Recently in Legal Research, Writing, and Publishing Category
Here's a quick electronic research tip that I implemented in my own work a while back. If you obtain material from Westlaw, Lexis, or some other electronic research service, set your delivery options to download and save the material. Organize the downloads in some coherent way in your computer files, or if you have case management software that can organize and store your electronic research, use it. You'll save your clients and your firm money when you avoid pulling the same cases and statutes over and over again. I prefer PDFs over any word-processor format, since it's harder to change a PDF by mistake and it prints out looking the same each time.
Don't try to keep only paper copies of your research. That'll make it harder for others who works on the file to find the fruits of your research. I worked on a case once that had three different primary researchers over the course of the project. I was the last one to come to the project. The other two attorneys printed copies of each case they pulled from Westlaw and filed them in "Research" folders.
That wasn't inherently bad. It's good to hang on to copies of cases that have your notes and observations penned in the margins. But the files were difficult to wade through, and they contained many duplicates (and triplicates) of some sources. The firm passed its Westlaw costs on to clients on a transaction basis, so the clients had paid separately for retrieval of each copy of those documents, even if they'd come from a database that was part of the firm's subscription plan. Saving copies is even more critical if you decide to step outside the scope of your subscription.
If you've saved copies of your research, you can check to see if you've got a copy already before you casually ring up another charge for your client. An associate who writes a memorandum can make a note that all of the supporting materials are available in a particular online folder that anyone in the firm who finds the memo can access. Depending on what version of Acrobat you have, different people working on the file can make electronic comments on the PDF source material that everyone else can see. In the end, the client and the firm save time and money.
One of Siva Vaidhyanathan's readers points to this freaky Westlaw advertisement. Those are Siva's words, and I can't come up with any better.
AKMA writes, "I really, really dislike the use of ‘reference’ as a verb."
So do I. I'd probably use even stronger terms. But I've seen it all the time — I'll even admit, hanging my head in shame, that I have used the word "reference" as both a verb and a verb-derived adjective. That usage seems to be idiomatic in legal work, at least in Denver. I have regularly seen letters that bore a case name and number as the subject line and then began, "I write in regard to discovery in the referenced litigation." Ugh. Ugh!
Abuses of the English language abound in law. I'm not talking about technical terms or jargon; those are deviations from ordinary speech that have meanings developed through years of court cases and customary usage. I mean, for example, the use of the idiomatic phrase "the instant [noun]" to mean "this [noun]." I've seen this most often in pleadings, where the author would use the phrase "the instant litigation" to mean "this case." The only argument I can envision in favor of this usage is that "the instant litigation," is a shorter, simpler form of "the above-captioned litigation" or "the above-referenced litigation." So apparently it's a bad alternative to a worse option.
What on earth is wrong with just saying, "this case," or "this litigation?"
Some archaic idioms, born out of the Norman conquest, are causing confusion and litigation in American law even today. An Ohio Court of Appeals had to sort out whether "clear title" is any different from "free and clear title." (Here's the opinion [Warning: It's a MS Word file]. Here's an excerpt:
III. The Normans Strike Again
Monfort contends, "Although a ‘clear title’ is one that is not subject to any restrictions, the case at bar involved a ‘free and clear’ title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what?
Would that Harold had not lost the Battle of Hastings.
Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.
So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.
The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . .
(Thanks to Eugene Volokh and one of his readers for noticing the case.)
Jim Calloway has been making a series of posts about WordPerfect in which he makes the case that WordPerfect is still an excellent — perhaps the best — word processor for lawyers. Some of the posts have been a little Oklahoma-centric, but only by way of example of the great WP resources available to Oklahoma lawyers.
I'm a WordPerfect fan and have been for a long time. It was only with dismay that I used Microsoft Word at my previous employer, and I have used WordPerfect at home for several years. I hope Jim Calloway is right when he says that WordPerfect is ripe for revival in the practice of law. Read all four posts, as taken together they express quite well why WordPerfect's strengths are important ones and why many of its perceived drawbacks are illusory.
Jim Calloway: A WordPerfect Lawyer in a Word World
Jim Calloway: The WordPerfect Lawyer - Sharing Your Documents
Jim Calloway: Advanced WordPerfect Macros
Jim Calloway: The Past and Future of WordPerfect
My only concern with WordPerfect is that there is no WordPerfect for Mac, and I am flirting with the possibility of switching back to Macintosh technology sometime in the future (at least by buying a Mac Mini — I am, after all, squarely the target market for that computer). If I "switch," I'll still keep my homebuilt PCs around, but I'm the kind of user who likes having several computers capable of running even more operating systems. Most computer users aren't, especially in their businesses.
I have finally read Bryan Garner's Legal Writing in Plain English. This wonderful book indentifies ways to escape so many abominable habits that have crept into legal writing. I'd never felt so excited to read a book on legal writing, but reading this one actually got me excited to write legal memoranda.
The catch in implementing some of the good ideas in Garner's book is that so many of those nasty writing habits have become convention. Lawyers tend to fear departing from convention in the midst of disputes, perhaps because they're overapplying the idea that in law, certain words sometimes operate as "magic words." Others simply think that the judge expects or even wants to see these bad habits -- they equate conventionalism with professionalism. They think, "if I use this phrase, I think I'm more likely to get what I want, even if there's a much plainer way of saying the same thing." I'm not saying that lawyers shouldn't use legal terms, but archaic idioms have no place in court papers and other materials when simpler language would do.
I suppose I'm not one to talk. In the last few weeks, I've written a few overly wordy research memos that were less organized than I would have liked. I don't have years of experience in drafting court papers. But I don't want to allow the years of writing experience I expect to get to be permeated with bad habits. I'm fortunate that relatively few of the bad legal writing 'conventions' out there seem to affect my firm. We can probably do better, though, and I know that I can do better personally. Thanks to the ideas and encouragement Mr. Garner provides, I'm excited to get to work on it.
Ernie makes a very good point about legal writing followed by another very good point about lawyers in general.
Eugene Volokh laments:
Sent to the editor:After all, the Constitution is full of “values” and “interests.” It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.Received from the editor (and note that this is not the Harvard Law Review, with which I had a very good editing experience):
After all, the Constitution is full of "values" and "interests." It talks not just of democracy or equality, but also the war power, private property, federalism, religious freedom, and more.[fn][fn:] See generally U.S. Const.
Noooo! Noooo!
Law reviews and journals tend to obsess about footnoting. The obsession begins in a healthy (for lawyers) fashion, motivated by a desire to check and promote the credibility of the author and thereby the journal. From this starting point the obsession takes a nasty turn. The editors and staff of the law review may begin to believe that every positive assertion, no matter how general or accepted within the legal community, demands a footnote. This seems to be what happened to Prof. Volokh's article. Authors and editors may also decide that sheer volume of footnote content is what gives the article "professionalism" or "credibility." These authors and editors will invest vast amounts of energy in below-the-line text. The body text then tends to come out with an odd, stilted flow of information and argument, while the page overflows with footnote text. Consider in this regard Gil Grantmore, Mark My Words, 3 Green Bag 2d 121 (2000) (poking fun at this habit, nearly the entire text of the article appears within a footnote). It doesn't occur to them that important text should be above the line and unimportant text should be excluded. In both of these cases, participants who think these behaviors go way over the top tend to acquiesce in the face of arguments that they're "expected" even if they're silly.
Meanwhile, skilled writers and scholars receive their 'reads' and lament, "Noooo! Noooo!"
I hope Prof. Volokh says something about this in his upcoming book on academic legal writing.
Yesterday I received, from parts best left undisclosed, an offprint copy of Gil Grantmore, The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003). I flipped to the title page, and lo, found my own name among those in the author's credit note. I don't know whether that signifies the beginning of a great career, the end of a career, or if it is career-irrelevant.
Meanwhile, it's good to see that the Grantmore troublemaker(s) is (are) up to his (their) usual antics, contra Wayne R. LaFave, Livrebleu 17: Les Conséquences Tragiques Forgées par le Professeur Répugnant Nommé Grantmore, 2001 U. Ill. L. Rev. 857.
Hooray, Alice has returned! What's more, she's got a few things to say about student-edited law reviews. In general, I agree with her; the question I'm curious about is whether the student-edited law review model can be improved without being scrapped entirely.
From the dawn of "what you see is what you get" (WYSIWYG) personal computer word processing -- which happened when I was about eight -- I've had a bit of a fascination with typefaces and printing. For example, my idea of a "useful and fun" publishing program is Adobe Pagemaker, which I discovered in college. Unfortunately, I can't buy it for myself, since good old Adobe offers it for $500, which might best be described as "stratospheric" pricing compared to what I can afford to pay for, well, anything at the moment.
For nearly as long as I've been producing printed documents myself, which began rather more recently than the WYSIWYG revolution (remember when that was a revolution?), I have disliked the default fonts so often provided on computers. Now, I'm not a user of "fancy fonts." I'm just picky about fonts and layout, and I've never been able to explain just why or how that is. All of my work in college was in Palatino, or occasionally in the Computer Roman default output by the LaTeX typesetting package on UNIX (which, incidentally, is not at all WYSIWYG).
When I got to law school and stepped into what seemed like a land of conformity, I began using what everyone else seemed to expect-- Times New Roman. Well, almost everyone. Some people who miss the old days of documents typed with mechanical typewriters used variations on the Courier font. Slow and deep within me brewed a discontent with Times New Roman that only my loathing for Courier surpassed.
Now comes to the rescue the United States Court of Appeals for the Seventh Circuit. Yes, really. By way of Howard Bashman's "A Concise Guide to Writing Better Appellate Briefs" I discovered Part XXII of the Seventh's Circuit's "Practitioner's Handbook for Appeals," titled "XXII. Requirements and Suggestions for Typography in Briefs and Other Papers." (The latter link is to a PDF, printed separately.) In these six pages lie several useful gems, including my favorite-- admonitions to abandon the use of Times New Roman for legal documents:
Typographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don't want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach--different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers. * * * Use typefaces that were designed for books. Both the Supreme Court and the Solicitor General use Century. Professional typographers set books in New Baskerville, Book Antiqua, Calisto, Century, Century Schoolbook, Bookman Old Style and many other proportionally spaced serif faces. |
The court goes on to describe some good fonts and what to look for in fonts. Like many Seventh Circuit opinions, this six-page document explains the technical details of its topic in an accessible manner. The guide points out how little choices that seemed automatic to the writer of a brief or other document affect the reader. Someone spent some time talking to the court's printer, and it was time well spent. Check it out.
This prompts the question, "where can I find these fonts they're talking about?" Once again I find myself without enough money to indulge. Adobe will happily sell you its rendition of all four forms of New Century Schoolbook for $95.99 US. AGFA Monotype will sell you its version for $79.20. Bitstream offers its variation for $99.00.
Ouch! What's someone like me to do? In my case, I've got a CD-ROM of Corel Office 9 that I bought a few years back that I seem to recall has variants on some of these fonts (by Bitstream, I think) on it. I'm going to see what I can find on there.
I wonder what the Tenth Circuit has to say about this.
