Friday, April 20, 2007

Summaries: one lawyer's experience

A reader sent me this note about a summarizing technique I have recommended:
I was finally able to use the suggestions about affidavits in your "writing for the trial judge piece"--smaller case without in-house counsel freaking out about anything new. The senior partner I'm working with immediately adopted this for the affidavits he wrote and said he's going to add the bold synopsis and headings to every affidavit he does "for the rest of my life."
The article the reader is referring to is:

Wayne Schiess, Writing to the Trial Judge: Part Two—for Affidavits, 83 Mich. B.J. 44 (Feb. 2004).

And the same material appears in chapter of 11 of my book:

Better Legal Writing

Wednesday, April 11, 2007

Plagiarism in a brief

Frith v. State, 325 N.E.2d 186 (Ind. 1975)

A lawyer was reprimanded for copying ten pages out of an ALR annotation into his brief. The opinion in that case contained this subtle statement after pointing out the plagiarism in the brief:
We make this point so that when the compensation for Appellant['s] . . . attorney is fixed some consideration may be given to the way in which the Brief in this case was prepared. We have, however, waded through this voluminous brief. In spite of the brief-writer's disregard for [our rules of appellate procedure], we have considered Appellant's legal arguments as if they had been properly presented to this Court.

Monday, April 02, 2007

Jury instructions: a better oath

Based on excellent comments from Kenneth, I offer this revision:
The judge, or someone acting under the judge's direction, must swear in the jurors in substance as follows:

Each of you swears that in all cases submitted to you, you will render an honest verdict, according to the law given by the judge and according to the evidence submitted under the judge's rulings, so help you God.
I am waiting to hear back from my committee whether the state of Texas still uses "so help you God."

Jury instructions: easy to poke fun

It's easy to poke fun at archaic jury instructions. Harder to rewrite them, as I'm finding out. Here's an example:
The jury shall be sworn by the court or under its direction, in substance as follows:

You, and each of you, do solemnly swear that in all cases between parties which shall be to you submitted, you will a true verdict render, according to the law, as it may be given you in charge by the court, and to the evidence submitted to you under the rulings of the court. So help you God.
Here's my effort:
The judge, or someone acting under the judge's direction, must swear in the jurors in substance as follows:

Each of you do solemnly swear that in all cases submitted to you, you will render a true verdict, according to the law given to by the court and according to the evidence submitted to you under the rulings of the court, so help you God.

Writing poorly: name calling and worse

In re First City Bancorporation of Tex. Inc., 270 B.R. 807, 813–814 (N.D. Tex 2001).

A lawyer engaged in personal attacks against opposing counsel. As the court put it--
If opposing counsel’s arguments are weak, they are to be challenged on the merits; the arguments can be characterized as wrong or incorrect without referring to them as “garbage” or “legal incompetence” or referring to the attorneys are “various incompetents,” “inept,” or “clunks.” Characterizing an attorney or firm as a “puppet” or “stooge” of another adds nothing to a determination of the merits of their arguments.

* * *

In the briefs, he emphasizes that an opposing attorney attended Brooklyn Law School (Greenfield graduated from Harvard Law School) and offers the two schools’ respective rankings by U.S. News & World Report, apparently as evidence that the other attorney is inferior

Sunday, April 01, 2007

Plain English jury instructions: I try "reckless"

I take my best shot at rewriting a jury instruction on recklessness:

What does reckless mean?

You are reckless if you are aware of a substantial and unjustifiable
risk, but you consciously disregard that risk.

Also, disregarding the risk must be vastly different from what an ordinary
person would do in the same circumstances.


Perhaps phrasing jury instruction with "you" is a bad idea. What do you think?

Original instruction is here.