In his May 19 entry, Evan Schaeffer at www.illinoistrialpractice.com discusses the paperless offices.
I don't think such offices really exist and I agree with Evan that going paperless would seem to add a layer of complexity. Read Evan's blog entry and then look at the comments. This is certainly an issue that gets lawyers talking.

Word of the Day has a great word for lawyers today. I doubt that we can ever use this word in a brief. We should, however, all keep this word in mind so that no one can use it about our briefs.

Want to play games on the Internet while improving your language skills? Go to http://a4esl.org for "[q]uizzes, tests, exercises and puzzles to help you learn English as a Second Language (ESL)."

I was the one in elementary school who loved diagramming sentences. Most of you probably don't even know what it means to diagram a sentence, but it generally requires you to identify the function of every word in the sentence. So, I loved this recent entry (20 May 2006) on http://biloklok.blogspot.com where Bob Kennedy discusses a recent advertisement for CSI that included the phrase "Til Death do they part."
Subjunctives have always confused me and I often try to re-write sentences to avoid them. Kennedy points out that most readers probably understand the ad to mean that "they'll be together til one of them dies."  When Kennedy analyzes the phrase, however, its meaning is quite different. It's a fascinating read, especially for those of us who enjoy diagramming sentences.

Merriam Webster has released the list of the top ten words based on "online lookups."
The words provide an interesting reminder of the events that stole our attention in 2005. For example, the top ten include "levee,"� "refugee,"� "tsunami,"� and "pandemic."� Do those words bring back memories? The only one the surprised me was "insipid."  What did I miss?

Oh how things have changed. Remember the Palsgraf case from your first year torts class? It was the case where the railroad employee attempted to help a traveler who happened to be carrying dynamite; the traveler fell, and the dynamite exploded causing a scale to fall on poor Ms. Palsgraf. Ms. Palsgraf lost her lawsuit against the railroad for lack of foreseeability.

I have never cited Palsgraf in a brief, but its influence at least silently pervades any analysis of foreseeability. I did re-read Palsgraf when I was preparing this entry, thinking that I would quote a line or two. Every sentence, however, is quotable and lovely and I recommend that you click here and read the whole opinion.

The Wall Street Journal Law Blog reports that the Historical Society for the New York state courts recently re-argued Palsgraf and, this time, Ms. Palsgraf was successful, or at least got a chance for her case to be heard by a jury. What does that say about the evolution of our understanding of foreseeability and accountability?

On the lighter side, the WSJ reports that the re-argument was accompanied by a judicial duet of  "Unforeseeable"� to the tune of Nat King Cole's "Unforgettable." � Wish I had been there!

By the way, the Historical Society is interesting. The Society is a not-for-profit organization dedicated to the preservation of the extensive judicial heritage of courts in the Empire State. Take a look at its website -- check it out.

With hurricane season starting next week, I -- like many others -- are thinking more about Mississippi and other states on the Gulf Coast. I will always be a Mississippian at heart so I very much enjoy these promotional items about the state.

Check it out -- Mississippi ... Believe It!

Here is an interesting blog entry on word usage in the legal world.

Elizabeth Nowicki discusses the meaning of such terms as "good faith,"� "not in good faith," "shareholder," and "stockholder." � While we may unintentionally confuse the meaning of some terms, Elizabeth points out that at least one writer has said that "the tobacco industry used the word 'zephyr' in internal memos as the code word for 'cancer' in order to obscure the serious health impacts of smoking."

I agree with Elizabeth's "position"� on word usage:  "(a) using words that the reader can understand without whipping out a dictionary, (b) erring on the side of clarity, and (c) resorting to the dictionary with Justice Scalia-esque frequency when interpreting a word whose meaning is not contextually clear."

Wayne Scheiss at Legalwriting.net has an interesting post about a common writing defect. He says that that he spends about 40% of his time in his first-year legal-writing course trying to get students to "synthesize."� He says: "Do not merely state a legal principle and then assert a conclusion. Specify how the conclusion derives from the principle in light of the facts of your case."

Lack of synthesis is one of the points that I look for when I proofread and edit my own work. (That's another blog entry -- how to proofread for yourself and for another writer). Here are my thoughts on the cause and remedy for lack of synthesis.

First, when my brief fails to explain how a stated legal principle or opinion supports my position, it usually means that (a) I don't buy my argument; (b) I don't understand my argument; or (c) the argument does not work. In other words, the flaw is generally not my writing, but my thinking. Before I figured this out, I would try simply to re-write or re-arrange the sentences, but that just does not fix the underlying problem. To fix the problem, I have to forget the argument as I have written it, at least temporarily, and go back to the opinions or other legal authorities and my facts. Then I analyze and ponder until I have an argument that makes sense in your mind. This is often a good time to take the dog for a walk or have a glass of wine. Once I have worked through the argument successfully, I am usually ready to write an argument that explains to the reader why the cited legal principles compel a ruling in my client's favor.

Second, when I am having trouble articulating the reasons that a particular opinion supports my argument, this trick sometimes helps. I re-read the opinion and make a rough summary, often in outline form, of the key facts and statements of law that relate to my case. In making this summary, I am forced to identify the essential elements of the court's analysis. I find that, after I have gone through this process of analyzing the opinion and reducing its reasoning to a rough outline, my argument almost jumps out at me. Of course, sometimes the outline shows that I need a new argument altogether.

Third, Bryan Garner addressing this issue in the chapter entitled "Highlight the reasons for the conclusion you're urging" in his book The Winning Brief. He suggests that you try to use this formula: "Because ____, [my position is] _____________." � If you can reduce your reasoning to this formula, you are ready to explain it to the court.

Wayne Scheiss is so right that synethesis is necessary and yet is often absent from briefs.

In January 2006, the SEC proposed amendments to certain disclosure requirements (including executive and director compensation and some corporate governance matters) and also proposed that those disclosures by provided in "plain English." � According to the SEC, the

proposed amendments are intended to make proxy statements, reports and registration statements easier to understand. They are also intended to provide investors with a clearer and more complete picture of the compensation earned by a company's principal executive officer, principal financial officer and highest paid executive officers and members of its board of directors. In addition, they are intended to provide better information about key financial relationships among companies and their executive officers, directors, significant shareholders and their respective immediate family members.

What is "plain English"� for the SEC? The SEC addressed that in its Plain English Handbook. According to the Handbook,

Plain English means analyzing and deciding what information investors need to make informed decisions, before words, sentences, or paragraphs are considered. A plain English document uses words economically and at a level the audience can understand. Its sentence structure is tight. Its tone is welcoming and direct. Its design is visually appealing. A plain English document is easy to read and looks like it's meant to be read.

The Handbook includes some tips that are helpful to ordinary writers, not just SEC lawyers. For example, it recommends that, as you read the document, you jot down the main points in each paragraph. "If you can't find these points too easily, it may mean the paragraph is a hodgepodge of unrelated topics."

The Handbook is refreshing and instructive for anyone who wants to write well. Put it on your recommended reading list.

A client recently asked me about capitalizing the word "court"� in briefs or other court filings. The question prompted me to check a few citation authorities to make sure there had not been any major changes on this point. I was surprised to find some conflict.

According to the Bluebook (I checked the 18th and 13th editions), the word "court"� should be capitalized only when naming a court in full or when referring to the United States Supreme Court. Both editions specifically include examples that refer, without capitalization, to the "state supreme court."� If you were using the full name of that court, however, it would be capitalized, as in the "Mississippi Supreme Court." The eighteenth edition adds the rule that "court"� should be capitalized when referring to the court that will receive the document.

According to the Redbook,"court"� should be capitalized when referring to the highest tribunal of any jurisdiction, once it has been identified, whether the United States Supreme Court or a state supreme court, and whatever court you are addressing.

The Chicago Manual of Style, based on the examples in section 8.69, agrees with the Bluebook.

Whatever rule you follow, be consistent.

How do you keep up with recent legal developments -- especially statutory notice requirements for litigation? I guess that most lawyers rely on the media or CLE programs to update them on key issues, and then hope that they will remember the new requirements. Ideally, we would all conduct new research before filing a complaint to make sure that we are complying with any new legislation or opinions. Some recent opinions from the Mississippi Supreme Court emphasize the importance of that research.

The Mississippi Supreme Court affirmed dismissal of two medical malpractice claims in the last month for failure to comply with a statutory requirement of pre-suit notice. In both cases, the statutory requirements had either been enacted recently or had been more strictly construed by recent opinions of the Mississippi Supreme Court.

In Pitalo v. GPCH-GP, Inc., the malpractice claim was dismissed based on failure to give 90 days notice required by a statute that went into effect in 2003, just nine months before the plaintiff's suit was filed. In University of Mississippi Medical Center v. Easterling, the malpractice claim was dismissed for failure to comply with a notice requirement for filing suit against state entities. The Court had previously required only substantial compliance with that notice requirement; in 2004, however, the Court issued two opinions that shifted the responsibility to correct the notice deficiency from the defendant to the plaintiff.

Scarey, isn't it? Just a reminder to stay alert and not to rely too much on things remaining the same.

Opinions on appeal deadlines scare me. We all know that a Rule 59(e) motion tolls the time for filing an appeal. What happens, however, if you seek reconsideration of the ruling on the Rule 59(e) motion? That motion for reconsideration does not toll the appeal time. See the Fifth Circuit's unpublished opinion in Anderson v. Parsons State Hospital & Training Center. Keep that in mind when you count and re-count the time for filing an appeal.

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