Washington Researchers is company that provides training and publications on competitive intelligence.  I have used their publications on several occasions and found them to be helpful and concise resources for researcher. 

The Washington Researchers website includes “The Ten Commandments of Internet Searching according to Washington Researchers.”   The commandments include some useful reminders that should streamline lawyers’ searching efforts. For example, know your search engine and use multiple searcher engines.   When you find relevant information in your search, “[c]onsider the source of what you find. Just because it is in print, doesn't mean it's true.” 

Perhaps the most important commandment is to watch the clock:  “If you don't watch yourself, you will spend hours looking for something that can't be found or you will end up surfing instead of searching.” 

Check out the other commandments as well as other Washington Researchers resources here. 

I took statistics in college and called it “sadistics.”  Needless to say, my eyes blur when I try to remember the distinction between the mean and the median.  Unfortunately, however, every lawyer sometimes needs to know something about statistics and percentages and related issues.  Robert Niles’ website has come to the rescue.  He has a page entitled:  “Statistics Every Writer Should Know --
A simple guide to understanding basic statistics, for journalists and other writers who might not know math.”  Check it out. 

I do not know Robert Niles but he must not be a math nerd because he also has a website about themeparks.   Check that site out before the summer ends! 

Geoffery Pullum at Language Lob has some harsh (but entertaining) words for product warning labels.  He does not mention it, but lawyers play a significant role in drafting that language.  Maybe warning labels should be the next focus area for the Plain English movement. 

Point of Law reports that the Pacific Research Institute issued a report in May that "ranks all 50 states in terms of relative tort burdens and relative tort reforms."  You can read the report here. 

The whole concept of “tort reform” has always intrigued me.  While the phrase “tort reform” would appear to be simply a description of a legislative program, it exudes an imprimatur of righteousness.  Who could oppose “tort reform?”  According to the OED, one of the definitions of “reform” is to “convert into another and better form; make a change for the bettering, improve, remove faults or errors in, amend.”  Based on that definition, you would think that “tort reform” is always a good thing, an objective improvement of the tort system.

The tort system, like any other collection of laws, however, represents a delicate balance of everyone’s rights and liabilities.  Sometimes I think that “tort reform” fiddles too much with one side of the balance.  “Tort reform” undoubtedly often results in changes for the better, but sometimes the better description would be “tort deform.” 

On a related subject, I take issue with the Pacific Research Institute’s statement in its press release that the “Deep South and parts of the Southeast also ranked poorly.”  I don’t know how you define the Deep South, but I want to point out that Texas, Louisiana, Mississippi, George, Tennessee and North Carolina were all in the top half of the study’s results. 

Here’s an interesting website for lawyers.  Douglas O. Linder, Professor of Law at the University of Missouri-Kansas has put together materials from “Famour Trials.”  The website includes transcripts and other information about trials such as the Nuremburg Trials, the Chicago 7 Trials, the OJ trial, the Mississippi Burning Trial and the Scopes “Monkey” Trial.  There is also a link to an article that Linder wrote about compilng the website.

When I was a young lawyer, one of my mentors read the transcripts of cross-examinations in famous trials and strongly recommended that I do the same.  I particularly remembered the cross examination of Dr. Binger in the Alger Hiss trial as being exceptional, so I re-read it this morning.  Just as I recalled, the questioning attorney was meticulous in addressing the bases of the expert's opinion.   This is how the cross-examination is described on Linder's website: 

Dr. Carl A. Binger testified for the defense as a psychiatric expert.  Based on his reading of selected writings of Whittaker Chambers and observation of Chambers on the witness stand, Binger testified that he concluded Chambers  had "psychopathic personality" and was "a pathological liar."  However, in a devastating cross-examination, Assistant District Attorney Thomas Murphy raised serious questions about Binger's credibility.  One commentator said admiringly, "Mr. Murphy just wanted plain answers to plain questions--about the most alarming  assignment anyone would wish on a psychiatrist."  Murphy, through his questions, suggested that the label "psychopathic personality" was useless and empty catch-all of a lot of symptoms.

I highly recommend that you read this excellent cross examination and look at the other materials from these great trials. 

Thanks to Moritz Legal information!  

Who ever said that grammar can't be fun?  Here is an article that includes some humorous rules for writing.  William Safire calls them fumblerules or “perverse rules of grammar.”   

For example,

• A writer must be not shift your point of view.
• Just between you and I, the case of pronoun is important.
• Mixed metaphors are a pain in the neck and ought to be weeded out.
• Write all adverbial forms correct.
• If I've told you once, I've told you a thousand times, resist hyperbole.

Enjoy! 

Have you ever tried to find the comments that influenced specific federal regulations?  The Reference Question of the Week recently addressed that issue.  The answer can depend on the time at which the regulations were adopted.    In the question addressed by the Reference Desk, the regulation at issue was adopted in the 1970's. 

Comments, along with the agency’s responses, are either listed in their entirety or summarized, depending on the number received. The actual comments for your rule were probably put in boxes and stored in a government warehouse, but are probably not indexed or accessible. In the late 1970s a federal agency that had just finished a big rule-making handled their comments that way. (If you’ve seen the first Indiana Jones movie, I always picture them sitting right next to the lost Arc of the Covenant.)

The Reference Desk suggested a FOIA request, a search of periodicals from the time period in question and records of litigation challenging the regulations. 

The time period was determinative. As the Reference Desk pointed out: 

If only this rulemaking were happening today. Regulations.gov allows public access to the actual comments received by the agency. As more agencies move to electronic rulemaking, more of the process will be transparent.

Kovacs Consulting conducted a survey to identify the essential 3 print Government Documents, the 3 Free Web-accessible Government Documents and the 3 Fee-Based Web-Accessible Government Document databases that you can't work without in answering reference questions

The survey was conducted with questions posted on various library listservs. 

The three lists are a helpful reminder of very useful information from the government.  I use most of the Fee-Based databases on a regular basis but simply forget about many of the others.  I printed out the list and will try to familiarize myself with the databases over the next few weeks and report back here. 

Eugene Volokh and the UCLA Law Library “have put together http://www.lawtopic.org, a Web-based clearinghouse for student article ideas.  The theory is that law professors, lawyers, law clerks, and judges would submit such ideas to this site, and students would pick up those ideas.”  

Check it out here.

Blogslot alerted me to an interesting monthly newsletter from  The Wall Street Journal. 

Syle & Substance newsletter is distributed monthly to the staff of The Wall Street Journal, usually around the end of the month, and is made available to the public on WSJ.com. It critiques the Journal's news pages on language and other issues, and it notes stylistic and other updates for The Wall Street Journal Essential Guide to Business Style and Usage. Each issue includes a quiz asking readers to ‘find the flubs’ that appeared in the Journal, involving use of the language.

The June issue of Style & Substance addresses an issue that I have discussed here: 

“While some Republican conservatives may want a religious candidate, it may not be him,” we said in a profile of Mitt Romney, bringing the inevitable “you of all people” reader reaction. 

Of course, he would indisputably be the grammatically correct pronoun after the linking verb, just as “it is I” is technically correct, rather than “it is me.”  Even writers who know the rules sometimes use the objective rather than the nominative pronoun in cases like these, attempting to avoid sounding pedantic.  But here the issue could have been sidestepped nicely and satisfied everyone nicely by simply saying “. . . it may not be Mr. Romney.”

I agree with those two points. First, sometimes grammatically correct does not “sound” right and, second, you can usually find a way to re-write the sentence so that it sounds correct and is correct. 

In addition to discussions of several different issues, ach Style & Substance issue also includes a quiz to find the “flubs” in actual passages from the WSJ.  The quiz is both entertaining and instructive – check it out.  

The WSJ Law Blog has a special legal ethics quiz today.  Here it is: 

You are taking a three-hour plane trip from Miami to New York to conduct a deposition in a matter involving client A. While on the plane, you spend the whole trip reviewing materials for a brief you will be filing for client B the following week. You normally bill clients for your time spent traveling on their behalf.

Can you bill each client for three hours?

The WSJ Law Blog will post the answer later today, but in the meantime you can read the many comments here.

I wrote earlier today about a legal ethics quiz on the WSJ Law Blog.  Here is the answer. Did you get it right? 

Merriam-Webster announces a new publication, an illustrated reference book.   Merriam-Webster’s Visual Dictionary, available this fall, will include “6,000 full-color illustrations and more than 20,000 dictionary-scale definitions.”  According to Merriam-Webster’s announcement,

Created by skilled graphic artists, the strikingly realistic illustrations and detailed diagrams within Merriam-Webster's Visual Dictionary help readers find words corresponding to a vast range of objects, environments, and concepts. The thousands of clear and precise definitions, prepared in cooperation with the editors of Merriam-Webster, supplement the visual images by providing essential information that cannot be seen or is only suggested by any given word, answering questions about function, significance, and purpose.

I am tempted to make a joke about the need for pictures to go along with written definitions.  The truth is, however, that illustrations could be helpful to a complete understanding of some terms, so I look forward to seeing what the Merriam-Webster Visual Dictionary has to offer.  Thanks to Resource Shelf for the Merriam-Webster announcement. 

I keep a file of articles that I intend to read and I grab the file when I have an appointment with a doctor or the mechanic and I know I need something to do while I wait.  An article mentioned on the SW Virginia Law Blog is already in the file and looks so interesting that it will have priority over everything else in the file.  

The article, by Andrew D. Leipold, is entitled “Why are Federal Judges so Acquittal Prone?”  Here is the abstract:  


According to comments on the Volokh Conspiracy blog, the article will be the subject of other articles and commentary in the near future.  The premise that federal judges are more prone to acquit than federal juries is obviously significant to defense lawyers and could well influence amendments to the sentencing guidelines and federal appointments.   The article should be an interesting read. 

When I was in law school, I was on the editorial board of the law journal and spent many hours editing law journal articles, including my own law journal comment.  Who read those articles? I like to think that many, many people read them, but the reality is that not many judges or other writers cited them.  In fact, some may say that most law journal articles are “dead.” 

The Law Librarian Blog discusses an interesting article and blog entry by Law Professor Thomas Smith about case citations to legal precedents and law journal articles. 

Here is part of the abstract of Smith’s article: 
   

With respect to law journal articles, Smith notes in his blog entry:
 

Notwithstanding these bleak statistics, I want to assure those law journal staffers that I  read and rely on law journal articles.  I don’t read any journal cover-to-cover, but I regularly search bar journals and law journals in any research project.  In particular, I find the articles helpful to: 

•     Identify issues that are relevant to a claim or defense
•     Find citations to cases that are factually similar to mine
•     Get a broad overview of an area of law
•     Learn about policy issues that are relevant to my issue
•     When decisions are split on an issue, figure out which positions are “majority” and which are “minority”
•     Learn about recent developments in the law

Law journal articles are a valuable part of legal research and I appreciate all those law journal staffers who work so hard to make sure that the articles are reliable and readable. 
 

In a recent post, Roger Shuy at Language Log discussed his work as a linguistic analyst who helped car manufacturer John Z. DeLorean get his acquittal at trial.   The discussion is interesting but also reminds lawyers to think expansively and creatively about ways to use expert testimony at trial. 

In summary, Shuy did a topic analysis of who brought up which topics in 64 audio and video recordings of Delorean’s conversations with various witnesses. That analysis (which Shuy describes in detail in the article) showed that “DeLorean's major substantive topic was to get either a loan or investors.”  The government had no linguistic analysis of the recordings.  Instead, according to Shuy, the government relied on several “illusions” to try to convince the jury to convict.  Those “illusions” included a tactic that is common to litigation attorneys on both sides – piling up evidence, such as 64 recordings, to create the impression that additional incriminating evidence exists. 

When considering expert proof, lawyers quickly think about medical and financial experts.  Shuy’s discussion serves as a reminder that we should also consider other areas of expertise, such as linguistics, in every case.  

Every training session about legal writing includes the direction to avoid the passive voice.  Based on that training, we all “know” that the active voice is bolder and stronger and therefore more appropriate for persuading judges to rule in our clients’ favor.  But, as always, there is another point of view. 

The Language Log today offers a fascinating history of the disfavored passive voice.  Geoffrey K. Pullum points out, with specific examples, that the Declaration of Independence, Orwell’s "Politics and the English language,” as well as Strunk and White violate the injunction against the passive. 

It just shows that there really are no rules and the passive voice has a place in any style of writing.

Ken Adams writes today about readability scores and contracts.  I never knew that Word offers an option to evaluate the readability scores of a document.  In the Spelling and Grammar menu, check "options," and then mark “check readability statistics.”  Ken was surprised that one of his contracts had a fairly low “readability” score, but he has some interesting insights into the use of readability scores. 

I checked the readability scores of several of my briefs and they were quite low.  The scores increased when I removed the citations to cases and the styles of the cases, but the scores were still substantially lower than I would have liked. 

 I will probably monitor readability scores on my documents, at least for a little while. As to the usefulness of this tool, I agree with Ken: 

I also randomly checked the readability score of various documents on my hard drive.  Surprisingly (or not), the document that had one of the highest scores was The Whiskey Speech by Judge Noah S. "Soggy" Sweat, Jr.  You can read it here.    That speech has been readable and entertaining since 1952. 

I spent yesterday at a seminar sponsored by the U.S. Patent and Trademark Office on “The State of Copyright in the Digital Age.”    According to the Patent and Trademark Office's website, the “Nashville seminar is the latest in a series the USPTO is hosting across the country to help educate American innovators and businesses about protecting their intellectual property.”   I could not find a list of other seminars, but, if one comes to your city, I suggest that you attend. 

The speakers at the Nashville seminar included Representative Marsha Blackburn from Tennessee, representatives of the Patent and Trademark Office, and some Nashville lawyers.  The program was informative and I am glad I went, especially because I got free CLE hours.  My hat goes off to anybody who will address a group in Nashville on intellectual property issues because it is a sophisticated audience.  Music is a business here and the songwriters and other entertainment professionals are very knowledgeable about the legal and policy issues and their rights.

At the seminar, I sat next to my friend John Rolfe who recently wrote an article for Business Law Today. The article, entitled, “On the record:  How music connects with law,” is an interesting and comprehensive discussion of the business and legal processes that come together to produce your favorite songs.   (John E. Murdoch III is a co-author.) 


If you are venturing into the area of entertainment law, the article is a useful discussion of the business and the issues that you will confront.  If you listen to music, you should read the article just to get a better understanding of the many, many talented professionals who contribute to your favorite song.  When you see the hard work that is necessary to create that recording, you may think twice about copying your neighbor’s CD. 

Starting last week, I am writing reviews of cookbooks for Food Bound, a blog in the wellfed.net network of food blogs.  So it was very interesting to me when I read a blog entry on a food blog that I can discuss on this law blog. 

At the Accidental Hendonist, Kate Hopkins explains why a tomato is legally a vegetable although it is botanically a fruit.  The issue was decided for limited purposes in the case of Nix v. Hedden. According to the Supreme Court, the only issue was “whether tomatoes, considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit,’ within the meaning of the Tariff Act of 1883.” 

    Based on Justice Gray’s opinion, it appears that the plaintiff (the shipper) read definitions of “fruit” and “vegetables,” as well as “pea,” “egg plant,” “cucumber,” “squash,” and “pepper.”  The Court specifically addressed those definitions, stating that:


In addition to trivia to share with your friends while you eat tomato sandwiches this summer, the Nix opinion has a lot to say to lawyers who are interested in research and writing. 

First, lawyers should be creative, looking to whatever sources of proof are available.  In Nix, one of the sources was a dictionary.  Ellen P. Aprill wrote an interesting article about the use of dictionaries in Supreme Court opinions in the Arizona Law Journal in 1998 (The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1988)).  The article is available on Westlaw and Lexis, but I could not find a free citation.  Anyway, you may want to read that article when you want to rely on a dictionary as support for your argument.  You should note, however, that it appears that the party in Nix who used the dictionary for proof – the plaintiff -- did not prevail on his claim. 

Second, lawyers should cover all the bases and consider the need to present evidence from multiple sources..  In Nix, the Court recognized that, botanically speaking, a tomato is a fruit, not a tomato, but there was simply no evidence to support that botanical definition as the common understanding. 


So the lesson is that, for the lack of a botanist, a tomato is a vegetable rather than a fruit for purposes of the Tariff Act. 

And Nix teaches or reminds us of an even larger lesson: “Although the ultimate aim of the judicial system is to ascertain the real truth, trial is nevertheless, in the scheme of things, an imperfect method, and the ‘truth’ memorialized by the jury's verdict may not necessarily mirror actual truth. That is why, one might suppose, that Supreme Court precedent still teaches that a tomato is a ‘vegetable’ instead of a fruit." See Nix v. Hedden, 149 U.S. 304, 37 L. Ed. 745, 13 S. Ct. 881 (1893).”   Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 366 (D. Mass. 1991)

Think about these things as you enjoy a tomato sandwich this afternoon.