Roy Peter Clark has a post about using space on the page when writing, "giving equal weight to the markings and the emptiness." 

Use of formatting and space certainly makes a difference in readability.  My default left and right margins are 1 1/2 inches because I think the page just looks so much better that way.  The page seems more inviting, unhurried and gracious when the words are not crammed on every possible inch of page.  I get a little agitated and anxious when I read pages that are too crowded and I sure don't want my readers to feel that way.  Also, I can change the defaults and have some extra space if I am concerned about exceeding page limitations.

Harmon Wray, advocate for peace and justice, died yesterday. I had the privilege of attending church with Harmon for several years and valued his wisdom and commitment to justice.  Harmon was co-author of Beyond Prisons: A New Interfaith Paradigm for Our Failed Prison System last year.  He was also instrumental in setting up a Vanderbilt Divinity School class that meets at Riverbend Maxium Security Prison here in Nashville.

You can watch and hear Harmon in a peace video here.   In the very best Southern accent, he makes these profound statements that we should all memorize: 


Peace and justice. 

Most of the “rules” for legal writing are riddled with exceptions, but here is one that is not:  write for your reader.  That means you must first determine what your reader wants, needs and expects.  A motion for summary judgment and an appellate brief may address the same issue, but they are very different because they are addressed to different readers.

Lynn Gaertner-Johnson says it this way at her Business Writing blog:  “The Only Rule Is What Works for Readers.”   She suggests that, whenever you face a writing rule that feels like an obstacle, ask yourself whether it applies to your situation and your reader.    That is also a good question for legal writers to consider. 

Ron Miller at the Trial Lawyer Resource Center discusses the “sponsorship” rule for direct examination.  Like Miller, I have always heard that it is better to address harmful facts in direct examination ("sponsor" them) than to let opposing counsel bring out those facts on cross.  But  Robert Klonoff and Paul Colby, in their book Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials, disagree.  According to Miller, their “theory is that you actually lose credibility by bring up your own weaknesses and that the cross examining lawyer often looks petty and nitpicking by bring up much of what you felt compelled to get out the sting of in your direct.”   

Like Miller, I agree with the “sponsorship” rule, but with some balance and common sense.  Klonoff and Colby are right that a lawyer could look “petty and nitpicking” by bringing out all the harmful facts about a witness on direct examination.  So keep in mind that you don’t have to bring out all the harmful facts on direct. 

In his post, Miller also directs readers to Personal Injury Help Center that has sample direct and cross examination outlines.  I have not reviewed the outlines enough to recommend them, but they are certainly a good place to start and get ideas.  Check them out here. 

Grammar Girl always provides helpful advice on confusing grammar issues.  She addressed the serial comma this week.  Read the post (or listen to the podcast) because she has great examples. But here is her bottom line: 


Go Grammar Girl! 

The Wall Street Journal Law blog has a post this week about a proposal to split the Ninth Circuit.  It quotes an op-ed in the Los Angeles Times by Vanderbilt Law School professor Brian Fitzpatrick: 


Fitzpatrick’s position makes sense and he is certainly not the first one to suggest that the Ninth Circuit should be split.  But I want to know why the first comment has nothing to do with the Ninth Circuit, but rather a warped comparison of California and Tennessee? 

Almost every complaint I read includes language incorporating all factual allegations into each count.  You know the language – it’s the first sentence of each count and states something along the lines that “Plaintiff incorporates the allegations contained in the preceding paragraphs.” Have you ever wondered if that language is really necessary?  Wonder no more.  It saved a plaintiff’s claim in a recent Fourth Circuit opinion. 

In Adkins v. Crown Auto Inc., 2007 U.S. App. LEXIS 11630 (4th Cir. May 18, 2007), the plaintiff bought a car that had been “clipped” together from remnants of two separate wrecked vehicles.  (You learn so much as a lawyer!)  The two separate wrecked vehicles had different mileages.  Under Virginia law, however, the title of a “clipped” car includes only the total mileage of the front half of the vehicle.  In the Statement of Facts in her complaint, the plaintiff alleged, among other things, that the seller failed to disclose that the vehicle was in fact two cars that had been poor welded together and had suffered severe damage.  Under the heading of “Actual Fraud,” the plaintiff incorporated all of the preceding allegations and also alleged that the seller made false representations about the true mileage of the vehicle and that she relied on these false representations. 

At trial, the seller argued that the plaintiff’s fraud claim was based solely on the mileage issue and not on any representations about the clipping.  The district court and the Fourth Circuit rejected this argument because the allegations in the “Actual Fraud” section, together with the other allegations in the Statement of Facts that were incorporated by reference, sufficiently stated a claim of fraud under the mileage-and-clipping theory. 

What do we learn from this interesting case?  First, that language incorporating the preceding allegations of the complaint is useful and should probably be included in every complaint.  Second, when you are defending a fraud claim, always ask the plaintiff (in interrogatories and in depositions) to list and explain the specific misrepresentations on which she is relying.  Third, pull out the complaint every once in a while and review it.  Especially after some discovery, Plaintiffs may see a need to amend and defendants may see new defenses. 

I read about this case in another blog and cannot remember which one. So thanks to someone and apologies for not remembering who! 

The next time someone criticizes legal writing, just point to the writers who create assembly instructions.  That is where the Plain English movement would do some good.  Read Mark Liberman’s post today at Language Log about the lack of determiners in assembly instructions. 

Benjamin Zimmer also has an interesting post at Language Log, dissecting the Bill of Rights grammatically.  His discussion of the word “to” “pulling double-duty: first as a preposition, then as an infinitive marker” helped clarify an issue that I often see in legal writing.  When you use a clause to introduce a list of items, you may sometimes be uncertain whether the “to” goes in the introductory clause or in each of the items.  Benjamin’s example is New York’s Taxicab Rider’s Bill of Rights:



Benjamin’s marked-up version would go like this: 


Read his entire post.  Understanding the dual use of hte word "to" can help avoid some confusion in any writing.

We lawyers brag/complain that the law is very complicated, but Professor G. Robert Blakey has put in one page, part-outline, part-artwork.  You can see the product here – it’s brilliant! 

Above the Law has an interesting post about a law student’s experience at a law firm’s recruiting event.  The student was offended by a partner and sent an email to the law firm. The student then circulated the email to her friends and the email is now on at least one list serve. 

You can read the email at Above the Law and should also read the comments.  Most of the comments suggest that the student was naïve and overly sensitive.   The email and comments reminded me that I have lost the idealism and righteous indignation of law school.  I generally think that means I have matured, etc., but some idealism is not such a bad thing.