The Lawyer Thread Where We Stop Ruining Other Threads (3 Viewers)

[Yankee23Fan]

So I just received a motion filed in a Dependency (CPS case - I represent mom and state has moved for termination of parental rights) filed by the children's attorney requesting visits stop. Children's attorney is an older guy who I used to work with at the Public Defender's Office for a short period until he left to become a contract counsel. His motion includes the following:



1. Formatted in dead on, law-school IRAC format. Seriously the headers are "Issue," "Rule," "Analysis," and "Conclusion". with numbered random points and factual conclusions comprising the "Analysis" section.

2. In the "rule" statement it contains quoted language from a statute with key words omitted and replaced with others which totally change the meaning of the statute. Naturally, the manipulation to the language favors the position in the motion but there is no parenthetical explaining the change. With the correct words, the statute is likely entirely inapplicable and irrelevant to the motion. He cites no other law.

3. The position being taken by the attorney, who is merely the children's attorney (a stark distinction in my jurisdiction from a guardian ad litem), is likely unethical because it is outside the scope of his representation.



I prepared an incredibly blunt, "snarky" response, but am somewhat at a loss of what to do here. I have a feeling this guy's paralegal wrote the motion. An ethical complaint seems a bit extreme here, but I've never been so flabbergasted by a motion.

Don't be snarky, but be blunt. Demolish him with the judge.

"The Children’s motion, which was filed on X, contains facts coated in a thick, hyperbolic gloss and is littered with circular logic and argument. Yet, despite its length, the motion still somehow lacks any sort of backbone sturdied by applicable law or relevant, expert opinion."

Too much for an opening?

I'm just a law student here

OMG. Run, run fast. Don't look back.

 

[Zow]

So I just received a motion filed in a Dependency (CPS case - I represent mom and state has moved for termination of parental rights) filed by the children's attorney requesting visits stop. Children's attorney is an older guy who I used to work with at the Public Defender's Office for a short period until he left to become a contract counsel. His motion includes the following:



1. Formatted in dead on, law-school IRAC format. Seriously the headers are "Issue," "Rule," "Analysis," and "Conclusion". with numbered random points and factual conclusions comprising the "Analysis" section.

2. In the "rule" statement it contains quoted language from a statute with key words omitted and replaced with others which totally change the meaning of the statute. Naturally, the manipulation to the language favors the position in the motion but there is no parenthetical explaining the change. With the correct words, the statute is likely entirely inapplicable and irrelevant to the motion. He cites no other law.

3. The position being taken by the attorney, who is merely the children's attorney (a stark distinction in my jurisdiction from a guardian ad litem), is likely unethical because it is outside the scope of his representation.



I prepared an incredibly blunt, "snarky" response, but am somewhat at a loss of what to do here. I have a feeling this guy's paralegal wrote the motion. An ethical complaint seems a bit extreme here, but I've never been so flabbergasted by a motion.

Don't be snarky, but be blunt. Demolish him with the judge.

"The Children’s motion, which was filed on X, contains facts coated in a thick, hyperbolic gloss and is littered with circular logic and argument. Yet, despite its length, the motion still somehow lacks any sort of backbone sturdied by applicable law or relevant, expert opinion."

Too much for an opening?

I'm just a law student here but it seems like what you're saying in your brief is that the opposing attorney wrote a bad brief, but what you're saying in this thread is that he committed an ethical violation and intentionally used altered text in his quote of the law. That's a big difference.

You'd be correct. Welcome to the world of professional courtesy in small town practice.

 

[T Bell]

If you're in a small legal community then I'd definitely call him. Tell him straight up that his brief is misquoting the law and request that he withdraw it. Otherwise you have to point that out to the court and it's not going to be pretty, but you'd rather not have to do that.

If he reacts badly, now you know where you stand with the guy in this case and in the future, and your concern for how he feels about you is less. If you're right about this being a badly drafted brief by a paralegal, then he'll likely appreciate it and will remember your courtesy.

Also, if he refuses to withdraw the brief, I'd definitely note to the court that you called him and invited him to withdraw it, and he refused. That'll make you look good to the judge.

 

[-fish-]

Personally, I'd pick up the phone and ask what the hell he was thinking and ask him to withdraw it. If he wouldn't, I'd follow up with an email confirming that I'd asked for the correction.

Then I'd take the approach that Henry Ford suggested--plain and direct. I'd let the court know that I'd given the opposing counsel an opportunity to correct the misstatements of law, and that counsel declined, in violation of ethical rules and/or CR 11 (or its equivalent).

 

[-fish-]

dammit

 

[Zow]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

 

[Zow]

If you're in a small legal community then I'd definitely call him. Tell him straight up that his brief is misquoting the law and request that he withdraw it. Otherwise you have to point that out to the court and it's not going to be pretty, but you'd rather not have to do that.

If he reacts badly, now you know where you stand with the guy in this case and in the future, and your concern for how he feels about you is less. If you're right about this being a badly drafted brief by a paralegal, then he'll likely appreciate it and will remember your courtesy.

Also, if he refuses to withdraw the brief, I'd definitely note to the court that you called him and invited him to withdraw it, and he refused. That'll make you look good to the judge.

I like this.

 

[mr roboto]

I need some advice. I have a business idea. It involves design, construction and selling directly to consumers. Part of the idea is a process for completing the design and construction that I believe may be a first (potential for IP). I would like to know if there are any patents in the field, and if so, what they specifically are for. I'm not at a stage to hire a patent attorney though. I'm still working on the process myself.

Is this something I could research well enough on my own?

 

[T Bell]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

Wait a minute - he's paraphrasing but I don't see any changed meaning there. Am I missing something?

Also, this seems like a rule that the court deals with every day, so it's going to be very familiar with it and unlikely to be deceived regardless.

 

[Yankee23Fan]

Seriously, you've already wasted enough time thinking about this. Call him.

 

[njherdfan]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

Wait a minute - he's paraphrasing but I don't see any changed meaning there. Am I missing something?

Also, this seems like a rule that the court deals with every day, so it's going to be very familiar with it and unlikely to be deceived regardless.

Don't the 2 underlined things contradict each other? Unless you added the bracketed text. I'm very confused.

 

[Maurile Tremblay]

"The Children’s motion, which was filed on X, contains facts coated in a thick, hyperbolic gloss and is littered with circular logic and argument. Yet, despite its length, the motion still somehow lacks any sort of backbone sturdied by applicable law or relevant, expert opinion."

I would skip all of that and move on to whatever you were going to say next. "Thick, hyperbolic gloss," "littered with circular logic," and "lacks any sort of backbone" are just your opinion.

Show me, don't tell me.

 

[T Bell]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

Wait a minute - he's paraphrasing but I don't see any changed meaning there. Am I missing something?

Also, this seems like a rule that the court deals with every day, so it's going to be very familiar with it and unlikely to be deceived regardless.

Don't the 2 underlined things contradict each other? Unless you added the bracketed text. I'm very confused.

I read it as the attorney added the bracketed language, which of course would mean that he captured the meaning of the statute, albeit via paraphrasing. That's not misquoting the statute.

 

[Maurile Tremblay]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

 

[-fish-]

I need some advice. I have a business idea. It involves design, construction and selling directly to consumers. Part of the idea is a process for completing the design and construction that I believe may be a first (potential for IP). I would like to know if there are any patents in the field, and if so, what they specifically are for. I'm not at a stage to hire a patent attorney though. I'm still working on the process myself.

Is this something I could research well enough on my own?

I believe the answer is no; that's why patent attorneys get paid pretty decent money for doing patent searches.

:notsmartenoughtobeapatentattorney:

 

[Zow]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

Wait a minute - he's paraphrasing but I don't see any changed meaning there. Am I missing something?

Also, this seems like a rule that the court deals with every day, so it's going to be very familiar with it and unlikely to be deceived regardless.

Don't the 2 underlined things contradict each other? Unless you added the bracketed text. I'm very confused.

I read it as the attorney added the bracketed language, which of course would mean that he captured the meaning of the statute, albeit via paraphrasing. That's not misquoting the statute.

Yes, opposing counsel added the bracketed language "[especially parents]." However, the language he took out and replaced with the bracketed language is "and other relatives." In context, the inference to be drawn from the correct language (which would be consistent with the area of the statutes that this particular statute is found - i.e. rights of the children) is that this statute specifically deals with children seeing everyone else but the parents. His deletion of the "other relatives" and replacing it with [especially parents] gives the impression that this statute deals with the standard for the children seeing their biological parents when instead actually governs their rights to see people who don't have a fundamental right to see them such as friends and extended family.

If not obvious, the reason this distinction is huge is because the legal burdens of proof for each are miles apart; "best interests" (which is probably comparable to "a scintilla of evidence") vs. "extraordinary circumstances" (probably comparable to clean and convincing). So what effectively he is doing is trying to shoehorn the issue into a much lower standard by using a statute which doesn't even apply but making it sound like he does.

 

[Zow]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

 

[Ramsay Hunt Experience]

I need some advice. I have a business idea. It involves design, construction and selling directly to consumers. Part of the idea is a process for completing the design and construction that I believe may be a first (potential for IP). I would like to know if there are any patents in the field, and if so, what they specifically are for. I'm not at a stage to hire a patent attorney though. I'm still working on the process myself.

Is this something I could research well enough on my own?

I believe the answer is no; that's why patent attorneys get paid pretty decent money for doing patent searches.

:notsmartenoughtobeapatentattorney:

Until recently, the only way to really search would be to go to a public search center and use the PTO's tools. Now, we at least have Google Patent if you want to do preliminary research. Most search firms miss prior art, so I don't think the question is whether you're going to be able to find all the prior art. You won't. But it may give someone the lay of the land.

 

[T Bell]

Okay, here's his "rule statement":

[SIZE=12pt]"A child placed in foster care has the right to maintain contact with . . . relatives[, especially parents,] [/SIZE][SIZE=12pt]unless the court . . . determine that contact [/SIZE][SIZE=12pt]is [/SIZE][SIZE=12pt]not in the [/SIZE][SIZE=12pt]child|ren|'s [/SIZE][SIZE=12pt]best interests...." [/SIZE][SIZE=12pt]A.R.S. § 8-513.C (emphasis added). (Sic)[/SIZE]

[SIZE=12pt]Here's the actual statutory verbiage and my argument:[/SIZE]

The actual text of the statute reads, “a child placed in foster care has the right to maintain contact with friends and other relatives unless the court has determined that contact is not in the best interests pursuant to a court hearing” (emphasis added). The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule. Nonetheless, they would imply that 1) this statute has nothing to do with parental visitation (since it points to friends and “other relatives,” specifically remaining silent as to parents); and 2) that, even if this were the applicable law, this Court cannot simply terminate visitation without a meaningful court hearing. Nonetheless, the appropriate, applicable “rule” to the issue of whether visits should be terminated is: “a parent should only be denied visitation under extraordinary circumstances.” Id. at 375.

ETA: Bear in mind, what he's ultimately asking is for the court to suspend my client's fundamental right to visit her children even during the permanency portion of the case. His statute addresses the rights of children when they are in foster care, not the rights of parents going through the process.

Wait a minute - he's paraphrasing but I don't see any changed meaning there. Am I missing something?

Also, this seems like a rule that the court deals with every day, so it's going to be very familiar with it and unlikely to be deceived regardless.

Don't the 2 underlined things contradict each other? Unless you added the bracketed text. I'm very confused.

I read it as the attorney added the bracketed language, which of course would mean that he captured the meaning of the statute, albeit via paraphrasing. That's not misquoting the statute.

Yes, opposing counsel added the bracketed language "[especially parents]." However, the language he took out and replaced with the bracketed language is "and other relatives." In context, the inference to be drawn from the correct language (which would be consistent with the area of the statutes that this particular statute is found - i.e. rights of the children) is that this statute specifically deals with children seeing everyone else but the parents. His deletion of the "other relatives" and replacing it with [especially parents] gives the impression that this statute deals with the standard for the children seeing their biological parents when instead actually governs their rights to see people who don't have a fundamental right to see them such as friends and extended family.

If not obvious, the reason this distinction is huge is because the legal burdens of proof for each are miles apart; "best interests" (which is probably comparable to "a scintilla of evidence") vs. "extraordinary circumstances" (probably comparable to clean and convincing). So what effectively he is doing is trying to shoehorn the issue into a much lower standard by using a statute which doesn't even apply but making it sound like he does.

I'll defer to your better knowledge of the statute. It's definitely subtle though, and I've encountered worse, including an attorney changing a series of "and's" to "or's" in a jury instruction which he displayed to the jury on a powerpoint slide before telling everyone he intended to display it. That got me a tad exercised...

 

[Ramsay Hunt Experience]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

 

[T Bell]

More cool Oscar Pistorious trial coverage. The live updates make for fascinating reading.

 

[T Bell]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

You can also auto-delete the word "very" from every legal brief. It adds nothing.

 

[Thorn]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

your audience isn't a jury, it's a judge. Get right to the point.

I've done an opposition to a ####ty motion like that by going through each misstatement, following it with the statement "That is not the law." then quoting the correct language, and saying why it matters. Two or three page response to a 15 page motion can be pretty powerful.

 

[Ramsay Hunt Experience]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

your audience isn't a jury, it's a judge. Get right to the point.

I've done an opposition to a ####ty motion like that by going through each misstatement, following it with the statement "That is not the law." then quoting the correct language, and saying why it matters. Two or three page response to a 15 page motion can be pretty powerful.

I've done it as a chart in a reply brief. Or with bullet points quoting the misrepresentations in order. Particularly in replys, IMO, functional briefs can be very effective. The Court already has your best statement of the legal issues and facts. So there's no need to try to re-do that work. And nothing pisses the other side off as much as seeing a 12 page chart of every misrepresentation they've made.

 

[Maurile Tremblay]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

The adjectives that are most annoying are the ones that serve no purpose other than to take a jab at opposing counsel. "Conveniently omit" rather than "omit," etc. I remember a conversation with an older lawyer who specifically advocated including those little jabs, saying he liked to twist the knife. I always thought it was lame, and it turns out that most judges really hate it, too. I forget exactly where I saw a survey of judges about lawyers' writing habits they hate most. (I'm thinking it was from Ross Guberman, but I can't find it now.) I do remember those kinds of gratuitous jabs being among their biggest pet peeves. I think Scalia says something similar in is his book on legal argument, but I don't have that in front of me right now, either.

 

[Thorn]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

The adjectives that are most annoying are the ones that serve no purpose other than to take a jab at opposing counsel. "Conveniently omit" rather than "omit," etc. I remember a conversation with an older lawyer who specifically advocated including those little jabs, saying he liked to twist the knife. I always thought it was lame, and it turns out that most judges really hate it, too. I forget exactly where I saw a survey of judges about lawyers' writing habits they hate most. (I'm thinking it was from Ross Guberman, but I can't find it now.) I do remember those kinds of gratuitous jabs being among their biggest pet peeves. I think Scalia says something similar in is his book on legal argument, but I don't have that in front of me right now, either.

It just makes common sense, too. You're essentially participating in fancy name-calling rather than explaining why you ought to win. You don't want a judge thinking you're petty.

 

[Henry Ford]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

Also determining parts of speech. Oh no he di-int!

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

your audience isn't a jury, it's a judge. Get right to the point.

I've done an opposition to a ####ty motion like that by going through each misstatement, following it with the statement "That is not the law." then quoting the correct language, and saying why it matters. Two or three page response to a 15 page motion can be pretty powerful.

This, this a thousand times this. Cut your adverbs, cut all but the necessary adjectives, and go blunt force trauma.

 

[Henry Ford]

Which of these reads more devastatingly -

"Counsel has conveniently forgotten to mention that the statute in question was altered four years ago, when the wise legislature determined that the statute in question was inefficient, prior to the onset of the events which form the basis of this lawsuit"

or

"The statute quoted by defendant in its brief was superceded fourteen months before the events of this suit and therefore is inapplicable."

 

[Maurile Tremblay]

It just makes common sense, too. You're essentially participating in fancy name-calling rather than explaining why you ought to win. You don't want a judge thinking you're petty.

When I was in law school, my legal writing instructor gave me some good advice: Write your brief in a style that would make the judge comfortable copying-and-pasting large parts of it into his decision. If your tone would be inappropriate coming from a judge, it's likely inappropriate coming from you as well.

 

[Henry Ford]

It just makes common sense, too. You're essentially participating in fancy name-calling rather than explaining why you ought to win. You don't want a judge thinking you're petty.

When I was in law school, my legal writing instructor gave me some good advice: Write your brief in a style that would make the judge comfortable copying-and-pasting large parts of it into his decision. If your tone would be inappropriate coming from a judge, it's likely inappropriate coming from you as well.

Got the same advice, but not in law school - from an attorney I used to work with many years ago, but a little more vulgar.

"Don't be a fencer - fencing is an attempt to make yourself look superior and score a thousand hits without causing any damage. While he's tapping you with a dull blade and showing off, hit him in the head with a brick and #### down his throat."

 

[Ramsay Hunt Experience]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

The adjectives that are most annoying are the ones that serve no purpose other than to take a jab at opposing counsel. "Conveniently omit" rather than "omit," etc. I remember a conversation with an older lawyer who specifically advocated including those little jabs, saying he liked to twist the knife. I always thought it was lame, and it turns out that most judges really hate it, too. I forget exactly where I saw a survey of judges about lawyers' writing habits they hate most. (I'm thinking it was from Ross Guberman, but I can't find it now.) I do remember those kinds of gratuitous jabs being among their biggest pet peeves. I think Scalia says something similar in is his book on legal argument, but I don't have that in front of me right now, either.

And it's almost always a blind spot when someone is going too far. I worked for a partner who said to me "I liked you draft, but thought it was a bit too combative, so I'll take the pen."

So I get his draft back, and some of my mildly inflammatory statements are gone, but he's written things like "Plaintiff's transparent attempt to extract his pound of flesh ..." So then I had to go back and ask, "do you really want to use the Shylock reference against a plaintiff named Lenny Goldberg?"

 

[Henry Ford]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded."

 

[Zow]

The bolded phrases, which completely alter the meaning and intent of the statute, were curiously absent from Children’s citation of the rule.

They weren't curiously absent. They were absent.

Tell that to Altoids.

Extraneous adjectives are one of my big weaknesses too. To the point that I now do an edit of every brief/pleading I write with the sole purpose of removing adjectives. I probably axe about seven "clearly"s every time.

The adjectives that are most annoying are the ones that serve no purpose other than to take a jab at opposing counsel. "Conveniently omit" rather than "omit," etc. I remember a conversation with an older lawyer who specifically advocated including those little jabs, saying he liked to twist the knife. I always thought it was lame, and it turns out that most judges really hate it, too. I forget exactly where I saw a survey of judges about lawyers' writing habits they hate most. (I'm thinking it was from Ross Guberman, but I can't find it now.) I do remember those kinds of gratuitous jabs being among their biggest pet peeves. I think Scalia says something similar in is his book on legal argument, but I don't have that in front of me right now, either.

It just makes common sense, too. You're essentially participating in fancy name-calling rather than explaining why you ought to win. You don't want a judge thinking you're petty.

I hear ya. Admittedly, there's a lot of anger in my response because I'm frustrated with the overall course of this case. One of the rare times I actually firmly believe my client is getting hosed.

 

[Thorn]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

That is not the law. The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded." is flawed. The correct interpretation is...

IMO

 

[Henry Ford]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

That is not the law. The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded." is flawed. The correct interpretation is...

IMO

That's fair, too, but but I hate leading into block quotes with tiny sentences. Personal stylistic issue.

Did you ever answer whether you were filing a Rule 68 OJ or one under your state's law?

 

[-fish-]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

 

[Henry Ford]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

None. I was raised by wolves and initially spoke like Nell until I entered law school.

 

[Thorn]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

That is not the law. The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded." is flawed. The correct interpretation is...

IMO

That's fair, too, but but I hate leading into block quotes with tiny sentences. Personal stylistic issue.

Did you ever answer whether you were filing a Rule 68 OJ or one under your state's law?

It is a state law case. It has only nuisance value so I would like to scare the plaintiff's lawyer with something.

 

[Yankee23Fan]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

I worked in politics and wrote speeches.

 

[Thorn]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

Literature here.

 

[DocGonzo]

RE: Woz's motion, without quoting the whole string...

One of the best things I learned early on was the power and effectiveness of a simple phone call. It took a more seasoned attorney a few months to make me see it, but I'm glad he did. I would piggy back on the advice that you give the guy a call before you reply, because one of the other best things I learned early on was the importance of your reputation -- particularly in a smallish legal community. Give him a chance to fix it, keep your language in response simple, direct and on point, cut out the adjectives and attempts at soaring prose, and then you get to keep the high ground. That won't go unnoticed by your fellow lawyers or the judge.

You know the statute much better than the rest of us, but based on what you wrote in this thread I don't think he misrepresented the statute. There may have been some convenient paraphrasing going on, but I think the others are right. The judge will already have a pretty firm grasp on the law, and if this guy has pushed past the limit of accurate paraphrasing the judge will recognize it without you needing to twist the knife. Point out the actual, unparaphrased wording, tell the court why it's important that the paraphrased version submitted by opposing counsel be considered with a huge grain of salt, and move on. The judge will deal with it appropriately, and you won't have to have uncoiled an unnecessary punch. When you get to a point down the road where you actually do need to throw that punch it'll be much more effective, imho.

Regarding legal writing in general, I think that if you're a strong writer you can get away with some of the stuff you're trying to do in your initial reply. If you're not you just come off sounding like s pseudo-intellectual windbag auditioning for the 10:00 spot on Catch a Rising Star. (See? That last sentence is a bit of an example...) It's a fine line, and I'm not sure briefs to the court are the best place to stretch your legs with any of it.

Good luck with it Woz.

 

[T Bell]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

Economics. Ink is scarce - attention span is scarcer.

 

[DocGonzo]

This whole conversation is pretty funny.

Curious what your pre-law educations are. I have a degree in literature/writing, so I always appreciate attorneys that actually care about their writing styles.

English degree.

5 years of writing for a small daily newspaper before law school. I admit that my writing on these boards is quite sloppy and would infuriate my old editor.

Then law school and a whole new education on "writing."

 

[Henry Ford]

Oh, fine, if we're doing actual answers.

Philosophy. Actually, I think about 50% of the lawyers I've worked with have been English/Literature majors, and the rest Philosophy.

 

[Ramsay Hunt Experience]

I'm not a particularly great legal writer. I was an English/Mass Comm major in college, but then spent a decade doing IT before law school. For that time, I never wrote anything more formal than an email or a message board post. My skill really atrophied.

I'm good at analysis. I'm good at seeing the big picture. I have a knack for a memorable turn or phrase or two. I'm not as good as being as precise as I should be. My wife and I together make something like the perfect lawyer. I'm fast and get the analysis and organization 90% done in a fraction of the time other associates can. My wife is very careful and precise and the go-to person for the final "polish" in her firm's Washington office.

 

[Maurile Tremblay]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

That is not the law. The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded." is flawed. The correct interpretation is...

IMO

That's fair, too, but but I hate leading into block quotes with tiny sentences. Personal stylistic issue.

Did you ever answer whether you were filing a Rule 68 OJ or one under your state's law?

I think block quotes should be introduced by saying why they're worth reading. My version would go something like...

The Children's brief quotes the statute in edited form, presumably for the sake of brevity, but the edits may unintentionally mislead. The Children's edited version reads: [blah blah].

The unedited version, however, does not refer specifically to parents, and in any case requires a hearing: [blah blah blah].

 

[Henry Ford]

The motion is unsupported by the facts or the law, and clearly misstates and misquotes the applicable statute in an attempt to argue this untenable position.Don't get flowery with your language. Hit them with a brick.

I changed my mind:

"Defendant has mis-quoted the statute. Counsel's brief states the following:

That is not the law. The actual text of the statute reads:

As a result, defendant's argument has no bearing on the statute this Court must consider and should be disregarded." is flawed. The correct interpretation is...

IMO

That's fair, too, but but I hate leading into block quotes with tiny sentences. Personal stylistic issue.

Did you ever answer whether you were filing a Rule 68 OJ or one under your state's law?

I think block quotes should be introduced by saying why they're worth reading. My version would go something like...

The Children's brief quotes the statute in edited form, presumably for the sake of brevity, but the edits may unintentionally mislead. The Children's edited version reads: [blah blah].

The unedited version, however, does not refer specifically to parents, and in any case requires a hearing: [blah blah blah].

Oh, sorry - maybe I misread Zow - I thought they just changed the wording.

 

[Buckfast 1]

Does anyone else notice how frequently commas are overused in legal writing? I feel like I take out at least a dozen commas every time I proof a brief. I think many lawyers just throw a comma in by default whenever they are uncertain of whether one should be there or not.

 

[Henry Ford]

Does anyone else notice how frequently commas are overused in legal writing? I feel like I take out at least a dozen commas every time I proof a brief. I think many lawyers just throw a comma in by default whenever they are uncertain of whether one should be there or not.

I, don't know, what you mean.

 

[CletiusMaximus]

Has anyone tried Wordrake? (http://www.wordrake.com/) Its a propretary MSWord add-on. I tried the 3 day trial a while back and would say it improved my writing along the lines discussed above, although it also made a few non-sensical suggested edits. Does a good job of addressing my weaknesses for "generally" "clearly" "certainly" and similar useless words.