Wednesday, January 30, 2008

Doubling spacing?

"Double-spacing facilitates the reading and comprehension of large numbers of legal documents." State v. Riley, 605 S.E.2d 212, 214 (N.C. App. 2004).

This reader of legal documents disagrees. To me, double-spacing
  • uses twice as much paper
  • forces me to turn the page twice as often
  • makes it hard to skim the document
  • takes twice as long to scroll through on the screen
So there.

Monday, January 28, 2008

Topic & transition sentences in case explanations part 4

In place of the transition words and phrases, the writer has now used a transition that captures how the case relates to the previous one in somewhat substantive terms. Notice how the boldface language ties the current case back to the previous with repeated words and phrases.
Using several strong formatting techniques will generally make a disclaimer conspicuous. Gravely v. Kirkland, 1999 WL 498201 *2 (Tex. App.--Beaumont July 15, 1999, pet. denied). In Gravely, a consumer bought a defective mower and sued the maker for breaching the implied warranty of merchantability. Id. at *1. The maker relied on a disclaimer of the implied warranty of merchantability, which was on the warranties page of the owner's manual. Id. The disclaimer was separated from the warranty text by a solid line, appeared under the all-capitals heading “DISCLAIMER OF FURTHER WARRANTY,” and was entirely in boldface type. Id. at *2. Despite a jury verdict for the consumer, the appellate court reversed and rendered, holding that the maker's disclaimer was conspicuous. Id.

Even without several formatting techniques, a single, strong format-such as all-capitals text-can be conspicuous. W. R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 80-81 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.). Weaver contracted with Burroughs to purchase software. Id. at 77-78. (The parties had other agreements, but the software contract is the only one relevant here.) Weaver later sued Burroughs for, among other things, breach of the implied warranty of merchantability. Id. at 79. The contract contained a disclaimer, presented in its own paragraph and in all-capitals text. Id. at 81. The appellate court reversed the trial court's summary judgment for Weaver, in part because it concluded that the disclaimer was conspicuous. Id. at 81.

But even strong formatting techniques can fail if the disclaimer text itself is not distinguished from the surrounding text. Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990). Cate bought car lifts from Dover, then sued when they did not operate properly. Id. Dover's warranty provision was, as a whole, conspicuous: it had a heading in a colored font and larger size and was displayed on its own page. Id. But the disclaimer was embedded in this warranty provision, in the same typeface, color, and size as the rest of the warranty language. Id. at 560, 563. Therefore, the Texas Supreme Court reversed a summary judgment for Dover, holding that the disclaimer was not conspicuous. Id. at 561-62. The disclaimer, the court said, was “hidden among attention-getting language purporting to grant the best warranty available.” Id. at 560. The court also held that if the buyer had actual knowledge of the disclaimer, that would override the question of conspicuousness; it placed the burden of proving actual knowledge on the seller. Id. at 561-62.
This stage 4, and it's where I want my students and all legal writers to end up. It's hard work, but it makes the text easier to read.

Topic & transition sentences in case explanations part 3

We can make the topic sentences into fair transition sentences by adding transition phrases (boldface added):
Using several strong formatting techniques will generally make a disclaimer conspicuous. Gravely v. Kirkland, 1999 WL 498201 *2 (Tex. App.--Beaumont July 15, 1999, pet. denied). In Gravely, a consumer bought a defective mower and sued the maker for breaching the implied warranty of merchantability. Id. at *1. The maker relied on a disclaimer of the implied warranty of merchantability, which was on the warranties page of the owner's manual. Id. The disclaimer was separated from the warranty text by a solid line, appeared under the all-capitals heading “DISCLAIMER OF FURTHER WARRANTY,” and was entirely in boldface type. Id. at *2. Despite a jury verdict for the consumer, the appellate court reversed and rendered, holding that the maker's disclaimer was conspicuous. Id.

In contrast, a single, strong format-such as all-capitals text-can be conspicuous. W. R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 80-81 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.). Weaver contracted with Burroughs to purchase software. Id. at 77-78. (The parties had other agreements, but the software contract is the only one relevant here.) Weaver later sued Burroughs for, among other things, breach of the implied warranty of merchantability. Id. at 79. The contract contained a disclaimer, presented in its own paragraph and in all-capitals text. Id. at 81. The appellate court reversed the trial court's summary judgment for Weaver, in part because it concluded that the disclaimer was conspicuous. Id. at 81.

Moreover, the disclaimer text itself must be distinguished from the surrounding text. Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990). Cate bought car lifts from Dover, then sued when they did not operate properly. Id. Dover's warranty provision was, as a whole, conspicuous: it had a heading in a colored font and larger size and was displayed on its own page. Id. But the disclaimer was embedded in this warranty provision, in the same typeface, color, and size as the rest of the warranty language. Id. at 560, 563. Therefore, the Texas Supreme Court reversed a summary judgment for Dover, holding that the disclaimer was not conspicuous. Id. at 561-62. The disclaimer, the court said, was “hidden among attention-getting language purporting to grant the best warranty available.” Id. at 560. The court also held that if the buyer had actual knowledge of the disclaimer, that would override the question of conspicuousness; it placed the burden of proving actual knowledge on the seller. Id. at 561-62.
This is stage 3, and it is where most of my students stop when trying to meet my expectation that they use topic AND transition sentences.

Topic & transition sentences in case explanations part 2

Now each paragraph has a topic sentence: something that tells what this case is about and how it relates to the general rule (boldface added).
Using several strong formatting techniques will generally make a disclaimer conspicuous. Gravely v. Kirkland, 1999 WL 498201 *2 (Tex. App.--Beaumont July 15, 1999, pet. denied). In Gravely, a consumer bought a defective mower and sued the maker for breaching the implied warranty of merchantability. Id. at *1. The maker relied on a disclaimer of the implied warranty of merchantability, which was on the warranties page of the owner's manual. Id. The disclaimer was separated from the warranty text by a solid line, appeared under the all-capitals heading “DISCLAIMER OF FURTHER WARRANTY,” and was entirely in boldface type. Id. at *2. Despite a jury verdict for the consumer, the appellate court reversed and rendered, holding that the maker's disclaimer was conspicuous. Id.

A single, strong format-such as all-capitals text-can be conspicuous. W. R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 80-81 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.). Weaver contracted with Burroughs to purchase software. Id. at 77-78. (The parties had other agreements, but the software contract is the only one relevant here.) Weaver later sued Burroughs for, among other things, breach of the implied warranty of merchantability. Id. at 79. The contract contained a disclaimer, presented in its own paragraph and in all-capitals text. Id. at 81. The appellate court reversed the trial court's summary judgment for Weaver, in part because it concluded that the disclaimer was conspicuous. Id. at 81.

The disclaimer text itself must be distinguished from the surrounding text. Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990). Cate bought car lifts from Dover, then sued when they did not operate properly. Id. Dover's warranty provision was, as a whole, conspicuous: it had a heading in a colored font and larger size and was displayed on its own page. Id. But the disclaimer was embedded in this warranty provision, in the same typeface, color, and size as the rest of the warranty language. Id. at 560, 563. Therefore, the Texas Supreme Court reversed a summary judgment for Dover, holding that the disclaimer was not conspicuous. Id. at 561-62. The disclaimer, the court said, was “hidden among attention-getting language purporting to grant the best warranty available.” Id. at 560. The court also held that if the buyer had actual knowledge of the disclaimer, that would override the question of conspicuousness; it placed the burden of proving actual knowledge on the seller. Id. at 561-62.
To me, this is stage 2; it is better than stage 1 because the writer has used topic sentences.

Topic & transition sentences in case explanations part 1

After a paragraph setting up the rule of law on this topic and citing the relevant statute, these three paragraphs appear, explaining how courts have handled the issue. The goal of these paragraphs is to set up the analysis of the writer's own case. Please pay attention to the first sentences in each paragraph (boldface added).
In Gravely v. Kirkland, 1999 WL 498201 *2 (Tex. App.--Beaumont July 15, 1999, pet. denied), a consumer bought a defective mower and sued the maker for breaching the implied warranty of merchantability. Id. at *1. The maker relied on a disclaimer of the implied warranty of merchantability, which was on the warranties page of the owner's manual. Id. The disclaimer was separated from the warranty text by a solid line, appeared under the all-capitals heading “DISCLAIMER OF FURTHER WARRANTY,” and was entirely in boldface type. Id. at *2. Despite a jury verdict for the consumer, the appellate court reversed and rendered, holding that the maker's disclaimer was conspicuous. Id.

In W. R. Weaver Co. v. Burroughs Corp., 580 S.W.2d 76, 80-81 (Tex. Civ. App.--El Paso 1979, writ ref'd n.r.e.), Weaver contracted with Burroughs to purchase software. Id. at 77-78. (The parties had other agreements, but the software contract is the only one relevant here.) Weaver later sued Burroughs for, among other things, breach of the implied warranty of merchantability. Id. at 79. The contract contained a disclaimer, presented in its own paragraph and in all-capitals text. Id. at 81. The appellate court reversed the trial court's summary judgment for Weaver, in part because it concluded that the disclaimer was conspicuous. Id. at 81.

In Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990), Cate bought car lifts from Dover, then sued when they did not operate properly. Id. Dover's warranty provision was, as a whole, conspicuous: it had a heading in a colored font and larger size and was displayed on its own page. Id. But the disclaimer was embedded in this warranty provision, in the same typeface, color, and size as the rest of the warranty language. Id. at 560, 563. Therefore, the Texas Supreme Court reversed a summary judgment for Dover, holding that the disclaimer was not conspicuous. Id. at 561-62. The disclaimer, the court said, was “hidden among attention-getting language purporting to grant the best warranty available.” Id. at 560. The court also held that if the buyer had actual knowledge of the disclaimer, that would override the question of conspicuousness; it placed the burden of proving actual knowledge on the seller. Id. at 561-62.
I call this approach stage 1 because it is adequate. Each paragraph begins with "in" and the name of the case. But you can't really call that a topic sentence, can you?

Friday, January 25, 2008

Citation form as a sign of excellence

In the following quotation, Professor Ian Gallacher may be right, but is that a good thing?
[A]n ability to generate accurate citations is viewed as a proxy for a lawyer's attention to detail. [5] Some argue that . . . “[a]ttention to citation form . . . will improve the reader's sense of reliability, credibility, and integrity when evaluating the worth of the document and the writer's professionalism.” [7] Others note that “in our legal culture, attention to detail, even in citation form, is a sign of excellence.” [8]
Footnotes
[5]. “Every lawyer needs to know proper citation form. Sloppy or inaccurate form suggests inattention to detail or ignorance of the correct form.” Susan W. Fox, Citation Form: Getting It Right, Fla. B.J., Mar. 2000, at 84, 84; see also Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 169 (2002) (identifying the careful and full compliance with applicable citation rules in the citation of authorities as one the ways a legal writer can be “a more persuasive advocate in terms of both logos and ethos”).

[7]. Id. at 95.

[8]. Nancy A. Wanderer, Citation Excitement: Two Recent Manuals Burst on the Scene, Me. B.J., Winter 2005, at 42, 46 (citing Carol Bast & Susan Harrell, Has the Bluebook Met Its Match? The ALWD Citation Manual, 92 Law Libr. J. 337, 338 (2000) .
Ian Gallacher, Cite Unseen: How Neutral Citation And America's Law Schools Can Cure Our Strange Devotion To Bibliographical Orthodoxy And The Constriction Of Open And Equal Access To The Law, 70 Albany L. Rev. 491 (2007).

Monday, January 14, 2008

Elegant variation

Note the highlighted words:
The license agreement does not include or reference a noncompete agreement. If the license agreement did include a covenant prohibiting competition, special attention would need to be paid to the drafting of that provision . . ."
This is classic elegant variation (I've posted about it here), and it actually confused me for a split second when I read it. I was not sure that a covenant prohibiting competition was the same things as a noncompete agreement.

Many experts condemn elegant variation. Are they right?

Wednesday, January 02, 2008

Seminar teaches the opposite of what you learned in law school

The ad for a legal-writing CLE seminar makes this claim:
In this seminar, appellate attorney [instructor] advocates brevity,
simplicity and clarity - the opposite of what lawyers learn in law school.

This is offensive--deeply and painfully offensive.

Just kidding. I'm pretty hard to offend. It's just funny. It's just marketing. Selling.

Not a single legal-writing teacher in the nation teaches anything remotely close to "the opposite of brevity, simplicity, and clarity." Come on.

The practicing bar and judges "teach" (perpetuate) length, complexity, and obscurity much more than legal-writing teachers do. The legal-writing teachers swim endlessly against that tide.

I feel better now.

Hat tip to Set in Style by Mister Thorne.

Predictions for Bluebook

1. The Bluebook will eventually abandon the dual typeface conventions for law-review style and practitioner style. It's just a matter of time.

2. The Bluebook publishers (students) will increasingly rely on professionals to help them. They are already using real lawyers and law professors as consultants. This will continue and increase.

3. The Bluebook will follow trends set or anticipated by the ALWD Citation Manual and by others. It will not lead.

So there.

Here is a good article about The Bluebook.
  • Christine Hurt, The Bluebook At Eighteen: Reflecting And Ratifying Current Trends In Legal Scholarship, 82 Ind. L. J. 49 (2007).
Professor Hurt knows her stuff, and reading this article prompted me to make my predictions.

Citation form as a social norm

Ray Ward of the (new) legal writer posted a wise blog entry here. He says he will try to pursue excellence in his writing without overemphasizing the trivial. I agree with him.

He cited my post on the "tyranny of the inconsequential"--my term for the trivial aspects of citation form: spaces, abbreviations, commas. They don't matter much--in reality--but people will judge you by them.

I just re-read a comment on that post by Ian. He brought a more sophisticated view to the issue:
Sadly, cite form is an esoteric code of social norms and signifiers. For better or worse, it has much to do with notions of sophistication and professional hierarchy.
True and well put. I guess this is, at bottom, what I was getting at in writing about the tyranny of the inconsequential. I'm just not that smart.