Legal Writing 201 by Judge Mark P. Painter

I was browsing the law blogs this morning when I saw a link to Judge Mark P. Painter's 30 Suggestions to Improve Readability. HERE is a link. This document is brilliant. Please print it out, read through it, and keep it sitting on your desk for the next couple of months. 

The 30 suggestions cover a lot of material, but you can read through the entire document in about 15 minutes. It is presented very simply. Judge Painter makes it look easy.

Pay particular attention to the Words and Phrases chart contained on pages 25-27. I will be referring to this chart the next time that I draft a motion or pleading. And I might personally serve that chart on my opposing counsel before the response is due. 

Formatting an Appellate Brief in Microsoft Word

I just came across a Lawyerist post from last year that gives very detailed, step-by-step instructions on how to format a brief in Microsoft Word.

I have been using Microsoft Word for nearly 20 years with frustrating results, so I finally decided to learn the intricacies in order to become more efficient. It was just a coincidence that I saw this post a week or so ago. It deals with section breaks, fields, citations, headings, tables of contents, etc.

I'm simply linking to the original post HERE so that I can find it again the next time that I need it. If anyone has a brief coming due, you might want to check it out.

Don't turn verbs into nouns.

As most of you probably already know, and as I have mentioned in the past, Bryan Garner is a really smart guy.  He is the Editor of Black's Law Dictionary and the author of dozens of books about legal writing and language.  One of his pet peeves (and one of mine now too) is when writers turn verbs into nouns.  Mr. Garner calls this "nominalization" or "burying" a verb.

Basically, you should use action verbs instead of nouns whenever possible.  It will make your writing clearer and easier to understand, not to mention shorter.   Instead of trying to describe the process of nominalization, or how to avoid it, I will give you a list of 20 nominalizations taken from several of Mr. Garner's books, and the action verbs that you should replace them with:

• in violation of - violate
• provide an illustration of - illustrate
• in mitigation of - mitigate
• conduct an examination of - examine
• make an accommodation for - accommodate
• make a contribution - contribute
• provide assistance - assist
• place a limitation upon - limit
• provide protection to - protect
• reach a resolution - resolve
• reveal the identify of - identify
• bring an action against - sue
• are in compliance with - comply
• draw a distinction - distinguish
• made allegations - alleged
• was in conformity with - conformed
• take into consideration - consider
• provide a description of - describe
• have a discussion about - discuss
• reveal the identify of - identify

I am a big fan of cleaner legal writing.  Sentences should be less wordy and briefs should have fewer pages.  Just by quickly glancing at the chart above it is easy to see that one word can often take the place of three or four words.  Good luck and be brief.

Illinois Supreme Court Announces Public Domain Citation System

The Illinois Supreme Court announced a new way of officially citing its case and those of the Illinois Appellate Court. The new citation system is required because the Court will no longer publish the official opinions in bound volumes.  The new method of citation goes into effect July 1, 2011, when the current contract for printing the advance sheets and bound volumes of court opinions expires.  From that point forward, the only place to find the entire body of Illinois case law will be online.  

These changes direct the Illinois Supreme Court and the Illinois Appellate Court to assign at the time of filing a public-domain case designator number, as well as internal paragraph numbers to all opinions and Rule 23 orders. While the rule changes require official citation to the public-domain numbering and paragraph scheme, they continue to allow parallel citations to the unofficial regional reporters such as the North East Reporter and Illinois Decisions.

An example of a Supreme Court citation under the new system would look like this:

People v Doe, 2011 IL 102345, ¶15.

This shows the name of the case, 2011 as the year of decision, the Illinois Supreme Court as the court of decision, 102345 as the court-assigned identifier number which is the docket number of the case, and a pinpoint reference to the 15th paragraph in the opinion.

An example of a Third Distirct Appellate Court decision would look like this:

People v. Doe, 2011 IL App (3d), 101234, ¶15.

In the Appellate Court, the unique identifier number would consist of the last six digits of the docket number.  Unpublished orders filed under Supreme Court Rule 23 will have the letter “U” appended to the unique-identifier number. Rule 23 orders will still be posted to the Court’s web site.

The Supreme Court's press release can be read HERE.

NIU Law Review Online

For the past several months, Jason Meares, the 2010-11 Editor-in-Chief of the NIU Law Review, and the Board of Editors have been working on increasing the presence of the NIU Law Review on the internet. He follows in the footsteps of the previous boards who also aimed at increasing the Review's readership through the internet.

Last year, under the direction of the then Editor-in-Chief, Steve Boldt, the NIU Law Review published its first issue of their online journal, which can be found here. The online journal allows the Board to publish more content and make that content available to a large audience.

The Review's website has undergone some changes with web hosting and design over the past six months. Thanks to the efforts of the 2010-11 Board of Editors, volumes 26 through 30 are now available online.

Here are some highlights from these issues:

• Alex Geocaris, 2010-11 Managing Editor, wrote about the new "search incident to arrest" exception to the warrant requirement of the 4th Amendment expounded by Arizona v. Gant.
• Also writing about the warrant requirement of the 4th Amendment , Daniel Kegl wrote about the "single -purpose container" exception and the inconsistent application by the federal courts.
• Jason Meares argues that the exclusion of settled defendants when determining liability pursuant to Illinois Code of Civil Procedure section 2-1117—as decided in Ready v. United/Goedecke Services, Inc.—is against the intentions of the statute and unsound policy.
• And, my article about Illinois' Winery Shipper's License, Granholm v. Heald, and the dormant Commerce Clause can be found in volume 30 issue 2.

Usage Tip of the Day

According to Bryan A. Garner, the editor of Black's Law Dictionary and subject of past Law Blog posts, four different variations of the term "attorney's fees" appear in the Illinois Compiled Statutes.

Mr. Garner also edits the Dictionary of Modern Legal Usage which sets forth the recommended usage for the four different variations.

(1) "Attorney's fees" is the most prevalent spelling contained in the Illinois statutes and in common usage. (2) "Attorneys' fees" is fine for plural possessives (more than one attorney). (3) "Attorney fees" is not recommended, but is used frequently. (4) "Attorneys fees" appears in the statutes, but is not to be used in common usage.

If you like these kinds of tips, you can sign up to receive Mr. Garner's Usage Tip of the Day from his website LawProse.org.

This is confusing.

I represent the buyers in a potential short sale. Their contract is contingent upon the approval of the short sale offer by the sellers' lender. Pretty common right?

Well, there is a rider attached to the contract titled "Short Sale Form - Purchase and Sale Contract." It was apparently drafted by the Chicago Association of Realtors and is specific to short sale deals. It contains a drop-dead date by which the lender must approve the price, or we can declare the contact null and void.

The rider also contains the following sentence: "Buyer and Seller acknowledge and agree that all deadlines under the Contract shall begin to toll from the date Seller delivers written notice to Buyer that the Contract has been approved by the Lender."

On first glance, this appears to say that the deadlines shall begin to RUN when the contract is approved by the lender. That way the attorney review period, the inspection period, etc., do not start until we know that we actually have a deal.

However, upon closer review, it says that the deadlines shall begin to TOLL upon approval by the lender. What in hell does that mean? Black's Law Dictionary defines toll as "to stop the running of; to abate." As in, to "toll the statute of limitations." So, the sentence basically says that the deadlines shall BEGIN TO STOP upon approval by the lender. I don't think that makes any sense.

That is why I hate legalese. I try to avoid the wheretofores, heretofores, the parties of the first part, etc., in my writing. Why not just write it in plain language so that everyone can understand it?