LawProse Lesson #259: Friendly banter about “amicus.”

The phrase amicus curiae and its shortened form amicus raise several tricky linguistic questions. How are they pluralized? How are the singular and plural forms pronounced? What’s the preferred singular possessive form? Should the phrase be italicized? How often is the translation friend of the court used by comparison? What’s the history of the phrase in English?

Let’s take the last question first. Black’s Law Dictionary (10th ed. 2014) shows that the phrase amicus curiae first appeared in English-language contexts in ...

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LawProse Lesson #258: What’s the plural of Evans?

What’s the plural of Evans?

You have some friends, Bob and Sally Evans. As a couple, they are the __________. (How do you pluralize their last name?) Sometimes, you go to their house: that’s called the __________ house. (Can you make the plural possessive?) There, you see Bob __________ coin collection. (Make the singular possessive.)

If you get those three blanks right, you’re a top one-percenter. Few people know how to handle these issues the way professional editors would. Before glancing below ...

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LawProse Lesson #257: Statutes and Judicial Opinions

Statutes and Judicial Opinions: When, in Time, Do They Begin and End?

In the Beginning. The traditional view is that statutes are prospective only, but judicial opinions operate retroactively. That’s because ex post facto laws are thought to be fundamentally unfair, and judicial opinions normally declare what the law is—as opposed to making it. This Blackstonian view of caselaw has a few existing exceptions of great importance, involving vested rights and new judge-made rules of criminal procedure. See, e.g., Linkletter v. ...

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LawProse Lesson #256: Strategies with Names.

Strategies with Names.

Is it true that in a brief, you should use your client’s name for personalization and call your opponent by a legal label (e.g. “defendant”) for depersonalization?

No—almost never. This “advice” is almost invariably unsound. Would it be better to call Cruella De Ville “Antagonist”? No: she’s memorably Cruella. Bad facts about a party opponent will stick to a name.

If you want to write vividly, with impact, the characters in your stories need names—not generic labels that make your ...

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LawProse Lesson #255: Lay vs. lie.

Admittedly, the traditional conjugations are more blurred than ever. Mastering them has proved difficult for people. Nevertheless, here goes.

Lay is a transitive verb—that is, it demands a direct object {lay your pencils down}. It is inflected laylaidlaid {I laid the book there yesterday} {these rumors have been laid to rest}. (The children’s prayer Now I lay me down to sleep is a good mnemonic device for the transitive lay.)

Lie is an intransitive verb—that is, it never takes a direct object ...

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

Persuasion is a complicated product of successful conscious and unconscious effects. As a brief-writer, your goal is to persuade the judge to rule in your client’s favor. Generally, to achieve this, you must do four things:
1. Get the judge’s attention.
Don’t let your brief be one of those dense, befuddling aggregates of facts, law, names, and procedural details. You know, like 99% of the briefs that cross a judge’s desk. Let the judge know the determinative law and facts on the ...
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LawProse Lesson #253: Commonly mispronounced words.

If lawyers could remember to avoid just five common mispronunciations, what would they be? These are the words:

applicable

comparable

often

realtor

substantive

Say them aloud. Then see whether you used the preferable (PREF-uh-ruh-buhl) pronunciations:

applicable (accent on the first syllable, not the second)

comparable (same)

often (silent t)

realtor (two syllables, not three)

substantive (three syllables [/SUB-stuhn-tiv/], not four, and accent on the first syllable)

As a speaker, you may (or may not) gain points for impeccable pronunciation—because many people don’t care. But you’re sure to lose points with listeners who ...

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

What’s new in The Winning Brief?

Three things. First, it’s being offered as a 10-part webinar series for the first time this summer. If you care about persuasive writing, you won’t want to miss it. (Sign up here.) Second, the third edition has all the substance from the first two editions, plus nine entirely new sections (including “understanding your readers,” “flaying your opponents’ arguments without inflammatory rhetoric,” and “making cogent arguments about statutory and contractual provisions”).

If your copy has ...

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LawProse Lesson #251: Considerations in legal editing.

Three important considerations in legal editing.

It’s best to use single-minded focus when editing the different parts of documents. Certain editing approaches may apply to particular sections of a document. Here are three practical examples:

  1. Revisit the issue presented. In your issue statement, you want to be sure that you don’t state as a fact any legal or factual conclusion that the court or fact-finder will have to decide in resolving the issue. Once you have completed your memo or brief, reconsider ...
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LawProse Lesson #250: A rhetorical stratagem for oral presentations.

Last week we examined four classical rhetorical stratagems that lawyers use in written arguments. To read about them, click here. Our correspondents relished them despite their off-putting Latin and Greek names. The ancients excelled at taxonomies, and they gave us names for things we’d otherwise struggle to refer to.

Today’s technique—one better suited to oral advocacy than written arguments—is called hypophora (/hI-pahf-ə-rə/), or what we might call Q&A Technique. Hypophora is the posing and answering of one or more questions—especially ...

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LawProse Lesson #249: The advocate’s mindset toward the judge: respectful intellectual equality.

One thing that persuasive advocates do is to pitch their tone at the right level: their degree of confidence, their firmness of position, and their analytical keenness. They know when and how to concede points, and when and how to assail their opponent’s points. With the judicial audience, they’re neither condescending nor kowtowing: they approach the judge as an intellectual equal, and always with respect.

Ancient rhetoricians knew all about tactics of persuasion, and we moderns have much to learn from ...

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LawProse Lesson #248: Today’s most popular rhetorical gambit.

The ancient Romans called it tu quoque, meaning “you also” or “you’re another.” It’s pronounced /too kwoh-kwee/. Today we see this tactic prominently in both politics and law.

A few examples. If one politician says that he or she wants to raise the standards of ethics, an opponent will say that that politician has engaged in some of the most unethical behavior seen in recent years. If a candidate calls another candidate a liar, the response is that the accuser is ...

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