Legal language is a dialect of standard American Business English. This is a presentation to explore some of the ways legal writing can be made more interesting and effective.

1. Legal Writing (Rerun)
June 26, 2009
Fayetteville, AR

2. Drafting a Winning
Appellate Brief
Presenter: Gerry Schulze
Baker & Schulze

3. Selecting Issues
 Identifying the Issues that Win on
Appeal
– Select your Best Two or Three
– What is the Court Likely to Consider
– Strength of Record Below
– Prejudicial Error
– Has the Court indicated interest in the
issue?
• The “Caveat”

4. Quotes
 “If I’d had more time, my brief would
have been shorter.”
– Source unknown, but not original with me.
 “There’s no such thing as a ‘final’ draft,
there’s only the last draft done before
the brief is due.”
– Gerry Schulze
• At least I think it’s original with me. I may have
heard it somewhere else, but I can’t trace it.

5. Limiting the Number of Arguments
 Avoid the “Kitchen Sink” approach.
 Some recommend three points as the
maximum.
 Others will let you get away with four.
 The problem is, sometimes you don’t
have the judgment to know what
argument will work.

6. Judge Arey
 Appellate advocates must next exercise discretion and objective
detachment in deciding which of these issues will be raised on
appeal. One consistent admonition decries the “kitchen sink”
approach of raising every conceivable issue on appeal. “A storm
of arguments--good, bad, and indifferent--can convince the
judges that there is no merit to the case, even if buried in the
deluge is a winning nugget.” A competent appellate advocate
will evaluate the issues accordingly, “select[ing] with
dispassionate and detached mind the issues that common
sense and experience tell him are likely to be dispositive. He
must reject other issues or give them short treatment.”
– Arey, D. Franklin, Competent Appellate Advocacy and Continuing
Legal Education, Fitting the Means to the End, 2 J.App.Prac. &
Process 27 (2000)

7. Standard of Review
 Rules require you to lead off with this.
 After that, don’t feel free to ignore it.

8. A Concise Brief: Page Limits and
Other Considerations
 Arkansas: Pages
 Federal: Words
 Usually, this should be no problem.
 In very complicated cases, it can be a
problem.

9. Secrets to a successful argument:
Persuading without Exaggeration
 Lawyers write for different purposes,
and it is essential to remember the
appropriate kind of writing for each
segment of the brief.

10. Kinds of Legal Writing
 Informative
 Persuasive
 “Functional”

11. Informative
 Letters to client
– Not necessarily “simple” but not “legalese”
– Explain terms
 Interoffice memoranda
 Opinion letter
– understandable.
– disclaimers

12. “Informative” parts of the brief
 Jurisdictional Statement
 Statement of the Case
 Statement of Facts

13. Persuasive
 Settlement Brochures
 Argument portion of Briefs
– Vary in complexity
– Probably the most time consuming of all
documents
– Different concerns with
• Trial Courts
• Appellate Courts
• Administrative Agencies

14. Functional
 This kind of document is one which is
supposed to create a result
– Will
– Deed
– Complaint
– Trust
– Power of Attorney
– Contract
– Real Estate Documents

15. Functional part of briefs
 Cover Page
 Table of Contents
 Table of Authorities

16. “Legalese”
 Some say, “never use legalese”
 I say, use it advisedly.
 Legalese is particularly useful in
“functional” writing where it has an
accepted meaning
 Even Latin is appropriate in some
occasions

17. Characteristics of Legal Writing
 Clarity
– Word choice
– Organization
– Avoid Legalese where possible
• In functional writing, legalese is often preferable
• In persuasive writing you can get by with it
when you have to
• In “informative” writing it will seldom do much
good

18. Characteristics of Legal Writing
 Conciseness
– Strunk’s advice, “Make each word tell.”
– Sometimes you have to balance the need
for completeness and the need for concise
writing
– Avoid repetition
– As to page limits, remember, this is not
high school. The Court does not expect
you to fill up your page limits.

19. Pleadings
 Pleadings are generally functional
rather than persuasive.
 It is more important to comply with the
form and to say all the right “magic
words” than to make your language
concise or enjoyable.
 Pleadings are to be interpreted to do
substantial justice.

20. Characteristics of LegalWriting
 Accuracy
– Accuracy of Facts
• Check your sources
• Facts are often not what you know, but what
you can prove
• Frequent references to testimony, affidavits,
depositions, exhibits, and other evidence can
help you maintain credibility as well as help you
keep accurate on the facts

21. Characteristics of Legal Writing
 Accuracy of Authority
– Double check cites
– Shepardize or Keycite

22. Characteristics of Legal Writing
 Proper form
– Pay attention to Court Rules
• Paper sizes and margins
• Captions
• Type size and font
• Spacing
– Pay attention to the Bluebook and other
sources
• Citation forms

23. References for Legal Writing
 The Bluebook. 16th Edition
 Court Rules
 Arkansas Supreme Court Stylebook
– On its website.
 Grammar
– Strunk & White
– Gregg’s Reference Manual. 9th Edition

24. References in the Office
 Make your own booklet of information
you need
 Arkansas Bar Association Systems
 Pick out books you like and keep them
handy
– Gregg’s
– Strunk & White
– Elements of Legal Style

25. Grammar
 “I am about to — or I am going to —
die, either expression is used.“
– Grammarian Dominique Bonhours, on his
deathbed.

26. Analyze the normal by using the
bizarre
 We don’t notice the “normal.”
 Sometimes the only way to look at the
“normal” is to compare it to aberrations.
 Examples of language usage in the
booklet.

27. Grammar
 Systematic study and description of a
language or dialect
– Standard American English is a dialect
• Legalese is a subdialect of Standard American
English
– In English, the standard for grammar is set
by general acceptance in the community
• Compare French and Spanish, for example, in
which proper usage is determined by
Academies.

28. Grammar: Prescriptive and
Descriptive
 "Descriptive grammar" is the study and
description of a language as it is
actually used.
 "Prescriptive grammar" is the study and
description of a language as it "should"
be used.

29. Grammar
– "Should" implies that there is a right way
and a wrong way to use language. To the
scientific student of language, there is no
form which is inherently right, and no form
which is inherently wrong.
– Right usage is simply usage which is
accepted by the language community as
right.

30. Style
 Style is more than grammatical
correctness.
 Develop your own style. It comes with
practice.

31. Making Your Case: The Art of
Persuading Judges, Antonin Scalia
and Bryan Garner
 Recent (4/28/08)
 Very good book.
 Sections 39-54 deal
with style.
 Even the authors do
not agree on
everything.

32. Scalia and Garner
 39. Value clarity above all other
elements of style
 40. Use captioned section headings.
 41. Use paragraphs intelligently;
signpost your arguments
 42. To clarify abstract concepts, give
examples

33. Scalia and Garner
 43. Make it interesting.
 44. Banish jargon, hackneyed
expressions, and needless Latin.
 45. Consider using contractions
occasionally—or not.
 46. Avoid acronyms. Use the parties’
names.

34. Scalia and Garner
 47. Don’t overuse italics; don’t use bold
type except in headings; don’t use
underlining at all.
 48. Describe and cite authorities with
scrupulous accuracy.
 49. Cite authorities sparingly.
 50. Quote authorities more sparingly
still.

35. Scalia and Garner
 51. Swear off substantive footnotes—or
not.
 52. Consider putting citations in
footnotes—or not.
 53. Make the relevant text readily
available to the court.
 54. Don’t spoil your product with poor
typography.

36. Quick review of confusing points of
grammar—in case anyone is
interested
 Who and whom.
 The subjunctive.
 Non-rules. Myths.

37. Who and Whom
• “Who” is a subject
• It is like “I,” “he,” “she,” or “they.”
• “Whom” is an object
• It is like “me,” “him,” “she,” or “them.”
• When who/whom is found in a clause,
the correct form depends on the
function the word plays in that clause

38. Who and Whom
 Give the prize to whoever
wins.
 Give the prize to whomever
the judges choose.

39. The Subjunctive
 People tend to think of the subjunctive
as an obscure, incomprehensible verb
form in English
 It is somewhat difficult because most of
the time there’s no difference between
indicative and subjunctive forms.

40. The Subjunctive
 With the verb “to be” in the present
tense, the form is not “am,” “is,” or “are”
but “be.”
– “...that I be”; “… that you be.”
 With other present tense verbs, the only
difference is in the third person singular,
where the characteristic “-s” is missing.
– ..that he walk.”

41. The Subjunctive
 In the past, the verb “to be” is always
“were”
– “. . . that I were”; “ . . . that he were.”
In the future, “will” becomes “would”
Otherwise, the form is identical to the
indicative.

42. The Subjunctive
 What’s it for?
– Expression of necessity, demand, strong
request.
• It is necessary that these questions be
answered at once.
• I demand that I be allowed to attend the
meeting.

43. The Subjunctive
 What’s it for?
– “Wish” clauses
• I wish I were going to the meeting
– Counterfactual statements
• “If” statements followed by a statement that the
speaker suggests is not true.
• Particularly useful in all kinds of arguments

44. Non-Rules/Myths
 Do not end a sentence with a
preposition
 Never split an infinitive
 Never begin a sentence with:
– And, but, or or
– Because or however
 Never write a one sentence paragraph

45. Preposition
 “This is the sort of arrant pedantry up with
which I will not put.”
– Winston Churchill
 “The preposition often seems to stand at the
end of the sentence or clause: 'I have lost the
pen I write with.' “
– George Curme, Syntax, 566 (1931)
• Curme was a noted grammarian of the Germanic
languages. English is a Germanic language.

46. Split Infinitive
 “To boldly go where no man has gone
before.”
– Of course, that is incorrect.
– It should be, where no one has gone before.
From: Garner on Language and Writing

47. Split Infinitive
 Hardly any serious commentator believes that
infinitives should never be split. The dispute is
between those who believe that split
infinitives should be avoided when this can be
done with no sacrifice of clarity or
naturalness, and those who believe that no
effort whatever should be made to avoid
them.
– Alt.Usage.English Frequently Asked Questions
entry on the split infinitive.

48. And/But/Or at Beginning of
Sentence
 Bryan Garner challenged this myth
beautifully in Garner on Language and
Writing. He goes back to Chaucer and
works forward, showing that good
writers have always ignored this myth.

58. Word Usage
 Less/Fewer
 Conclusory
 Enormity
 Therefore/Therefor

59. Problem with Non-rules
 Too many
readers
think they
are
actually
rules.
June Casagrande. Mortal Syntax 101: 101 Language Choices
That Will Get You Clobbered by the Grammar
Snobs--Even If You're Right

60. Conclusory
 Conclusory Greenwood v.
Wierdsma, 741 P.2d 1079,
1086, n3 (Wyo. 1987)
 After painstaking deliberation,
we have decided that we like
the word "conclusory," and we
are distressed by its omission
from the English language. We
now proclaim that henceforth
"conclusory" is appropriately
used in the opinions of this
court. Furthermore, its usage is
welcomed in briefs submitted for
this court's review. Webster's,
take heed!

61. Style
 Emphasis belongs at the beginning.
 Use short, simple sentences.
 Use active verbs.
 Do not overstate.
 Do not offend.
 “Make each word tell.”
 Avoid equivocal language.

62. Pleadings
 Pleadings are generally functional
rather than persuasive.
 It is more important to comply with the
form and to say all the right “magic
words” than to make your language
concise or enjoyable.
 Pleadings are to be interpreted to do
substantial justice.

63. Fact Pleading
 Arkansas is a “fact pleading” state.
– You must plead “facts” sufficient to state a
cause of action
– Merely stating conclusions is not enough
 The Federal System is “Notice
Pleading”
– This used to mean that a very skeletal
complaint was adequate.

64. Notice Pleading
 The federal rules allow fairly vague
statements of facts, but . . .
 Recent changes in the discovery rules
have made it advantageous to plead
facts so that the initial disclosures will
be more complete.

65. Matters which you must plead
 Facts for jurisdiction
– It’s usually not that important in state court, but
sometimes—especially in courts of limited
jurisdiction—may be essential. It never hurts.)
 Facts for venue
 Identity of parties
 Facts giving rise to the dispute
 Notice
 In some cases, such as contract cases,
exhibits must be attached and properly
identified

66. Necessary legalese
 Sometimes it is necessary to use
formulas to properly allege a fact
 “Upon information and belief . . . . “

67. Unnecessary legalese “and/or”
 It is obvious this problem has arisen because the
interrogatory employed an imprecise term, “and/or,”
when precision was called for. The phrase has been
so soundly criticized as to have been driven almost
entirely from current usage. At best it has been
labeled “equivocal,” “obscure” and “meaningless,” at
worst “slovenly,” “improper” and “a linguistic
abomination.” It has no place in modern practice,
least of all in discovery interrogatories. Boren
v.Qualls, 284 Ark. 65 (1984) [citations omitted].

68. Briefs
 You have to be careful to get these
right, because there is an opposing
counsel just looking for any
misstatement of fact, citation error,
typographical error, unclear language,
or any other fault that can be exploited

69. Citations
 Citations are the way you tell the Court
the authority for the legal arguments
you are making.
 Follow the Bluebook
 Double check the citations
 “Shepardize” or electronically check
each citation.

70. Be Respectful and Professional
 Finally, I am compelled to mention that the appellee’s intemperate
response to the appellant’s rehearing petition was not only
inappropriate but was vile and slanderous. He argues, among other
things, that the majority was correct to allow the trial court to make a
custody decision based on his perception of the appellant’s religious
beliefs because not all religions are worthy of constitutional protection.
He denigrates Mormons, asserting that “Mormons practice incest and
child marriages,” and proclaims that “Wicca is a cult, not a religious
belief.” He admonishes that “this court is committing a grievous error if
it allows cult activities to be protected” and that the “trial judge
appropriately ruled in this case after carefully considering the facts.” In
light of the appellee’s further illumination of this issue, I simply cannot
say that the trial court’s decision was “appropriate.” I lament that this
court has accepted the appellee’s invitation to embark on a grand
inquisition.
– Hicks v. Cook, dissent on denial of rehearing

71. Be Respectful and Professional
 Walker contends that the brief submitted by Ligon
shows a “clear personal bias” and is “replete with
sarcasm and vituperation masquerading as legal
argument.” Although we do not find any
impermissible bias in this case, we agree with Walker
that the Executive Director’s brief is unprofessional in
tone and improper in some of its content. Ligon’s
brief contains unnecessarily sarcastic remarks and,
at one point, invites the court to look outside of the
record to examine matters that were not before the
special judge. This is improper argument.
– Ligon, Executive Director Of The Supreme Court Committee
On Professional Conduct v. Walker (3/12/2009)

72. Purpose of Briefs
 “The overarching objective of a brief is
to make the court’s job easier. Every
other consideration is subordinate.”
– Scalia and Garner, p. 59

73. Citations
 Citations are the way you tell the Court
the authority for the legal arguments
you are making.
 Follow the Bluebook
 Double check the citations
 “Shepardize” or electronically check
each citation.

74. Order of Citations
 There are some general guidelines in the
Bluebook, but they were written with law
journals in mind.
 Here’s what I’d suggest:
– Most helpful first.
– Most recent before older cases (the precedential
or persuasive effect is less likely to have been
diminished by more recent events)
– Controlling before persuasive

75. Controlling before persuasive
 The Arkansas Supreme Court controls on
questions of Arkansas law.
 If there is no Arkansas Supreme Court
opinion, then you can go to the Arkansas
Court of Appeals
 Thereafter, federal courts which have
interpreted Arkansas law under the Erie
doctrine
 Thereafter other courts.

76. Other Authority
 A constitutional provision on point
controls.
– In the federal system, there’s hardly a word
of the Constitution that hasn’t been worked
over by the Courts
– In the State system, there are a lot of
surprises in the Arkansas Constitution

77. Other Authority
 A statute—unless it’s unconstitutional—
controls.
 Federal statutes may “preempt” state law.
That’s a federal Constitutional doctrine, and it
can get very confusing.
 Statutes have often been interpreted in great
detail, and it may be more persuasive to cite
a case relying on the statute than the statute
itself, especially where the language of the
statute does not clearly say what the Courts
have interpreted it to say.

78. Secondary Authority
 Law Reviews
 American Law Reports (ALR)
annotations
 Treatises (some more respected than
others)
 “Hornbooks” are usually something from
Law School, but are occasionally
persuasive secondary authority.

79. Procedural phrases
 “In re” means “in the matter of” The
phrase is used in one name styles, but
when there’s an adversary party, it
should be left out
 The only procedural phrase that should
be used when there are two parties is
“ex rel” which means “for the benefit of”

80. Abbreviations
 If the whole name of a party can be
abbreviated by commonly recognized
initials, that’s ok
– NLRB v. Widgets, Inc.
• Bluebook, 18th Ed. Rule 6.1(b)
 Otherwise, do not abbreviate the first
word of a party’s name

81. Abbreviations
 In the text of the brief, as opposed to a
citation sentence, there are only a few
words that should be abbreviated
Ass’n Bros. Co.
Corp. Inc. Ltd.
No. &

82. Abbreviations
 When not part of the text, additional
abbreviations are permitted.
 This would most commonly be in a
separate citation sentence or a “string
cite.”

83. Names of parties
 With individuals, you usually just use
the last name.
 Some foreign names create
complications.
– Chinese names often start with the
“surname.” The tradition has been to give
the whole name.
• Mao Zedong v. Li Po

84. Spanish and Portuguese Names
 The surname is often composed of the
first surname of each parent. Just
remember that the last name of Juan
Sánchez Rivera may be Sánchez
Rivera. It gets confusing, and often
enough the courts or the publishers get
it wrong, too.

85. Cases from other states
 Some states—like Arkansas—have official
reporters.
– Smith v. Jones, 343 Ark. 253, 55 S.W.3d 424
(1997).
 Some states do not have official reporters.
Then you just give the West’s cite, and put
the state in parentheses.
– Coyote v. Acme, Inc., 854 P.2d 423 (Colo. 1983).

86. Cases from other states
 The new blue book rule is to only use
official reporters in the state in which
the brief is filed.
– Therefore, in an Oklahoma Court, Smith v.
Jones would be Smith v. Jones, 55 S.W.3d
424 (Ark. 1997).
 Arkansas is going to give the Blue Book
writers fits.

87. Law Reviews
 One difference between your textbook
and the Sixteenth Edition of the
Bluebook is that student authors’
names are to be used.
 The old rule used to be that the
student’s name was left out, and you
just used designations like “Note.” or
“Comment.”

88. Quotations
 Remember the 50 word rule.
 When a letter is changed from upper to
lower case or vice versa, indicate the
change with brackets.
 When words are omitted, use three
periods separated by spaces
 Citations go to the left margin after a
block quote

89. Late update
 After I prepared the written material for the
last seminar,I came across Elizabeth Bloch’s
material for a Texas CLE.
 She said that some judges look to the table of
contents to see what the appeal is about. So
she recommends fleshing out the table of
contents with all your points, and write the
points so the judge who starts with the table
of contents will know what your case is about.

93. Statement of the Issues: Framing a
Picture, not a Puzzle.
 Bryan Garner’s article.
 All schemes have drawbacks. Garner’s
drawback is that it requires too much
work. Honestly, I’m frequently too lazy
to do it right.
 Still, if you’re simply aware of this
methodology it will improve your
analysis.

94. Writing the Statement of Facts with
Simplicity and Relevance
 Take off your advocate hat.
 Hold it behind your back.
 Tell the story objectively, but make sure
to get in all the details that the court is
going to hear.
 That means getting the bad stuff out up
front—unless you’re certain your
opponent has forgotten it.

95. Footnotes and Authority Citations
 Again, Scalia and Garner are excellent.
 Even when they disagree they are very
informative.
 If there’s any doubt, opt against
footnotes in Arkansas appellate courts.
 I’ve used footnotes in trial courts to
make sure I’ve raised all the issues.
– It may not work.

96. The End
Thank you for coming to
see the show.