The Appellate Record

Thank Goodness This Is My First Language

Kendall Gray — Tue, 18 Jun 2013 04:27:38 -0600

Hat tip to CAT Writing Studio

All Fun And Games Until Someone Lawyers Up

Kendall Gray — Tue, 11 Jun 2013 04:51:25 -0600

Hat tip to humorsharing.com

Mistakes That Spell Check Will Never Catch

Kendall Gray — Tue, 04 Jun 2013 04:48:39 -0600

Ah the power of proof reading with your brain. Hat tip to Squidoo.

The Sprint

Kendall Gray — Thu, 30 May 2013 04:18:05 -0600

It's that time of year when appellate lawyers start to look at the calender and count pending cases on their fingers and toes.

I am no exception.

I was trolling around on Don Cruse's very handy SCOTX Blog doing just that. The Court was famously caught up at the end of last term. But alas, the prospects do not seem so bright this time around.

The Supreme Court of Texas is conferencing every week in June, but it will take a massive spring to get through all the pending work. As of this writing, here is the score card:

There are 37 argued cases awaiting opinion.
By comparison, 26 cases have been issued since February 1.

That's a lot of work to get through. The court isn't so much sprinting as sprinting with a full plate.

The Power of No

Kendall Gray — Wed, 22 May 2013 04:17:16 -0600

I don't know who died and made me Ethics Czar.

I'm sure my character does not equip me to lecture the appellate nerds on ethics at the UTCLE Appellate Conference.

And I'm sure my MPRE score would be no endorsement for ethical expertise.

And yet here I am, scheduled to wag my ethical finger at the smartest lawyers in the state on June 13.

About all I know is that there is one sure fire way to solve all problems of legal ethics. And if we resorted to it more often, lawyers of a certain age (like me) might have more or their hair.

After the jump, the power of no, and a preview of my speechifying.

Do they still have an MPRE, the ethics exam that all lawyers must take to be licensed? Do they still call it that? And do you find our profession to be super ethical?

What I remember about the MPRE is the complexity:

Things you can't do.
Things you can but maybe shouldn't do.
Things you can decline but probably should do.
And even things you must do.

And when do those decisions arise? At the worst possible moment, typically when a case is going to hell, a client or former client is angry, there is no time to think, and there are no good options left.

But there is one time in an attorney client relationship where the lawyer has maximum freedom and power:

Before that relationship is formed.

In creating the relationship, the attorney becomes a fiduciary. In the words of the state bar oath, the attorney "honestly demeans" him/herself in the practice of law. Once a lawyer enters into an attorney client relationship, the client's interests (with few exceptions) take first place.

But fiduciary relationships (and attorney client) relationships are created by consent. The only way you can become a fiduciary without your actual consent is if you are sketchy and vague, if you fail to document the actual consent or refusal to consent.

So how does this help you avoid winding up in the court of appeals with a lousy legal position or a frivolous record or trial counsel malpractice hanging around your neck like a burning tire?

First, enlarge that time where you have maximum freedom. That is the power of time.
Second, document when the attorney client relationship forms, and more important, when it hasn't formed. If you are evaluating the case to determine whether to represent the client, put that status in writing.
Third, stop, look, and listen. If the trial lawyer or the client or the record or the legal position or the rushed schedule make the whole thing look sketchy, use your most powerful tool. Just say no.

Sure, saying no means giving up a fee, and sure, we practice law at least in part to earn money. But there is no reason to chase lousy cases.

Remember the old Wall Street saying: "Bulls make money; bears make money; but pigs get slaughtered."

By all appearances, the appellate bar hasn't been missing any meals lately. We are not at risk of malnutrition or penury.

So just say no. Eat a salad and wait for the next case.

Death of an Appellate Lawyer

Kendall Gray — Mon, 20 May 2013 04:42:02 -0600

Hat tip to flippincomics.com

The Power of Time

Kendall Gray — Fri, 17 May 2013 11:56:10 -0600

It's that time of year, Campers.

All the cool kids are about to go to Austin for that one event where the glitterati are bound to glitter.

UTCLE's 23rd Annual Conference on State and Federal Appeals will soon be upon us, June 13-14 in Austin, to be specific.

Clearly, they have mistaken me for a UT grad, because I always seem to have a chance to hold forth and flap my gums at this event.

This year, they were kind enough to give me a very thorough paper written by someone else, Charles Frazier, about "Bombshells in the Appellate Record."

After the jump, one little thought about avoiding those bombshells.

Charles was surely right. Sometimes it can feel like there are bombshells in the record, especially if you were not involved in the trial. Who knows what evil (or malpractice or sanctionable conduct) might appear with the next turn of a page?

And if you've already agreed to take on the appeal, you find yourself standing in front of a panel of appellate judges holding a giant, stinking, flaming bag of---

You get the picture.

So let's take the bombshell analogy and learn from it.

Imagine that you discovered yourself in the middle of an actual mine field instead of a metaphorical one. If you knew that one false move would kill you, would you hurry? Would your run? Would you dance or skip like Gene Kelly on a rainy boulevard?

Probably not.

If you were smart, you'd take your time, try to figure out where the dangers were, and move very carefully to avoid them.

In reading and updating Charles's paper, it struck me that the same approach holds true with our metaphorical mine fields.

Sure, law practice includes deadlines and occasionally there are time pressures that we cannot avoid. But we'd save ourselves a lot of grief if we could just gain as much time for deliberation as possible, and then use it wisely:

Approach what trial lawyers tell us with a healthy dose of skepticism. They believe what they're saying, but their memory is colored by the pressure of trial.
Make evaluation and the right to withdraw a part of the fee agreement with the client.
Delay the actual first appearance in the case until you know where the bombs are. Do you really think the trial court is going to grant a new trial just because YOU are in the house?
If judgment hasn't yet been entered, slow the parties down. Winner and loser both could profit from a "time out."
If clocks are ticking and deadlines are approaching, BE HUMAN. Get to know all the folks involved. Get some agreed extensions and schedules in place.
And if sober action is impossible under the circumstances, learn when to say when.

No one can make you counsel of record without your consent, and "no" is a very powerful word.

But the "Power of No" is a post for another day.

For Our Northern Readers

Kendall Gray — Mon, 13 May 2013 04:37:11 -0600

Hat tip to sodahead.com

Creatively Correct

Kendall Gray — Thu, 09 May 2013 08:34:18 -0600

My wife knows the tremendous burden I must bear.

The burden of constantly being right.

About everything.

All. The. Time.

**sigh**

It has happened again.

Recently, in the Texas Lawyer, I wrote about how unforced time for incubation was essential to creativity. Allowing the brain to do seemingly nothing is the ingredient without which insight or inspiration will not happen.

But law practice actually discourages down time and "incubation." So, I tried to come up with ways we can preserve the brain space we need to be effective, like:

Setting aside time to sit and be quiet
Exercising or taking a walk in the middle of the day to re-boot
Weaning yourself from your computer screens
Learning to say no, so that each project gets the incubation time it requires.

Little did I realize the power of the Appellate Record echo chamber. In rapid succession, several pieces appeared in the New York Times or on the BBC confirming just how right we were. Check out:

Brain, Interrupted in the Times about how toggling between devices and distractions is impairing and reshaping our cognitive function.
BBC Radio 4's program about Digital Detox and why we need to control our devices.
This piece from the Times about how a walk through green space can ease brain fatigue and focus the mind, even in kids with ADHD.
And THIS PIECE from the times about the potential link between inadequate sleep and behaviors that doctors label as ADHD.

Preserve that creative stuff between your ears. As Vice President Quayle rightly observed, "What a terrible thing to have lost one's mind. Or not to have a mind at all. How true that is."

Now, pardon me while I check my Facebook.

My Chief Experiments

Kendall Gray — Mon, 22 Apr 2013 06:50:26 -0600

The event is finally here--meaning I can almost stop working on this project and return to normal life.

This Friday, April 26, 2013, is the Exceptional Legal Writing seminar at the Texas Law Center in Austin.

Part of my presentation on "Clarity and Grace" includes an investigation to see if the concepts taught by Joseph M. Williams hold true for legal writers the same way that they do for academic writers. To give that investigation some scientifical truthiness, I subjected three chief justices to a randomized, scientific trial.

I wanted to see if the judges known for clear and graceful writing crafted their prose like Williams said they ought to. I also wanted to see if the Williams DNA was absent in a chief justice whose prose was hard to read.

But don't worry. No Chiefs were harmed in the making of this presentation.

The results very clear, even if we ought not be surprised by them. There is no such thing as good legal writing. There is only good writing and lousy writing. The topic does not matter. The topic does not change what you need to do to engage your reader.

I hope you can attend.

Back to Basics

Kendall Gray — Thu, 28 Mar 2013 04:04:12 -0600

Anybody remember what these are?

These are the basic forms used for diagramming the parts of speech in a sentence.

If you are a person of a certain age, and if you took middle school English before American education got all soft and wobbly, then you had to diagram sentences.

If you don't recognize these, then your education was rubbish and you are to be pitied, you poor, empty-headed, millennial hipster.

But I digress.

I have Mrs. Gee and her "old school" instruction to thank for my knowledge of this little tool. At the time, I thought she was nuts. "I'm never going to use this."

Boy, was I wrong. In preparing my paper and presentation for the "Exceptional Legal Writing" seminar, I discovered that the skills taught by Mrs. Gee are the ones that count. If you want to write and be understood, get a grasp of sentence diagrams.

After the jump, a hymn of praise to the sentence diagram.

This, dear reader, is Mrs. Gee, my seventh grade English teacher.

Ok, it's not really Mrs. Gee. It is Carol Burnett. Mrs. Gee was just a doppelganger for Carol Burnett's character, fake eyelashes, loud makeup, flaming red hair, and all.

Mrs. Gee had the thankless task of indoctrinating a generation of middle school students into the ways of The Force. She taught grammar, and she taught it by the discipline of sentence diagramming.

At the time I did not see the point. Being reasonably smart, and having spoken English from the crib, I had an ear for the parts of speech. My ear and intuition controlled my use of language.

But guess what? The judges and court staff receiving your brief have their own ears. And their ears are different than yours. If you want to get ideas from your brain into their brains, you cannot rely on your ears. You have to use language that makes sense at a structural level.

Writing clear and graceful prose is a structural exercise. It is little more than assigning the right words to the right parts of speech and then putting them in the right order to build clear sentences into comprehensible and cohesive paragraphs. For example:

Figure out who are the main characters in your little legal drama--the parties, the courts, the rules of law.
Give these characters primary place as subjects of your sentences.
Give these characters things to do, and make their actions the verbs of your sentences.
Don't muck around changing from subject to predicate; put subject and verb close together and transition from one to the other early in the sentence.
Do you have an object that needs emphasis? Put it at the end.
Put like sentences together, and make them easy to digest; start with old information and end with new or complex ideas.

All this rearranging of the deck chairs allows the words to fulfill their highest and best use. And that is where sentence diagramming is key.

When you edit, you should be diagramming sentences on some level. Mrs. Gee's students, skilled as we are in the ways of The Force, can do this mostly in our heads now. I find myself doing it in the act of composition and surely when editing. If I cannot easily recognize the sentence's structure, the sentence fails. If I cannot easily recognize the paragraph's topic, the paragraph fails. If I cannot easily recognize the transitions between topics, the brief fails.

Work: there is no substitute.

Or you could just hope the readers do all the work.

They won't. Your brief is not the judge's hobby. Your writing is not as fun as fly fishing.

Much much more to come if you attend the Exceptional Legal Writing Seminar on April 26.

Until then, thank you, Mrs. Gee, wherever you are.

Just Because They Are Funny

Kendall Gray — Tue, 12 Mar 2013 03:43:05 -0600

Happy National Grammar Day

Kendall Gray — Mon, 04 Mar 2013 04:26:52 -0600

For want of some serial commas, Rachel Ray kills puppies and engages in cannibalism.

Allegedly.

There Are No Bad Puns

Kendall Gray — Tue, 26 Feb 2013 12:37:28 -0600

There Is No Easy Way

Kendall Gray — Tue, 19 Feb 2013 12:08:52 -0600

Hat Tip to KeepCalmAndPosters.com

Clarity And Grace--Personified

Kendall Gray — Fri, 15 Feb 2013 05:41:03 -0600

I am still in the process of trying to write my paper for the Exceptional Legal Writing Course to be given by the State Bar on April 26.

So it is only fair that you suffer along with me.

The challenge for me is how to make something abstract interesting. How do you make clear writing . . . clear? How do we know when good is good?

One way that worked for me was to find a good piece of strong writing and then ruin it. Take something taut and reverse engineer it into something you'd find in a law school or the Environmental Protection Agency.

(Governments and institutions are particularly good at removing all humanity from the written word. They are kind of the neutron bomb for prose.)

After the jump, a teaser.

Last time, I wrote about how English brains long for that click between subject and verb. That click is most satisfying when we give a good, strong, and simple verb to a character capable of acting it out.

But Noooooo. We always want to try and sound smart. So we tack suffixes onto the ends of perfectly healthy, Anglo-Saxon verbs and turn them into wimpy, Latin nouns--a process called nominalization, which is itself a nominalization.

"So, what?" you ask. Nominalizing good prose disguises who the characters are and what they are doing. It sucks the story write out of your story, and puts the suck right into your writing.

Want proof? Imagine that it is the late 1930s and the British government tries to reassure the populace with bureaucratic tripe like this:

Defense of the island will be conducted notwithstanding the costs incurred. Fighting will be necessary on the beaches, the landing grounds, in the streets, in the hills. Surrender will never happen.

Provision of the tools will result in the finishing of the assignment.

Look all the suffixes: -nse, -ing, -ion. Look at all the verbs turned into nouns: defense, fighting, surrender, provide, finish. Why not use verbs as verbs and use subjects like “We” and the imperative “You.”

We shall defend our Island, whatever the cost may be,
we shall fight on the beaches,
we shall fight on the landing grounds,
we shall fight in the fields and in the streets,
we shall fight in the hills;
we shall never surrender.

Give us the tools; we will finish the job.

If ever a greater contrast were needed, just look at the way Neville Chamberlain announced Britain's declaration of war. The main character in his message is not the British people or even the British government, but a note. And war is not declared for a purpose, it just kind of happens because the poor little note received no response:

This morning the British Ambassador in Berlin handed the German Government a final note stating that, unless we hear from them by 11 o'clock that they were prepared at once to withdraw their troops from Poland, a state of war would exist between us. I have to tell you now that no such undertaking has been received, and that consequently this country is at war with Germany.

A bad news message delivered poorly. It is as if Britain passed Germany a note in class: "Do you like me? Check "yes" or "no."

If you want to inspire or persuade, write stories. Whether it is a brief or a letter or a novel, write stories. Write prose where characters do things. Make them do things early in the sentence as often as possible, and don't disguise who they are.

In short, be Winston Churchill, not Neville Chamberlain.

Easy. Right?

Happy Valentine's Day--Grammarian Style

Kendall Gray — Thu, 14 Feb 2013 04:18:42 -0600

Hat tip to The Ballpoint Revue

Two, To, and Too.

Kendall Gray — Tue, 12 Feb 2013 04:51:49 -0600

Writing For The Hard Wired English Brain

Kendall Gray — Thu, 07 Feb 2013 04:11:05 -0600

This sentence hard to read you find?

Why?

Easy the words be. Agreement amongst verb and subject there is. What problems have you?

In the wrong order the words are? But right is which order? And wrong should this be why?

To find out, and to become a much better writer, read this book--Style: Ten Lessons in Clarity and Grace by Joseph M. Williams.

I am borrowing heavily (HEAVILY) from this fantastic little volume in to prepare a presentation on Clarity and Grace for the upcoming seminar on Exceptional Legal Writing presented by the Texas Bar on April 26.

If your heart can stand it, watch the presentation live at Texas Law Center. If that might overwhelm you, watch the webcast from your computer.

After the jump, a smidgeon of what Williams has taught me, and a mini-preview of what I hope to pass on at the seminar.

Our native language hard wires our brains.

How hard? In cultures without a future tense, people don't treat the future as abstract. They don't disassociate their present and future selves. They tend to make their current selves do what their future selves need, much more than societies that have a future tense.

The best example is that they have better savings rates. They are hard wired to treat today and tomorrow as basically the same. Whereas, in America, where we sing about Tomorrow and Go West Young Man, we borrow money our future selves cannot afford to repay and we eat calories our future selves will regret. Because the future is waaaaaaaayyyyy out there some day.

Hard wiring impacts writing too. Readers' brains are hard wired to expect certain information presented in their language to be in a certain order. Meet those expectations and the reader will move through your prose smoothly and easily. Violate those expectations, and the reader has to work for it. Make the reader work and you increase the risk that you will lose the reader altogether.

Violate a reader's hard-wired expectations and you waste your most precious resource: reader attention.

For me, Williams' most valuable contributions are identifying the expectations of the English reader and giving us the tools to make our prose meet those expectations.

In the first part of this post, my gnarly sentences did not work because I violated one of the most basic expectations for the English brain. English readers long for that "click" in the transition between subject and verb, right near the beginning of the sentence. I butchered that expectation by making you wait.

In a variety of ways, Lawyers violate that expectation all the time:

Making verbs into subjects
Picking lousy subjects that don't do anything
Making readers wade through clauses before they get to a subject
Separating the subject and the verb with still further clauses

Many more foibles infect us. And many more will be fixed at the seminar. But know this:

If things in the wrong order you put, hard will your prose be to read and like Yoda will you sound.

Don't sound like Yoda. Find out what the right order is.

Come to the Exceptional Legal Writing seminar on April 26.

Identify Which Is The Appellate Lawyer

Kendall Gray — Mon, 04 Feb 2013 12:13:49 -0600