Attorney and author Ryan McCarl joins Tim and Jeff to discuss his forthcoming book, Elegant Legal Writing, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.
Ryan also offers a thoughtful caveat to Tim’s proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.
More information here.
Discussed in the episode:
Ryan McCarl 0:05
My basic philosophy of legal writing is that the law is complex enough. And so the purpose of law legal writing should be to chart a path to the complexity and, and make sure that the writing itself does not add complexity.
Welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:31
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:33
And I'm Tim Cole wall holding a provisional license from the California Department of podcasting. In each episode of The California appellate law podcast, Jeff and I provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists who split our practices pretty evenly between trial and appellate courts. And we work directly with trial attorneys to prepare cases for appeal. And in this podcast, we offer some of that perspective on various issues that arise both in trial court and on appeal.
Jeff Lewis 1:01
Hi, welcome to episode 24 of the podcast.
Tim Kowal 1:05
And in this episode today, we welcome Ryan McCarl to the show, Ryan McCarl is a founding partner of rushing McCarl LLP, a California Business Law Firm. But previously, Orion was a fellow in artificial intelligence Law and Policy at UCA School of Law UCL L. Excuse me UCLA School of Law where he taught advanced legal writing, and research the use of machine learning and natural language processing tools in the legal profession. In addition to many published law review articles Ryan's book, elegant legal writing is currently under publisher review. So we're anticipating reading elegant legal writing when it comes out. And that happens also to be the the name of Ryan's legal writing blog, elegant legal writing calm. Ryan also clerked for the 10th Circuit Judge David M evil on the United States Court of Appeals for the 10th circuit. So thanks, Ryan, welcome to the podcast. Thanks for joining us.
Ryan McCarl 1:59
Thank you for having me.
Tim Kowal 2:01
So you took your undergrad I saw on your on your CV, your undergrad and law degrees from the University of Chicago. And when I saw that, I remember reading a quote recently reading a book of essays from Joseph Epstein, who used to teach at University of Chicago. And he had mentioned that Max Vabre, once said of University of Chicago that it elevates soul saving over skill, acquiring education. And I took that to mean that it's a pretty hardcore humanities program there in the undergrad. Was that your experience when you were an undergrad at University Chicago?
Ryan McCarl 2:32
Well, that background of promoting liberal education was one of the things that drew me to the University of Chicago in the first place. Now I think of it less as soul saving and as more more pragmatic, I think that reading literature, all the literature in particular that I read when I was younger made me a much better writer. And I recommend to lawyers, although it's really hard to find time when you have a full practice load to try to make some time even for audio books or you know, the Paris Review, New Yorker stories, things like that, to try to try to you know, spice up their writing by by listening by listening to or reading literature. As far as literature Chicago goes, I it's very, very dear to me. The what makes it special, in my mind is that it's a place where people love to learn and value academic pursuits. I think that's especially true of the undergrad college, but in law school as well, you know, there were it was a heavy it was a heavy emphasis on theory, which, you know, encouraged you to kind of think deeply about the legal subjects that you're covering. And there's also you know, things like daily lunch talks where professors come in from all over the country and give academic talks and, and the the auditoriums are usually full of students, which is kind of remarkable given that they could be studying or they could be doing something else. So that that that really, you know, those lunch talks and the professor's I had, and the you know, being forced to kind of deeply grapple with legal theory really, it helped me become a better lawyer.
Tim Kowal 3:51
Yeah, well, Soul saving and skill acquiring I mean, I think I think that's a real right brain and left brain meld that you seem to put together with your background and artificial intelligence. And now legal writing, writing a book and publishing a blog on legal writing that really, you know, puts the left brain in the right brain to get I wonder how you get your legal career is included, you know, clerking teaching, law review articles writing a book on legal writing, and now it seems maybe finally settling down to the to the boring nuts and bolts of practicing law. What's the thread that ties all of these endeavors together?
Ryan McCarl 4:27
Well, now that I'm, you know, running my own firm with, with my partner, John rushing that we started about two years ago, almost two years ago, now, you know, there's nothing else I'd rather be doing. I just I love, I love being able to, you know, to slide cases that we want and to help people, help people help people, you know, meet their goals. And I'm particularly drawn to cases that involve legal complexity. And that's something that has driven me throughout my career is sort of wanting to understand areas of law that are that are complex and big and little understood and trying to help bring add clarity to them and help nudge the law in the right direction. I understand everybody needs a lawyer. But I really prefer to work on cases where I think the client has the better of the argument in the, in the broadest sense of law. You know, there's, you know, we have a case right now, for example, with a complex partnership dispute, essentially, where there's a series of entities that that are interlocking and of contracts, and we're making the argument that they're all a common enterprise, that's actually a general partnership. And that's an example of a really complex theory. I think it's completely correct. But there's not a lot of cases that that that, you know, it'd be much easier to sort of rule the other direction and say, No, the contracts are, what they are, the entities are what they are. And I really love thorny cases like, and you know, so I think that being able to bring clarity to law and nudge the law in directions that I think is kind of theoretically correct, while at the same time helping clients navigate complexity and meet their goals is very appealing.
Tim Kowal 5:57
Yeah, I learned to a good word in law school reminded me something about what you just said about approaching a case from the appropriate level of abstraction. If you have if you have really good facts, then you want to, you know, just focus on those facts. But if you're if you have really bad facts, you're you know, your client or key witness is a scoundrel, then you want to take a very high level of abstraction. And just to have the court look at the the the legal the doctrinal aspect of the case and ignore your facts. When I talk about a lot of cases on on the podcast sometimes that we, we can see, you know, the rule of law seems to have gotten short shrift, but you can kind of look behind and see then, okay, I see, based on these facts, why the court did not want to give this young girl the benefit of the normal operation of law?
Ryan McCarl 6:42
Well, yeah, and I, I think that the, it's ideal. In a case, if you don't see the wise obstacle to the client winning, if you can find the legal angle, even as you come in late in the case, and you didn't, you weren't the one that filed the complaint, maybe you can find the theory or the angle that you can genuinely believe is the correct legal outcome, as well as the the factual outcome that you want. And consistent with the facts of the case, I think that's a really that's a really great value add, if you can do it, and it makes what you're doing stronger.
Tim Kowal 7:14
Tell us about an experience you might have had in your in your legal career so far that has this had an outsized impact in the way that you approach the law?
Ryan McCarl 7:23
Well, back in believe it was 2017, I actually had a dispute with a landlord in which there was a misrepresentation of the rent price that I was in, I was surprised to know when I moved in, and the rent price was actually higher, significantly higher than I had been agreed to, and they hadn't sent me the lease. And then when I tried to leave, they hit me with about a $12,000 lease termination fee. And so I sued them pro se, and that was quite that was a transformative experience. For me, it turned out to be essentially a whole nother legal education, a practically Law Education, in addition to what I've done the law school, because, you know, I had to stand there myself, with my hand shaking in front of the Clerk of the Superior Court, you know, to file my complaint. So, you know, I was taking on, you know, some of the biggest apartment managers and Lambdin most wealthy landlords in the state and in the country, at some point, there were, there were 12 Different lawyers and the other side of the case, and it lasted for a year and a half, but I got to do, you know, I, I got to go in front of the court and, and write and argue, motion after motion and handled discovery from A to Z. And you don't get that kind of practical experience as as a sort of big law associate, because in that situation, you're part of a team working on a big case, that you can see only a small part, usually, and you're you only have kind of a discrete role, and you don't have ownership of the whole ownership or, or view of the whole perspective. So so being able to sort of run a case from A to Z all the way through, you know, for a year and a half was transformative.
Tim Kowal 8:55
So you were presented the entire time. That's right.
Jeff Lewis 8:59
And did you win?
Ryan McCarl 9:01
Yes. Instead of instead of me paying $12,000, they had to pay me in a settlement. Nice.
Jeff Lewis 9:06
Tim Kowal 9:08
Very nice. I don't know. I wonder how many attorneys have experience self representing? You have any Jeff? No,
Jeff Lewis 9:15
I'm the closest I came as my wife with a small claims court, I thoroughly prepared her, gave her lots of advice. And she she lost? That's the closest brush I've had with the law in terms of improper No,
Ryan McCarl 9:26
it's really too bad that, you know, it's a sort of a special skill to be able to do this. Because we you know, in the law firm, we get a lot of intake calls that are matters that are just too small to involve an attorney. And it always kind of hurts my heart because we have to turn them down. But, you know, I know that if it was me personally, that the thing happened to that somebody just walked off with $10,000 or something, then I would, I would have the tools to do something about it. But but it's just it's impossible to it's not cost efficient for the client to actually hire an attorney to help them. You know, there's
Jeff Lewis 9:59
a lot of negative talk right now from lawyers about State Bar proposals to allow non lawyers to offer certain services or paralegals to jump in and do more than they have. And there's a real access to justice and gap in terms of the needs of people. And it'd be interesting to see what happens with this experiment the State Bar is proposing and those I get the same calls, I get 10 calls a day of people who can't afford me, and wouldn't be economical for me to do what they want me to do and be interested see what happens with the State Bar?
Ryan McCarl 10:29
Yeah, absolutely. And, you know, I know, we might talk later about artificial intelligence stuff. But I, one of the examples I give of how AI might affect the practice of law, and this law review article that is coming out in the Cincinnati Law Review, I actually talked about Turbo Tax, which is not really AI. But what it is, is it's sort of a, it's what they used to call an expert system. And it's essentially, it's a complicated flowchart, in which they've taken the tax code, they turned it into a flowchart. And you know, you have different decision points, essentially, where you provide certain information and it guides you one direction or the other, it doesn't actually make any complex decisions for you. Because it if it's a question about how to categorize income, it makes you make that decision and think it through. But the overall process is it reduces the friction of being able to handle the tax code and deal with the tax code and file your taxes for report, there are people, I kind of think that similar systems can be designed to deal with community property issues in a divorce, you know, you can have template generating systems to create wills, and, and to some extent, maybe the Trust for a lot of these legal tasks. And so I'm not sure about this specific proposal, but I do think that there are ways technologically and otherwise to try to make Josas more accessible.
Well, alright, Tim, throw you a curveball in your outline. Go
Tim Kowal 11:49
ahead. No, I know, based on your your background in AI, I'd wondered if we're going to, we're going to get into some questions about your tips on writing. And I wonder if your approach to writing is informed by your your background and familiarity with artificial intelligence.
Ryan McCarl 12:05
I think in some in two ways, it kind of is. And so one kind of a way, that's hard to explain, I I've done I've taught myself as an adult to to do is sort of in Python coding, and intermediate level and the detail, Python, Python is Python is the name of a relatively easy to learn, but powerful computer programming language. And so I taught myself to, you know, to create computer programs that that can that can, you know, help you with various tasks. And I that experience, I think, you have to be incredibly detail oriented, because, you know, the computer knows how to do only what you expressly tell it. And, you know, you can't leave anything to implication, and, you know, having to think through a problem and kind of structure it in a way that is that is robust and clear. And having to write, you know, the code in a very detail oriented way, sort of helps with some of those skills. But as far as, you know, another example, I guess, would be, you know, when an AI program tries to, you know, some of the at least the old fashioned AI programs, when they try to parse tax to understand what's, you know, what's being talked about the, the more clearly the text is structured, the better. So if you can think of like Lexus headnotes, that, you know, can extract rules from a taxed? I think, once upon a time, they're all manually done, but I think these days, you know, they're computer assisted to some degree. And the way, you know, it's easier on the program, if it's clearly set forth, you know, in sort of separate paragraphs, for example, what exactly is being discussed, and you know, that, that, that bringing that sort of clarity to your writing is helpful as well. But you know, what, what really comes to mind, though, is actually kind of a practical spin on that, which is how AI tools can affect can help lawyers in a pragmatic sense. And an example that I use in my law review article is, now you can submit entire documents as search queries in your legal research. And the there's a, there's a program, I hate to tell a company, but there's a there's a new legal research company called case text in which I have no stake whatsoever, but I've used it, and they have my primary search tool. Yeah, it's a great source tool, they have something called Kara AI, they call it where you can, you know, instead of sort of sort of submitting a natural language search query, or even like a sort of terms like connectors, logical operation search query, and then it goes and finds relevant documents, you can actually upload, for example, the entire opposition brief and on appeal, and just feed the whole thing as a search query, and what it can what it does, you know, I don't know how it works internally, but you can represent entire documents as sort of points of geometric space, and then find similarly located nearby located points in the form of cases and then return those cases. And it's pretty it's pretty fascinating, advanced, I think, in how you can do legal research.
Tim Kowal 14:56
I haven't tried that aspect of it. The Kara AI You know, feeding in the opposition brief, I just use the case text and the parallel search in place of doing the traditional Westlaw searches. I find it's much faster and the results are excellent.
Jeff Lewis 15:09
Yeah, I use the the Westlaw Edge product where you upload a brief and it gives you which cases are good, which cases are bad, maybe a list of other cases you should check out. And the thing I enjoy the most is the quotation check. I can't believe how often I see people misquote cases.
Ryan McCarl 15:25
Well, yeah, that's, that's always valuable. Because, you know, if you see a particularly bad quote for you and the other side's motion, it's always helpful to read the surrounding context and find that they've omitted the second half of the sentence or, or some other material qualification.
Tim Kowal 15:41
Okay, two more questions just to so our listeners can kind of get a GPS on you who's a better model for writing, Dickens or Hemingway?
Ryan McCarl 15:51
Unquestionably, Hemingway, in my mind, because the writing is, it's concise, it's powerful, it's entertaining, it's forward moving, you know, and it's and it's relatively straightforward. And, you know, to each their own, as far as say, you know, a lot of people love Dickens. But for me, personally, I've always found it to be a little bit boring and hard to grab my attention. And so I might want to, for me, one of the most fundamental aspects of critical writing is to make is to motivate the reader to continue and make it easy for them to do so. And and reduce the, you know, the burden on them, essentially, to make to make it easy for them to grasp your point, and inviting and invite them to move on to the next stage and turn the page rather than sort of just want to skim your brief and then discard it or even not, not finish up.
Tim Kowal 16:39
Okay. And then the other question, I wanted to ask you, it, it sounds like based on some of your some of what you told us already, you're not just the type of legal writer who just wants to sit in the tower, just give me my keyboard and leave me alone. You'll get out there in the fray, you try your own cases for heaven's sake. So I don't know if you'll if you'll get if you're willing to get in trouble with Jeff and me and sign our petition to abolish rule eight point 11 to 15. And allow litigants to cite unpublished opinions.
Ryan McCarl 17:03
I actually don't like that proposal to be honest with you. So the the reason is that, I think when judges write unpublished opinions, they're doing so with the belief that there are there Well, let's let's start the other direction. When they start when they write a published opinion, they're thinking about how the opinion will affect the law and affect future cases. So they're thinking about the legal externalities and the opinion. And and when they write an unpublished opinion, I think that they may feel more free to, you know, decide the case, as they see it in front of it without necessarily thinking so much about how it shapes the doctrine. And I see if you were to retro actively make unpublished cases suitable. It's almost like you risk changing the law in the sense that cases that were previously unavailable in the corpus of of precedent are now suddenly part of the precedent, and it could be a pretty significant change, you know, on a go forward basis, it would be a little bit, you know, less that that concern will be removed, if you can only say unpublished cases after 2022, for example, but you know, to me, it would, it would, it would still, it would, I think that the the knowledge that that your your justification for your ruling is going to be publicly visible and searchable, it has a powerful effect on the and then how the judge thinks about the case and how they write their opinion. Most importantly, so as long as we're going to have published and unpublished opinions, I think it makes sense to keep the unpublished ones unsuitable.
Tim Kowal 18:31
That would be a fair proposed amendment. What do you think, Jeff? To that, if we are going to change it, then we should, we should still not allow litigants to to cite, preach, you know, pre change unpublished opinions, because those are probably those are probably written with the intention that they remain in a subterranean body of law that was never meant to to get the job with the rest of our precedent. Second, the motion. All right. So Ryan, you have a book coming out called elegant legal writing, and you have a book or you have a blog called elegant legal writing. So what do our listeners need to know about elegant legal writing?
Ryan McCarl 19:13
Well, so my basic philosophy of legal writing is that the law is complex enough. And so the purpose of legal writing should be to chart a path through the complexity and and make sure that the writing itself does not add complexity. And so you know, the goal really is to reduce limit be aware of the how you're taxing the reader's attention span. And you know, the fact that they're not necessarily intrinsically motivated to read your your discovery motion, and accordingly to reduce the cognitive load as much as possible. And make make the document as inviting as possible and then get it over as quickly as possible.
Tim Kowal 19:52
Yeah, that reminds me of something that I when we had judge Bacharach on on the show back in episode 12. I told I told him that I thought the upside A lot of his book was was that litigants ought not to tax their reader. And he had that the reason I asked you if your artificial intelligence background informed your your legal writing tips is because I recall the judge Bacharach had had surveyed a lot of psycho linguistics studies, I had not even heard of what cycle in linguistics was before reading his book, but he cited a lot of those types of studies to get to the point that you were just making about how to get your point across using as you know, as few brain cells as possible. And you know, what patterns what speech patterns and language patterns are easier to understand what types of words and locations are more persuasive? So I wondered if, if your approach is similar to that or are different?
Ryan McCarl 20:43
Yeah, well, I, you know, when I've, when I was preparing my advanced level writing, course curriculum, and then the elegant legal writing book, I did do some reading and cognitive psychology, just very basic textbooks and so on and found a lot of interesting material there to draw the, you know, the overall takeaway for me was that writing should be concise and forward moving. And it should aim to sort of structure information in a way that is easily discernible, and doesn't force the reader to sort of create the structure in their head, because you've already laid it out appropriately in the first place. That sort of analogous field to this is intact is user experience, design, and information, you know, information architecture, as they call it, where you know, these, there's a lot of people, designers who think about things like how menus are arranged, and how elements of a webpage are arranged with a goal of trying to help people get to their goal as quickly as possible, and to design it in a way that's inviting and, you know, aesthetically pleasing, as well. And I think all those principles can be used to make your own writing better in the legal legal sphere.
Tim Kowal 21:55
So some of the examples that that I recall talking about with Judge Bacharach, I wondered if want to get get you to sound off on these as well, he talked about throat clearing openers, so these would be sentences that start with clauses like it should be noted that or that being said, and, alright, here's a general rule is that you should do away with those, they just kind of the they tend to add clutter, and wonder what your thoughts are, right? What's your thought on that?
Ryan McCarl 22:22
Yeah, I mean, a good example would be, you know, plaintiff, plaintiff respectfully requests that, for example, should always be turned into the court should, in my view, and that's a lot of, and the overall principle being to first of all, reduce, reduce the number of words and, you know, be able to be as concise as possible to get the reader to the core of the sentence, the the, you know, the character in the action of the sentence, sort of the noun, the noun and the main verb of the sentence as quickly as possible, because whenever you're, you have these long winded openers, you're actually delaying informing the reader what the sentence is actually talking about. And so the readers sort of waiting to figure it out. And they may only be waiting for a split second, but that adds up over time, and makes makes the writing less readable. So I completely agree with that. I think that generally, short transition words are better than than long transition phrases, although I do think variety is important, you know, and there's actually some pretty good chapters about that in in, for example, Roscoe Berman's book point made, he talks a lot, he gives some persuasive examples of that, you know, one more transitions like But and so and so on are I think are generally superior. Superior,
I never really thought, oh, go ahead.
Tim Kowal 23:39
Is but superior to however?
Ryan McCarl 23:41
Yes. Although, like I said, the variety, you know, you do want to think about the the aesthetics and the rhythm, and you do a variety. So I wouldn't say I have a blanket rule against however, yeah, and for the same reason, you may, you might start with the, you know, start with sobre, todo lo substantive praise, and then put the however, you know, between commas after that, just just to kind of shake it up. And, and, you know, I think I think having some spice in the writing is important, too.
Tim Kowal 24:10
You mentioned earlier that you prefer short, emphatic sentences that Hemingway over the dickens. But you also mentioned that it's important to have some variety. So how do you how do you square that? How do you get enough variety, without without crossing the line into what you might consider wordy?
Ryan McCarl 24:27
I don't really think they're their intention at all. I think you, I think, for example, you want your sentences to like Brian Garner is what he says about sentence length, in general is that your sentences should center on an average of roughly 20 words per sentence, but you certainly shouldn't have every sentence be 20 words. You want to have a varying variation around that average, you know, you're not, you're never adding words just to make the sentence longer, but you might combine two separate ideas or concepts into kind of a list structure.
Ryan McCarl 25:00
have one long sentence that's structured and a couple that with a short sentence that provides emphasis, you know, and just kind of being aware, aware of how you know, the short sentences draw attention to themselves when they're placed alongside a long sentence. But I think you can combine information from into several, either you can break it up into several sentences or put it in one sentence. And in neither situation, should you ever add words for its own sake.
Tim Kowal 25:25
Just one, one concern that I have in in trying to be too concise in my writing, is that I wonder sometimes, if you have judges and their clerks are used to digesting these kind of long winded and repetitive and overly verbose briefs, and so they've got to gotten used to well, I'll kind of read every other word I'll read really fast. And just just to get through it, and I'll anticipate that the litigant is probably going to repeat his or her arguments many times. And so if I come in there, and I can, I can condense my core argument down to a paragraph or a page? Am I not at a disadvantage, because because I've written it in such a way that if you just read it once, but carefully, you'll get my argument, but they're not trained based on the you know, the quality or the type of work product they're getting in, they're not trained to read it in a way that that I'm anticipating my reader needs to read it in order to get my my lovely sink.
Ryan McCarl 26:19
Yeah, I mean, that's, that's a reasonable risk to take or a reasonable, you know, risk to be concerned about, I guess I have, I have two thoughts. One is one is that, ideally, you've made the brief sufficiently, I mean, maybe this is, this is just wishful thinking. But you may, maybe it's possible to make the brief, sufficiently fast moving and getting to the point and well structured that the judge finds themselves reading it even if they intended to, so because they feel kind of dialed into it. And another thing is that, you know, you can make sure that points are unmissable, for example, because you've made them into headings. And those are likely to get read, you know, if it was a really important component to an argument, for example, it may, you know, putting it in a very short section or making it into a head making into a heading if it's appropriate logic, you know, there's a lot of ways to address that. But also keep in mind, I think that the shorter the overall document, the more likely it is to get in its entirety. I mean, I remember when I was a 10th circuit clerk, sometimes I would start with the reply brief, which is just totally illogical. But but but the reply me did to me into what is what is the what's the dispute? You know, what was what was argued about, and how was challenged, and so about, and so on. And, and it also happened to be the shortest document. So it's the one I felt last, the least resistance to reading.
Tim Kowal 27:35
Yeah, I think sometimes by the time you get to the reply brief, I think the probably the the moving party has acknowledged, okay, all the other all the other arguments, you know, arguments eight through 10, were just, you know, spaghetti at the wall to see if they'll stick but here this frame is I really care about,
Ryan McCarl 27:50
I think that that's completely right. And I think I don't know if people that didn't clerk are aware of this or not, but at least the way it worked for us on the 10th circuit was that we got all the all the briefs at once. So we get to all the with all the briefs, and they actually record at one time. And so you know, it's up to you how you sort through that information.
Tim Kowal 28:08
Yeah. Yeah, sometimes I think there's this this kind of I don't know, if we attorneys actually think this, but there's this idea that once once you file the brief, then the judges are just like each other to get to it. I need to read this. Yeah, that's fascinating.
Ryan McCarl 3:25
Yeah, right. Absolutely. Absolutely. Chances are, it didn't get read until the day before the hearing.
Tim Kowal 28:31
Oh, you mentioned something about headings and tables, table of contents. How important is a let's let's talk to our members of our audience who are writing in the trial court where you don't always have to include a table of contents, if the if the brief is not over 10 pages, do you think it's important to include a table of contents regardless of the page length?
Ryan McCarl 28:52
I think there's value in that honestly, you know, when I'm, in practice, my firm doesn't normally do it with a particularly short trial motion, for example, just because because it's a little bit a little bit troublesome to do as one more thing to format one more step in a process that sometimes you're in a rush to do, but you know, or at least the time sensitive type of motion. But that said, there is value in doing it. And certainly any document longer than, you know, 10 pages, for example, I think there's a lot of reason to have one. And the benefit of it is that it gives the again, it just provides an immediate overview of your whole argument. And you can see the structure have it laid out. Because if you've also the Table of Contents really doesn't lie about whether there's a logic to your organization. You know, you can when you haven't seen when you've when you sort of just write in a linear fashion A to Z, but you don't you haven't really thought through the overall architecture of document I think that ends up showing but if you have a table of contents in which you have to look at just the headings in isolation, it can become more clear whether you have provided the overall document wide coherence that you want to
Tim Kowal 29:59
write Let's move on to another bit of advice that I picked up from one of your blog posts where you say that legal writers should, quote induce your brain to enter a flow state. And you say that to enter a flow state, you should consider three suggestions, one, complete prewriting breathing and visualization exercises to avoid multitasking, and three, minimize distractions. So I know about avoiding multitasking and minimizing distractions. But can you explain what prewriting exercises are? So that I understand that what all for you the reasons are that I am failing to enter a flow state?
Ryan McCarl 30:34
Sure, well, I'll say that, you know, if you sit down at your, at your desk with the intention of writing for a block of time, it's first of all, you have to create the block of time. So you know, we have an ICT circuit appeal right now. And we have a reply brief coming up pretty soon, that's due pretty soon. And it's just really difficult with how busy the week is with our day to day caseload, to carve out that block of time in which you can actually quiet your mind, ignore everything else, and think through a real complicated, really complicated argument, and then put your best foot forward. So I, you know, for me, I had to do it on Sunday, for example, but in terms of the exercises, you know, if I sit down, sometimes I'll find myself, for example, revising a contract that I don't particularly feel, you know, intrinsically motivated to, to revise at that moment, and maybe there's more attractive tasks that are on my on my docket that I could turn to instead, but this one has to get done. And so for that, in that situation, I think you'd have to kind of, for me, I have to kind of quiet my mind and stop the negative self talk that's going on in my mind about, well, you know, you know, I, maybe I'm just a litigator, I don't want to do transactional work, or maybe this ad, there's this other thing that's coming out, that's, that's, you know, that that's more urgent, and you'd have to sort of, it's really difficult to make progress on a task if your mind is crowded with that kind of thought. And so for that reason, what I talked about in the book, and the blog is, is, you know, doing things like setting intention to write for, you know, 20 minutes on this task, rather than having a bigger project of writing the whole thing, or just say, I'm going to sit down and tackle their preemption argument this morning. I'm not going to, I'm gonna ignore every other aspect of this case,
Tim Kowal 32:16
by visualizing visualizing what part of the task,
Ryan McCarl 32:19
yeah, so setting, you know, setting an intention of what you're going to do, you can visualize yourself actually doing it as one tried to do it, but musicians and sports, you know, perform athletes use that where they actually visualize themselves, you know, carrying out, you know, you know, performing a certain song and I think studies show that, you know, a guitarist that, that imagines, as they imagine the chord changes in their mind and think through that way. Sometimes it's said to be almost as good as actually practicing with a guitar in your hand. And I think that's somewhat true the writing, I think that you know, you you know, if you if you think about the through the process of writing in advance, you imagine yourself doing it, it can ease the the road for your mind, and ease those obstacles, and then mindfulness and breathing exercises, it can be useful as well as just a way to kind of see the worries and the in the in the concerns you have about the peace and the negative thoughts you have about it. And just kind of let them float by, maybe write them down. But realize that you don't want to overvalue them and let them determine your activity.
Jeff Lewis 33:18
Don't worry, Tim, you could build for both. That's right.
Tim Kowal 33:24
So also in your blog, Ryan, you discuss the importance of typography. And Jeff and I talked about font choice, but but just taking take it from a from maybe a higher level of abstraction and maybe a more pragmatic level. Why is font choice important?
Ryan McCarl 33:41
Well, it relates to readability. And it relates to aesthetics, which I think are somewhat undervalued in document design for lawyers. I don't think lawyers really think of the concept of document design in general. And, but it is closely tied to readability. And it's closely tied to whether your document isn't biting. And I think that if your documents or your filings and your templates are are aesthetically pleasing and typographically sound, it does actually make you look different. And, you know, sometimes it might look like you're you must be violating a rule, because it looks so different than what other law firms submit, you know, and, you know, so for example, you know, sometimes you need line numbers. I don't like line numbers. And so whenever they're not actually required by a court rule, I omit them because it creates more visual whitespace around the text, which makes it more inviting and easier to read. If you think about, you know, when you read a novel, you've never seen a light novel with line numbers, and because they're a distraction. And so I think thinking about document design, and aesthetics is important, you know, with respect to, you know, that, you know, there's things there's basic things that you can do to sort of move your briefs in that direction. One is to sort of reduce visual clutter. A lot of law firms, for example, will put their address in the footer of every page of a filing and to me that's completely completely nonsensical, visual visual clutter. And another thing that you'll see on pleadings, you know, the little pleading templates, or that they'll use for everything that have not only line numbers, but also sort of these random vertical bars on each side of the text, you know, maybe one bold and one less bold, and, well, the white, the white margins act as a frame of the text anyway, so that's just purely redundant visual clutter. And you know,
Tim Kowal 35:22
when you're pleading template, obviously, where it's called for you include the, the line numbers, that's what do you you do not include those vertical lines on either side. Now, interesting.
Ryan McCarl 35:33
Just the line numbers in the text. Okay. Yes. And you know, as far as font goes, you know, I when I taught advanced legal writing I gave, I gave my students a choice between a handful of fonts my, my font and the font my firm uses for filings is Palatino Linotype but a couple other options are century school book book, Antica, and Baskerville was, you know, how Palatino Linotype? Yes.
Jeff Lewis 36:00
With century school book being the correct choice to teach, you're wondering,
Ryan McCarl 36:03
well, the Supreme Court that thinks so I think and they century I believe, or central circuit, I think may use century or century school book. Those are those are they're, they're, they're different. They're, they're more artful in some ways. And that's some of the other choices, but I like nology to live by. And I think it's, it does, it's very readable, but it doesn't necessarily draw attention to itself.
Tim Kowal 36:27
So in my in my trial court briefs, I'm still using Times New Roman, should I switch? And I see in my outline here, Jeff has typed a note to me. Yes, you're a monster, Tim?
Ryan McCarl 36:40
Well, I can just tell you that that times new roman is the default choice that a lot of people use, but it was actually designed for narrow newspaper columns. So in terms of the, you know, the actual width of the letters, it is narrower than, you know, then for example, Palatino Linotype for the other the other fonts I mentioned. And you know, that makes it makes a difference. And so I would, I would, you know, just try try the others and print them out. Sometimes you can't see these differences on the screen so clearly, but if you print them out, and you know, just explore which which of these is actually more inviting to read. And like I said earlier, I think that having your brief look a little bit different from everybody else's, can actually be a bit of an asset if if it looks better.
Tim Kowal 37:21
Well, now that you've mentioned putting whitespace on the page, it's got me thinking, Should I be including extra line breaks in between sections, or even paragraphs in my briefs?
Ryan McCarl 37:31
Yes, I do advocate using the space after and space for settings on the paragraph menu and word to add additional space after and before headings. So rather than hit ENTER twice, it automatically you'll have a heading and then you hit enter, it'll automatically insert that space. I don't remember the exact settings I use, but I do make sure that the headings are padded and that way. And in my blog posts are padded too. So it does create create more whitespace. And I think it makes it easier to read.
Tim Kowal 37:59
The idea of being a just gently signals to the reader. It's not so bad. It's just yeah, one or two paragraphs in their cell paragraphs, actually,
Ryan McCarl 38:08
it's armless. That's right. That's right. Brian, what
Tim Kowal 38:12
do you think most lawyers are doing wrong in their writing?
Ryan McCarl 38:18
That's a very long list. And you know, it's sort of inspired, you know, something else is somewhat one, one or more sort of flaws or misconceptions. I think it's inspired every chapter in my book and every post in the blog. But if I were to sort of pinpoint a couple of things, firstly, the reliance on legalese and ritual phrases to this day is very, it's almost gotten to the point being surprising to me, because of how, you know, the legal writing, you know, legal writing gurus on this one, popular writers about it, as well as legal writing, academics have all moved to a plain language style and to advocate it. I mean, I'm not aware of anyone, any legal writing expert, who has ever said, you know, what, we need more legalese. And so the, the, the, you know, the continued presence of words, like witnesses and contracts is similar, of a phrases like, comes now before the court and your first line of your pleading is, it's just, it's kind of baffling to me. And all that is, is ultimately clutter that that can go and, you know, it's just important, distinguish between words that are terms of art that actually, you know, have an established meaning in the law as opposed to words that are just sort of professional jargon and things that people write to sound lawyer Lee and sort of separate themselves from from the hoi polloi and the ditch ditch words along those lines, and then I think the overall emphasis on you know, readability and concision I think is generally is generally not there. I'm not, I think a lot of filings that you read that, for example, they'll include kind of long droning sentences that don't seem to have any, any real structure. It's such that nobody would ever read this aloud. You know, it's clear that no one's ever read this aloud because the sentence is true. kind of rolls on without any, you know, any emphasis. And there's a lot of there's a lot of things like that. I mean, there's just legally legal switching to a plain language style and aiming to be concise and be the number one thing that would that would improve most lawyers writing, but also just actually thinking about how you how what you're writing affects the cognitive load of the reader is going to lead you to make better choices as well.
Tim Kowal 40:24
All right, well, I think that's I think it's great food for thought about, especially avoiding legalese. I agree with you that it's, it's gotten to a point where it is surprising how often I still do see it. So notwithstanding the heretofore mentioned forementioned, elegant legal writing, what is the what's the best book on legal writing, other than elegant legal writing?
Ryan McCarl 40:45
I believe I'm a big fan of the word coach, Brian Garner, you know, my favorite rejection note of all time was from, you know, the University of Chicago Press, when they turned down my Elliot legal writing proposal, because they said, This is too similar to Brian Garner, who's already in our catalog. And I said, that's great. Great news, you know, I assigned to my students legal writing in plain English. And I think that is the place to start. But that if you want to go beyond that, you know, all of his books have something to add. Even the Red Book, you know, the Red Book is a reference text, but it has a lot of great sections on it. A lot of great practical tips about quotations. For example, it's got a great section on quotations that, you know, that has a lot of a lot of useful information. And then I'll just mention two others. Besides Brian Garner, I like messing his book, The Art of advocacy, which is the one I've discovered most recently, and that is filled. What's great about that is it's filled with tips aimed primarily at appellate brief writers. And it's filled with good excerpts from appellate briefs. So it's sort of modeled on Ross movements point made in some ways. And that's the other book that I'd highlight is point made, you know, I've read that book, I probably, I don't know, four times over the years has a lot of great tips. So what's a little bit different about the approach of my book is that it focuses more on mechanics and providing what lawyers sort of set like kind of a toolbox, particular, you know, particular small tweaks that can make to their field of their writing process, or, you know, their editing process that can make a big difference that add up to a big difference in their writing.
Tim Kowal 42:21
And where will people be able to buy elegant legal writing, hopefully,
Ryan McCarl 17:24
on shelves everywhere near you soon, but it's still under peer review with it with a big academic publisher. And, you know, we'll see, we'll see how that goes. In the meantime, I'm posting sections of it on the blog as blog posts, although it's been a little sporadic, as the firm has gotten extremely busy, you know, and then if people want to read more, they, they're they're welcome to email me as well. My email is Ryan McCarl at rushing, McCarl calm, and anybody that wants to get in touch and welcome to.
Tim Kowal 42:52
Alright, well look forward to it. So So that concludes the interview section comes now Jeff Lewis with the lightning round.
Jeff Lewis 43:00
Yeah. And Tim, you'll have to cut me off if I run over time here. I'll try to get through it as fast as we can. Ryan, these are the most vexing questions that concern appellate nerds around the world and we're looking for your shortest, perhaps one word perhaps one sentence response. We already covered font preference. Let's go with two spaces are one after one yet.
Tim Kowal 43:22
I was I was waiting for that question. Because we just talked about creating more whitespace on the page.
Ryan McCarl 43:28
Yeah, that's one that everybody has an opinion on. But as far as I'm concerned, it's been settled by by typographers
Jeff Lewis 43:34
Yeah, it is settled Tim All right.
Tim Kowal 43:36
So that's that's an appeal to authority on that we're
Jeff Lewis 43:38
glad or pleaded
Ryan McCarl 43:42
pleaded but I'm not I you know, I have some it's one that I would want to look up to be certain but pleaded was my instinct.
Tim Kowal 43:50
Yeah, there's not an accepted a regularized verb form of plead and until the minority say so it's pleaded correct answer no. No, it's play.
Jeff Lewis 44:01
ad for argument headings in an appellate brief, not the section headings but your argument headings. All caps initial cap or sentence case.
Ryan McCarl 44:10
Oh, please. sentence case. Absolutely. Absolutely. That's a pet peeve of mine. All caps is the use of capital letters to create emphasis. Is is my there's one of my top pet peeves.
Jeff Lewis 44:22
I kind of cheer inside when my opponent does it. I'm like, Yes. He's yelling at the court. Yes.
Tim Kowal 44:27
What about me? Yes, for for like introduction and conclusion. I'm still putting those in all caps because
Ryan McCarl 44:35
I use small caps for that, actually. Okay. Yeah, it's a slight slight. It's a slight aesthetic tweak that I think makes it a little bit easier to deal with. I think I use all caps. Anyway, we've made we've changed that but that's, that's a good way to do it. I have something I have a setting in My Word styles called zero level headings for that. And what I do is, I think bold and small caps, and then a little extra space underneath.
Jeff Lewis 44:58
And the final question from like, Turning around left justify or Full Justify?
Ryan McCarl 45:04
Well, you know, I don't know if it really makes a real difference but I think last chunk I don't I honestly not sure I, I use the default setting and word for block quotes for justification main, most important thing is never to use justification outside of block quotes in my mind, but otherwise, I think the default setting in Word is fine.
Jeff Lewis 45:21
I think that rule has substantial justification. Alright, Ryan, you survived our podcasts and survived the lightning round. If we had a bigger budget, we'd send you a t shirt or a mug that said, I survived Jeff and Tim's a lightning round.
Ryan McCarl 45:33
Well, thank you both for the opportunity. I look forward to you know, I'm glad that I learned about this and I look forward to listening to the little catalogue of the past podcasts.
Tim Kowal 45:42
We appreciate hearing your your tips on legal writing. I'm sure our audience will as well where I'm up against a little bit of a deadline. So Jeff, I don't have time to do our our recent case news today. So we're just gonna wrap it up right here for today. And then we'll we'll push our recent cases on to the next episode.
Jeff Lewis 46:02
Thanks media Ryan.
Tim Kowal 46:04
If you have suggestions for future episodes, please email us Jeff, what is our new email address?
Jeff Lewis 46:09
Let's go with cow email@example.com for now. Okay,
Tim Kowal 46:13
and in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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