the names ofall interested parties. Use fictional but real- sounding names (for example, “George Grabowski” or “Pantheon Co.”), If you're stuck, choose the name of a childhood friend. Doz’t use generic names such as “ABC Corporation,’ “Plaintiff” “Defendant. or “Intervenor.” (©2013 by Bryan A. Garner 6 LawProe, ne Al igh eserve Chapter 3:A Solid Lead 5 § 11 Takeaways Rhetorical Templates for Phrasing Deep Issues: Analytical Issues Ex, #1: Our client, X, is a___seeking to_. May it do so? Ex, #2: Our client, X, is under investigation for___. The SEC officials have asserted that they can__. Do they have this authority? Ex. #3: Under federal law, an X that qualifies as a Y is entitled to__. Our client is an X that seeks Y status based on ___. Will it qualify? Persuasive Issues Ex. #l: Under _law, ___. Here, X claims that __. Is he right? Ex, #2: Under _law, __. Yet the court below ruled that. Did the court err? Ex. #3: In___, Congress enacted the _Act requiring that The Agency has promulgated a regulation interpreting the word __in this provision as meaning __. Here, X now claims that this regulation allows __. Is he right? Checklist: Y Make it habit to frame the deep issues for major popular debates—as a matter of professional pride ¥ Try w frame issues from diamettical points of view—in ways that would please the adherents to those points of view. Y Read all that you can about syllogisms, Test your deep issues on colleagues, challenging your read- ability, your cogency, and your accuracy. ¥ Try wo create a work culture in which people value deep issues and the technique of phrasing them wel. Further Reading: ‘The Elements of Lega Splat 183-87. Garner Language and Writngat 114-30, Legal Writing in Plan Engl at 73-16 ‘Making Your Cas: The Ar of Pereuading Judge a 83-8. (©2013 by Bryan A. Garner & LawPros, nc, Al ight erred (sf a{at af aloof ol e(exotolel ololvielalolorelerctetsslalelo olelsjelsmlolsjem oles.) CHAPTER 4 A Lucid Train of Thought § 12. Use headings effectively: make them pithy but substantive. 78 (©2013 by Bryan A. Garner & LawPrase, Ine All ight served 8 Advanced Legal Writing & Editing § 12. Use headings effectively: make them pithy but substantive. § 12.1 In memos, use either topical or assertive headings. I's permissible co use topical headings in a research memo—just phrases, as opposed ro complete sentences, That's what you may have for the basic parts (“Question Presented,” “Brief Answer,” “Discussion,’ ‘Conclusion”). But with- in the discussion, it’s “Chapters, sections, and subsections should all have} a good idea to present headings descriptive of the subject they are treat- full-sentence (“asser- ing. This has three advantages: (1) it keeps the writer tive”) headings—head- honest by forcing him to think functionally about | ings that actually make his subject instead of just rambling on; (2) it relieves | a complete statement. reader anxiety by breaking up long pages of text This type of heading is into manageable modules; and (3) it gives the reader | conducive to better o- needed orientation. He can anticipate what he is ganization and clearer about read and set up the proper mental attitude.” | thinking, and it makes To —Exnst Jacobi | the entire document more easily navigable. Buc whether you use topic headings or assertive headings, ensure that they're truly informative, And remember the advice from §5: every word on the page must advance your purpose. Note that while topical headings are set in(initial taps (apart from articles, conjunctions, and prepositions having four or fewer letters), assertive head- ings—which are complete sentences—should not receive initial caps. They are sentences, after all, and they're much easier to read by setting them as ordinary sentences in boldface—no underlining, either. (74 golreten geweas€ baceXs ane excellteT a Hey foe paver a porch heackecs ¢ (©2013 by Bryan A. Gamer 8 LawProse, Ine Al igh served Chapter 4: A Lucid Train of Thought p Sample Topical Headings in a Memo Question Presented Short Answer Statement of Facts Discussion A. Bergdorf’s Rejection of Executory Contract B. Purdy’s Rights Under the UCC C. Liquidated Damages or Penalty Clause D. Purdy’s General Damages Remedies Under the UCC E. Purdy’s Right to Setoff or Recoupment Conclusion (©2013 by Bryan A. Garner 8 LawProse, nell ight served, 80 Advanced Legal Writing & Editing Sample Assertive Headings in a Memo Questions Presented [and Brief Answers] Relevant Facts Discussion 1. Constitutional Law A. Viewpoint Discrimination: The Government cannot discriminate against groups based on their beliefs. B. The Government-Speech Exception: The strict prohibition against regulating speech has only one narrow exception. C. Membership Discrimination: The Government can disfavor groups that discriminate in their own membership. 2, Available Options A. Option #1: Excluding groups based on their beliefs would violate the Free Speech Clause of the First Amendment. B. Option #2: Excluding groups that discriminate in their membership is constitutional but will likely fail to effectively exclude extremist groups. C. Option #3: Excluding groups that are nonexempt organizations may meet constitutional standards and effectively exclude some extremist groups. Conclusion (©2013 by Bryan A. Garner & LanProse Inc. Alright seve Chapter 4: A Lucid ‘Train of Thought 81 § 12.2 In briefs, use true point headings that capsulize the arguments. Point headings are pethaps the most neglected aspect of modern advocacy. Yer examples of how to do them well are all around—especially at the USS. Solicitor General’s website, where all post-1982 briefs are available. If there's one thing the SG’s Office excels at, i’s headings. Keep these things in mind: “Writing involves more than setting down neat sentences. It involves adjusting your thought © Write your headings before you write paragraphs in support of them. Your writing will become significancly more focused as a result. to another mind” —John Manele Clapp & Homer Heath Nugent © A point heading is essentially a proposition. You begin with propositions of law and move into factual propositions. © A good heading is typically three or four lines long. © All headings should concretely advance your argument or analysis. Here, for example, is one typical table of contents from a winning SG brief in Abbott v. United Srates.* (Ginsburg J. wrote the unanimous opinions Kagan J. did not participate) It’s a Supreme Court brief, bur the headings of this type could be used in courts at any level. Notice the topical headings have initial caps, while the point headings are lowercase. “Abbors v. US., 131 S.Ce. 18 2010). (©2013 by Bryan A. Garner & Law Prac, Ine Alright seve 2 Advanced Legal Writing & Editing The umombered“unbrlo™ heating i a halt ofthe S6s Offce-an exelent rac, Table of Contents Teka Opinions Below ..... dronolgial | Jurisdiction... ...... eae Seaturory Provisions Involved . statement of the Statement... casecombined, | Summary of Argument .... CR NRNE ‘Argument i ‘A defendant who violates § 924(6) is subject to ~ a five-year mandatory minimum sentence unless § 924(@) or another provision of law re: ahigher minimum sentence for that offense... ++... 13 1. The text, sructute, purp6ee, and histc¥y of the “except”-clause make clear that it refers to provisions of law prescribing minimum sentences for violating Text ond structure § 924) . 13 sane ~~ A. The “except” clause, read naturally, refers to mee other sentences for § 924(0) violations. 4 ont B, The natural interpretation ofthe ext furthers eae the central purpose of § 924(0) .--s+eesee+ 27 2. Abbott’ interpretations of the “except”-clause lack <——— any basis in statucory text, conflict with the purpose Consequentidlist refuttn, is subordinate the legislative history of § 924(9 .. 3. The rule ofllenity does not apply. Conclusion . (©2013 by Byam A. Garner 8c LawPros Inc.All ihe cere, legslatve history | __.b. Abbote’s interpretations ae unsupported by and history of § 924(c), and create anomalies that ~~. Congress could not have intended... .. +31 ‘A. Abbott’ interpretations find no support in the text of § 924(0) ss sseeeeeeeees - 32 ~~ B. Abbott's interpretations frustrate the purpose of § 924(0) ae 34 ’s imterpretations create sentencing that Congress could not have 39 4B = 50 This he legal premise—a ose poropaseof he statute tself— wih n objec ~| tone. Refutation «oes next ifs wee amore prominent argument, becauselouse would be necessary, Chapter 4: A Lucid Train of Thought 83, ‘The prec ble of contents can serve as a superb template for cases involvingstatutory constructions argue cext firstthen purpose, then conse- quences; then legislative history. The headings are appropriately proportioned to the arguments they capsulize. And note that it would be almost impossible, with these specific headings, to have a rambling, ill-organized brief. (©2013 by Bryan A. Garner Be Law Prose, ne Alsighes seve 84 Advanced Legal Writing & Editing § 12 Takeaways Rhetorical Templates for Headings: Example # 1. The statute requires that__, even when _. 2. X alls within the rule because __. 3. The fact that __does not affect the Court's analysis because __. 4, The purpose of the statute supports applying the statute as written to X. Example #2: 1. Under Rule __, a plaintiff who__must_. 2, Itis undisputed that X did not _. 3. The mere fact that __does not excuse X from the necessity of __ing. 4. In the absence of any valid justification for X's failure to___, this Court should __. Checkli ¥ Draft your headings first—as full-structure propositions Use boldface, with normal capitalization. Forget initial capitals. # a ¥ Understand that a sound point heading oe typically runs three to four lines long, all ¥ Single-space your boldface headings! Further Reading: The Elements of Legal Seleae 77-78, “ Legal Writing in Plain Englch at 20-23, ‘Making Your Case: The Art of Persuading Judge at 108-09, The Redbook: A Manual on Legal Seat 98-100. The Winning Briefe 299-307. (©2013 by Bryan A. Garner 8c LawProse, ne. Al igh serve CHAPTER 5 A Potent Conclusion § 13. Wrap up freshly—avoiding perfunctory goodbyes and verbatim recaps. 86 85 (©2013 by Bryan A. Garner 8 Law Prove Ine. All ight reserved 86 Advanced Legal Writing & Editing § 13. Wrap up freshly—avoiding perfunctory goodbyes and verbatim recaps. You've finished, you think. You've said it well. Must you really trouble yourself to say it again? Yes and no. Don't just repeat what you've said. Think about using a wider lens to put the problem into its larger context. Find a striking anelogy that holds up under scrutiny. Suggest what the next eee net tet step should be. Prompt your reader to take you) know when your con- | some specific action. cluding paragraph is merely To do all this, try leaving the draft aside a pro forma bundle of words; and finding another angle—a different way of viewing the problem. Then tersely write from that point of view, trying to connect with your reader using a new vocabulary. use the conclusion to show the reader there is a thinking mind behind those words.” —Jeanne F, Campanelli & Jonathan L. Price ‘The fresh wordings are important. And you can use the technique to puta legal doc- trine into perspective. Let's say you're arguing that your opponent is asking the court to read one provision of a statute in a way that is irreconcilable with another provision. Throughout your brief, you argue that the two provisions must be read so as to be consonant—and you cite several authorities to this effect. In your conclusion, you might use a term of art that you've not previously mentioned: “Traditionally, the courts have used the phrase in pari materia to denote the doctrine that provisions must be recon- ciled, if possible. Here, the most plausible reading of $ 1201(@)(2) is to view it in the light of § 1201(f)—that is, to require copyright infringement before a viola- tion can be found for either section. They are in pari materia: the provisions are of equal standing in the statute, and they should both be given their due.” Granted, the phrase is a Latinism, and Latinisms are generally undesirable. But it’s truly a term of art that denotes an age-old principle with which most judges are familiar. If you felt squeamish about the Latinism, you could distance your- (©2013 by Bryan A. Gamer & EawPrse Th. All rights seve Chapter 5: A Potent Conclusion 87 selfa bie from it, as by writing; “In the age-old legal lingo, the ewo provisions must be read ‘in pari materia: the provisions must be reconciled, if possible.” “The greater danger is not to mention the doctrine by name—as if you could write an entire brief and invoke a rule whose name you don't even know. This verges on legal know-nothingism. “The same sort of conclusion could be written for an argument relying on contra proferentem. That's the doctrine that a document is to be construed most strictly against the drafting party. exe lle One way to prompt ideas—and pethaps to prompt new wordings — is to browse through the legal maxims collected on pp. 1815-80 of Black's Law Dictionary (9th ed. 2009). Some will seem curiously antique and irrelevant, but with a licele patience you're likely to find something you might use. You may even find a maxim that is searchable in modern casclaw—and therefore usable to buttress your argument. You surely won't want to use a maxim as a primary argument, but in the conclusion a maxim often works quite well. See the ex- amples below. (©2013 by Bayan A. Gamer Law Prose Ine. Al ight served 88 Advanced Legal Writing & Editing Conclusion Wherefore, premises concluded, Delta requests that this Court enter a take-noth- ing judgment against Mr. Onweatuku and allow the airline to go hence without day. Respectfully submitted, [Name] Conclusion “The problem presented by this case is of such ancient vintage—and of such peren- nial recurrence—that even the Romans had a cule for it: Nemo commodum capere ‘potest de injuria sua propria. That is, in the translation of the current edition of Black's Law Dictionary (9th ed. 2009), “No one can derive benefit from his own wrongs” (p. 1849). Yer that is precisely what Mr. Onwea tuk secks to do: he overstayed his visa by three days, put Delta Airlines in the p. sition of not being able to transport him outside the United States, missed a busi- ness meeting in his native Burundi, and now seeks a $72 million windfall from Delta for the problem that he himself ere- ated. ‘This case should detain the Court no longer. Respectfully submitted, [Name] (©2013 by Byam A. Gamer 8 LawProse, Ie Allright eered. Chapter 5: A Potent Conclusion Cc 1 Conclusion ‘onclu For all the foregoing reasons, Plaintiffs ask this Court to deny MG's Motion to Stay and to order the parties to proceed 0 trial in accordance with the previously es- tablished crial settings. Respectfully submitted, [Name] 89 Although the arguments against che stay relate primarily co fairness, they find strong support in law—and in age-old standards that judges have applied for mil- lennia. Three are especially apt: * Delays in law are odious (dilitationes in lege sunt odiosae) (Black's Law Dice sionary 1827 (9th ed. 2009)) +The law always abhors delays (lex dil tationes semper exhorret) (id. at 1843). * The law disapproves of delay (lex rep- robate moram) (id. at 1844). Asisso often the case, the mightiest de- fendant in this litigation can measure the degree of its success primarily by how well ican procure delays and force a financial- ly disadvancaged plaintiff co litigate fur- ther in another forum that cannot provide any relief. MG's motion to stay is dila- cory one: a motion to delay a lawsuie filed 47 months ago, reminiscent of the tactics so well parodied in Dickens's Bleak Howse This court should not allow MG's ateempr 10 delay, for itis also well known that jus- tice delayed is Respectfully submitted, [Name] (©2013 by Bryan A. Carnr&e LawProve, Ine All igh eeved. 90 Advanced Legal Writing & Editing § 13 Takeaways Rhetorical Templates for Concluding: Example I: This is not the first case in which X has tried to claim that Yet thus far, the courts have decisively rejected such claims. This lawsuit presents no exception. The Court should therefore Example 2: In essence, X is trying to take advantage of a problem that he himself created. He is the one who . And now, as a result of this, he asks this Court for a windfall. The Court should accord this request the respect it is due, dispatch it expeditiously, and turn to matters worthier of the Court's attention. Example 3: Granting X's motion would result in the fifth delay in this litigation—a delay that suits X’s tactical advantages while denying what this Court was established to dispense: justice. We therefore ask the Courtto__. something to skimp on. Rhetoricians generally cal it the sccond-mostimportant segment. VY Asalways, be specific. Vary your vocabulary so that you'e not simple-mindedly repeating yourself. Further Reading: Garner on Language and Writings 111-1 Garner's Modern American Usageat 160-61, Legal Writing in lain Englichat 69, 72-72. Making Your Case The Are of Persuading Judge 2¢ 100-01 Writing with Seat 14-20. 19. (©2013 by Bryan A. Garner 8 LawProse, Toe Alleighs served CHAPTER 6 Managing Yourself § 14. Understand the four phases ofwriting. 92 § 15. For the initial phases, try a nonlinear outline firs-—and then assemble your main propositions into a linear order. 101 § 16. Once you have an outline, write quickly. 109 § 17, Edit painstakingly. 111 1 (©2013 by Beyan A. Garner & Lawson, All night sete 2 Advanced Legal Writing & Editing § 14. Understand the four phases of writing. Every writing project boils down to four discrete tasks: (1) collecting mate- rial and generating ideas (see Madman below); (2) organizing (see Architect); (3) producing a draft (ee Carpenter); and (4) cxi- tiquing the draft (see Judge). “fe all have our strengths and weaknesses, “We should ‘first think, and then write’: think till we have thoroughly assimilated our materi- als and have determined what we would say, and then write as rapidly as possible, with minds not ee trees 27 it helps to keep those but intent on the subject. After the first draft has been made, we may at leisure attend to matters of in mind. This section ad- dresses these four stages and how best to approach decal, criticize from various points of view, cure | 3 them, tail here, amplify there, until each part has its due proportion of space and effectiveness; bur unless wwe have a conception of the whole before begin- | Madman (inventiveness) ning to write, and unless we write with an eye to that whole, there is litle likelihood that our work will be a unit.” Ancient rhetoricians called it inventio: the gen- eration of ideas. It typi-_ cally occurs in the midst of or just after intense Te- search—the sudden recognition of just what your approach ought to be. Here's how a Harvard writing professor, Richard Marius, describes it: —Adams Sherman Hill “The light dawned” is a common cliché co describe the feclings we have when an insight comes to us. Always the light dawns after a period of hard work—observing, assembling data, thinking, worrying about it, arranging Tn Various parterns — it “The moment may come when you're least expecting it. Just be ready for it when it comes, and do all that you reasonably can to prompt a brainchild. It requires preparation. With experience, you'll learn to induce this dawning of light: 1 Richard Marius, A Writers Companion 69 (1999). (©2013 by Bryan A. Garner & LawProt, Inc Allright served Chapter 6: Managing Yourself 8 Architect (arrangement) ‘The harder you've thought abour a problem that you've thoroughly re- searched, and the more you've pondered its nuances and complications as well as its main outlines, the more automatically an approach to the subject will come to you. People who are baffied by how to arrange their material typically dont really have a command of it: Ifyou find yourself sweating over the arrangement of your piece, chances are you don't know what you're talking about and should go back and get ‘more information from the sources. When you are really full of your sub- ject, the order of presentation will come to you naturally? One easy way to prompt a good architectural approach is to record the three major propositions you want to advance. Three, ‘That's all. Mystetiously, ifs the perfect number for argument and analysis. Once you have three meaty propo- sitions of 15~40 words, see whether they're ordered logically. Set them aright, and you're likely to have an elegant outline from which to begin writing. Carpenter (composing) ‘The biggest secret of fluent writers is to compose quickly, and then polish at leisure. Train yourself to write without stopping to weigh words or to correct yourself, Understand that revisory work draws on a different part of your mind. Ac the composition stage, you're aiming at a fairly constant surge forward. Get going, and keep going. If you get stuck, skip to the next section and continue the stream of words. You're writing in support of your three propositions. Judge (critiquing) In most books about writing, the focus is on the final product: how a piece of writing—whether it’s a poem, an essay, a short story, or a book of fic- tion or nonfiction—should look in the end. Much writing instruction obsesses 2 David Woodbury, “Writing Nonfiction,” in Best Advice on How to Write 203, 213, (Gotham Munson ed,, 1952) (©2013 by Bryan A. Garner & Lawson. Al ight sexed 4 Advanced Legal Writing & Editing over right-vs-wrong, which makes sense in a way. After all, you should care about matters of form. Judges are accustomed to thinking that if you can't be trusted on small matters—the little things that help prove an argument—you can’t be trusted on larger “Poor writers are inclined to scorn revision matters either. That's perfectly and to assume incortectly that good writers | intuitive, even if it occasion- do not need to revise. Poor writers believe that | ally works an injustice. articles, stories, and poems should pour forth. All this goes to show how painstaking you must be about eliminating the deficiencies in your own carly efforts, Some selfeditors think you must consciously undergo a personality switch you begin reading as if it were someone else’s work with the assumption that something is wrong with the piece, and you must do your dead-level best to climinate it. That’s a healthy approach. in theit complete and final forms. Until writ- ers are disabused of this error, they are at best halfhearted about revising and at worst un- willing to change a word they have written.” —H]. Tichy ‘The danger for unseasoned writers is that relentless self-criticism can be hugely stifling, The goal, in your growth as a writer, is to achieve fluency first and polish later. Just understand that your first drafts won't be great; if you think they are, it’s only because you're being way too soft on yourself. To be an effective writer, you must—you absolutely 71st—overcome the narcissism to which most mediocre writers are prone. § 14.1 The Flowers Paradigm Several years ago Dr. Betty S. Flowers, a LawProse instructor who taught in the University of Texas English Department, devised a method of dramatiz- ing the writing process, Her method helps minimize the problems and maxi- mize both the efficiency and effectiveness of writing. (©2013 by Bryn A Garner 8 LawProne, Ine Al ighesteserved. Chapter 6: Managing Yourself 95 , : sey ; Tes called madman-architect-carpenter-judge.’ It breaks down the writ- ing process into four steps—each one based on a “character” or personality that weall have within us. ‘The madman “is Full of ideas, writes crazily and perhaps rather sloppily, gets carried away by enthusiasm and desire, and if ell let loose, could turn out ten pages an hour.” Typically, the legal writer doesn’t really “write” ac all during this stage but instead takes copious notes, jotting down ideas and pos- sible approaches to a problem. ‘The madman’s nemesis is the judge—your critical character who really needs to be reined in until the final step. But many legal writers have an out-of control judge, who is easily recognizable. As Flowers describes the judge, He's been educated and knows a sentence fragment when he sees one, He peers over your shoulder and says, “That's trash!” wich such authority that the madman loses his crazy confidence and shrivels up. You know the judge is right afterall he speaks with the voice of an English teacher. But forall his sharpness of eye, he can’t create anything,” ‘The secret, then, to defusing this battle be- tween madman and judge is to keep the judge | “In a story by Albert Camus. at bay until the end of the writing process. there is a man writing a book Otherwise, the judge will stifle che madman —_} for thirty years, and he never altogether. gets past polishing the first beautiful paragraph.” But what about the other steps? Map eae or Cama Once the madman has generated lots of ideas, the architect takes them, makes connec- tions between them, and starts planning their structure, At first the architect’ work is nonlinear, but it will end up in the form ofa linear outline, This means 3 Besty S. Flowers, Madman, Architect, Carpenter, Judge: Roles and the Writing Process, 44 Proceedings of the Conference of College ‘Teachers of English 7-10 (1979). 4 Md. a7. 5 ld. (©2013 by Bryan A. Garner 6 LawProse, ne Al igh esrved 96 __ Advanced Legal Writing & Editing that the outline will finally have the form that seems obvious to most people today but was a great insight when Aristotle devised it: a beginning, a middle, and an end. And if the architect functions satisfactorily, you'll know each inter- mediate point—step by step—through the middle parts of the piece. In fact, the more detailed the architectural “A thing begun the best way is al- plans are, the better. ready more than half done. .. . Any Te good writer will tell you that, unless | searcs building the draft. At this stage, he goes about his work in the most | the writing begins in earnest. And natural way the best way, the work | yccause youve planned the draft, causes him much trouble” the carpenter's work is greatly eased: —Eric Partridge J i's more or less a matter of filling in the blanks. The process of building is greatly simplified when you have the architects specifications lid out before you. Chatles Alan Wright made this very point in a Scribes Journal essay in which he described his writing process: For my kind of nonfiction it is necessary first to have a complete grasp of whatever subject it is lam going to be writing al sigur Ths we can ake Tor granted, though the fesearch is often long and t ‘The next stage, and to me the hardest of all, is organization. I never sit down to the keyboard— in the old days it was a typewriter, chen an electronic typewriter, and in recent years it has been a computer—until I am clear in my mind how I am going to organize whatever it is that am doing,® ‘Thav’s why, earlier in his essay, Wright said that writing is easy—the prepara tion is the difficule pare. ‘The most important thing about the carpenter stage is to write rapidly, without editing along the way, simply filling in the details according to the architecrural specs. If you edit, then the judge starts getting active—and this is just che type of interference your carpenter doesn’t need. IF you gee stuck in 6 Charles Alan Wright, How I Write, 4 Scribes J. Legal Writing 87, 88 (1993). (©2013 by Bryan A. Garner Se LawProse, ne Alrighes served Chapter 6: Managing Yourself _ 97 a certain part, move on to the next section: you may have to leave a little hole here and there. You'll notice, too, that the carpenter has some discretion—deciding how to finish off corner, how to build the passage from one room to the next. Some architectural details, in other words, are left to the carpenter. Once your carpenter has built a draft, the fin begins for your judge, who can start looking for ways to improve it. The judge will check whether there are _sransitions between paragraphs, whether you've used strong “Most legal writers who write a lot are verbs, and so on. And the judge} weakest in architecture because that’s the will check many other techni- most subtle—it’s the organization. That's cal points as well, from comma where the argument comes in, through the splices to misplaced modifiers | organization, and that's the hardest part of to subject-verb agreement prob- | writing to teach because they don’t get it in lems. The judge is an inspector | high school.” for quality control. —Betty Sue Flowers Each of these characters needs time on the stage—at the forefront of your brain. Ifyou neglect any of them, your writing simply won't be as good as ic might be. § 14.2 Two qualms answered But is it possible, in the hurly-burly of a busy law practice, to go through these four steps with every writing project? Of course itis. Even in the space ofan hourlong writing project, you can spend 10 minutes on madman, 7 on architect, 20 on carpenter, and 10 on judge. The rest of the time you need for breaks in between steps, both to get away from the project momentarily and to put yourself in the mind of another character. But isnt it true that we all approach problems differently? Isn’t that the lesson of Myers-Briggs and other personality tests? Yes, and Flowers designed the paradigm with this in mind. Everyone is most comfortable working in a particular compartment of the brain. This approach ensures that you benefit (©2013 by Bryan A. Garner & LawPeoe Inc.All ight sed 98 Advanced Legal Writing & Editing from all that your brain has to offer, not just from the mental realm you're most comfortable with. Some writers, for example, habitually neglect the architect. ‘They may write highly polished sentences and paragraphs, and people who read their stuff may generally think of them as good writers. But on closer scrutiny, their writing is nothing more than a highly polished mishmash—the organization is unpredictable. If you think you might fall into this group, be sure to nurture all four stages of the Flowers paradigm, In other words, do what Professor Wright mentioned: plan every writing project. § 14.3 The advantages of the Flowers Paradigm ‘There are eight that Dr. Flowers pointed to in her original essay,” here rewritten with my glosses: (1) Its easy to remember. (2) Ie stresses the sequential nature of the writing process—that you're likely to get better results if you work through the madman stage first rather than going back to the idea stage after you've spent three hours crafting sentences. 3) Iedramatizes the need for rewriting and gives a sense of individual purpose to every draft (4) Ic breaks the writing task down into manageable stages and allows you to enjoy each stage. That is, it shows you how to do one thing at a time. (5) Iedefuses the conflict that often arises when you try to write for an authority figure. (6) Ic offers a way to deal with self-image problems that sometimes in- terfere with the writing process. For example, if you see yourself as a creator, you might be impatient wich the polishing and careful proof- ing that the judge provides—and that every draft needs. And if you 7 Flowers, supra note 3, at 9. (©2013 by Bejan A. Gamer & Larose Tne. Al ight served Chapter 6: Managing Yourself 9 see yourself as a consummate critic, you may have a highly “repressed” style characterized by dry and unmemorable (but technically correct) prose. (7) Ie gives a new language for critiquing drafts, one that doesn’t shove the editor exclusively into the role of judge. An editor can look at a brief and say, “Try playing the madman more with this section,” rather than just picking up a red pen and marking away. (8) It clarifies what you can and can’t teach about writing. The madman stage is personal and subjective, The judge stage can be taught from good writing texts. But in the architect and carpenter stages—where many writers are least experienced and usually least well trained—a teacher can help. ‘Many writers need more help with the writing process than with anything else. For those who do, the Flowers paradigm can be invaluable. (©2013 by Bryan A, Gamer &LamProe In, All ight tered. 100 Advanced Legal Writing & Editing § 14 Takeaways Checklist: Schedule the phases of writing: generating ideas, arranging them, elaborating on them in a draft, and then editing, Spend time brainstorming —collecting your ideas and amassing your evidence. Then arrange your ideas in the form of full-sentence propo- sitions eet “Then—and only then—scart writing sentences and para- graphs. ‘Compose as quickly as you can, without stopping to edit. SA Finally, polish your draft coolly and skeptically Further Reading: Garner on Language and Wriingt 3-1), Garner Diesionay of Legal Uage i 9-11. Legal Writing in Plain English 0 9-16. ‘Making Your Case: The Aref Persuading Judges 66-67, 69-70. The Wenning Brief 3-49, (02013 by Bryan A. Garner & LawProse, Ine. Al sights esrved, Chapter 6: Managing Yourself 101 § 15. For the initial phases, try a nonlinear outline first—and then assemble your main propositions into a linear order. The Whirlybird: a Method for Your Madness Few people are natural outliners. For most, the outline comes—if at all— as.akind of afterthought, The problem is that it’s impossible to figure out the order of things when you don’t yet know what things you'll be working with. “That's why it’s so critical for the madman to work before the architect. Even if youre good at outlining, you're going to be less good if you lock yourself into a linear structure early in the process. That is, as an outline-writer, you might start out with something like this: If you did begin this way, you'd be unlikely ever to sce that there really should be aC, D, and an E under heading I. They might end up being V, VI, and VIL In other words, as your architect works, your later thoughts might need to be integrated with your carlier ones, and you don’t want to forestall this pos- sibilicy. ‘An excellent way of improving this process is to use a nonlinear outline, ‘Try creating a “whirlybird” ac the start of your next writing project. A whirly- bird is a whorl of ideas resulting from the madman-architect collaboration. This gives the madman an opportunity to develop ideas, while the architect decides what's a major wing and what's just a feather on that wing of the whirlybird. (©2013 by Beyan A. Garner LawProe Tne: Al ight reed 102 Advanced Legal Writing & Editing A whirlybird looks something like this: red walks ae PTR! ay ae Bh \ (02013 by Bryan A. Gamer LowPrse, Ine Allsight reserved. Chapter 6: Managing Yourself 103 Once you think you've gotten most of the ideas on the page, push yourself to think of more. Ask yourself, “What am I missing? What would my intellec- tual betters think of that I’ve missed?” Rack your brain a little. You'll find that some of your best ideas start coming after the first five minutes. “Then, as you're about to give up—and your page is getting “[Outlining by] branching... . , which fairly full—challenge yourself to | starts from the center and radiates out- think of two more sub-branches. | ward, is an expansive approach to organiz~ You'll probably succeed. ing material. By its very nature, it allows you to retrace your steps for easy additions and afterthoughts. And often the after thoughts are the most valuable aspects.” —Henriette Anne Klauser You won't generate all your ideas with a whirlybird: some will come when you translate that nonlinear outline into a linear ‘one. But most people find it quite helpful to get all their ideas on one page, without worrying prematurely about the order. Using this method, you'll often discover a much better approach to the project than you would otherwise. Now that you've got your collection of thoughts—it may take minutes, or it may take hours, depending on how well you know the subject—you're pre- pared to figure out what the order is. And when you translate those materials into a linear format, you'll find outlining relatively painless. Start by drafting some propositions. (©2013 by Bryan A. Garner 8 LawPeose nel ight reserved 104 Advanced Legal Writing & Editing ‘The outline produced from the whirlybird on page 204 might look like this: Brief for Petitioners 1. Indiana’s photo-identification law should be subjected to heightened constitutional scrutiny because it is both burden- some and discriminatory toward a discrete group of voters. . The State cannot sustain any of the four purported justifica- tions for the significant discriminatory burdens that the pho- to-identification law imposes on Indiana voters. A. The law does not combat voter-impersonation fraud be- cause no such problem has been shown to exist in Indiana. B. The law cannot properly be held to combat a potential fu- ture problem of voter-impersonation fraud. C. The law cannot be said to help reduce overloaded registra- tion rolls because the rolls have been fully under control since they were computerized in 1978. D. Because there is no significant public fear of voter fraud in Indiana, no need exists to combat such a fear. . The courts below correctly held that petitioners have standing as direct suitors, as associational suitors suing for members, and as third-party representatives for voters who appeared for voting but were rejected as having forgotten their IDs. (©2013 by Beyan A. Garner Be LawPeose, Ine. Alsi sere Chapter 6: Managing Yourself 105 Writing Exercise Select a writing project that you'd like to make some progress on. Close the book so that only the next page is visible. ‘There, on the skeletal whirlybird provided, fll out as many major and minor spokes as you can, turning the book as you write additional ideas. Feel free to add more spokes as needed. Ifyou seem to exhaust all the ideas quickly, then redouble your efforts. Rack your brain, Stretch yourself to think of more ideas, and of more and more points in support. ‘Then, when you're sure there's nothing more, force yourself to generate three more subspokes—at least. Show yourself to be a copious thinker by pro- ducing an elaborately spoked whiclybird. Put it aside for a moment or two—or pethaps even fora day. Then trans- late your whitlybird into three full-sentence propositions: the main points you're trying to get across. ‘Try ro work the word because into each proposition. Te may take you five to seven minutes to write out your propositions. Once you have these propositions written, consider whecher they're in the best possible order—from the reader's point of view. Reorder them as necessary. Now you probably have a sensible outline, You're ready to write in earnest. (©2013 by Beyan A. Garner & LanPeose In. All ight seed 106 Advanced Legal Writing & Editing (02013 by Bryan A. Garner LawProse Tne. Al ight reserved, Chapter 6: Managing Yourself 107 (©2013 by Bryan A. Garner & Lavra In. ll ight reser 108 Advanced Legal Writing & Editing § 15 Takeaways Checkii Understand the value of collecting your ideas in a nonlinear fashion. When making nonlinear outline, such as a whielybird, concentrate on copiousness. ‘When you think you're out of ideas, rack your brains sill more. Avoid going prematurely into a linear format Once you have a full and copious set of ideas, only loosely organized, try tanslacing them into three main full-sentence propositions, preferably including the word because ‘Once you have some propositions drafted, focus on whether they'te in the best possible order—from, as always, the reader’ perspective. ¥ Polish your propositions. If youre writing a motion or brief, Further Reading: view them as your point headings, Finally, stare writing paragraphs in support of your head- ings Garner Dictionary of Legal Uage a 8-1 Legal Writing in Plain English 616. ‘Making Your Care: Te Ave of Perea Judge 370-80. The Winning Brifat 8-20, 28-42. 2 & LawProse, Inc All igh reserve Chapter 6: Managing Yourself 109 § 16. Once you have an outline, write quickly. ‘When you have a good outline, you'e pretty well assured of sound overall structure. You have in mind a plan for the entire piece of writing, even if you haven't worked out all the details on how to move from one point to the next. This un- derstanding will come only while you're flesh- ing out your writing, just as a carpenter figures out how to join boards only when assembling a piece. “Write your fist draft as quickly as you can, When you keep your pen—or, preferably, your typewriter or word processor—going, (Atleast you've taken the time to envision | paragraphs come naturally. the beginning, the middle, and the end—and |} Slows laborious writing of a rmost of the intermediate parts first draft often makes yout Immature writers don't do this. Ifyou've done it, | paragraphs sprawl all over and then you make a habit of repeating it, you'll | the place without shape or be well on your way to a rational and even pleas- | unicy” ing method of composing. —Richard Marius ‘Writing quickly means disciplining your- self not to stop and edie the sentences while producing them. Instead, you try to develop a rhythm of surging from sentence to sentence, pethaps knowing that many of your expressions are rough-hewn. That’ all right. You must get into a groove of allowing the sentences to fow and the paragraphs to take shape. If your self-editor—your judge—emerges, you may well suffer from write er’s block. So you shouldn't evaluate the relative worth of your writing while you're producing, You'll be able to weigh the efficacy of your words later, once you have a complete draft. But meanwhile, be sure not to stifle your creative juices (©2013 by Bryen A. Garner & Law Prose Ine Al ight reserved 100 Advanced Legal Writing & Editing aces Further Reading: Chee! ¥ Train yourself{—you may have to work at it quite sel-con- sciously—not to stop and edit as you compose. ¥ Understand that if you know your subject adequately and have prepared an adequate outline, the words should flow without too much effore, J Realize that the best-written works are often—in fact, usu- ally—produced quite fast. Y Ifyou think you're just naturally a glacially slow writer, dis- abuse yourself of this notion immediately. Learn—or teach yourself—to write with some haste ‘Maing Your Caz: The Are of Persuading Judgera 80-81, The Winning Brief 20-21, 22 (©2013 by Bryan A. Garner Be LawProse, Ie: Allrights testved Chapter 6: Managing Yourself m § 17. Edit painstakingly. Effective editing requires a systematic approach—preferably with several read-throughs, You'll do best if you focus on a few relaced tasks during each reading: this helps you co keep the immediate goal in mind and to avoid be- coming distracted by other errors you may spot. Everyone develops a unique system, it seems, but there are always specific items that you must examine before you can be confident that you've edited a document thoroughly. “The cools of copyediting are simple: a pencil (in some houses pens are prescribed, but since humans ert, a pencil is better), an eraser, some bits of paper, some reference You may be editing your | works, anda mind. These must suffice.” ‘own prose, or perhaps someone —William Bridgwater else’, The latter situation will call for tact as well as skill. You must be sensitive to the personalities of those with whom you're working—and you must always bear in mind hierarchical relationships. If you're a senior lawyer editing a junior, be mentory: be honest, but be as encouraging as you can be. Always write a note atop the first page, such as this: “Chris— This is a good start. I especially liked your second argument, and 'd like you to move it to the fore (see my edits on page 5). Be more careful in your proofreading: I don’t want to see the kinds of nitpicky errors I've had to correct. Remember that judges are likely to discount the substance if they detect prob- lems in form. And so do I. From now on, turn in your work to me only after you've put it into apple-pie form. OK? Ir’ clear to me thar you have talent as a writer. Make the most of it. I trust my edits will be self-explanatory.” If you're a junior editing a senior, be especially careful, Assess whether you're involved in full-scale editing or just proof teading, If you're not sure how well received your edits will be, pethaps because of how you've sized up your se- nior colleague's personality, confine yourself to ertor-correction. Do everything you can to spot and fix outright errors: inconsistencies in number (plaintiffin one place, plainsiffin another—in reference to the same parties), grammatical (©2013 by Bryan A. Gamer & Law Prose, Inc.All ight served 12 Advanced Legal Writing & Editing errors that are inarguable (arm yourself with bookmarked usage guides in case you're questioned), incorrect word choices (ditto), wrong volume numbers or page numbers for citations (Keycite the cases), and citation errors (bookmark the Bluebook or the ALWD Citation Manual in case you're questioned). Stay away from mere questions of style until you've earned your senior colleague's trust. Your goal is to ensure that 90% of your edits are adopted in the next draft, so be sure you're spot-on. When it comes to team editing, keep two points in mind. First, try to instill aonsensus of core values?(1) shortening wherever possible by eradicat- ing every unnecessary words (2) enhancing interest by collectively fearing any hint of induced boredom; (3) insisting on getting straight to the most impor- tant point on page one; (4) challenging every conclusory assertion and replacing it with specific evidence, pithily stated; and (5) insisting always on an engaging writerly persona behind the text and resisting any suggestion that the piece is a committee product. (Photocopy this paragraph and pass it around, if neces- sary.) Meanwhile, you must manage the editorial process well. For the best re- sults, plan for serial edits. Reject the idea that five people will simultaneously re- view a single draft. Serial edits go something like this: (1) John has 45 minutes to read and edit. ‘Ihe responsible writer then enters the good edits (we hope for at least an 80% acceptance rate). (2) The process is repeated with Sarah. (3) The process is repeated with Stan. (4) The process is then repeated with Becca. All the while, the piece is becoming progressively refined, and at each stage the ed- its are manageable. Lawyer time is put to its best and highest use, and the work product is greatly enhanced as a result of this highly rational means of editing, which is a far cry from the chaotic and wasteful habits evident in many law of- fices. ‘Ar LawProse, we've developed a checklist that breaks down the task into specific steps. (©2013 by Bryan A. Garner & LawPron, Ine Allright eerved Chapter 6: Managing Yourself 113 The LawProse Editing Method: An Editorial Checklist Level One: Macro Edits © Does the central point emerge clearly and quickly? © Have you made your logic explicit—premises, rule of inference, and conclusion? Is the logic sound? © Is there a strong counterargument that you haven't adequately ad- dressed? © Do your arguments fit together? © Would an analogy or illustration help to convey a particular point? © Could you be any bolder in your thesis? Do you need to be? © Overall, have you achieved the right tone? Level Two: Basic Edits © Cut or reword pointless legalisms. _ © Convert yourbe-verbs (is, am, are, was, were, be, been, being) Into stron—_ ger verbs. © Convert passive voice into active unless there's a good reason not to. © Uncover buried verbs (usually words ending in -tion, -ment, ence, ance, io) = © Check every ofto see whether it’s propping up a wordy construction. If so, rephrase. — © Check for misused words, faulty punctuation, and other mechanical problems. Level Three: Advanced Edits © Try to cut each sentence by at least 25%. (1) Collapse sentences into‘¢lau e (2) Collapse clauses into‘pha @) Collapse phrases into single wor © Other things being equal, substitute simple words for fancy ones. hort words for long ones, and (©2013 by Bryan A. Gane: & Law Pease Ine Al ights esered 14 Advanced Legal Writing & Editing © Ifyou've begun a sentence witli However followed by a comma, do one of three things: (1) change it to But and remove the comma; (2) move however to midsentence, after a short subject; or (3) collapse the sencence with the preceding one and begin with Alehough. @ Ifyou see an ordinary which without a comma before it, replace it with that. If the result doesn’t make sense, recast the sentence. @ Read aloud, accenting the final word or phrase in each sentence. Does it read naturally? Level Four: Polishing © Can you spot a bridge at the outset of each paragraph? @ For each block quotation, have you supplied an informative lead-in? © Can you dramatize your points better? Can you phrase them more memorably? © Should you set the point off in a paragraph of its own? Where you've enumerated points, should you set them off with bullets instead? © Can you clarify the point with an example or an analogy? Can you humanize the narrative by identifying who actually performs a given action? © Do the ideas flow smoothly? Have you achieved a clean analytical line? Have you found a way to subordinate citations so that they don’t mar the page (and your analysis)? © Ensure that yout using real names for parties, unless there's a compel- ling reason to do otherwise. Can you enhance the layout and typography? Have you cut every inessential word, sentence, and paragraph? (©2013 by Bran A. Garner & LawProie, nc Al ight seserve Chapter 6: Managing Yourself 15 ares Checklist Edit for one type of correction at a time, ¥ Make at least three passes through a document— preferably ‘more—with a differenc editorial purpose each time. Have as many good pais of eyes examine a document as possible. ¥ Heed what editors say—with due humility—and teach your juniors to achieve at least an 80% acceptance rate (that is, you want at least 80% of their suggested edits to be accept able to you—and therefore reflected in che next draft) Further Reading: ‘he Element of Lega! Splat 218-19, Garner on Language and Whitngst 227-31, 455-57, Legal Writing in Plain Engl 0 162-65, ‘Making Your Cane: The Are of Praaeding fudgera Bl The Redbook: A Maral on Legal Splat 362-63. The Winning Brifs 45-49, (©0013 by Bryan A. Garner 8 LawProe, ine All sighs eseved Model Documents (1) Typed personalletter 118 Motion 126 7 (©2013 by Beyan A. Garner 8 Law Prose, In, Allsighrecrved us Advanced Legal Writing & Editing Typed Personal Letter Comno after soutation Brociou\® Thlege in. pasonal eter na 1231 Olden Stzect business letter it would Princeton, NJ. 08541 bea colon, \ pent \ 14 February 1953, 1 instance of _-7| festperson (I, Dear Atherton, levees Congratulations on Yoiif admission to the bar! Your mother and of second person were beaming with pride at your swearing-in ceremony. We know (you). itmarks an important milestone in Yeu life. You have completed with success several years of preparation for entry into your chosen profession—and now yil start Sou life's work. You will find much satisfaction inthe practice ofthe law—it is a ses calling that will have as its greatest reward the knowledge that you aahice have lived up to the high ideals of the profession. I know you are _| follows familiar with the ABA's Canons of Ethics, but I suggest that you read_-~~ | uplifting them again and at least once every year. They embody most of the “ sentiment Tenadl collective wisdom about what, from a lawyer’ point of view, is right— Ee and what is wrong. instils ethical ‘Be courteous, friendly, and deferential to the court, but don’t be ideals in servile, Particularly be friendly and helpful to your fellow lawyers, for dowreceath | You will find them to be good friends and generous in their estimate even ‘of your ability and character when they are asked—as they frequently will be—about you. Never underestimate the ability of your opponent or disparage his motives or ethics. Rarely if ever does a lawyer feel that he is The ft thot so much proceeding other than on the highest plane. On the other hand, don't be | otviceis negative afraid of your opponent or his case. suggests that there hard enough on your case and master it, you will attain a strength and WS go wrong power that will permit you to present it at its best. The court, not you, (©2013 by Bryan A. Gamer fe Law Pra, Le Allrighs reserved Appendix: Model Documents a9 is the one who determines the ultimate right of your client’s cause, and the court, as well as your client, is entitled to have it presented in the best possible way. On the other hand, never let your client persuade Yyou, or permit your enthusiasm to lead you, to present a case other than. fairly or honestly. Don't criticize or deprecate your client, but help him secure his just rights Don't talk about your clients’ affairs to anyone. Don't have conflicting interests, no matter if you believe they will not affect you— for they unconsciously will. Don't think about your fee, but about how well you must do the work. The fee will take care of itself. Clients estimates of the worth of their attorney's services are invariably generous if they know how much time and effort has been devoted to their affairs. Never browbeat a witness or be cruel to a person who has made a mistake, Be firm, but fait—resourceful, but not “smart"—responsible and reliable, rather than brilliant. envy you all the fun and joy you have before you. Make each day ‘count, so that when you are through you can look back on a lifetime of service to others—well and faithfully performed, Good luck to you! [Signed: Your loving Father) ‘Adapted from Herman Phleger, “A Letter to My Son—On His Beginning Law Practice,” in Listen to Leaders in Law 331-32 (Albert Love & James Saxon Childers eds., 1963). ©2013 by Bryan A. Gamer & Law roe Ine, ll ight reseed 20 Advanced Legal Writing & Editing Research Memo Attomey Work Product, Privileged and Confidential To: Partner From: Associate Re: No-Contest Clauses in Wills 23 October 2007 Award | deep ise. Questions a 1. Challenge to appointment ofa fiduciary. Our client, Denise Hoffman, isthe 7 beneficiary under a vill with ano-contest clause providing that any benefiiary who challenges the wills automaticaly disinherted, She would like to challenge the Baldae appointment of the executor as unqualified. If she did so, would she be disinherited? headings for mug ses Short Answer: Although New York has not addressed this exact issue, easelaw indicates that the courts, as a matter of public policy, will not enforce no-contest \, _/ clauses against beneficiaries who challenge an exceutor ora trustee over his or her \. /- functions or obligations. Examples include accountings, reviewing estate documents, \, and general administrative and management issues. By this logic, it seems reasonable that the courts similarly would not enforce a no-contest clause against a beneficiary who challenges the suitability of a person to act as an executor or in some other [ 3} yoid \, Biscay spar ee TeS6tmES | 5 Ets of contest case on nnpats to chalng. Hina en who reunited — | are not parties to her challenge ofthe exeeutor's appointment. If Hoffman were disinherited freeofatofons. | under the no-contes laws, would her forfeited inheritance pass io her children? ~ Short Answer: If the children are merely successor beneficiaries of Hoffman, then they would also be affected by the no-contest clause and could not succeed to their mother's forfeited inheritance. But if they are given distinct gifts under the will, then Hoffman's action would not trigger the no-contest clause against her children regarding those sift. 1. Courts generally do not enforce no-contest clauses when beneficiaries contest only the appointment of an executor. New York statutory law provides for enforcing no-contest clauses despite the presence ‘or absence of probable cause for a will contest, unless the will is contested on the grounds (©2013 by Bryan A. Garner 8 LawProne, ne Al igh eee Appendix: Model Documents 21 of forgery or revocation by subsequent instrument. Despite this general rule, courts will not uphold restraints that are unlawful or otherwise contrary to public policy? On policy grounds, New York courts generally will not enforce no-contest clauses ‘against beneficiaries who challenge the executor or some other fiduciary over issues relating tothe executor’s or fiduciary’s functions or obligations. For example, in Jn re Coven,’ a beneficiary objected to the final accounting provided by the executors of the decedent's estate. The decedent's will contained a no-contest clause stating: “[a}ny legate cr devisee or beneficiary ... [who] shall after my death formally assert any claim against ‘me or my estate, the justice and validity of which is not admitted by my executors” would forfeit his or her Iegacy-* The executors contended that under the terms of the clause and Of EPTL § 3-3.5(0), the objecting beneficiary had forfeited her legacy because she had interposed invalid claims against the estate* The Coven court rejected the executors’ contention for two reasons. Fist, the beneficiary's claims were not made against the decedent or her estate, but rather against the executors individually or in thei fiduciary capacities.® Second, it was contrary to public policy to give effect tothe no-contest clause in the decedent's will respecting the objections to the executors’ accounting.” So the court held that the beneficiary's action did not trigger the no-contest clause, and it did not revoke her legacy.* In fn re Lang's Will, beneficiaries of a testamentary trust wanted three things: (1) tohhave the trustees perform an accounting, (2) to examine books and records, and (3) to generally question the administration and management of the trust.” Concerned that such an action might trigger the no-contest clause, the beneficiaries petitioned the court NY. Bat Powers & Trust Law § 33.5 (MeKinney 1981 & Supp. 1996) See generally In re Andrus’s Will.281 NY.S. 84,845 (NY. Sure. Ct Westchester Co. 198) tating that "a testator has the right to attach oa bequest or devise made by him aay condition, ‘whether sensible or futile” provided tat ts ot illegal, nor opposed to public policy"). NYILJ, 14 June 1980, 2129, 001.6. 1a. 20 30, ua. 1 eting In ve Kiekenbusch's Estate, 244 NYS. 234,239 (NY. 1926) (nding that spouses challenge of the beneficiary clause of the decedem's ie insurance policy “constituted acim agins the insurer, not against he testator orth estate"), 1 cting i re Lane's Will, 302. NY.S.24 954 (NY. SutrC, Erie Co, 1969). ua B0DNYS.24 30955, (©2013 by Bryan A. Garner 8 LanPros, Ine Al ight served 12 Advanced Legal Writing & Editing to determine the clause’s validity, construction, and effect."® The no-contest clause stated: “(if any beneficiary named in this instrument ... [shall] interfere with or question the administration or management of my estate, or any trust created herein” that beneficiary ‘would forfeit any interest under the will’ As an initial matter, the court found that under well-settled law the proceedings to construe the validity, effect, and construction of a will do not violate no-contest clauses prohibiting action on penalty of forfeiture. ‘The court then held inviolate the beneficiaries’ right to question the propriety of the trustees’ actions: “The obvious attempt by the testator... to prohibit the beneficiaries of the testamentary trust from questioning the trustees as to the management and, administration of the trust and from objecting thereto and from demanding an accounting. is clearly violative of public policy and applicable statutory law""* Although the court cited decisions emphasizing the special role of fiduciaries and the need to ensure their accountability," it relied on § 125 of the Decedent Estate Law (now EPTL 11-1.7). That statute provided that an executor or trustee could not be immune from potential liability and that “any person interested in an estate or trust fund may contest the validity of any purported grant of any power or immunity within the purview of this section without diminishing or affecting adversely his interest in the estate or fund, any provision in any ll to the contrary not withstanding.” According to the court, § 125 of the Decedent Estate Law (now EPTL §11-1.7) ‘was adopted for distinct policy reasons. The legislature was becoming concerned with the increasing practice of testamentary drafters granting considerable power to fiduciaries without adequate accountability." The legislature felt that any impairment of a fiduciary’s primary obligations—such as ordinary care, diligence, prudence, and. ‘absolute impartiality—was contrary to public policy.” Given the public-policy concerns ‘and applicable New York law, the court concluded that the portion of the no-contest clause attempting to preclude the beneficiaries from questioning tie conduct of the fiduciaries and ‘demanding an accounting or filing any objections was void, 1a. 1d. 21 955-56, 1d. 30956, i. ‘ing v. Talbot, 410 NY. 16 (NY. 1869); ne Suter, 196 Mise. 684, 282 NYS. 311 (CY. Sur 1938). 30DNY.S.24 8 996-57 1. i. (©2013 by Bryan A. Gamer & LawProse ne. Alright served Appendix: Model Documents 123 Although these cases do not direetly speak to our issue, they indicate that New York courts are generally reluctant to enforce no-contest clauses against beneficiaries ‘who challenge some aspect of the executor's or truste's functions or obligations. By extension of this general approach, a beneficiary who challenged the appointment of an executor or some other fiduciary would probably find that the courts wouldn't enforce the no-contest clause against the challenger. The courts might base their decision on one oF both ofthe following arguments. First, as in In ve Cover, one may argue thatthe challenge 4id not constitute a “contest” against the will or the estate, but rather a challenge against the executor or fiduciary in his or her individual capacity. But this argument might be problematic when the no-contest clause, asin Jn ve Lang's Will, provides more specifically that a challenge against the executor would result in forfeiture. ‘The second argument is that enforcing a no-contest clause in such circumstances violates public policy. New York courts have consistently recognized the importance of fiduciaries and the special role they perform in the law. The cases demonstrate thatthe courts ae reluctant to enforce no-contest clauses when it comes to seeking an accounting ‘questioning the administration or management of the estate. Extending this logic to auestoning the executor’ suitability in th ist place isnt unreasonable. The courts Asserive | would probably rule thatthe no-contest clause does not apply. heaingin PO 2 A no-contest clause may dsinherit the descendant ofthe person who contests the vill unless it would be contrary to publi pliy or the wil provides separately for the descendants A will may provide that if the beneficiary predeveases the testator or files a disclaimer, the bequest passes to the beneficiary's surviving descendants. In other words, the will may provide for a successor beneficiary. If that is so, the no-contest clause could be drafted broadly enough to disinherit not only the beneficiary but also the beneficiary's descendants should the beneficiary contest probate." By contrast, ifthe will provides for multiple beneficiaries, and a beneficiary is a descendant of another beneficiary who contests the will, the noncontesting beneficiary will not be disinherited under the no- contest clause merely because of his or her relationship to the contesting beneficiary. A contrary result would violate New York state public policy.” ‘New York law is reasonably well settled on this issue. In Robbins, Delibes, the daughter of the testator, had filed several lawsuits against the testator and, after his death, le ————— sth [18 inre Estate of Robbins, 544 NY'S.24 427 (NY. Surt. Ct. NY. Co, 1989) see Peter C. Valente 2 Plip 1 Mlchaels, No Cones Clauses, NY.L J, 28 Je 988 a3 ho ° UB ZT” | 19 Robbins, 564 NS 26 a 477 Pack Ronan, Practice Commentary, NY. Bt. Powers oY Trust a § 3:33 (MeKiaey 1981) (©2013 by Bryan A. Garner & Lew Prose, ne Al igh reserved 124 Advanced Legal Writing & Editing his estate's executors.* All but one of these lawsuits were fled before the testator’s death. The one filed afterward was dismissed without prejudice.”' Each suit was aimed at recovering assets that the testator had allegedly taken from the estate of Delibes’s father. ‘The dispute in Robbins concemed whether Delibes's lawsuits triggered the will’s no-contest clause, which provided that any contest would result in disinheritance for the contesting. “beneficiary and his or her descendants.” The will gave personal effects to Delibes and $25,000 to each of her children. The executors and certain other beneficiaries argued that the bequests to Delibes and her children were forfeit because of Delibes’ lawsuits. “The New York County Surrogate Cour first held that Delibes’s lawsuits did not constitute a “contest” for purposes of the no-contest clause.” Specifically, the court noted that Delibes had never contested the wil. The first lawsuit was fled even before the testator made his will, and all the suits but one were filed before his death. As forthe one suit filed after the testatr's death, the cout found that it was a demand to the decedent's executors for an accounting. Under these circumstances, the court reasoned, "Public policy clearly precludes the in terrorem clause from having effect.” A fiduciary’s role and duty require that no fiduciary can be excused from accountability for his or her actions by any testamentary provisions.” ‘Turing to the children’s interest, the court found “even less merit to the arguments that their bequests should be held forfeit No party had alleged that the children were partes tothe actions or that they directly or indirectly challenged the will. Although the executors and certain other parties sought forfeiture agains the children for their distinct sifts under the decedent's will “merely because oftheir relationship” to Delibes (their ‘mothes). the children were not “{mlere successors in interest to Delibes's bequest, so that if Delibes had violated the in rerrorem provision, they should be precluded from benefiting inher place’°” The court reasoned that the particular portion of the clause punishing the Sta NYS2dat 428, Hot 428-29, Hao 408, Wa. i. Ha. at 429-30, 14,2430, Ma 1 1 ta. (©2013 by Bryan A. Garar& LawProse Ine. Al ight serve, Appendix: Model Documents 125 children in this manner could not be given effect on the ground that it would violate New York public policy. According to the Practitioner's Commentary to EPTL § 3-3.5, the 1966 version of the Act actually authorized calling for a person to forfeit a bequest when any other person contested a will. But before the effective date, the legislature amended the Jaw to eliminate that provision, The Practice Commentary to the current statute explains the legislative history and the amendment's purpose: It should be noted that paragraph (b), as enacted atthe 1966 legislative session, authorized a condition designed to occasion forfeiture of a disposition in case the will was contested by the beneficiary “or by some other person.” The later clause was amended out of existence at the 1967 legislative session on the ground that its possible consequences ‘were unpredictable and that it might be conducive to fostering or perpetuating intra-familial hostilities. Given Robbins, which remains good law, a beneficiary's challenge will not trigger ano-contest clause and cause the beneficiary's descendant to forfeit a bequest if itis a distinct gift under the will. Conelusion If Hoffman’s challenge is limited to the appointed person’s suitability to serve as the estate's executor or other fiduciary, the court will likely find that she has not forfeited her legacy under the no-contest clause. It would be against public policy to allow a fiduciary to perform duties without an enforceable obligation to perform them wel But if the cour finds that her challenge extends to other portions of the wil, she might well forfeit her legacy under the no-contest clause, and the forfeiture of that legacy right extend to ber children, Yt ifthe testator lft legacies directly to any of Hoffman's children, and the children are not partes to Hoffman's challenge, those legacies would not be forfeited. We should determine the actual wording inthe will—of which we have no copy at the morent—to learn whether Ms, Hoffman's children are independently named legatees or merely successor legates. ~~ Condsion suggests the ‘ext lowyerly ‘step in the representation. a1 32. Patrick J. Ronan, Practice Commentary, NY. EPTL § 3.35 (MeKinney 1981) emphasis in orginal, (©2013 by Beyan A. Garner & LawProse, Tne: Al ight rested 126 Surestay makes its case on the frst page, using deep issues having cecly discernible answers, else being peripheral: Advanced Legal Writing & Editing Motion. No, 09-6959570 Dorland Contractors, Ine. State of Oregon an Oregon corporation, Plaintiff, Cireuit Court Nelson HVAC, Ine. Delaware corporation, and Surestay Hotel Corp., an Oregon corporation Defendants. County of Multnomah Surestay Hotel Corp.'s Motion for Summary Judgment Introduction In resolving this motion, the Court need address only two straightforward issues—all 1, Time to perfect alien. Under Oregon law, a subcontractor’s construction lien must be perfected within 75 days ofthe earlier of two dates: (I) the date when, the subcontractor has completed work: or 2) the date when the overall project is complete. Here, the subcontractor completed its contracted work on June 11, 2008 (the earlier date), and didn’t ile its lien unti] October 15. Was ths lien timely? 2. Trifling pst-completion work. Oregon courts have held that asubcontrac- tor's returning toa jobsite to perform “tefing work” does not extend the peri- } od for perfecting alien. Her, despite finishing work on June 11 and submitting 2 final bill on June 23, the subcontractor returned briefly on August to repair a wire in one air-conditioning unit—a wire that carpet installers had damaged. Does this repair of one wite extend the period for perfecting a in? (©2013 by Beyan A. Gamer & LawProee, Ie. All rights resred Appendix: Model Documents 27 ‘Summary of Facts, In April 2008, Surestay entered into a contract with Nelson to perform construction work on the Surestay Hotel in Portland.’ The scope of that work included remodeling eight hotel rooms# Nelson subcontracted the heating, ventilation, and air-conditioning work to Dorland.* Each room’s heating, ventilation, and air-conditioning unit would be stand-alone, functioning independently of the others. The Doriand began its work in May 2009. When the heating, ventilation, and air-condition | gxposiin is ing units were installed and running inal eight rooms, Doriand sent Nelson afinal bill on | tronlag June 23, representing that its work was 100% finished.® ‘The entre hotel was completed by June 30, and the eight rooms that Dorland worked on ‘were rented as ofthat date. Surestay paid the contract price to Nelson.* No further work was done by any contractor until August On August 4, when an air-conditioning unit stopped working in one room, Nelson sent Dorland to inspect it. Finding that a wire had been damaged by the carpet installer’ stapling, Dorland repaired i Altogether, the worker spent about 30 minutes on the job ata cost of ‘$60: Dorland did not send Nelson an invoice.* But on September 9, Dorland forwarded a ‘warranty letter to Nelson indicating that Dorland’s warranty on its work and the units had ‘begun on June 9: ‘By October, Nelson still had not paid Dorland's bill of June 23. So on October 15, Dorland filed a construetion-lien claim." To Surestay's knowledge, Nelson still has not paid Dorland, But Surestay is uninvolved in that dispute over a debt. What is inarguable is that Dorland cannot now burden Surestay’s property with a lien. Beckett ATE, EX. A Hd, a2. MBB, Nelson Depo, Ex.21 Beckett ARE 6,7; PL Depo. pp. 19.37 Salak Aff, Ex. 101 Beckett AME 7, Id. ¥9, Waa ¥8. Nelson Depo. p16 Map. 38.8 Bx. 5 14, arp. 12,20. at Bx. [Nelson Complaint a 7. (02013 by Bryan A. Gamer & LewProe Tne. Al ight reseed 128 Sabstontve point heading of chou the sight eng — no ini ops. The fist ogument seads lke cawell vrought rometic prot Advanced Legal Writing & Editing Argument L Dorland aed to perfect ts construction en: no matter what dates use to caleu- late the 75-day limit, te actual date offing was ate. Under Oregon law, a plaintiff must perfect a construction lien within 75 days of the ear- ‘of (1) the date on which the person ceases to provide labor or materials; or (2) the date the project is completed. Dorland ceased to provide labor or materials as of June 23. The entire project was completed on June 30. Dorland filed its untimely construction lien on October 15, far more than 75 days after either date. Dorland!’s timesheets show that it finished installing the units on June 9, then began the process of starting up the units and installing thermostats!“ The work was substantially ‘completed on June 11." After that date, Dorland made a minor adjustment to the wiring in the units for 30 minutes total," then sent Nelson a final bill, dated June 23, indicating that its work was 100% complete; in other words, it was also the final date when Dorland provided labor or materials atthe jobsite, Based on this date, under Oregon law, Dorland had until ‘September 6 to file its construction lien. Dorland argues that it provided labor and materials after the project was completed, so that it had 75 days from this later date to perfect the lien. But the law expressly states that the earlier date—bere, the project’s completion date—controls. So Dorland had to perfeet a construction lien within 75 days of June 30°—or September 13. No matter which date applies in calculating the 75-day limit, Dorland had to file its con- struction lien in September. By filing in October, Dorland was statutorily tardy. 2. Dorland’s trifling work at the hotel in August 2009 does not extend a construction ‘contract or the time to file a construction lien. ~ ‘The Oregon Supreme Court has repeatedly held that the date from which the statute of limitations begins running is related to the time during which the original construction takes place. Ifa contractor or subcontractor returns to the jobsite to perform trivial work after con= struction has been completed and all tools and equipment removed, the work is not related to that original construction and will not extend the time for fling a construction lien.”° 15. Or. Rev. Stat 87035(1) (1999) 16. Nelson Depo, Exs. 23 & 24 17 da, at Bx. 25 Md aE. 26. (Or Rey Stats 87.010(), 87035(1 (1999) Cvistenson v: Bolvens, 372 P24 494, 498-99 (Or, 1962) (cations omited), I Yor Major Hee premise, Interesting phase, ‘Second point hooting — ogcin, complete sentence that codvonces 0 piopositon (©2013 by Bryan A. Gane: &LawProse, In. Al igs eserved Appendix: Model Documents 129 Dorland incorrectly claims tha te last date it provided labor and material was August 4 thatthe project was not completed until then; and thatthe time to file a lien had not begun torn, tis true that after an air-conditioning unit was reported to be malfunctioning in early ‘August, Dorland sent @ worker to the horel to repair the unit. He found chat a wire had been damaged by the carpet installe’s staples, and so he then repaired it Altogether, the worker spent about 30 minutes on the jb ata cost of $60; Dorland did not send Nelson an invoice for this repair.® ‘The Oregon Supreme Court has given explicit guidance on what kind of work is trivial In Christenson v. Behrens, for example, the Court considered whether work done after a final billing had been sent was additional construction work" A worker had replaced a wire on some mechanical item and screwed some metal panels or plates into place, but it was unclear hhow many panels he installed or how much time the task took. The Court held that because the work was mostly done on fixtures, and none of it was construction work, it was trivial * ‘The Court also found that the time to file a mechanic's len had begun to run before the trivial ‘work was performed.” Minor work done long after a subcontractor has completed the contracted-for work does rot change the completion date. In Coffey v. Smith, Coffey claimed that work requiring “a fraction of a day, and... evidently inconsiderable in amount and value” was necessary 10 complete his contract. But he admitted that a month before, be had considered his con- tract substantially performed, put away his tools, and assigned his workers to jobs for other clients.» The court found thatthe day he put down his tools was the controlling date, and the ‘Statutory filing period could not be extended by the incidental work he did later.” Here, Dorland’s work at the hotel was 100% complete by June 30, when the company removed all its tools and equipment. All parties involved in the project treated it as complete ‘on that date. Even if Dorland’s return to the hotel on August 4 to make a minor repair—the replacement of a single damaged wire in an air-conditioning unit—was the final act required to fully perform its contract, it would not extend Dorland’s deaal Nelson Depo, p16 Md. atp 5 8EX.5. 3 I at pp. 12,20, 372 B24 494,497,499 (Or. 1962). 1, 497-99, 1. 499, la ‘97 P1079, 1080 (\Or, 1908), i 1. 1081, (©2013 by Bryan A. Garner & LaProe In. Al ight sed 130 Advanced Legal Writing & Editing Oregon casclaw is unmistakable on this point. In Dallas Lumber & Supply v. Phillips, «family moved into a newly built house, which still needed minor work done to complet it; specifically the gutters needed painting.” The subcontractor later did the painting ata cost of 15." The Court found that the house was substantially complete when the family moved in, and the remaining work was insignificant, so the date the project was substantially complete was when the period to file alien began.** ‘Similarly, a minor repair or replacement of a minor part cannot extend the fling peri- ‘04. In Brown v. Farrell, plumbing subcontractor stopped performing after substantially completing some work on a project but without fully performing the contracted-for work." ‘The subcontractor returned tothe jobsite later to repair a washer and attend to another “minor matter?" Finding this work to be inconsequential, the Court declated that the time ‘within which the subcontractor could file alien had begun when he had stopped the substan- tial work.” ‘The rooms that Dorland worked on in June were cecupied as of June 30, which shows that the hotel was at east substantially complete then. And the amount of time and money Dorland expended in August—30 minutes and $60—is about 0.04% of the total project cost. Dorland dicn’t even bill for the work done. The work was inarguably of no consequence, 740 (Or. 1968). i i. Fax & Co. v. Roman Catholic Bishop ofthe Diocese of Baker City, 215 P. 17, 119 (Or, 1928). ‘See also Central Coast Ele, Ine. v Mendel, 672 P24 1204, 1225-25 (Or. CX. App. 1983) 483 P24 483,456 Or. 197D. 0435, a (©2013 by Bryan A. Garner 8 LawPeoe Ine All igs served Appendix: Model Documents BL Concison begins with a pulicpoicy ‘argument: why it simportant tho hese ens be fed win reasonble time See ‘Conclusion Oregon courts have long protected the rights of innocent property owners who have paid the contract price in reliance on completion against liens untimely filed by workers who have done only trifling tasks." Dorland admits that the job was complete in June 2009 and that all its work was done before then. No matter how Dorland tres, it eannot show that the want of a single wire made the hotel something other than substantially complete, Nor can Dorland manipulate time. No matter what date in June 2009 is used to calculate the last possible filing date for its lien, that date always fal struction lien—filed in October—is plainly late. Is in September. Dorland’s con- ‘This Court should find that Dorlane's lien is invalid and grant Surestay’s motion for summary judgment. Respectfully submited, {Signature block] 38 See,eg Schade Alton, 121 P. 898,898 (Or. 1912) (©2013 by Bryan A. Garner & Lawson Al igh served 132 Advanced Legal Writing & Editing Key to Exercises Pages 1-2: 1. Bed 2. Good 3. Bad 4.Bad 5. Good 6. Good 7. Good 8.Bad Page 29: ‘Again, the deed specifies chat the original ownee ‘may repurchase the land for $650,000. (14) Again, the deed allows the original owner to repurchase the land for $650,000. (13) ‘Though courts once disfavored arbitration for contractual disputes, chey now encourage it. (12) Formerly disfavored, arbitration is now some thing courts encourage for resolving contractual disputes. (12) Page 31: 132 (©2013 by Bryan A. Garner 8 LawPros Incl ight served Judges on Bryan A. Garner “Bvery year I reread Strunk 8 White's Elements of Style and Bryan Garner's Elements of Legal Style to guard against backsliding. .. . Lawyers tend to be wretched writers, which is odd given that the written word is their stock in trade. Perhaps the problem comes from reading principally the work of other lawyers. .. . [fall lawyers would read Strunk 8 White and Garner even once, the world would be a better place.” —US. Circuit Judge Frank Easterbrook Seventh Circuit (published interview in How Appealing) “Alchough our wagon is now loaded with about as many poles as a mule can pull, you should study Garner as often as you can. If you want to write well, he'll teach you. Ie takes time to learn to write well, but learn Garner and you can do it. I would like for each memo you send to be Garnerized. If I want to trump some of his preferred words or style I'l do ie; but you should follow Garner. I do not want to be your proofteader, nor your Garnerizer. I want you to chin these two poles ‘your ownself’ ... This memo is too long, but this is because I'm frustrated with too many memos that have not been Garnerized.” —US. District Judge Billy R. 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Garner Black’s Law Dictionary Bryan A- Garner, editor inci “The rns authoritative, comprehensive awe diction ary ever plied, Sls the most equated ‘fall lnwhonks The ninth edition, containing over 45000 res, was reviewed by a ditingwised pam {lof more than 200 etal rendre profesor fi pacts thughout the wold, Over the pst thee eions, Gaznar nd is tam at Law Prose have revreeashe nd reunite the entire book lk’ Law Dictionary the Feeshest and bese rte aw dictonay poblished td” (Wore test ome 0 ABA Apple Pro Jxrnal Garner's Modern American Usage Since fist appestingin 1998, GMAURes established iuelfa the gd sada for Engh wage Tt the bc pele tum when they ned guidance om gmat ost the mon comprehensive AZ {de on elton questions of eey kind. 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Every rule of ppunctostion, very impor grammatial ule, ad very importante principle of legal writing cen be found haere If the Aledo dele with cistonal norm, the ‘Reeiook deals with everything in betwee the egal prose taf. The final chapters contin examples of Super written egal docaments. vale” Jude Ruban, Pier Legal Writing in Plain English “This book embouies every empartant principle of plain-English writing, rom ord choice eo largescle “xganination, rom ligation paper to transactional ‘documents, Fach of the 50 sections illominated by a trenchant explanation, flowed by eerie base intermediate, and advanced), The book expecially tefl asthe ex ora ering course—and its model documents ae mong the best exemplars of memos, | motions, bits and contrat oe ound, "A significant improvement ove ther books on the subject ane Livery Journal Appraisals of Bryan A. Garner’s Work Garner on Language and Writing “A compilation of a lifetime's profound essays and speeches. Lawyers who care about precise bue not stuffy prose turn to Garner.” —William Safire, The New York Times Black's Law Dictionary “Bryan A. Garner has taken this st tandard reference work to new and glorious heights This big book s for anyone concerned with law in any capacity” —Oregon State Bar Bulletin Garner's Dictionai ry of Legal Usage “An authoritative g uide to American legal usage and style. editor without it.” Dont confront your —Harvard Law Review The Winning Brief “This is, quite simply, one ofthe best books on legal writing available today: Ie isan eminently practical, occasionally inspired guide tha should help all law- Yers—whether they are mediocre or brilliant writers—to become clester and ‘more persuasive on paper.” —Lawyers Weekly USA Making Your Case: The Art of Pe ersuading Judges (with Justice Antonin Scalia) “This book ia true gem. You wll find ie a joy to read. You may well earn something on every page.” —ABA Appellate Practice Journal The Redbook: A Manual on Legal Style “A fundamental informational tool for any well-informed lawyer.” — Tennessee Bar Journal ‘The Elements of Legal Style “Garner upholds the sptie of Strunk & White and advances the case of good ‘writing in a field in which ies sorely lacking,” —Harvard Law Review Garner's Modern American Usage “Really eally good .... . Thorough and timely and solid a genius.” —David Foster Wallace in Consider the Lobster Bryan Garner is,