Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Legal Writing

Pop Culture References and "Too Artful" Advocacy

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

Read More
What Science Says About Crafting Persuasive Sentences: Judge Bacharach on Legal Writing

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

Read More
Losing Your Reader with Acronyms: Judge Bacharach on Legal Writing

How do you use acronyms in your briefs?

Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is, you ruin the momentum of your argument.

Read More
"But" vs "However" Judge Bacharach on Legal Writing

Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021.

“Shareholders who are anxious,” not, “Anxiety among shareholders.”

That brought to mind Bryan Garner’s advice to avoid beginning sentences with “However,” which Garner thinks "too ponderous a word." Judge Bacharach agrees, preferring “But” over “However” to begin sentences.

Read More
Legal Writing Tip for the Day: Effective Sentences Are Short Sentences

Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong!

When Judge Bacharach visited Jeff Lewis and me on the California Appellate Law Podcast this month, I asked him about this setup: “The jury instructions are inconsistent. Literally.”

Question: Does this short sentence couplet fall on the side of persuasive, or glib?

Read More
Confusing Sentences Have No Readers: Judge Bacharach on Legal Writing

Judges are paid to read your briefs, but not paid to understand them! Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that poorly-crafted sentences are "poisonous to persuasion" because they "destroy the momentum of your argument."

Read More
Legal writing tip for the week

You cannot persuade your reader if you tire out your reader. This was the overarching lesson I took from 10th Circuit Judge Robert Bacharach's new book, Legal Writing: A Judge's Perspective. Page 1: "Legal writing is typically read out of obligation."

Judge Bacharach joined Jeff Lewis and me on the California Appellate Law Podcast to talk about the importance of minding your audience in legal writing, crafting clear sentences, and showing civility. In this first clip, Judge Bacharach begins by urging counsel against personal attacks – the single most effective way to alienate your reader.

Read More
Lawyer Lighting Rod Question: Do you use the "(cleaned up)" citation parenthetical in briefs?

Judge Robert Bacharach of the 10th Circuit tells TVA appellate attorney Tim Kowal he likes the new citation parenthetical "(cleaned up)", seen in some appellate opinions and briefs (recently in a SCOTUS decision), because excessive ellipses and internal quotation marks can be distracting to the reader.

But take care not to abuse it by omitting or altering material that could be consequential: do not improve readability at the cost of your credibility!

(Me, I still don't like it. Still won't use it.)

Read More
The Science and Rhetoric of the Written Word: An Interview with Judge Robert Bacharach

Ever wondered what a federal appellate judge thinks of your legal writing? Judge Robert Bacharach of the Tenth Circuit Court of Appeals told Jeff Lewis and me on the California Appellate Law Podcast. Judge Bacharach just published a book titled, Legal Writing: A Judge's Perspective. Judge Bacharach would like you to know:

✎ Writing clearly keeps your readers fresh and alert.

✎ A reader you've burdened with complex sentences and lots of acronyms may be too worn out to be persuaded by your arguments. The judge is willing to go on the journey with you. If you want the judge to arrive at the same place as you, take the straight paths: don't wear out your judge.

✎ The table of contents helps your readers orient themselves to your arguments so they can understand them and then – and only then – be persuaded by them. Yet only half of litigants make use of this highly effective tool!

✎ Next time you consider starting a sentence with "However," try "But" instead.

✎ Why do so many attorneys still think impugning their colleagues and the court is anything other than self-defeating?

✎ Beware of inserting humor and pop culture references into your briefs. Some federal judges employ them in their writing. But many federal judges do not. And at any rate: You are not a federal judge.

Read More
Legal Writing Tips of the Day

A few good tips came across my desk this week. Use in good health. 1. Via Bryan Garner's LawProse (# 351): Before launching thoughtlessly into a grab-bag of arguments, tell […]

Read More
FYI: Acronyms Are DOA

Senior Judge Silberman of the DC Court of Appeals is having none of your alphabet-soup acronyms: "The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local […]

Read More
Cal Appellate News for Lawyers (Aug. 31, 2020)

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition: appellate tips on preliminary injunctions, summary judgments, and statements of decisions. And: appellate bonds... without collateral?!

Read More

Tags

Podcast (46)
Videos (31)
Abuse of Discretion (15)
Waiver and Forfeiture (15)
Notices of Appeal (13)
Legal Writing (12)
Appealability and Appealable Orders (12)
Splits of Authority (9)
Stays on Appeal (9)
Dismissals (9)
Sanctions (8)
Motions for Reconsideration (8)
Oral Argument (8)
Appealability (8)
Attorney Fees (7)
New Trial Motions (7)
Federal Courts (7)
Arbitration (6)
Anti-SLAPP (6)
Civility (6)
Unpublished Opinions (6)
Statements of Decision (6)
Record on Appeal (6)
Respondent Arguments (6)
Briefing (6)
Ninth Circuit (6)
Timeliness (6)
Appellate Sanctions (5)
Disqualification (5)
Family Law (5)
CCP 998 Offers (5)
Posttrial Motions (5)
Dissents (5)
Judgment Enforcement (5)
Preliminary Injunctions (5)
Evidentiary Objections (5)
Substantial Evidence (5)
Implied Findings (5)
Trial Procedure (5)
Appellate Bonds (4)
Admission of Improper Evidence (4)
Standards of Review (4)
Discovery (4)
Jurisdiction (4)
California Supreme Court (4)
Default Judgments (4)
Experts (4)
Writ Petitions (4)
Stipulated Judgments (4)
Motions in Limine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Exclusion of Evidence (3)
Notices of Entry (3)
Timely and Untimely Appeals (3)
Appellate Practice (3)
Depublished Opinions (3)
Summary Judgments and Summary Adjudications (3)
Motions to Vacate and Set Aside Judgments (3)
Summary Judgments (3)
Mootness (3)
Summary Judgment (3)
Dismissed Appeals (3)
Ethical Duty of Candor (3)
Appealable Orders (3)
Trial Strategy (3)
Excessive Damages (3)
Standing (3)
Trust and Probate (3)
Stays (3)
Probate Appeals (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Petitions for Review (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Jury Waivers (2)
Personal Jurisdiction (2)
Expert Opinions (2)
Tentative Rulings (2)
Motions to Dismiss (2)
Landlord Tenant (2)
Collateral Orders (2)
Judicial Bias (2)
Appeals Dismissed (2)
Invited Error (2)
Settlements (2)
Waiver (2)
Untimeliness (2)
Appeals Treated as Writs (2)
Pretrial Procedure (2)
Pretrial Issues (2)
Disentitlement Doctrine (2)
Class Actions (2)
Demurrers (2)
Motions to Vacate (2)
Mischief (2)
Civil Theft (1)
Treble Damages (1)
Premises Liability (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
Trial by Reference and Pro Tem Judges (1)
PAGA Attorney Fees (1)
Law and Motion (1)
Issue Selection on Appeal (1)
Remote Arguments (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
ADA and Unruh Accessibility Actions (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Attorney Fees - CCP 1021.5 (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Judicial Estoppel (1)
Harmless Error (1)
Prejudicial Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Mediation (1)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Legal Practice (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Post Reversal Issues (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Amicus Briefs (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Comments (1)
Restraining Orders (1)
Summary Reversal (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down