Wayne Scheiss at Legalwriting.net has an entry this week on literary references in brief-writing. He writes --- and I completely agree – that

These kinds of references run the risk of--
* being lost on the reader: the reader doesn't get the reference * alienating the reader: the reader views the author as arrogant or stuffy * offending the reader: the reader is not a fan of Shakespeare or is not a Bible believer

For me, those are enough reasons to avoid Shakespearean and Biblical references in my writing.
Wayne, however, posits another option, presented by the great Charles Alan Wright:

But there is another approach. Professor Charles Alan Wright suggested that literary allusions are acceptable as long as the text is intelligible even if the reader doesn't get the reference. Charles Alan Wright, Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1, 4 (1990).

I would add that, if you are not sure if you meet Professor Wright’s test, delete the literary reference.
The same test applies to references to music lyrics. Here is a site with a searchable database of rock lyrics. In the right situation with a very cool judge, a quote from this database may be just what your brief needs.

Even though filing deadlines control lawyers’ lives, you don’t often see a circuit court opinion on that issue. The First Circuit addressed the sticky subject this week with its decision in Jorge Perez-Cordero v. Wal-Mart Puerto Rico.
When the defendant moved to extend the deadline for filing a motion for summary judgment, plaintiff’s counsel advised the court that she had scheduled a trial and a vacation based on the prior schedule and requested that any extension take her schedule into account. Thereafter, the court entered several orders that were subject to different interpretations and, in the end, the court granted the defendant’s motion for failure of the plaintiff to respond. The plaintiff appealed and won, but the First Circuit made clear that courts are not required to grant extensions and lawyers should not assume that extensions will be granted. If there is any confusion, lawyers should seek clarification from the court. Notably, one source of confusion was the docket entry for one of the orders. The opinion cites other opinions on the issue of extensions and could be helpful if you find yourself on either side of this mess. Interestingly, even though the First Circuit vacated the district court’s grant of summary judgment, costs were taxed against the appellant.

Here is a link to a great comic book written about fair use and copyright infringement.
The comic was produced by Duke’s Center for the Study of the Public Domain. According to its website, the center “focuses on the delicate balance between intellectual property and the public domain - the realm of material that is free to use without permission or payment.“ The comic is not only amusing and interesting to read, but is also helpful in discussing the limits of fair use. Like any legal test, the fair use factors are much easier to repeat than to explain. The comic gives meaning to the factors with examples from real cases. It could be a great resource when you are explaining fair use to a client.
My hat is off to the folks at Duke.

When I was in law school, I wasted a lot of time wondering how big a library would have to be to hold all the reporters and codes in the next twenty years. I do not think about that much any more because I rarely go to a library. But someone still thinks about it. Did you know that the 1958 edition of the U.S. Code had 10 volumes and the 2000 edition had 34 volumes. (No, I was not in law school in 1958). The 1960 CFR had 54 volumes while the 2005 CFR had 230 volumes. For more details, see here.

Here is a website that indexes blogs by Fortune 500 companies. The index can be updated by individuals, so double check that any particular blog is actually operated by the referenced company. In any event, company blogs can provide information that is helpful and fascinating and maybe embarassing in litigation. For example, if you are suing a company that has a blog, the blog entries and/or the comments may provide you with very helpful information. In the same way, if you are representing a company that has a blog, you may want to check it out so that you will not be surprised.
I skimmed through the blogs, primarily looking for ideas for my own blog.
I checked the McDonald’s blog because I am interested in transfats and other food matters and wanted to know if the company had anything to say on those issues in its blog. McDonald’s has a corporate social responsibility blog that permits readers to get "personal perspectives on the issues, meet the people behind the programs, and hear open assessments of the challenges we face.� I found the blog to be self-serving and vague. For example, it emphasizes that social responsibility issues are complex and cannot be defined as black and white. While that is true, the complexity of the issues should not be used as an excuse for doing nothing. I am sure the people at McDonalds are well-intentioned. Even though I may disagree with the approach, a blog on social responsibility -- especially with respect to a large fast food provider -- will certainly generate discussion and help clarify some issues.
The most interesting blog for me was from Wells Fargo, called “Guided by History.� Wells Fargo is an old San Francisco company, and, with this blog, the company provides its readers "with a rich, unique online experience that showcases our historical archives.� There are great pictures, entries about historic events, and an interactive tour of the city. In the “about� section, the company notes that its blogging is limited by banking regulations. Specifically, for banks,

there are regulations that prevent us from obtaining your personal information—hence the restrictions in our blog comments that prevent you from submitting your full name. We're allowed to capture your email address for followup, but only after we confirm you're 13 or older. We can't capture your blog's URL in our comments due to concerns about phishing. And last, we can't receive an email from you unless we first confirm you're 13 or older. We know these regulations are there for good reason, to protect consumers from fraud, and to protect your privacy. So please bear with us.

Check out the index to company blogs, especially when you are litigating against the company. Even if you do not find anything that helps your lawsuit, you will surely find something interesting.

Lawyers can no longer limit their research to opinions and statutes. General research on the web and specialized databases is not just a luxury, but is probably necessary in many circumstances to represent our clients zealously, even adequately. Also, it is just fun to learn something from Google or some other internet resource that your opponent’s lawyer may not know.
For that reason, I will periodically discuss some general research resources.
One of the best free people trackers for corporate executives is provided by Forbes magazine. It is free, but you have to register. The tracking information includes the person’s employment position as well as additional information such as cash compensation and exercise of stock options. There is also an e-mail alert function if you wanted to be notified of developments about the person. Try it out.

Evan Schaeffer at The Illinois Trial Practice Weblog makes a good point about pronouns gone amok in depositions.
Evan’s point is that unclear pronouns make it difficult to use the deposition for impeachment at trial.

It's almost impossible to use any single answer for impeachment if the question contains a pronoun:
Q. Were you present when he signed the contract?
A. Yes.
Q. Did you see him sign it?
A. Yes.
If you've to go back three pages to find out who "he" and "him" refers to, it makes the deposition transcript very unmanageable as an impeachment tool.

Those pronouns not only cause problems in trial but also in summary judgment motions. For example, if you are preparing or responding to a statement of undisputed facts, it is easier to rely on deposition testimony that "Mr. Smith" was driving the car, rather an testimony that "he" was driving the car. In the same way, even though it may seem awkward, you should try to refer to the document you are addressing by exhibit number or date or some other identifier. Otherwise, you may end up with testimony that simply refers to "it," as in "did you sign it?"
Evan says that he tries never to use pronouns in depositions, which is probably a good habit. Especially when you are asking questions that you know will find their way into your statement of undisputed facts, make sure that the question and answer can stand alone and do not require reference to other pages to clarify the pronouns.

There is an article floating around blog-world about the M.I.T. Ph.D. who could not understand the jury instructions when he was on a jury. For example, see Raymond Ward’s entry at The (New) Legal writer.
It is easy for us to complain about the difficulty of understanding jury instructions but not so easy for a practicing attorney to do something about it. Ward gives a link to an article that provides the good and helpful advice that each jurisdiction should prepare pattern instructions that are easy to understand. Until that happens, however, what do you do?
Anticipating an appeal, you use language in your instructions that has been approved by the appellate courts. Sometimes that is a pattern instruction and sometimes it is just language from an opinion. Like it or not, this is generally the safest way to protect a verdict on appeal from questions about the instructions. Certainly, you can revise the patterns or the language of prior courts’ holdings in an attempt to make them easier for the jury to understand, but you do so at some risk. Maybe your greatest wish should be that oppposing counsel will get creative with the instructions, so that you can challenge them on appeal if you lose.
In any event, the long term answer is that lawyers should get involved in local bar associations to reconsider and, if necessary, re-write pattern jury instructions in a way that is understandable to jurors, even M.I.T. PhDs. Keep in mind that a lot of lawyers (me included) think that most pattern jury instructions make perfect sense. So maybe non-lawyers should be part of the process of re-writing the existing pattern instructions.

Most of us use search engines such as Google regularly, but not with much expertise. I usually just type a series of words and, when I want to get fancy, will include some quotation marks.
Google has resources that can help all of us become better, more efficient searchers.
First, there is Google's librarian center that includes information and a newsletter. You can also register for e-mails that include information about searching tips and new Google features.
Second, there is a Google cheat sheet. Print it and keep it at your desk for easy reference. The tips are especially helpful when you are getting too many hits or too many irrelevant hits.

Here is an interesting handout at the Yale Law School to help students understand the billable hour. I wonder if I would have stayed in law school if someone had explained it this way to me.
Speaking of the billable hour, check out www.thebillablehour.com. The Billable Hour was founded by husband and wife Mark and Lisa Solomon, who are both practicing lawyers. Mark spends his billable hours as a trial attorney for an insurance defense firm, while Lisa, like me, runs her own practice providing legal research and writing services to other lawyers. The Billable Hour also publishes a monthly e-newsletter that focuses on work/life balance issues and legal humor.

Ever wondered about how or why decision are published or included on Westlaw or Lexis. The bloggers at Reference Question of the Week answered it this way.
It must be noted, however, that the Supreme Court last week approved a change to the rules that would require even unpublished opinions to be precedent. You can read the proposed rule here. The amendment -- as well as amendments to other rules -- will go into effect in December unless Congress takes some action.
I am looking at all of the amendments and gathering comments on their effects and will publish more on that subject later.

Randy Walker is a lawyer turned writer who lives in my home state of Mississippi. I don't know him, but I enjoy reading his blog, Randy Bandit: The Musings of a Mississippi Writer. He recently wrote about the differences between lawyers and writers and I think he prefers being a writer. I like to think that I have found a way to have the best of both worlds.

A few days ago I posted about an opinion by the California Court of Appeals that strongly criticized the brief filed by one of the parties. I guess I took the side of the court without much thought, maybe because I did not want to identify with the brief writer. One of the bloggers at Appellate Law and Practice, however, took a much more reasoned view of the opinion. I hope you will read the entire blog entry at but it concludes with this:

In reading this opinion, I can see how a father can easily conclude that the system is biased against him, maligned him as a sexual molester, despite the fact that his daughter denies it, and denies him the right to visit his daughter, etc. Maybe he is completely wrong. Maybe he deserves what he gets. But, I don’t see the reason to act insulted that someone, and perhaps their lawyer, feels quite angry, and has the nerve to ask permission to file a long brief, files a long brief (which contains rhetoric and constructions of the law, like all briefs), and loses. This happens every day.

It is never a good sign for the appellant when the opinion begins: “This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.� Read the whole opinion here.