Legal documents, rules, and cases: they are your friends! More novel concepts in the law

Many times when a client (or potential witness) gets some legal documents in the mail, they become overwhelmed, and don't even read them. Or they read parts of them, and blank out the other parts. This often leads a to missed deadlines, a failure to respond, and makes the case even worse. It's the "ostrich" approach to litigation (If I put  my head in the sand, maybe it will all go away). This approach isn't a very good one.

Same thing goes for attorneys sometimes: they will get some pleadings from another attorney, or a notice from court, fail to read it thoroughly, and miss something important about the case.

Ancient truth: Yes, legal paperwork is sometimes hard to read, but if you break it down into smaller parts, it's easier.

And here's the secret: when you read it, it has to contain the rules (or cases) that it's based on, and those rules are something that you will need to use to argue (with or against) to get to win your side of the case!

In other words, you have to read it all (especially if you're an attorney), to see what else you should be arguing. And most likely the judge will read all of it too.  So if you don't read, the judge will wonder why you left that out of your argument.

Let me get specific here: You're the client, and you have gotten a notice to appear on your case. It will have the case number, name of the hearing, where the hearing will be (the courthouse, room, and street address), the time and date. It will also have how to respond to it listed on that same form. You (or your attorney) will need to contact the court to do something about the hearing, like reschedule it.

Sometimes, however, the form will contain other information, like "if you do not respond by 21 days from the date of this notice, then . . . ." What's the "then?" Possible "thens" : this order will be signed by the judge,  or then you will lose your window of appeal, or then the bench warrant will be issued. That's the trigger to get you into motion.

Or, let's try a different scenario: You're the attorney, and you get a new client, who needs you to do something with the documents. Where do you start? What court are you in? Make the first step of actually reading what the client gives you. (One more hint: it might not say what the client thinks - see above, clients don't always read everything!) But at least what the client gives you will have the court on it, and something about the case so you can at least get more information.If the client doesn't have the right papers, get the copies from the court of everything else in the file, so that you know exactly where you stand right now. Otherwise, your response will not be accurate.

Now: back to Novel concepts in the law: use those same documents to get the basis that you need to start arguing. In this scenario, you're the attorney with new pleadings from the other side. Those pleading should have a rule, or case citation in them. Look at the rule (or case)! It could be that the attorney on the other side is citing the wrong thing (so you will need to mention to the court what should actually be argued), or that your client's situation is somehow different from what's cited. Then you go about distinguishing your client's case from the one cited, and try to persuade the judge that he or she should agree with your version of things. It's the old "the sky is blue, your honor, that's true, but the shade of blue it was on that day was streaked with gray clouds. So when the opposition says "blue," they should really be saying . . . " You get the idea.

The federal government wants to adopt plain language - really! (Novel concepts in the law, Part Two)

One of my favorite parts of law school (please excuse this trip down memory lane) was taking writing classes. My school required two of them: Research and Writing (first year class), and Advanced Writing (usually a third year class). Research and Writing taught a research method and introduced the concept of "plain language." Advanced Writing made more targeted use of those skills through writing briefs, usually intended for an appellate case. (I also took another writing class, because I am a glutton for punishment, which I did as a directed study. Ask me if you ever want to see it, it's about the US Supreme Court's interpretation of the Americans with Disability Act, and other cases related to that).

The idea behind plain language is that a legal writer should make it easy for a reader to find the meaning in any document, and be able to understand what the writer is trying to convince the audience to do. This means using almost no "legalese," which might confuse the reader. Legalese would be something that sounds traditional and impressive, but actually makes its meaning more difficult to determine. For example, the phrase, "indemnify and hold harmless," where both terms could mean the same thing to a reader.

Brian Garner is often given credit for many of the plain language ideas. He's written books on the subject, and has (what I would think is) a dream job -- he edits other people's work to make it more reader-friendly, for use in legal briefs, and other documents. He is also cited as a source for
this government article on writing for your audience.

But - back to Novel Concepts in the Law: Plain language is a great way to win cases! Write for your audience, even if the audience is different from each other. The judge will know the law, go ahead and write a brief on what you're doing. But don't get all technical & weird in the writing. Make sure 1) your client understands why you're doing what you're doing, and it's good if they can understand your argument in the Brief and 2) the judge will have an easier time agreeing with you if you can make the writing easy for him or her. Just show that you know the law, too, and that it agrees with what you're trying to do for your client!

Why smart people can write so badly

Bottom line: It's content (what you mean to say) versus status (how you say it is so important it gets in the way of how you want to say it.)

Brian Garner, legal writing maven, released an interview with David Foster Wallace that sums this up quite nicely. Article (from state bar of Michigan blog) here.  also article (from ABA journal) here.

You think that legal writing requires legalese? (on writing well)

"Legalese" is a term given to phrases like "indemnify and hold harmless:" not everyone knows what it means, but since it sounds legal, lawyers can get away with using it, even though they shouldn't. Or even though they're sometimes not sure themselves what the "terms of art" mean.

One of my favorite reads is the monthly legal writing article in the Michigan Bar Journal. It's often written by Joseph Kimble, who is responsible for the Legal Writing classes I took in law school. His approach to legal writing is that it's something that shouldn't require a law school degree to interpret.This approach is also called Plain Language, or Plain English. It's not been wholeheartedly embraced by the legal profession, which is, not surprisingly, slow to change.

Anyway, this month's Bar Journal has another great column by Professor Kimble, titled "You Think the Law Requires Legalese?" From the article:

"lawyers tend to greatly exaggerate the extent to which the law requires specific, unalterable wording in legal and official documents. . . .

research show[s] that the terms are unnecessary, troublesome, best used together with plainer terms, or replaceable with a plain equivalent.  For example: give, not give, devise, and bequeath; interest, not right, title, and interest; together and individually, not jointly and severally.

  . . . Terms of art are more rare and more replaceable than lawyers think. . . . The law is no serious obstacle to writing clearly and plainly. 

 Full article here.