Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.
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!
Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?
Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.
Here is one reason why trials are so stressful:
What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?
Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."
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!
Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?
Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."
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.
Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.
Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.
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.
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?
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."
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.