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, …

LawProse Lesson #240: Advice on motions for rehearing. Read More »

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 …

LawProse Lesson #239: More on subordination. Read More »

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 …

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

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, …

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

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 …

LawProse Lesson #236 Read More »

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 …

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

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 …

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

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 …

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

Why are point headings so crucial to effective brief-writing? I explain why—and how to create powerful ones—in two recent columns in the ABA Journal. You’ll find them here and here. See for yourself why so many lawyers have been circulating these columns to their colleagues. That’s the point of this week’s lesson. For more information on …

LawProse Lesson #232: The power of point headings. Read More »

What’s your conclusion of choice:      1. Wherefore premises considered, Defendants demand this Court grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      2. For all the foregoing reasons, Defendants request this Court to grant Defendants’ Motion and enter a take-nothing judgment against Plaintiff.      3. The problem presented by this case is …

LawProse Lesson #231: Are you coming or going? Read More »

If we’d thought a moment about it before sending last week’s LawProse Lesson, we’d have foreseen the onslaught of lawyers’ vehement, overheated defenses of pursuant to. It is, after all, the phrase that legalese lovers crave most. They’re addicts who can’t bear a moment of withdrawal. “I use it pursuant to standards of good writing, …

LawProse Lesson #230: The most addictive phrase in legalese. Read More »

Is the phrase “pursuant to” ever substantively or stylistically justified? Perhaps. But in 25 years of editing thousands of legal documents for law firms, corporate clients, and government agencies, the lawyer-editors at LawProse have never encountered a sentence that needed it. The phrase is pure legalese: it does little more than make legal writers feel …

LawProse Lesson #229: Is “pursuant to” ever useful? Read More »

A rule of thumb is “a roughly practical measure that is neither precise nor invariable.” The term almost certainly derives from the habit of tailors’ or carpenters’ use of the thumb as the rough measurement of an inch. The earliest known use of the term dates from 1685: “Many profest Christians are like to foolish …

LawProse Lesson #228: Is “rule of thumb” offensive? Read More »

After last week’s lesson about defining including to mean “including but not limited to” in legal instruments, several lawyers responded inviting further commentary. One correspondent took up my challenge: “I defy anyone to produce a case in which this definition hasn’t worked, so that including defined in this way has nevertheless been held to introduce an exhaustive …

LawProse Lesson #227: Part 2: “Including but not limited to” Read More »

Lawyers often ask why we so commonly see the phrase including but not limited to—or variations such as including without limiting the generality of the foregoing. Doesn’t including itself imply but not limited to? The answer is yes, of course. But legal drafting isn’t served well by implications, as opposed to explicit denotations. It’s always subject to hostile …

LawProse Lesson #226: “including but not limited to” Read More »

Garner’s Law of Loanwords The more arcane or technical a loanword, the more likely it is to retain a foreign plural, diacritical marks, and italics. The more common it becomes, the more likely it is to lose them. Corollary: If the loanword becomes widespread, it is most likely to lose italics first, then diacritical marks …

LawProse Lesson #225: Announcing a New Law Read More »