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Legal Writing -Stage Four

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Xiang Li

on 6 September 2013

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Transcript of Legal Writing -Stage Four

Revising to Achieve a Final Draft
Instructor Xiang Li

Legal Writing - Stage Four
Citations and
Quotations
Now that you have a completed draft of the document, the next step is editing quotations and citation form.
Revising for Usage and Style
The final step in the writing process is editing. Good editing requires reading the document as if you have never seen it before. So, try to arrive at the editing stage with enough time to put the document down for at least a day; then read as if you were a complete strange to the document.
Stage Five: Structuring for Persuasion - Outlining the Working Draft
To be Continued...
Quotations

The most common quotation problems are
failing to use quotation marks for borrowed language
using too many quotations
insufficiently editing quotations
making errors in the mechanics of quoting
A. When quotation marks are required?

Quotation marks are required to designate places where a writer has used the words of another. Requiring quotation marks furthers several important policies:
The quotation marks ensure that the creator will have the credit for the creation. The quotation marks allow the writer to avoid claiming undeserved credit. Even if the creator does not desire recognition, you should not take credit for someone else's work.
The quotation marks inform readers of the source of the creation. irrespective of the interests of the two authors, readers deserve accurate information about who created what.
Ideas that come from another author must always be attributed to the other author. So, you shall also attribute the ideas to their source, according to proper citation form. Here, we deal only with deciding when to attribute the words.
Quotation marks are necessary when you quote the words of another but unnecessary when you paraphrase.

So, an efficient way to avoid plagiarism is to paraphrase rather than quote the majority of those sources. If you follow this advice, you must make sure that your paraphrase is sufficiently different from the original author's text to free you from the requirement of using quotation marks.

But when are the words yours and when are they the words of another? Even if you are not looking at the source while you write, you may find that your text turns out to be similar to your source's text, because:
the source uses words that are commonly used to express the idea.
the sentence structure the source used is commonplace.
without realizing it, you have been thinking of the topic in the source's words.
B. Choosing to use quotation marks

Even if quotation marks are not required, a legal writer may choose to use them anyway - to communicate information important to the reader. The most common occasions for this kind of quoting are when the analysis must apply a particular legal test or when the analysis must construe particular words of a statute.
Particular legal test: A lawyer must use the degree of skill commonly exercised by a "reasonable, careful and prudent lawyer." Cook, Flanagan & Berst v. Clausing, 438 P.2d 865, 867 (Wash. 1968).
Particular words of statute: Title II makes it unlawful for a labor organization "to exclude or expel" an individual because of religion. 42 U.S.C. §2000e-2(c)(1) (1994).

Even though quotation marks would not be required for these words, the writer should use them anyway to let the reader know that there are the words at issue in the analysis.

E. Editing quotations

Edit quotations down to the key words so your reader does not have to sift through the quoted material for your point. Editing must not change the meaning, but within that constraint you have great latitude to clear away the underbrush. Often the most effective quotation has been edited down to a short phrase or even a single word, perhaps with the key language italicized or underlined.

Moderate use of italics ad underlining in quoted material can help overcome the tendency of busy readers to skim quotations. They may still skim the rest of the quotation, but an italicized or underlined word may draw their attention at least to the most important part.
Citation in legal writing

In legal writing, you must cite to your sources for both words and ideas. Citation to authority has twin purposes:
(1) to provide your reader with the authority that supports your assertions about the law.
It is essential to legal analysis and persuasive argument. Your citations should prove that the law is what you say it is and that it means what you say it means.
(2) to attribute the words and ideas of another author to that author.
A citation recognizes that the ideas and the words, if you are quoting, came from that author. Therefore, you should cite when you quote and when you paraphrase.
Citation form

A citation is your representation to your reader that the cited material stands for the proposition for which you cited it.
It allows a reader to find the source and provides the reader with some basic information for gauging the precedential weight the authority carries.
ALWD vs. Bluebook

Virtually all of the common citation formats are the same, no matter which book you use.

Differences:
(1) Typeface requirement
The Bluebook requires, on different occasions, large and small capitals, regular typeface, and italics.
The ALWD Manual follow the commonly accepted approach for practitioner writing. Most material in a citation is presented in ordinary type.
(2) Citing in text vs. citing in a footnote
The rules section of the Bluebook provides special requirements for citations in law review footnotes.
If you are using the ALWD Manual, the citation formats are the same in the text and in footnotes.
Professional tone and level of formality

(1) Legal writing calls for the degree of formality appropriate for traditional business and professional writing. Therefore, do not use contractions, colloquialisms, slash constructions, and abbreviations appropriate only for note-taking or citations.
The plaintiff
will not
[rather than "
won't
"] be able to argue that . . . .
Clayton's
children
[rather than "
kids
"] were visiting their grandmother.
The corporate president, vice president,
and
[rather than "
&
"] secretary all testified.
The stockholders can sue the corporate president or vice president
or both
[rather than "
president and/or vice president
"].
The defendant's employment policy prohibits sexual harassment such unwanted touching, verbal intimidation, displaying pornography,
and other sexually offensive conduct
[rather than "
etc.
"].

(2) Do not omit articles (a, an, the) as you may be accustomed to doing when taking notes or as the writers of case headnotes do.
Legal usage and customs

Legal usage refers to the accepted way lawyers use legal language. Citations manuals cover some legal usage questions. For others, consult a legal usage dictionary.

(1) Courts "find" facts and "hold" rules of law. Use "find" and "finding" when referring to decision the court made about facts. Use "hold" and "holding" when referring to decisions the court made about the law.
The court's
finding
that the car was traveling fifty miles per hour was supported by the evidence.
The court
held
that driving fifty miles per hour constituted negligence.
The court
found
that the officer had not advised the defendant of his right to remain silent.
The court
held
that the failure to advise the defendant of his right to remain silent violated the defendant's Constitutional rights.

(2) Reserve the verb "held" for the court's holding.
The court
held
that a valid offer must include a price.
When you describe dicta, you would use verbs like "
observed
" or "
stated
".
Legal usage and customs

(8) Cases do not decide issues, courts do. Therefore, a case cannot "hold" an opinion.
Out - Bell v. Burson held that . . .
Out - The Bell opinion held that . . .
In - The court in Bell v. Burson held that . . .
In - The Bell court held that . . .

(9) Although the human beings who actually decide cases are called "judges," it is customary to refer to them as "the court." This especially true of appellate courts, where several judges will usually participate in most decisions. For a one-judge court such as a trial court, you may use either "court" or "judge," but lawyers tend to prefer "court" there as well.
In Bell v. Burson
the court
[rather than "
judge
" or "
judges
"] held . . .
Legal usage and customs

(12) A criminal defendant may "be found guilty" or may "be convicted" of a crime. In civil litigation, the comparable term is "liable".
Shaffer
was convicted of
burglary.
After the criminal prosecution, Shaffer's former wife sued him for damages resulting from the assault. He
was held liable
for $ 50,000.

(13) When you refer more than once to a party or an entity with a long name, you may select a shorter form of reference for the second and subsequent references. Use the full name for the first reference, but take that occasion to introduce the shorter reference in parentheses.
The Department of Human Services (
DHS
) denied the claim.

(14) Footnotes should be scarce or absent altogether in most legal documents.
Gender-neutral writing

B. Techniques for proper names and titles: treat all names in the same fashion:
Be consistent in the use of courtesy titles. If you do not use "Mr." for men, do not use "Miss," "Mrs.," or "Ms." for women.
Unless you have a good reason, use "Ms."rather than "Mrs." or "Miss." The title should not indicate a marital status.
Be consistent in the use of first names and last names. You can use last names only, first and last names together, or (rarely) first names only. However, unless you have a good strategic reason, apply your decision equally to both genders.
Gender-neutral writing

C. Techniques for pronouns (He, She, His, Her)

(1) Where showing possession is not necessary to the meaning, substitute "the" or "an" for the pronoun.
. . . a plaintiff may petition the court for relief, attaching to
the
[rather than "
his
"] complaint of a copy of . . .
(2) Repeat the antecedent. The antecedent is the noun to which the pronoun refers.
. . . a doctor and the nurses, secretaries, and receptionists in
the doctor's
[rather than "
his
"] office . . .
(3) Make the antecedent plural so you can use the plural pronoun "their".
The license fee applies to
taxi drivers
[rather than "
a taxi driver
"] driving
their
[rather than '
his
'] own taxis.
(4) Rephrase to use a clause beginning with who.
Out - A person must assume the risk of injury if
he
rides a roller coaster.
In - A person
who
rides a roller coaster must assume the risk of injury.
Focus on strong subjects and verbs

B. Avoid nominalizations:
Wordiness is not the only problem nominalizations cause. Sentences using nominalizations are both weaker and less clear than sentences in which the verbs stay where they belong.
In - The sellers
decided
to accept the buyer's offer, so they
authorized
their broker to
announce
their decision.
Out - The sellers
made a decision
to accept the buyer's offer, so they
issued an authorization
to their broker to
make an announcement
of their decision.

Out - In:
enter into an agreement - agree
contains a provision - provide
have a collision - collide
file a motion - move
give consideration to - consider
had knowledge that - knew
make an assumption - assume
it is a requirement of the contract that - the contract requires that
commencement of discovery will occur - discovery will commence
Avoid wordiness

B. Avoid matched pairs
(1) When two terms mean the same thing, choose the shorter or more familiar of the two and discard the other:
null and void
full and complete
alter and change
by and through
attorney and counselor
use and benefit
will and testament
good and sufficient
each and every
bind and obligate
stipulate and agree
true and correct
Gender-neutral writing

C. Techniques for pronouns (He, She, His, Her)

(5) Substitute "one." The less formal "you" may work in less formal documents, but not in court documents.
Out -
A person
should always tell the truth in order to preserve
his
reputation.
In -
One
should always tell the truth in order to preserve
one's
reputation.
(6) Rephrase the clause entirely.
Out - For each speaker, enclosed is an outline of his presentation, a copy of the exercise he has prepared, and a memo explaining his exercise.
In - Each speaker has prepared a presentation outline, an exercise, and an explanatory memo. Copies are enclose.
(7) Where elimination, substitution, and rephrasing fail, use both pronouns separated by a conjunction, such as "and" or "or".
A parent may enroll
his or her
child . . .
2004
2007
2010
2013
Plagiarism is the act of presenting as one's own, words or ideas taken from another source.
Authoring a document constitutes a representation that the author is the source of all ideas and words not otherwise attributed. Thus, failure to attribute borrowed words or ideas constitutes plagiarism. It is both a lie and a theft.
In academe, plagiarism occurs primarily in one or both of these two situations:
failure to attribute a idea to the source from which it was drawn.
failure to use quotation marks to show that the words themselves, not just the idea, came from another source.
In law practice, the concept of plagiarism can be confusing. The application of the concept of plagiarism to law practice is currently a topic of debate. Some assert a lawyer's signature on a document constitutes only the lawyer's representation:
the document is not being presented for any improper purpose, including the purpose of causing needless increase in the cost of litigation.
the legal contentions are not frivolous.
any factual contentions or denials will be reasonably supported by the evidence.
No matter what standard may apply to law practice, however, remember that your law school writing is being done in an academic environment:
Unless you have explicit instructions to the contrary, do not use the words or ideas of another without proper attribution and, where appropriate, quotation marks.
Plagiarism
To gauge how similar your text is to another writer's text, consider the combined effect of these factors:
the length of the common unit of text
Some writers use a seven-word benchmark as a starting point for measuring the length of a common unit requiring quotation marks.
If seven or more words used together in your text match the text of the source, use quotation marks for those words.
the number of units in common
Don't think you can avoid using quotation marks simply by changing every seventh word. You also must consider whether there are other common units of the text.
whether the sentence structure is the same or similar
Be sure to use quotation marks for any unit containing sentences same or similar in structure with another.
whether the common units include language that the original author used in particularly effective ways
Consider the nature of the common text, for you must use quotation marks for language an author has used in a particularly vivid, creative, or unusual way.
You shall watch out the danger of confusing copying authorities with analyzing them. Remember, you must do more than simply quote a rule from an authority. Instead, you must explain what the authorities mean by the rule, because merely retyping material from the sources is not analysis.
Many readers are tempted to skip quoted material entirely. Perhaps they assume that the quoted material simply supports the points already asserted by the current writer. So, busy readers do tend to skim or skip quoted material.
A quotation seldom communicates your point as clearly, directly, and succinctly as you could. After all, the original writer was not writing about your case. Your paraphrase can do what quotations cannot, that is, tie the substance of the precedential source directly to the issues of your case.
Over-quoting - Dangers of using too many quotations
Over-quoting
As a general rule, limit yourself to quoting only in the following circumstances:
(1) Quote when the issue will turn on the interpretation of particular words of a statute, rule, or key case. Limit the quotation to those particular words so your reader will understand the issue and your analysis of it.
A lawyer must use great care in deciding whether to undertake representation of a new client when that representation might be directly adverse to an existing client. The existing client must consent to the lawyer's representation of the new client. ABA Model R. Prof, Conduct 1.7(a)(2)(1998). However, even if the client consents, the lawyer must not undertake the new representation unless the lawyer "reasonably believes" that the new representation will not "adversely affect the relationship" with the existing client. Id. at §1.7(a)(1).
(2) Quote key language from an authority with a great deal of precedential value. This could be mandatory authority or highly respected persuasive authority, such as a provision of a Restatement of Law.
(3) Quote key language when the author has found a particularly effective way to express the idea you want to convey.
Under Rule 60(b) the court possesses "a grand reservoir of equitable power" to accomplish justice. Thompson v. Kerr-McGee Ref. Corp., 660 F.2d 1380, 1385 (10th Cir. 1981).
D. The mechanics of quoting
Here is an editing checklist to help you flag the most common quotation errors:
(1) Quotations of fifty or more words, or four or more typed lines of text, should be indented from both side margins. There indentation indicates that the material is quoted, thus eliminating the need for quotation marks around the quoted material. Indented quotations should be single-spaced.

(2) Quotations shorter than fifty words or four typed lines of text should not be indented or single-spaced and should be enclosed within quotation marks.

(3) Place end punctuation within the quotation marks if it is part of the material you are quoting. For punctuation you add, place commas and periods inside the quotation marks, but place other added punctuation outside the quotation marks.
The period is part of he quoted material - "Discriminatory employment practices are prohibited."
The period is not part of the quoted material - The statute prohibits "discriminatory employment practices."
The question mark is not part of the quoted material - Does the statute prohibit "discriminatory employment practices"?
D. The mechanics of quoting
Here is an editing checklist to help you flag the most common quotation errors:
(4) Show changes in the quotation by using brackets and ellipses. Use brackets when you replace letters or words or when you add material to the quotation.
"[R]egulations [of employee appearance making distinctions on the basis of sex will not support allegations of discrimination unless [the regulations] are unreasonable or unevenly enforced."
In the first bracket, the uppercase R replaces a lowercase r because in the original the quoted language did not constitute the beginning of a sentence. The second and third brackets identify material added or substituted to clarify, simplify, or shorten the quoted material.

(5) To signal the omission of letters, use empty brackets.
Write "draft[]" when omitting the "ing" from "drafting."
D. The mechanics of quoting
Here is an editing checklist to help you flag the most common quotation errors:
(6) To signal the omission of one or more words within the quotation, use ellipsis. An ellipsis is a series of three dots with a space before, between, and after.
"The evidence included a communication . . . suggesting that the employee should wear clothing of a more feminine style."

(7) Do not use an ellipsis at the beginning of a quotation. A reader will assume that the original source may include material ahead od the quoted material.

(8) Similarly, do not use an ellipsis at the end of a quotation to signal the omission of material beyond the end of a block quotation concluding with a complete sentence. A reader will assume that teh original source may contain material after the quoted sentence.
D. The mechanics of quoting
Here is an editing checklist to help you flag the most common quotation errors:
(9) When you are using material that was a part of a sentence in the original but you are using it as a complete sentence in your text, indicate the omitted material at the end of the quotation by placing an ellipsis between the last quoted material and the punctuation at the end of the sentence.
"The mere existence of a grievance procedure does not insulate an employer from liability . . . ."

(10) Use a parenthetical clause after the citation to signal citations or footnotes you have omitted from inside the quotation or to signal emphasis you have added or deleted.
The court observed that a partner's interest in partnership property "is a derivative interest subject to significant limitations. [A partner] has
no right to use this property for other than partnership purposes
without the consent of the other partners." Bellis v. U.S., 417 U.S. 85, 98 (1974) (citations omitted, emphasis added).
The original material contained citations after "limitations" and before the next sentence. The colored phrase was not colored in the original.

(11) If you find an error in the quoted material, either signal the error by following it with "sic" enclosed in brackets or otherwise leave the error as it appears in the original.
"This list of statutes are [sic] necessarily incomplete."
Comparing the following quotations:

Example 1: The Supreme Court has held that "the District Court in this case erroneously focused on the 'voluntariness' of respondent's participation in the claimed sexual episodes. the correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was in voluntary." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986).

Example 2: The Supreme Court has held that a plaintiff cannot prove a sexual harassment claim merely by showing that she participated in the sexual conduct involuntarily. She must prove that " by her conduct [she]
indicated
that the alleged sexual advances were unwelcome." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (emphasis added).
Example 1: When you assert a legal principle - "Intent is a required element of the Plaintiff's claim. Peterson v. Taylor. [citation.]"
Example 3: When you quote - "The court reasoned that 'the state of mind of the defendant had no impact on the extent of damages suffered.' Crenshaw v. Baldwin, [citation.]"
Example 2: When you refer to or describe the content of an authority - "In an earlier opinion, the court had held that intent was irrelevant. Crenshaw v. Baldwin, [citation.]"
(1) The ALWD Citation Manual is a citation system designed primarily for lawyers and judges.
Part 1 Introductory Material - This section explains the book's organization and the "Finding Tools" that can give you quick answers to common citation questions.
Part 2 Citation Basics - This section gives you key general information and foundational principles.
Part 3 Citing Specific Print Source - This section governs specific citation rules covering all printed legal authorities.
Part 4 Electronic Source - This section tells you how to cite to electronic legal sources.
Part 5 Incorporating Citations Into Documents - You will find more basic information about how to use citations in this section.
Part 6 Quotations - This section covers use of quotations.
Part 7 Appendices - This section contains a wealth of important information such as a sample memo and abbreviation.
(2) The Bluebook is designed primarily for law students and academic publishing.
Introduction - The Introduction gives an overview of basic citation principles.
Practitioners' Notes - This part explains how to adapt the rules in the rest to practitioner writing.
Rules - The rules themselves come next.
Tables - These are reference sources for basic information about court and reporter system and statutory compilations for each jurisdiction as well as standard abbreviations for courts case names, publications, and other commonly used terms.
(1) Basic components of a citation to a case
1. case name.
2. case's location: a. volume, b. abbreviation for name of reporter, c. page where the case begins, d. page where the cited material appears.
3. court abbreviation.
4. year.

Example (state court): Watzek v. Walker, 485 P.2d 3, 6 (Ariz. Ct. App. 1997).
Example (federal court): Staron v. McDonalds Corp., 51 F.3d 353, 357 (2d Cir. 1995).
(2) Basic components of a citatio.n to a statute
1. title number.
2. abbreviation for name of code.
3. section number.
4. year the code was published.

Example: 11 U.S.C. § 523 (1994).
(3) Basic components of a citation to a book
1. author's name.
2. title of book.
3. volume number, if any.
4. section, paragraph, or page number.
5. edition number, if more than one.
6. publisher.
7. year.

Example: Richard H. Chused, A Property Anthology 149 (ed ed., Anderson 1997).

(4) Basic components of a citation to a law review article
1. author's name.
2. title of article.
3. location of article: (a). volume number, (b). abbreviation for name of law view, (c). page where article begins, (d). page where cited material appears.
4. year.
Example: Murray M. Schwartz, The Exercise of Supervisory Power By the Third Circuit Court of Appeals, 27 Vill. L. Rev. 506, 508 (1982).
Introduction to citation form
Matching the citation to the text
A writer tells the reader which proposition the citation establishes by the placement of the citation.
(1) If the citation appears outside the textual sentence, standing alone as a citation sentence,the reader knows that the citation supports all of the material in the proceeding sentence.
Example: To prove a claim for sexual harassment without showing an adverse employment action, a plaintiff must show that the harassment created a "hostile or abusive work environment" and that the plaintiff indicated that the harassment was unwelcome. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986).
This sentence says two things: that the plaintiff must show a hostile environment and that the plaintiff must show that he or she communicated that the conduct was unwelcome. The placement of the citation to Meritor outside the textual sentence tells the reader that Meritor establishes both of these points.
(2) However, if Meritor established only one of these points, the citation to Meritor would go inside the textual sentence and immediately after the proposition that it supports. The writer would need to cite to another authority for the other proposition.
Example: To prove a claim for sexual harassment without showing an adverse employment action, a plaintiff must show that the harassment created a "hostile or abusive work environment," Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986), and that the plaintiff indicated that the harassment was unwelcome. [cite to the other case]
(3) A similar situation exists when the writer has authority for one part of the sentence but no authority for the other part of the sentence. In that case, the writer should still take care to place the citation immediately after the proposition it supports, simply leaving the other proposition unsupported.
Example: Though a plaintiff can prove a claim by showing that the harassment created a "hostile or abusive work environment," Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986), Willingham has made no such showing in this case.
Citing with style and grace
(1) Citations in the text of a document can make the text hard to read. A reader has to jump over all the names, numbers, and parentheticals; find the spot where the text begins again and then pick back up on the message of the text.
Example: A majority of the Court in General Electric Company v. Gilbert, 429 U.S. 125, 136 (1976), followed Geduldig v. Aiello, 417 U.S. 484 (1974), and held that pregnancy classifications were not gender classifications.
(2) Case names and citations placed in the middle of the sentence make it hard to find the key parts of the sentence and combine them into a coherent thought. So, you may try:
Move the citation outside the sentence and into its own citation sentence.
Move the citation to the end of the sentence.
When the sentence contains two propositions, each requiring its own authority, consider dividing the sentence into two sentences. Then each citation can be moved outside the textual sentences.
Consider moving less important material into a parenthetical in the citation.
If the case name is not important, you could even move the citation outside the textual sentence.
Example: In 1974, a majority of the Court held that pregnancy classifications were not gender classifications. General Electric Company v. Gilbert, 429 U.S. 125, 136 (1976) (following Geduldig v. Aiello, 417 U.S. 484 (1974)).
(3) Avoid beginning a sentence with a citation when the citation will make the sentence hard to read.
Before: Public Law 95-555, 92 Stat. 2076, October 31, 1978, included a new § 701(k).
After: Congress added a new version of § 701(k) when it enacted Public Law 95-555, 92 Stat. 2076, October 31, 1978.
(4) As a general rule, avoid long string citations.
String citation is the term lawyers use for stringing a number of citations together to support the same proposition.
Professional tone and level of formality

(3) Avoid unnecessary references to yourself, your firm, or opposing counsel. In legal matters, the focus is on the parties and the law rather than on the lawyers.
"The covenant is not enforceable" rather than "
We believe
that the covenant is not enforceable."

(4) Adopt a tone of respect for your reader. Assume that your reader is intelligent and competent, no matte what your actually believe.

(5) Sarcasm and detectable anger have no place in legal writing. Allowing your own emotional response to color your writing is both unprofessional and counterproductive.

(6) Humor is rarely appropriate or effective in legal writing. Legal matters and the parties involved in them deserve to be taken seriously.

(7) Do not use rhetorical question (questions asked merely for effect, with no response expected).
"How can the plaintiff argue that her claims are just?"
Legal usage and customs

(3) The court need not persuade anyone of anything.
Therefore, the court does not "
argue
".

(4) Capitalize "Court" when naming a particular court in full, when referring to the United States Supreme Court, or when referring to the court to which the document is addressed.
the United States District Court for the District of Idaho
In Brown v. Board of Education the Court held . . .
The Court has not yet considered the Defendant's Motion for a New Trial.

(5) Capitalize a party's procedural designation (plaintiff, defendant, appellant) when referring to the particular parties of your case, but not when referring to a party in another case.
The
Appellant
did not file its motion within the statutorily required time.
In Bell v. Burson the
plaintiff
. . .
Legal usage and customs

(6) Capitalize the actual titles of court documents filed with the court in the matter that is the subject of your document, but not the generic name for a kind of document.
Plaintiff's
Motion for Summary Judgment
was filed within the required time limit.
The parties must file all
motions for summary judgment
by April 27.

(7) If a court issued an opinion ten minutes ago, the court's action is a past legal event; therefore, reference to that event calls for a verb in the past tense. However, a rule of law is a current reality and calls for a verb in the present tense.
Court opinion (past tense): The court
held
(or "
observed
," "
stated
," "
applied
," "
rejected
," "
adopted
") [rather than "
holds
," "
observes
," "
states
," "
applies
," "
rejects
," "
adopts
"] . . .
Rule of law (present tense): The court
adopted
the rule that a covenant not to compete
is
[rather than "
was
"] enforceable if . . .
Legal usage and customs

(10) A "court" (even a court with more than one judge) is an entity rather than a group of several judges. Therefore, "court" takes a singular pronoun.
The appellate court overruled Janace v. Harbison.
It
[rather than "
they
"] held that . . .

(11) Material found in a legal source is not a geographical location. Therefore, use "in which" rather than "where" to refer to it.
Our client can rely on the holding of Bell v. Burson
in which
[not "
where
"] the court . . .
Before exploring technique, we need to clarify what gender-neutral writing is and is not.
Gender-neutral writing does not mean that you should avoid referring to gender when you are writing about a particular person.
Gender-neutral language simply means that you try to avoid using masculine nouns and pronouns for general reference.
Examples:
Out - A person cannot recover damages for injuries sustained primarily as a result of
his
own negligence.
In - A person cannot recover damages for injuries sustained primarily as a result of
that person's
own negligence.
Gender-neutral writing
While the use of masculine nouns and pronouns for general reference is technically correct, most of today's good writer avoid or minimize it.
Your professional reputation will be made, in part, by your writing. If your writing reflects knowledge and careful use of modern standards of style, your readers will notice.
Reader-centered writing requires gender-inclusive writing. Roughly half of each year's law graduates are women.
Gender-neutral writing

A. Techniques for nouns: substitution:
out - in
workman - worker
mailman - mail carrier
chairman - chairperson
waitress - server
newsman - reporter
maid - housekeeper
husband/wife - spouse
brother/sister - sibling
fireman - firefighter
policeman - police officer
man, men, mankind - humans, persons, individuals
Focus on strong subjects and verbs

A. Use active voice instead of passive voice:
(1) Writing in the passive voice requires more words.
Passive example: It was insisted by Carrolton that the covenant had been breached by Ms. Watson.
Active example: Carrolton insisted that Ms. Watson had breached the covenant.
(2) Sentences in the passive voice often omit the identity of the actor; yet the actor's identity is usually important.
Example: It was insisted that the covenant bad been breached. [Who insisted? Who breached?]
Avoid wordiness

A. Watch for phrases that can be replaced by a single word:
Out - In
at the time when - when
at the point in time when - when
as a result of - because
by reason of the fact that - because
due to the fact that - because
for a period of one week - for one week
for the purpose of - to
for these reasons - therefore
inasmuch as - since
in many cases - often
in order to - to
it was formerly the case that - previously
previous to - before
that was a case where - there
Avoid wordiness
D. Avoid intensifiers
clearly
extremely
obviously
quite
very
E. Avoid unnecessary qualifiers
in my opinion
probably
somewhat
perhaps
maybe
F. Avoid legalese
Do not resort to the jargon of law unless it is necessary to convey your point clearly and concisely.
aforementioned
hereinafter
whereas
therefrom
arguendo
all Latin words
C. Avoid redundancies
past experience
final outcome
reason is because
whether or not
Focus on strong subjects and verbs
C. Eliminate throat-clearing phrase
Often throat-clearing phrases begin with "it is" and end with"that." If some of these phrases slip into your writing in the working draft stage, edit them out in revision. Let your sentences proceed directly to your point.
It is interesting to note that . . .
It is important to remember that . . .
It is clear that . . .
As note above . . .
Focus on strong subjects and verbs
D. Keep the subject and verb close together
(1) Don't try to say too much in one sentence. Long sentences bury the subject and verb. Break up sentences that are longer than roughly twenty-five words.
(2) Don't place a long phrase in the middle of the sentence. Move the long phrase to one end of the sentence.
Out - In the first month of his marriage, the defendant, who was only nineteen at the time and who had not completed high school or developed a trade and who had just lost his part-time job, was charged with robbing a convenience store at the corner of Bayside and Tenth Avenue.
In - In the first month of his marriage, the defendant was charged with robbing a convenience store at the corner of Bayside and Tenth Avenue. He was only nineteen at the time. He had not completed high school or developed a trade, and he had just lost his part-time job.
Focus on strong subjects and verbs
E. Avoid beginning sentences with forms of "it is" or "there is."
(1) Sentences constructions beginning those forms always lack force and often lack clarity. Try to reword these constructions to put the real subject and action up front in their usual spots.
Out - It is unethical to contract a party represented by another lawyer; In - Contracting a party represented by another lawyer is unethical
Out - There are four defendants seeking dismissal on jurisdictional grounds; In - Four defendants are seeking dismissal on jurisdictional grounds.
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