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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LawProse Lesson #247: What is the title-and-headings canon of construction?

It’s the principle that the title and headings within a legal instrument are permissible indicators of meaning—unless the instrument expressly disclaims their influence. Contractual drafters often include a version of this housekeeping clause: “Headings are for convenience only and do not affect the interpretation of this agreement.” Many states have a constitutional provision (called the title-body clause) prescribing the relationship between a statute’s title and its implementing language. Likewise, interpretation acts often specify the interpretive status of headings.

If you’re ever ...

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LawProse Lesson #246: Last-Antecedent Canon vs. Series-Qualifier Canon.

Textualism remains the primary interpretive method used by most American judges. On Tuesday of last week, the United States Supreme Court issued two of its most thoroughly textualist opinions ever: a majority opinion by Sotomayor J. and a dissent by Kagan J. Both are marked by exceedingly close and lengthy analysis of the text.

The issue is the meaning of this statutory language: “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual ...

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LawProse Lesson #245: Whatever doesn’t help positively hurts.

Often you’ll find yourself trying to decide whether to include something in expository prose—an extra argument, another illustration, a brief aside, an interesting tangent, etc. The sage wisdom of ancient rhetoricians is to omit everything that doesn’t have some demonstrable benefit.

You can see this principle as a form of utilitarianism: include only what is most persuasive or most informative to the greatest number of your readers. You mar your piece by including any sentence or paragraph that doesn’t meet this ...

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LawProse Lesson #244: The importance of fact-checking.

At LawProse, we recommend extensive fact-checking. For most briefs, the prudent approach is to plan a full day of fact-checking before the brief is due. So if the brief is due Wednesday, all day Tuesday will be devoted to fact-checking—and the writer must plan to have a polished draft Monday (in other words, the brief is probably to be drafted on Saturday). This in turn means that all point headings and issue statements must be ready Friday.

What we’ve just described ...

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LawProse Lesson #243: Just deserts.

Why did Justice Brennan mistakenly write “just desserts”?

No one knows. It’s the only misspelling of the phrase just deserts (= what one rightly deserves) in the annals of Supreme Court opinions. Twenty-one times, in fact, the Supreme Court has used the correct phrase, just deserts.

But in 1989, Justice Brennan used the demotic misspelling in a concurring opinion. He said: “Since mentally retarded offenders as a class lack the culpability that is a prerequisite to the proportionate imposition of the death penalty, ...

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