Absorbability: The Key to Good Legal Writing

The most important thing you can do to improve your legal writing is to write in a way that is easily absorbed.  A judge, law clerk or senior partner must be able to read it without words that they don't understand, without gaps in logic or common sense.  Asking others to proofread important documents can help smooth out any bumps.   This article gives you six tips to help you achieve this overall goal.

1.  Be Organized.
  A.  Have an introductory paragraph that tells the reader what you are going to say.
  B.  Say it in a logical way e.g.,
    1.  A plus
    2.  B plus
    3.  C equals D.
  C.  Have a conclusion telling the reader what you want, e.g., Because of XYZ, you must enter an Order enjoining the Plaintiff from using ABC in his/her next book.

2.  Put the Conclusion Up Front.  Some attorneys have impeccable logic that flows over page after page and the reader has no clue how the concepts link together to a climactic ending until the ending.  This writing style is hard to follow.   A "Gone With the Wind" writing style is difficult to follow unless you have a lazy afternoon curled up with a good kindle.  Therefore, tell the reader the conclusion up front so he or she knows in what direction the brilliant prose and logic is headed. 

3.  Briefs are supposed to be Brief.

Get to the point. This was overkill, but it was the briefest Brief I have ever submitted to a Judge. I represented several people aka Defendants who were sued for breach of contract. There was a written contract. The Plaintiff not only sued for breach of contract but also for unjust enrichment which only applies when there is no contract. This was my Brief:

Defendants [my clients] have cited Nevada law which forbids an unjust enrichment claim when there is a contract. Leasepartners Corp. v. Brooks Trust, 113 Nev. 749, 755, 942 P.2d 182 (1997). Plaintiff cites Arizona law to the contrary. Nevada law trumps Arizona law in Nevada.

4.  Visuals Can Help.

I like to put pictures in the documents I submit to the Court.  These can be charts, graphs or graphical clips from a contract.  A picture or diagram can make it much easier for the reader to follow.

In Conclusion, keep briefs brief.  Make them simple and easy to absorb.

How a Lawyer Develops and Keeps his/her Reputation

This is a great set of tips on how a lawyer develops and maintains a good reputation

http://www.abanet.org/litigation/litigationnews/trial_skills/120610-tips-protecting-your-reputation.html

Early Case Conference Meeting and Reports - NRCP 16.1

16.1 CASE CONFERENCE: include these items in your discussion and the report:

1--In what format discovery should be produced? Instead of paper, agree that
a--All interrogatories and request to admit be submitted in a Word document (so it doesn't have to be retyped to respond)
b--All documents be exchanged electronically in pdf format.

2--How you can effect service eg email with an attachment or fax both of which are way cheaper than delivery by hand or mail.

3 --One of the Discovery Commissioners requires three telephone calls and three letters before a discovery motion. Agree in the report that discovery motions can be filed 3 days after one fax or email and 2 t/p calls don't resolve the dispute.

4--For maximum flexibility in changing the discovery deadlines, agree that counsel can stipulate to increase or decrease all discovery deadlines for up to 60 days. (Authority--nrcp rule 16.1 (b)(2) allows counsel to change the normal discovery plan under 16.1 b and c).

5--Agree on bates stamping all documents produced.

6--Agree that all exhibits will be the same numbers for depositions, motions and trial.

Why Associates Should Write Status Letters

Associates should be self-motivated to write monthly status letters.

The UPSIDE to writing status letters once a month to a client (and their insurance companies, if any):

1-it keeps the client informed of what is happening on his or her case,

2-it makes the client more willing to pay the bill because they know what is happening on their case,

3-a cc or bc to the supervising shareholder gives them confidence that the case is moving forward,

4-it prevents malpractice in case something is happening that is contrary to the client or shareholders wishes, and

5-it has the side benefit of making money for your firm while accomplishing the 1st 4 benefits.

Note to self: telephone calls are not sufficient because a t/p call does not meet the goal of #3 & 4

The DOWNSIDE of not writing status letters: When discovered (usually by a client complaining "what is going on in my case") the associate gets put on probation and potentially fired.

Need additional motivation? See How to Bill 2000 Hours for more about status letters

P.S. Tell your secretary to calendar ALL files for review every 30 days for a status letter.

Disconnecting Credibility

Disingenuous is an interesting word. Technically it means someone lacks candor or is giving a false appearance of being frank. I used to think it meant someone was lying, but it really means that they are telling a half truth. Lying is when someone fabricates, fibs, prevaricates, perjures, deceives, dupes, fools, hoodwinks, tricks, falsifies, or misrepresents. Discussed below is one way to disconnect a lawyer’s credibility when he or she is being disingenuous or outright lying.

Disingenuous lawyers think they meet or exceed their NRPC 3.3 duty of candor even though they make materially false statements of fact or law. To these lawyers, a half (or a third) of the truth is just “effective advocacy” or as some salesmen say -- “puffing.” The Nevada Supreme Court described puffing in Bulbman, Inc. v. Nevada Bell, 825 P. 2d 588 (1992) as representations as to the reliability and performance of the system, thus puffing constitutes mere commendatory sales talk. Such “lawyer sales talk” has become commonplace in selling their client’s position. Unfortunately, there are lawyers who don’t know the line between puffing, half truths and outright lying.

Disingenuous lawyers think they are the smartest guys in the room because they know that it takes a ton of time to disprove a half truth and trial judges really dislike what can appear as mere bickering among counsel. The Nevada Supreme Court took a dim view of half truths. In Sierra Glass v. Viking Industries, 808 P. 2d 512 (1991), the Nevada Supreme Court referred counsel to the bar for sanctions where, at trial, the attorney read only part of the deposition into evidence and intentionally left out testimony of the deponent stating that the deponent resided in Las Vegas when the residency of the deponent was important to the issue of whether the deponent’s employer conducted business in Nevada. The Court said that what the lawyer thought was “clever lawyering and proficient advocacy was nothing other than a fraud on the court in violation of SCR Rule 172, (SCR Rule 172 is now NRPC 3.3) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal). The Court went on to say that counsel “clearly confused the concepts of effective advocacy and fraud.”

To counter disingenuous opposing counsel, you must disconnect their credibility by first restating the half truth. Unfortunately, this forces you to repeat it. Then you must disprove it by articulating that although part of what opposing counsel has said is true, most is a lie. You must do all of this without actually calling opposing counsel a liar because judges hate to be put in the position of deciding which attorney to believe. You must also do this in the shortest possible number of words.

The two column opposition or reply is an effective tool in disproving a half truth. Summarize the other party’s motion or opposition in the left column and put your client’s position in the right column. This technique puts perspective on half truths. An example is provided below. The two column approach allows lawyers to highlight the half-truths without bickering with counsel. Effective writing must show the judge what is wrong, as opposed to telling the judge. With citations to the record supporting your statements, counsel can effectively show the judge opposing counsel is misleading the court without engaging in unprofessional banter between counsel.

Disconnecting the other lawyer’s credibility, i.e., refuting half truths, is a powerful skill because it not only helps your argument but it also builds your credibility and reputation with that judge. Once the judge catches on to opposing counsel’s disingenuous arguments, opposing counsel has lost that argument, damaged his or her reputation and you have increased your credibility.

I. Smith’s Statement of Facts		Jones’s Reply
1. Smith always recognized that he was obligated to increase the payment amount owed under the contract when expenses increased.		Smith never recognized an obligation in increase payments owed under the contract.
2. Jones knew about the potential of an increase in expenses.		This is not correct. There is no evidence of any notice to Jones that expenses might increase. This is an example of ipse dixit—they say it is true, so therefore it must be true. If this was a correct fact, Smith would have attached an exhibit or affidavit or declaration to their pleadings.
3. On 2/20 Acme sent an email to Robinson stating that: --Smith and Jones had disagreements		Smith takes this fact out of context. First, in his deposition, Smith admitted that…..

STOP Using Affidavits

Affidavits (which require a notary) should only be used if you want the person to prove who they are in front of a notary.

"Declarations" (which do not require a notary) should replace Affidavits in Motions and other pleadings.

NRS 53.045 was added to the NRS in 2001 and it specifically allows this change (see statute below). This is a form.

DECLARATION OF __[__insert name_____]____

I, ______[insert name]____, am submitting the following facts in support of [plaintiff/defendant’s {insert name of pleading}] declare that I have personal knowledge, unless stated otherwise, and am competent to testify to the following facts:

I ….

The …...

I declare under penalty of perjury under the laws of the State of Nevada (NRS 53.045 and 28 U.S.C. § 1746), that the foregoing is true and correct.

EXECUTED this ____ day of July, 2008.

_________________________________

[Insert Name]

The first paragraph is language is required by EDCR Rule 2.21(b) and NRCP Rule 56(e). The facts must be admissible into evidence (no hearsay), they must show that the person signing is competent and all documents referred to herein must be attached.

NRS 53.045 States:

Use of unsworn declaration in lieu of affidavit or other sworn declaration. Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form:

1. If executed in this State: "I declare under penalty of perjury that the foregoing is true and correct."

Executed on this __ day of ___, 20__

2. If executed outside this State: "I declare under penalty of perjury under the law of the State of Nevada that the foregoing is true and correct."

Executed on................................

(date) (signature)

(Added to NRS by 1993, 2741; A 2001, 2349)

The Nevada Supreme Court in Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. Adv. Opn. 21, 234 P.3d 920 (2010) held (without citing Federal pre-emption mentioned below) that even though NRS 41A.071 requires an affidavit (an affidavit of an expert must be filed with a medical malpractice complaint), NRS 53.045 (which allows the use of a declaration instead of an affidavit) trumps the affidavit requirement in any statute.

For anyone that reads this far, the Nevada Statute was enacted because of a Federal statute (enacted in October of 1976-we are prompt in Nevada) that mandated this change:

28 U.S.C. § 1746. Unsworn declarations under penalty of per­jury

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”.

(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

Pharmacist Liability: Should you Use Foam Boards During an Appellate Argument?

SANCHEZ VS. WAL-MART STORES. On March 2nd, 2009 I used several foam boards to argue a case in front of the Nevada Supreme Court.

The top board explained that for 40 years in 8 Nevada Supreme Court Cases the Court has held that bartenders are not liable to persons injured by drunk customers. The Court's previous analysis was that injuries were not proximately caused by serving drinks. The customer's drinking and driving was a superseding, intervening cause of the injuries. Greg Sanchez was killed by a woman who was a prescription narcotics abuser. Seven Las Vegas pharmacies continued to dispense narcotics to the abuser AFTER notice from a Nevada State Task Force that she had been taking 4500 pain killers over the last few years.

The pharmacies took the position that pharmacists are just like bartenders. They dispense the drugs just like a bartender dispenses drinks. Bartenders are immune from lawsuits thus pharmacists should also be immune for dispensing narcotics to a customer who drives and kills someone.

What I tried to do is use the above foam boards during the Nevada Supreme Court argument to retain bartender immunity while opening the way for pharmacists to be held liable. Basically, I showed that this is not a causation issue. It is a duty issue. Foam boards allowed me to discuss the elephant in the room as part of my opening remarks. The elephant was attached to the main board by velcro. I ripped the elephant off to begin the discussion that pharmacists are not like bartenders. I explained that the previous line of cases from Hamm to Snyder were improperly decided on proximate cause grounds because drinking and driving was not unforeseeable. I went on to explain that this was a duty issue.

As shown in the lower board, I moved the Hamm through Snyder small board up so it was under duty instead of under proximate cause. This allowed me to argue that the Court could determine that there is no bartender's duty to injured persons, thus keeping bartenders immune from liability, while opening the door to show that pharmacists, who have received written notice from the Task Force that the customer is a potential abuser and are regulated by 10-15 statutes and regulations, have a duty to injured 3rd parties. I was able to argue this appeal visually and with no notes because the information was on the foam boards--it was a foam board powerpoint!

This was an issue of first impression in the country. Should the pharmacies bear some responsibility for the death of Greg Sanchez when the pharmacies have actual knowledge that their customer is a prescription abuser? The burden/duty is minimal -- call the abuser's doctor to verify the narcotics prescription or just not fill it.

Use of foam board powerpoints allowed me to create a visual that helped me explain my argument.