Legal News and Appellate Tips

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff Lewis and Tim Kowal on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.
Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.
✍️ Rising above the fray without resorting to quips.
✍️ Getting the judge’s attention by tapping into three universal fears all judges have.
✍️ Discussing “bad facts” confidently, not defensively.
✍️ Using BriefCatch to improve your briefs.
✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and I—while disagreeing on the merits of the gun rights question—also agree that satire and a bit of cheek can be valid tools to bring attention to an important issue that might otherwise be ignored.

Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs:
(1) Legalese (are you really still using legalese?)
(2) Long sentences with no clear structure or emphasis
(3) Failing to mind the “cognitive load” of your reader.

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining Jeff Lewis and me, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But all of us agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded.

(Disclosure: I haven’t mustered the courage yet to remove the vertical lines from my pleading template.)

Attorney and author Ryan McCarl joins Jeff and me 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 my proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

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!

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!

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.