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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LawProse Lesson #242: Replicating Good Prose from Memory.

In Lesson #235: Learning to write by sedulous aping, we saw how useful it is to try replicating a choice passage from an excellent writer. It’s perhaps the best way to develop your writerly chops. Many readers requested more lessons with similar exercises. I’m happy to oblige.

Among the best academic writers today is Felipe Fernandez-Armesto, professor of arts and letters at the University of Notre Dame. His 2015 book A Foot in the River is chock-full of superlative prose. ...

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LawProse Lesson #241: The Timing of a Joke.

The Timing of a Joke.

Should you be able to tell a joke? Sure, if you’re a rhetorician. It’s all about wording and timing. It’s also about understanding that the punch word must come toward the end of a phrase.

Here’s a nine-word joke in which the listener’s mind is caught for a moment on the fifth word, but it’s the switcheroo with the eighth word where the humor comes in. The joke is meant only for those with a decent vocabulary. ...

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LawProse Lesson #240: Advice on motions for rehearing.

What’s the biggest flaw in a motion for rehearing? The answer is the failure to understand that judges must be allowed to come around to your position without losing face. Although the strategy makes no sense, it is common for advocates to demand that they “must” be reheard because the judge’s decision is “arbitrary, capricious, contrary to law, and unsupported by the evidence.” Having just reviewed a motion for rehearing that contains 12 assertions of such judicial blunders, I can ...

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LawProse Lesson #239: More on subordination.

Following up on last week’s Lesson #238 (“Are you coordinated, or subordinated?”), we’ve found some striking examples to illustrate the point that subordinate clauses are crucial to persuasive writing.

As we saw last week, it’s often useful to avoid merely joining two independent clauses of equal importance with a conjunction such as and. Instead, a sophisticated writer is likely to make one of the clauses dependent (usually starting with although or because), so that it can’t stand on its ...

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LawProse Lesson #238: Are you coordinated, or subordinated?

People like being coordinated; they dislike being subordinated. So the terminology of the following tip is a little counterintuitive: subordination is good, coordination often less so.

One of the elementary points of composition that really could be called “advanced” (given how many writers overlook it) is the importance of using subordinate sentence structures as opposed to coordinate ones. Coordination involves creating compound sentences: two independent clauses of equal importance joined by a conjunction such as and:

We needed to file that ...

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LawProse Lesson #237: More than 50% of judges and lawyers

More than 50% of judges and lawyers read almost exclusively on a computer screen.

What does this mean for legal writers? Three things, primarily:

1. Summarize. It’s important to learn the art of summarizing concretely. Avoid airy generalizations and instead make pithy, practical, vivid summaries. These should always appear at the fore. (By the way, a LawProse survey has demonstrated that 87% of headings that say “Executive Summary” are highly misleading: what follows is a true summary only 13% of the time.)
2. ...
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LawProse Lesson #236

The No-Monkey Rule

If you’ve cite-checked a brief lately, you’ve probably concluded that your colleagues are unclear about what they’re doing with brackets at the beginning of a quotation. When do you bracket the opening letter or word of a quotation, and when don’t you?

Let’s recognize first of all that lawyers are the only writers in the world who show the reader that they’ve changed the case of the opening word in a quotation: the practice in most literary fields is ...

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LawProse Lesson #235: Learning to write by sedulous aping.

What did David Foster Wallace and Robert Louis Stevenson have in common? They taught themselves to write better using the same technique: reading short passages from superb writers, trying to re-create from memory the passages they’d just read, and then assessing how their own versions compared with the originals. The assumption was always that the original was superlative—and that each departure from exact replication was a slight failure. It’s a superb technique to improve your command of syntax, punctuation, and phrasing.

So let’s ...

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LawProse Lesson #234: Stricken from the record or struck from the record?

Like plead, the verb strike causes lawyers and judges to hesitate in forming the past participle: has the judge struck something from the record or stricken it from the record?

English-language authorities have long said that the verb strike should be inflected strike > struck > struck, hence today I strike, yesterday I struck, many times I have struck.

The alternative past participle, stricken, has long been considered nonstandard. A search using big data confirms that in books of all types published ...

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LawProse Lesson #233: Can’t judges just look past trivial errors?

More often than you might think, a lawyer will say to me: “Why care so much about tiny points of correctness? A judge isn’t going to rule against you just because you’ve misspelled de minimis.”

True enough, but naive. This view disregards the science behind the “halo effect”: a strong showing in matters of form strongly predisposes readers to think you’re trustworthy in matters of substance—and a weak initial showing predisposes the reader to think you’re unreliable in more ways than bad ...

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