Congratulations to the 2014 Chicago Bar Association Moot Court Teams

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Congratulations to 3Ls Stephanie Chiarelli and Adam Dejulio for reaching the octofinals of the Chicago Bar Association Competition this past weekend.  Attys. Kaitlyn Reise and Mindy Nolan coached the team and traveled to the competition.  3Ls Tyler Hall and Jeff Morrell also competed and were coached by Attys. Jaclyn Kallie and Dana Luczak.  All of the coaches are Marquette alumni who competed in moot court.  Professor Rebecca Blemberg advised the teams.

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Briefs that Changed the World

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brief in Plessy v. FergusonThis semester I had the opportunity to take Prof. Edwards’s class Advanced Brief Writing: Briefs that Changed the World. I must admit that I was slightly skeptical of the idea that simply reading remarkable briefs would somehow make me a better writer. But, I’m happy to admit that I was quite wrong in this assumption. Reading the briefs covered in this class have inspired me to try my hand at the various techniques the authors employ when writing these briefs (I make no promises about whether my attempts have proven successful). Hopefully they will inspire you too. Thank you, Prof. Edwards for allowing me to share this list of briefs:

Miranda v. Arizona (Petitioner)

Bowers v. Hardwick (Respondent)

Gideon v. Wainwright (Petitioner)

San Antonio School District v. Rodriguez (both Petitioner and Respondent)

Wards Cove Packing Co. v. Atonio (both Petitioner and Respondent)

Loving v. Virginia (Appellant)

Aikens v. California (Petitioner)

Furman v. Georgia (Petitioner)

Roper v. Simmons (Respondent)

Meritor Savings Bank v. Vinson (Respondent)

Hernandez v. Texas (Petitioner)

Citizens United v. Federal Election Commission (both Appellant and Appellee)

When Prof. Edwards spoke to the Marquette Legal Writing Society at the beginning of the semester, she advised students to read. Since receiving her advice, I have read every opinion by Chief Justice John Roberts that I can get my hands on. If I can soak in even 1% of his writing style, I will die from pure legal writing happiness. Hopefully these briefs will kick-start your reading and make you think about techniques and strategies you can incorporate into your own writing.

Finally, I highly recommend picking up Point Made: How to Write Like the Nation’s Top Advocates by Ross Guberman. We use this book in Prof. Edwards’s class, and it is simply fantastic.

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Congratulations to the 2014 Marquette National Moot Court Teams

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I had the privilege of working with two outstanding National Moot Court Competition (NMCC) teams again this year. Marquette hosted the Region VIII round of the 65th Annual NMCC this weekend and included thirteen participating teams.  Marquette fielded two teams; please congratulate both on their strong finishes.

Michelle Cahoon, James Decleene, and Brian Kane took the best Petitioner’s brief award with the top scoring brief in the competition.  The team advanced the semifinal round and just missed qualifying for nationals by less than a point.  Attorneys Jesse Blocher, Michael Cerjak, and Brendon Reyes coached the team.  Brendon, now an attorney practicing in Waukesha, was a member of last year’s national team.  Jesse was a member of one of my first NMCC teams.

Jennifer McNamee and Elizabeth Oestreich advanced to the quarterfinals and were the number 1 seed after the preliminaries, after particularly strong showings in their oral arguments.  That team was coached by Attorneys Emily Lonergan, Jason Luczak, and Max Stephenson.  Elizabeth, Emily, and Max happened all to have (Elizabeth), or had (Emily and Jason), the role of Chief Justice of our Moot Court Association.  I enjoyed watching the students and coaches on both teams working together and getting to know each other.

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Marquette Team Wins Best Petitioner Brief at National Criminal Procedure Tournament

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Congratulations to 3Ls Katie Seelow and Derek Waterstreet for being awarded the best Petitioner’s brief in the National Criminal Procedure Tournament this past week in San Diego.  The team’s advisor is Professor Thomas Hammer, and the team coaches are 3L Vanessa Paster and Attys. Brittany Kachingwe, Sarah McNutt, and Jennifer Severino.  3Ls Becky Van Dam and Joseph Wasserman also competed.  That team is advised by Professor Susan Bay and coached by Vanessa Paster and Attys. Nick Cerwin and Chad Wozniak.  Jennifer Severino traveled with the teams to support them in competition.

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An Interview with Professor Linda Edwards

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faculty_lindaedwards2014-04This fall, Professor Linda Edwards joins Marquette Law School as the Robert F. Boden Visiting Professor of Law.  She is the E.L. Cord Foundation Professor of Law at UNLV.

You have written a wonderful book on the great briefs. What are some of your favorite briefs and why do you like them?

One of my favorites is the Petitioner’s brief in Miranda v. Arizona. Scholars, law teachers, and practitioners usually read judicial opinions rather than the briefs that produced those opinions. The Miranda brief is one of the few that has received attention in its own right. I took my turn to comment on it in Once Upon a Time in Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 885 (2010). Instead of a dry parsing of the cases, the argument section tells an engrossing story of the birth of the right to counsel. It’s also a story about the kind of people we want to be. It’s well-written too. In an era when lawyers tended to write in a boring, ponderous style, the Miranda brief is engaging and easy to read. It combines strong legal analysis, great policy arguments, and a passion for justice—a great example for us all.

Another of my favorites is the primary defense brief in the set of consolidated cases that came to be known as Furman v. Georgia. The primary brief challenging the death penalty for those cases was actually filed in Aikens v. California. The thing I like most about this brief is the daring choice it makes in the fact statement. It does not try to minimize the crimes or argue that the defendant was innocent or that his hard life provided an excuse for his actions. All of those would have been losing arguments. Instead, it admits that the crimes were horrendous and that the defendant probably did them, but it uses our human reaction to those killings to argue that state-imposed killing is little better. It was a risky argument, but it was honest and much better strategy than the alternatives. I really admire the courage and skill it took to pull it off.

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Law’s Love of Adverbs

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Ah—the maligned adverb. Many writers eschew them. Stephen King, for example, seems to hate them. In his book, On Writing: A Memoir of the Craft, he writes, “I believe the road to hell is paved with adverbs[.]” He likens them to dandelions: one of them might look pretty, but they’re actually weeds that can and do take over your lawn (or, in the case of adverbs, your writing).

What is an adverb? Generally speaking, it’s a word that ends in –ly (though not always; scroll down here to see adverbs as emphasizers, amplifiers, and downtoners—all words we lawyers like to use). The purpose of an adverb is to modify verbs, adjectives or other adverbs. Getting rid of adverbs can, in fact, make our writing better because we are forced to choose stronger or more precise words. For example, I could write, Losing that case made me very angry. In that sentence, the adverb is “very” and it modifies “angry.” I wasn’t just angry, I was very angry. But wouldn’t it be more vivid, more precise, if I instead wrote, Losing that case made me livid?

That being said, there are good reasons to use adverbs, especially in legal writing of all kinds—memos, briefs, judicial opinions, statutes, rules, and regulations. Why? The law operates in the grey areas. A legal writer who is asked to give an objective opinion on whether a person might be liable for a particular claim can sometimes do no better than giving a qualified answer, like Martin is probably not liable. Other times, a legal writer will throw in adverbs to emphasize her point in a brief: Plaintiff is clearly entitled to relief. In judicial opinions, judges may want or need the wiggle room that an adverb can provide. A legal rule that comes from case law might allow certain conduct so long as it does not substantially burden certain people, for example. The question that lawyers will argue about in future cases, then, is what it means to substantially burden, and in so arguing, those lawyers will likely rely on tons of adverbs.

See here for a delightful article on why adverbs seem to be here to stay—at least for lawyers. Obviously, you’ll find it really enlightening.

 

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Judge Catches BP Counsel Sneaking Extra Pages into Its Brief

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BPIn a new twist on the BP litigation, BP filed a brief in a Louisiana federal court that seemed to comply with the already-enlarged 35-page limit. But the judge in the case, the Hon. Carl Barbier, uncovered BP counsel’s tactic of reducing the line spacing to cram more material into the brief than the page limit would have allowed. In this way, BP was able to fit in an extra 6 pages worth of material.

Judge Barbier had this to say about BP’s brief:

The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

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Professor Edwards Speaks to the Marquette Legal Writing Society

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Yesterday, Professor Linda Edwards, the Robert F. Boden Visiting Professor of Law, spoke to the Marquette Legal Writing Society about her work and interest in legal writing.

This semester Professor Edwards is teaching a course on the great briefs.  Each week students study a brief to determine what made the brief successful—what made it sing, as she said.  Among her favorite briefs are the petitioner’s briefs in Miranda v. Arizona and in Bowers v. Hardwick.  Professor Edwards recommended reading and studying good briefs as a way for an advocate to advance his or her own persuasive writing. Aside from the briefs she mentions in her book Readings in Persuasion: Briefs that Changed the World, she recommended reading anything written by the Solicitor General’s office and anything written by any of the Supreme Court justices as examples of great legal writing.

Professor Edwards also noted that really good briefs speak to the reader and that a legal writer’s own voice should come through the brief.  While structure is important, she said, formulaic writing of briefs is not effective.  She cautioned against doggedly following a set of received “rules” rather than crafting a document for a particular reader or situation.  Good legal writing doesn’t have to sound lifeless or mechanical, she said.

The mission of the Marquette Legal Writing Society is to foster discussion about legal writing.  Elizabeth Oestreich is the president of this year’s organization.

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Rule 18.2: Comments on Bluebook Citation to Internet Resources

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Rule 18.2 in the Bluebook governs citation to sources and information available on the Internet. Although the rules in the Nineteenth Edition provide significantly more guidance on the subject than the general principles articulated in the Eighteenth Edition, citation to Internet sources remains a source of confusion for many legal writers. Until the editors release the Twentieth Edition and its inevitable alterations to Rule 18.2, here are a few tips and reminders about citation to Internet resources.

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Commonly Confused Words: A Couple, A Few, Some, Several, or Many?

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In three previous posts (here, here, and here), I’ve addressed some commonly confused words and how to choose the one that expresses what you really mean. Talking about those posts with some friends prompted this one: what’s the difference between a couple, few, some, several, or many? For example, if someone tells you have a few options, how many do you have? Three? Four? More?

 

A couple: Everyone seems to agree that “a couple” means two. If you have a couple of options, you can safely assume that you will have to choose between A and B, and only A and B.

 

A Few: Here’s where things tend to get confusing. Read more »

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The Importance of Document Design

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Jim Dimitri’s article, WordWise:  Best Practices in Document Design, is a must read for any lawyer interested in taking advantage of document design in drafting legal documents. Dimitri advises that a writer should “use the most readable font” and “use effective vertical and horizontal spacing” in designing a legal document. Dimitri’s article is useful not only for the advice he gives, but because he defines key concepts in document design, such as monospaced fonts (which “use the same width for each letter”) and proportionally spaced fonts (which use “different widths for different letters”). Dimitri suggests that a writer use proportionally spaced fonts because they are easier to read.

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Cut It Out

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EditingKnow how and when to cut words from your sentences during the editing process?  Here are some links to help.

Bryan Garner’s April 2014 ABA Journal magazine article provides a good list of unnecessary phrases.  Garner recommends “axing” words like “herein” from legal documents.

WordRake is an editing program that allows you to upload a document and receive line edits on concision and clarity.  This blog tested the program on some sample Supreme Court authority with favorable results.  Also check out the WordRake blog for editing advice.

One easy starting point for editing is to look for and eliminate “there is” and “it is” from your sentences.  These phrases add meaningless fluff at the most important point of a sentence—the beginning—and often signal the passive voice and nominalizations.  This blog suggests ways to streamline your writing by eliminating “there is” and “it is” (or the past tense version) or phrases like “given the fact that” or “in light of the fact that.”

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