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Eliminate these terms from your legal writing

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Legalese Def Photo

Legalese (noun) – the formal and technical language of legal documents that is often hard to understand.

Since its inception, the use of peculiar legal terms has become a legal writing rights of passage. Are the terms effective? Yes. But, whether they are really needed is up for debate. Young attorneys often face this decision with uncertainty. Whether to replace the murky legal terms with clear language or stick with them in an effort to show that they too can write just as confusing is the question.

This article advocates for the deletion of “such” terms. The piece is extremely informative and persuasive, as Bryan Garner does an excellent job of thoroughly explaining the reasoning for his position. Listing numerous sources on the definition/use of each word and why it should be banned.

Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a “Little Blacklist of Literary Faults,” published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.

Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them.

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.”

See, Ax These Terms from Your Legal Writing

The Stunt that Keeps on Giving…

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News of the mysterious ‘Dumb Starbucks’ coffee shop that popped up in Los Angeles over the weekend spread like wildfire. As details emerge, it appears the shop was one big stunt. As it turns out, the idea was the brainchild of Comedy Central reality-TV-show host Nathan Fielder. The networks argument against trademark infringement, parody law & free speech…

Despite threats from Starbucks that what Nathan Fielder is doing is a trademark infringement, the network’s parent company says “Dumb Starbucks” constitutes “protected free expression.”

See, Comedy Central Lawyers Approve ‘Dumb Starbucks’

Copyright Law Pop Quiz – News Organizations

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Consider the following scenarios:

  • Two high school cheerleaders are suspected of spearheading an elaborate underground gambling ring.  Neither the police nor the school will release the students’ photographs, but your reporter was able to obtain several images of the girls on Facebook along with a short video of them performing a cheerleading routine.  Can your station use these visuals in its newscast?  During a tease?  On its website?
  •  With the gubernatorial election a month away, a story appears overnight on the website of the local alternative weekly newspaper that the incumbent has late-stage cancer and may only have weeks to live.  Your political reporter tries, but is unable, to confirm the story overnight.  Can your station lead its morning newscast with the story?  If so, must you attribute the newspaper as the source of the story?
  • Your station’s primary competitor obtains hidden-camera video of the star quarterback for the local NFL team injecting steroids before a big game.  Your assignment editor identifies the source of the video, but is unable to negotiate a licensing agreement at a reasonable price.  Can your station still broadcast parts of the video on its newscast (using the video recorded from your competitor’s newscast)?

See, What Every News Organization Needs to Know About Copyright Law.

Textual Citations, or nah?

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Bryan Garner is a world renowned lawyer, lexicographer, and teacher. His book Garner’s Modern American Usage and Elements of Legal Style is the leading source for the effective use of the English language. He is also the editor-in-chief of all current editions of Black’s Law Dictionary. Garner writes a monthly column for the ABA Journal. His latest piece discusses textual citations and the hindrances they place on legal writing.

Although legal writing is the least skimmable prose known to humankind, those who create it commonly do something that forces readers to skip over dozens, even hundreds, of characters in almost every paragraph. I refer, of course, to citations: the volume numbers and page numbers that clutter lawyers’ prose. These superfluous characters amount to useless detail that distracts the reader from the content. This habit also results in two evils that you might think contradictory: overlong sentences and paragraphs on the one hand (the extra characters bulk it up, after all), and underdeveloped paragraphs on the other.

I agree with Garner, textual citations make for messy paragraphs, but using footnotes as the alternative has its drawbacks as well.

See, Textual citations make legal writing onerous, for lawyers and non lawyers alike.

Quentin Tarantino Suing Gawker Over Leaked Script

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Hollywood_Reporter_Rule_Breakers_Quentin_a_p

Quentin Tarantino has filed a copyright lawsuit against Gawker Media for allegedly facilitating the dissemination of copies of his unproduced script, The Hateful Eight.

Last week, the famous director was outraged after details about the Western circulated. He was so irate that he told the media that he wouldn’t be making the picture as his next film.

Soon afterwards, Gawker’s Defamer blog linked to the 146-page script under a post titled, “​Here Is the Leaked Quentin Tarantino Hateful Eight Script.”

See, Quentin Tarantino Suing Gawker Over Leaked Script

Should Rap Lyrics Be Admissible Evidence?

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It seems hard to justify the use of lyrics like this as anything other than a cynical attempt to influence the jury with what is likely unfair character assassination. Any “gangster rap” artist is going to have lyrics in their songs that read like the manifesto of a criminal. That, however, does not make that person a criminal. Music is art, after all, and nobody goes around suggesting that Gwar actually wants to eat your children, that Martin Scorsese is part of the mob, or that John Carmack murders uber-demons in his spare time. Gangster rap has grown up and been commercialized so that it’s as authentic as Kraft American Singles cheese and mostly as palatable. Some gangster rappers are as “gangster” as the teenage surburbanite children who listen to it so faithfully. In the case of Skinner, the other evidence used against him was testimony by witnesses that told more stories than Stephen King. Still, he was convicted by the jury, though that conviction was later overturned.

See, Should Rap Lyrics Be Admissible Evidence?

Who really owns an LLC’s blog entries?

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Though the question presents itself under very unfortunate circumstances, the issue is worth pondering.

Dear Rich: I am part of an LLC that owns a blog. One of our officers was the active blog contributor. She died last year. Some of the other officers would like to publish her blog posts, but we are unsure who owns the copyright – the LLC or her heirs?

See, Does LLC Own Officer’s Blog Entries?

A Civil Justice System With No Trials

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This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.

The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3

Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4

What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”7

See, A Civil Justice System With No Trials

When a Witness Has Selective Memory

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Some witnesses have a crystal clear memory about events unfavorable to your client, but express sweeping memory loss on other contemporaneous events. Here’s how to attack such selective memory.

The following line of questioning can be used in both criminal and civil cases. Even if it doesn’t get concessions from the witness, it will remind the jury of the frequent untrustworthiness of memory.

See, When a Witness Has Selective Memory

10 Tips for Lawyers Writing in a Time Crunch

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Back in law school, you would have had at least two weeks to complete a writing assignment. With those two weeks, you would have had ample time to research, analyze, outline, draft, revise, edit, and polish. You would have devoted significant attention to large-scale, mid-scale, and small-scale revisions. You might even have been able to put the writing aside for a day to edit with fresh eyes. Sadly, those days are gone.

When lawyers have the time, of course they write well. The demands of the legal profession, however, can make even the best writer feel like a Top Chef contestant completing a Quickfire challenge, in which accomplished chefs must create, cook, and plate a recipe in under 30 minutes. Given the time constraint, the dishes are often incomplete or inedible. Similarly, when experienced lawyers are rushed, their writing might also be imperfect or hard to digest. Facing crunch time can make the most talented question their abilities and can leave both culinary and legal clientele with a negative or inaccurate impression.

There are, however, ways to control the havoc that time pressure can wreak. Just as some Top Chef contestants can successfully complete the same tasks in 30 minutes as they can when working under less-pressured conditions, so can lawyers—whether they have months, weeks, or hours to finish a writing project.

See, Tips for Lawyers Writing in a Time Crunch