I wrote several weeks ago about the advantages of using different search engines.  In other words, we should not limit our searches to Google. 

    One good option is www.ask.com.  Here is an article by the Librarian in Black listing ten reasons librarians should use ask.com rather than Google.    Read the article and try some of the examples and I think you will want to use ask.com on your next search. 

    Thanks to Marylaine Block !

The Legal Writing Prof Blog has a list of useful links to reference resources. The resources include online encyclopedias and dictionaries, The World Factbook, and online quotation databases.  And what list of online reference resources would not be complete without a link to The Elements of Style?  Check out the list and links here. 

    Some folks at Factiva  (a huge news database) identified 55 cliches and searched the Factiva database to determine which ones were used most often.  Read about the study here. 

    The winning cliche among U.S. media was “at the end of the day,” which was used 10,595 times during the first half of 2006.  The Washington Post and the New York Times each used the term 135 times during that period.  (Thanks to Writing Clear and Simple for this link) 

    These were just some of the other clichés: 
    I don’t think I use those particular clichés in legal writing and don’t think that I have seen them very often in briefs written by other lawyers.  But lawyers do regularly use their own unique clichés, even giving them revered status as “terms of art.”  For examples, just read some entries at Adamsdrafting about boilerplate language. As Ken points out, when you really think about these lawyerly clichés, they don’t make much sense, but we use them and even defend our use of them. 

    So the next time you use a phrase that you seem to use a lot in your legal writing, step back and think about what it really means and what you are really trying to say. 

    On a slightly related note, think about why we use clichés.  Is it because we simply don’t have the words to express what we want to say or is it a deeper communication problem?  Here is a suggestion from Mark Liberman at Language Log. 

If you can't express what you feel, the problem is probably not too few word choices, and it's probably not too many word choices either. Maybe your real problem is getting in touch with your feelings, or connecting your amygdala to your cerebral cortex, or finding the right metaphor, or coming to terms with the essential ineffability of experience. But as a practical matter, whatever you can do to express yourself will comes down to choosing a sequence of words. And no matter how big your vocabulary is, it's dwarfed by the exponential explosion of combinatoric possibilities when you combine words into phrases.

        Judge Easterbrook of the Seventh Circuit published his opinion denying a motion to strike portions of the appellant’s brief and gave some advice for lawyers who are thinking about filing similar motions.  The motion was directed to specific sentences of the appellant’s brief, complaining about improper citations, incorrect factual statements and lack of supporting evidence. 

     The motion came to Judge Easterbrook because he was the motion judge of the week when the motion was filed.  In a published opinion, he points out that the appellate rules do not provide for motions to strike whole briefs or portions of a brief (even though motions may be appropriate in unique situations).  Moreover, motions are directed to the motion judge, not the panel that will decide the case, thereby calling “on the court to increase from three to four the number of judges who must dig through the record and understand the legal issues.”  Nonetheless, even though such motions “are not only unnecessary (from the parties’ perspective) but also pointless (from the judiciary’s), they are filed all the time.” 

    When similar motions came before Judge Easterbrook in the past, he has treated them as a “form of ‘advance’ on the allowance of pages or words used for the party’s appellate brief.”  Up to this point, however, he had not explained his rationale in a published opinion.  “Now notice has been given – and [Judge Easterbrook has] decided to raise the stakes and deduct from the brief double the number of words in a motion to edit an opponent’s brief or any other equivalently absurd, time-wasting motion.”    
   
    Thanks to Judge Easterbrook for explaining his position on motions and giving fair notice of the consequences of filing an inappropriate motion.  The notice will certainly make all lawyers think before filing any kind of appellate motion.  The explanation helps us make a reasoned decision about whether to file a particular motion.  Here are some things to consider. 


Be warned but also remember that some motions should be filed. 

Thanks to Decision of the Day. 

Groklaw has a helpful tour of PACER’s U.S. Party/Case Index.  I usually access PACER through an individual court’s website, so it was interesting to see a different way to search.   

I love PACER and I praise its creators for coming up with a system that is easy to use and fairly inexpensive.  I sometimes use other courts’ on-line docket systems and they just don’t compare. 

Thanks to the Law Librarian Blog for the link to Groklaw.   

We have all seen lists of ways to make our writing better.  You know the drill – shorter sentences, active voice, and clear punctuation. 

It is sometimes easier to understand the importance of good writing by seeing bad writing.  So here is a list of seven types of bad writing from Matthew Stibbe at Bad Language.  Here are the basics.  Bad writing


Thanks again to Roy Jacobsen. 

Benjamin Spencer at Federal Civil Practice Bulletin reports on Professor Stephen Gensler’s update on the recent meeting of the Advisory Committee of the Civil Rules.  Read the report here. 

According to the report, the Committee is considering elimination of the “so-called '11-day' rule by which intermediate weekends and holidays are excluded from periods of less than 11 days. In other words, all days would count regardless of the length of the period. In that vein, the committee has been examining all of the deadlines in the civil rules to determine whether they would need to be adjusted in light of the fact that intermediate weekends and holidays would count. Rule 6 would retain the 'last day' rule, which extends the deadline to the next day that is not a weekend, holiday, or day when the clerk’s office is otherwise inaccessible.” 

The report also notes that the committee is considering amendments to Rule 56 to standardize the process of moving for and responding to motions for summary judgment and to address motions for partial summary judgment.  In my practice, I prepare motions for summary judgment in many jurisdictions and I think every one has different procedures and deadlines and other requirements.  Some uniformity would be nice, although it is sort of interesting to see the many different ways that courts can organize the summary judgment procedure. 

Additionally, the Committee is considering changes to Rule 26 to address work product protection for documents shown to an expert. John Day at Day on Torts recently wrote about that issue in the Sixth Circuit. 

As Professor Spencer notes, all of these issues are "still in the study and development phase" and if they proceed, we will all get the chance to comment.

How many times have you used a yellow legal pad?  How many times have you wondered who invented the yellow  legal pad?  Here is the story. 

The Fifth Circuit entered an opinion last week about filing deadlines for appeals.  When you think of the time to appeal, you probably instinctively recall that you have thirty days from entry of judgment.  The Fifth Circuit’s opinion, however, points out that 2002 amendments to FRCP 58 and FRAP 4 include a 150 day rule that you need to remember.  

This was the time line, as set out by the Fifth: 


Here is part of the Fifth Circuit’s reasoning: 

FRCP 58 and FRAP 4 establish the ‘entry of judgment’ by the district court as the triggering event for the beginning of tolling periods for the filing of notices of appeals and post-judgment motions.  Under FRCP 58, in the case of specified, uncomplicated orders, verdicts and judgments, judgment is deemed entered by the court when the clerk makes an entry of it under FRCP 79(a) showing its nature and substance in the civil docket.  .. . In the case of certain more complicated verdicts and other grants of relief, judgment is deemed entered by the court when the earlier of two events occurs:  (1) when it is set forth on a separate document approved by the court and entered under FRCP 79(a); or (2) when 150 days have run from the clerk’s entry of its nature and substance under Rule 79(a).

Applying this analysis, the Fifth held that the notice of appeal was untimely: 

Although the court did not perform its duty to promptly approve a separate document judgment, the clerk had independent authority and a duty to enter the judgment based on the verdict in the civil docket.  When 150 days passed after February 2, 2004 without the filing of a separate document judgment the judgment prepared and entered by the clerk by law was entered as the judgment of the court on the merits on July 2, 2004.  Because the City did not file its notice of appeal until October 18, 2004, in excess of 30 days after the entry of the judgment, it failed to file a timely notice of appeal.

Read here and remember.   

Thanks to Appellate Law and Practice for bringing this opinion to my attention! 

Wayne Schiess has eight great tips for improving your analytical and persuasive writing.  Read them here. 

One of the tips is to avoid “heavy connectors.”   Roy Jacobsen at Writing, Clear and Simple adds that heavy connectors are words like notwithstanding the foregoing, which can be replaced with despite that, and consequently, which means so.  

Pam Robinson at Words at Work is asking readers for their "favorite words."  So far, two of the words are hippopotamus and dullard.  Those are two nice words but I don't use them very often.  Pam is preparing a roundup of favorite words for next week. I am interested in seeing the results. 

Judicial clerkships were the best jobs I ever had.  Katherine McDaniel, a 2006 Yale law school graduate, has started the Clerkship Notification Blog that may help law students find those great jobs.  Here is what Katherine has to say about the purpose of the blog: 

The goal of this blog is to provide a forum for law clerk applicants to share information regarding their clerkship applications. By using the "comments" function applicants can easily find and share information as to which judges have started calling applicants, which judges have started making offers, and which judges have completed their hiring. Posting is entirely anonymous (though you are, of course, free to sign your name).

If you have or need information on clerkships, check out this blog.  

Many blogs have tips for taking deposition but The Practice blog has some tips for lawyers who are defending depositions.  Jonathan Stein lists five reasons why you should not “read your newspaper or respond to messages on your crackberry, er, blackberry, during a deposition.”    You can read them here. 

Like Jonathan, I worry if you need reasons. 

Do you ever get the words "comprise" and "compose" confused?  Pam Nelson at Grammar Guide has some tips: 

The best way to remember how to use "comprise" is to remember that the whole comprises the parts, instead of the parts "comprising" the whole. So the band comprises its members; the members do not "comprise" the band.

Pam goes on to add: 

But the most important thing to remember is that "is comprised of" is always wrong -- at least among careful writers. I realize that dictionaries, which are descriptive, recognize that some people use "comprise" to mean "compose" or "constitute" and that such usage is widespread. But many editors still find "is comprised of" grating and incorrect. Careful writers will avoid it. 

I checked The Redbook, and it agrees: 

The most frequent error in using these terms [comprise and compose] is signaled by the pharse comprised of.  Strictly speaking, since comprise means "to include," the phrase makes no sense.  John, Paul, George, and Ringo composed (were comprised in) the Beatles.  The Beatles comprised (were composed of) John, Paul, George, and Ringo. 

Any example that uses the Beatles sticks with me. 

Wayne Schiess at legalwriting.net has a great post today about the use of latin phrases in legal writing.   Check it out here. 

Last week Roy Jacobsen at Writing, Clear and Simple, asked readers to try to simply a paragraph that he had found at a website about simplicity.  The paragraph was anything but simple. 

Today, Roy simplifies the paragraph himself and walks his readers through the process.  I found his analysis to be very helpful.  Especially in the drafting stage, we all write sentences and paragraphs that make sense in our heads but not when they are written.  In those cases, we have to go through the simplification process and Roy's analysis gives some helpful thoughts on how to simplify. 

Wayne Schiess at Legalwriting.net lists eight things you can do to improve your legal writing.  Here is what he says: 

This advice is for analytical and persuasive writing, not for legal drafting. And I must add, thanks to a commenter, that these relate to mechanics, not to substance:

   1. Avoid heavy connectors.
   2. Minimize passive voice.
   3. Consistently apply connections and transitions.
   4. Use words precisely and consult the best sources to be sure youÂ?re right.
   5. Master the comma, the semicolon, the colon, and the dash.
   6. Choose the vigorous, the crisp, and the conversational over the abstract, the stuffy, and the formal.
   7. Choose the succinct over the verbose.
   8. Seek critique.

Great advice! 

Prawfsblawg has initiated a project that it calls "Research Canons.”  According to the blog, the “purpose of this project is to get input from you, our readers, about the most important works of scholarship in the various areas of legal inquiry.”  The project should produce a great list of resources that will be helpful to professors, students and practioners.  I intend to follow it and recommend that you do the same.

Here are the subjects that will be covered (and the dates on which the blog will be requesting input): 

    * Civil Procedure - 9/6
    * Contracts - 9/7
    * Criminal Law - 9/11
    * Criminal Procedure - 9/12
    * Property & Real Estate Law - 9/13
    * Torts - 9/14
    * Constitutional Law - 9/18
    * Administrative Law - 9/19
    * Antitrust - 9/20
    * Commercial Law - 9/21
    * Corporate Law - 9/25
    * Dispute Resolution - 9/26
    * Employment and Labor Law - 9/27
    * Energy Law - 9/28
    * Environmental Law - 10/2

Start thinking of the resources that you would add to each category and contribute to the canon! 

Shlep: the Self-Help Law ExPress is seeking co-editors.  The blog defines “schlep”  as to “drag, carry or haul, particularly unnecessary things, parcels or baggage; to go somewhere unwillingly or where you may be unwanted.”  With that definition, the website posits that “we shouldn’t have to shlep around with a lawyer on our backs in order to get justice. The best way to ensure that the non-rich also have access to necessary legal and judicial services is to give them the ability and the option to formulate adequate solutions themselves, including acting as pro se litigants in court.” The blog's goal

is to bring the benefits of a daily weblog to the Self-Help Law movement.  Developments and news about self-help will be presented (often thanks to the efforts of the good folk at SelHelpSupport.org).  In addition to creating or organizing background materials for those who want to find self-help resources, your editor will attempt to keep readers informed of self-help resources available to the public and to professional providers of those services, of studies and reports on self-help law and related issues, of relevant symposia and meetings, and of the people and groups aiding (or obstructing) the movement. 

     The blog is still pre-launch, but it should be interesting to follow. 

Thanks to BoleyBlogs!

Nate Oman at Concurring Opinions weighs in on the notorious footnote and blames Blackstone! 

According to Nate, until the late 19th century, most American lawyers learned the law by reading Blackstone’s Commentaries on the Laws of England.  The American lawyers created American editions of Blackstone that “would lard Blackstone's text with footnotes to American cases and brief summaries of how American law had divereged from the law that Blackstone expounded.”  Nate’s theory

is that the experience of reading Blackstone lodged deep within the psyche of American lawyers. They came to expect that the real meat of any secondary legal source was to be found in the footnotes. After all, they had learned American law by reading the footnotes to Blackstone. Not surprisingly, when American lawyers finally got around to developing a publishing medium of their own -- the law review -- they wrote with footnotes as a central element of their style. Thus, when I send my research assistant off to the library to provide documentation for assertions that I know to be correct, I am not simply pandering to the 3Ls sitting on some future articles committee. I am in some sense recapitulating the tortured course of American legal education.

Great theory.  I must add that I believe that footnotes can be very useful in creating a readable text.  In particular, text flows much better when it is not interrupted by string cites or semi-related but interesting trivia.  But I am more than happy to blame those unnecessary footnotes on Blackstone