Published By: Maxwell S. Kennerly, Esquire

Legal Writing

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A lawyer has two jobs. First, the lawyer thinks about how the law might work, good or bad, in their client’s situation, and then tells their client. Second, the lawyer brings others around to ideas about the law that are good for their client.

Outside my office, there’s a poster of the brilliant xkcd comic “Up Goer Five,” in which the various complicated parts of the Saturn V Moon Rocket are “explained using only the ten hundred words people use the most often.” As the comic explains, the “US Space Team’s Up Goer Five” is “the only flying space car that has taken anyone to another world.”

It is an amusing joke, juxtaposing one of the greatest engineering feats of humanity with a kindergarten-level vocabulary. It also carries an important reminder about the limitations of language: rightly or wrongly, words have different meanings for different people. (“Inconceivable!”) The first paragraph of this post won’t win any awards, but the vast majority of the population can read it and understand it: it is written at a 7th grade level with every word being one of the “ten hundred” most often used words except for law, lawyer, and client. You can check it with the Up-Goer Five Text Editor and the Hemingway Editor — in fact, you might want to check all of your writing with both of those tools.

Lawyers are routinely attacked for their use of language: just last week, the Chronicle of Higher Education noted sardonically, “Only two classes of people, it seems, stick up for the adverb: young adults and members of the bar.” (I’ll gladly stand up for adverbs: a lawyer should not needlessly omit them.) Yet, few professions agonize so thoroughly over language as the law. Back in August, the American Bar Association’s journal for young lawyers had an issue devoted to writing. It’s worth a review by all lawyers, including those who fancy themselves great writers. If you’re going to read only one article, make it Michael Bess’ pithy “How To Write Better.”

Similarly, although advice about writing never goes out of style — writers like to write about writing, no surprise there — there seems to be a bit more chatter devoted to the subject thanks to the recent promotion of Steven Pinker’s The Sense of Style. As The New York Times’ review summarized:

The cause of most bad writing, Pinker thinks, is not laziness or sloppiness or overexposure to the Internet and video games, but what he calls the curse of knowledge: the writer’s inability to put himself in the reader’s shoes or to imagine that the reader might not know all that the writer knows — the jargon, the shorthand, the slang, the received wisdom.

Yes, indeed. As Judge Richard Posner began his contribution to the aforementioned ABA article, “Successful communication requires the communicator to understand how much the person or persons to whom he is communicating understands.”

What I try to remember as a legal writer is that an ounce of empathy for the reader is worth a pound of grammar and vocabulary. 
Continue Reading When Writing, An Ounce Of Empathy Is Worth A Pound Of Grammar

This month the Smithsonian has long profile on Anthony Bourdain that ends with, “What would you like your last meal to be?” In typical Bourdain fashion, the meal he has in mind is virtually impossible to get without reservations weeks in advance: a sushi course at Sukiyabashi Jiro, the three Michelin star restaurant profiled in the excellent documentary Jiro Dreams of Sushi. As Bourdain explains:

Watch the film and you will understand. It is an 88-year-old man doing the same basic 30 or 40 basic cuts of Edo-style sushi, meaning nothing innovative. Every night he’s been going to sleep for his entire life; how do I make that standard shrimp over rice better, better, better, better? …

Rice is magical. Rice is an explanation of everything.

Jiro’s rice has been described as “like a cloud.” The documentary interviews Jiro’s rice dealer, who scoffs at the frequent requests he gets from other restaurants and hotels to sell them the same rice — none of them realize the the enormous amount of effort and skill it takes to cook the rice properly.

If you haven’t seen it, you can read more about the documentary in various reviews online, like this one from The New Yorker. Here’s a clip where Jiro explains what it means to be a shokunin, improving his craft bit by bit every day.

I thought that idea could make a nice setup for a post, and then I realized I couldn’t possibly write about something like that without reviewing Keith Lee’s The Marble and the Sculptor, which came out back in November. He sent me a copy with a handwritten inscription over the title page promising that, if I didn’t like it, the author would be sacked. I have no doubt that Keith consciously decided to write a handwritten note because he felt it would make more of an impact (which it did), and that he inferred I would recognize the Monty Python joke (which I did). Keith is one of those folks who recognizes and attends to details like that, which is why his book is worth reading.

“Employ your time in improving yourself by other men’s writings, so that you shall gain easily what others have labored hard for,” is an insightful quote often attributed to Socrates, although the closest Socrates quote I can find with a historical source is “while gold and silver cannot make men better, the thoughts of the wise enrich their possessors with virtue.” The point is the same either way, and Keith has plainly employed his time thusly. The book touches upon many of the best writings in self-improvement, ranging from James Altucher on career development (page 17) to George Orwell on writing (page 35) to Winston Churchill on public speaking (page 37) to Peter Drucker on work performance (page 93) to Henry Rollins on discipline (page 108). (The links I’ve put here are to informative writings by each.) 
Continue Reading This Is Rice: How To Get Better At The Practice Of Law

An article last month in The Harvard Crimson (“The Changing Face of the Law Professor”) explained that, fifty years ago, the typical Harvard Law School professor was someone who knew a little about the law but nothing about how it works:

“Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.

These days, however, the typical Harvard Law professor is someone who knows a little about the law, a little about something else, and nothing about how either works in real life:

Now, however, the Law School looks for a greater breadth of academic qualifications in its prospective faculty, including “demonstrated scholarly accomplishment, a promising research agenda offering both relevance to legal analysis or law practice, and an ability to present and effectively defend a thesis or argument before faculty members,” according to Law School Dean Martha L. Minow.

Notice the elephant not in the room: a prospective faculty member does not need to show any ability whatsoever to practice law, nor any ability to effectively teach the law to students. They can get by with “scholarly achievement,” “a promising a research agenda … [relevant to] legal analysis,” and an ability to charm other faculty members.

Only legal education tolerates this sort of circular, self-referential pedagogy in a practical field. Doctors are trained by practicing physicians. Even “academic medicine” is closely tied to the actual practice of medicine by way of teaching hospitals and clinical research. Would you learn how to design and build cars from people who had never designed one before?

This isn’t a new issue (the impractical nature of legal education has naturally been the focus of intense legal scholarship, none of which produced any useful change), and Harvard Law’s approach is by no means unique to them. Law schools across the country have increasingly considered experience to be unnecessary. That’s not new.

What’s new is to see the law school that produces the most politicians, the most federal judges, the most law professors, and, with one of the largest graduating classes of any law school, a helluva lot of practicing lawyers, look out on the dismal field of legal instruction and then tout inexperience and non-legal scholarship as virtues. It’s a smack in the face to everyone who has tried to fix the problems with law school, and it creates two big problems, one for the quality of legal practice, the other for the health of our democracy.
Continue Reading Taking The Law Out of Harvard Law School

On Monday, the ABA Journal released its 6th annual “Blawg 100,” this time including your’s truly’s little home on the Internet. It is, to use the term I used two-and-a-half years ago to describe the benefits of writing a legal blog, “more pie,” and I’m always happy to receive more pie. If you’ve found my blog useful in your practice in the past, or just an interesting read, I’d be much obliged if you stopped over there and voted for me in the “Trial Practice” category. (As an aside, Pennsylvania lawyers cleaned up in the Trial Practice and Torts categories — four honorees combined, more than any other state.)

I’ve been blogging here for over five years, and this is my 880th post. I consider this blog to be a success: I was able to impress my mom, I’ve been invited to speak on panels, I was asked to write a practice guide for lawyers, and a reader once recognized me by my name tag at a party hosted by a law firm. Hundreds of thousands of strangers have read my work, and a couple dozen of them have taken the time to carefully explain to me how wrong I am about everything.

So, as a self-described “successful” blogger, here are some thoughts on blogging itself. 
Continue Reading Doing The Best You Can As A Writer (Thoughts On The ABA Journal’s Blawg 100)

Via Howard Bashman, last week a three-judge panel of the First Circuit Court of Appeals issued a per curiam opinion in Rodriguez-Machado v. Shinseki, affirming a District Court’s grant of summary judgment in an Age Discrimination in Employment Act case. It was a routine case that had been dismissed by the District Court for three commonplace reasons: the plaintiff, who worked at the Veterans Administration, (1) had not been injured enough in their workplace to have suffered an “adverse employment action”; (2) had not shown the hostility she suffered at work rose to the “level of severity or pervasiveness” required to state an ADEA claim; and (3) couldn’t show the adverse employment action she allegedly suffered was in retaliation for her filing a claim with the Equal Employment Opportunity Commission (EEOC).

More than 23,000 age discrimination charges were filed with the EEOC last year (EEOC / ADEA statistics here), and a significant number of those charges go on to be filed as lawsuits. There’s thus no dearth of these cases in the federal courts, which have decided more than one thousand ADEA cases over the past year, hundreds of them on similar grounds as Rodriguez-Machado v. Shinseki. It was, by and large, a routine case dismissed on routine grounds, on appeal for routine reasons, and the First Circuit could have just as easily looked at the District Court’s opinion, the briefs, and then affirmed dismissal of the discrimination claim, as federal appellate courts do every day.

But the First Circuit didn’t even reach the merits of the case. Instead, it blasted the plaintiff’s lawyer:

This case provides an important reminder to lawyers  and  litigants alike:  substantial  noncompliance” with important  appellate  rules,  in  and  of  itself,  constitutes sufficient  cause  to  dismiss  an  appeal. …

Unfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules. Again, claims of age discrimination, retaliation, and hostile work environment are often, as here, factually complicated and legally intricate. Yet plaintiff’s opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute. Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either. Shockingly still, plaintiff’s principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories:  She mentions a few ADEA cases, but only in the context of setting out the accepted summary judgment standard – amazingly, she spends no time describing the legal contours of an ADEA claim. …

To wrap up: Plaintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw. Being human, lawyers of course will not always dot every “i” and cross every “t” in trying to live up to their obligations under the rules. And occasional mistakes – minor infringements of the rules that neither create unfairness to one’s adversary nor impair the court’s ability to comprehend and scrutinize a party’s papers – typically will not warrant Draconian consequences. But major breaches call for severe decrees, and the violations here are certainly major, given that they cripple any attempt to review the issues intelligently.

Consequently, for the reasons batted around above, we dismiss plaintiff’s appeal with prejudice, as the caselaw permits in situations like this.

(Citations and quotations omitted.) And that was that: plaintiff’s case was dismissed, with no effort to review the merits.

Here are the offending briefs from the plaintiff, as well as the defendants’ responsive briefs. The plaintiff’s brief certainly isn’t a model of written argument (and it does, as the defendants pointed out, mistakenly claim an “abuse of discretion” standard for the appeal of a summary judgment, rather than a de novo standard), but did it really “cripple any attempt to review the issues intelligently,” as the First Circuit concluded? The defendant had no trouble comprehending the arguments and responding. Was it really “amazing,” as the First Circuit claimed, that the plaintiff didn’t reiterate “the legal contours of an ADEA claim” when the plaintiff’s brief states right at the onset that they’re not challenging the legal standard used by the District Court, but rather the District Court’s review of the evidence? 
Continue Reading Poor Brief Writing Skills Prompt Dismissal By Appellate Court

[Updated June 7, 2019, see below.]

A year and a half ago, I wrote a post, Philosophy Explains How Legal Ethics Turn Lawyers Into Liars, discussing a couple situations in which I witnessed my opposing counsel tell the judge an outright lie about the case.

I can’t say that I’m surprised to find that this problem hasn’t disappeared since that post, and I continue to devote many hours responding to opposing counsels’ objectively baseless motions.  Generally, these motions aren’t quickly or crudely written; rather, they tend to be quite carefully crafted and polished to create the appearance of a legitimate issue for resolution, a patchwork of quotes taken out of context from distinguishable cases.

Most notably, in a recent example, the baseless motion (for summary judgment) made no effort to address the central issue, which was that the defendant had, for the past two years, engaged in a procedural tactic that one Circuit Court has called “dishonest,” a procedural tactic that automatically waived their argument. Indeed, our own federal appellate court, the Third Circuit, examined that exact same procedural tactic just last year and had specifically ruled against it; my opposing counsel found that case and cited it for a completely different purpose, ignoring the actual reasoning and holding, which rendered their motion frivolous.

I suppose I could have filed a one-page response simply citing that case correctly, with a couple opinions from other Circuits – the unanimous rule across country, including the Restatement rule, is to reject this “dishonest” tactic – but I don’t take briefing on dispositive motions lightly. More to point, no one should taking briefing lightly; as I have said before, one of the worst things you can do is listen to the Supreme Court and hamper your own brief by voluntarily dropping meritorious issues, and so I addressed every issue raised by the wayward brief, each in detail, each with appropriate citations.

I have no doubt their dubious motion for summary judgment will be denied. Here’s the question: do I threaten my opponent with Rule 11 sanctions for wasting my time and the Court’s? I take it as a point of pride to actually know what is and what is not sanctionable — see, e.g. my post on sanctions for deposition coaching of witnesses — so I’m not going to send that threat unless I think there’s a real chance of sanctions actually being awarded. And thus the question is: can you get sanctions for having to respond to an opponent’s brief that failed to address directly contradictory precedent?

 
Continue Reading Sanctions For Failing To Disclose Adverse Precedent Under The Duty Of Candor

[September 20, 2012: This post has been updated at the end to include comments on Judge Posner’s review, Brian Garner’s response, and the volleys between Scalia and Posner.]
 
 
 
It sounds like such a good idea: the pre-eminent legal lexicographer of our time and a Supreme Court Justice together writing a large, detailed treatise on, as they say, “what, in our view, courts ought to do with operative language” of regulations, statutes, and court opinions.
 
 
 
The result of this collaboration between Brian Garner and Justice Scalia, Reading Law: The Interpretation of Legal Texts, billed as “systematically explain[ing] all the most important principles of constitutional, statutory, and contractual interpretation” through a “textualist” approach, does not live up to the hype.  It makes one big mistake, a problem that should have been obvious of at least December 12, 2000.
 
 
 
Simon Chester at Slaw has the most thoroughly research review of the book with the broadest perspective, even catching some errors. Stanley Fish rightly points out that textualism’s claim to being the only objective, apolitical form of legal interpretation is rubbish. As Scott Greenfield recognizes,

They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.

That is, of course, an intrinsic problem with claimed “textualism” — if the text is less than pellucid, you get to go by what you had for breakfast — but Tony Mauro’s report reveals an even deeper problem with the work as a whole:

Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. “That is a false charge,” Garner said Thursday, adding that Scalia is probably “the most consistent and principled” justice in terms of following the text wherever it leads him.

Right there, in one sentence, Garner dooms his magnum opus to the overflowing dustbin of legal history, a mere reference for useful case law but not a credible source of analysis, a work the importance of which will not outlast Scalia’s tenure, if that long.
Continue Reading Scalia On Reading Law: The Fox On Guarding Henhouses

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that? 
Continue Reading How To Excel At The Basics As A Young Litigator

SCOTUSBlog, the premier media source — internet, newspaper, anywhere — for Supreme Court news, has just undergone a revision, including sponsorship by Bloomberg Law. Scott Greenfield, the premier source for complaints about legal blogging, thinks something was lost in translation:

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility. We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar. We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise. Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator. And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime. And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Bob Ambrogi is more sanguine:

I believe that Bloomberg’s sponsorship will prove to be a benefit to readers of SCOTUSblog. For several years now, this blog has moved closer and closer to becoming a serious — dare I say “mainstream” — news site, particularly since bringing aboard Lyle Denniston. Now it will be able to devote more staff and resources to that task, which can only make it all that much better.

And before anyone bemoans the blog for “selling out,” keep in mind that this new sponsor is, itself, a professional, global news organization, one that already has a strong legal news component. As a matter of fact, I would say that this sponsorship will be better for the blog’s readers than was the blog’s longtime affiliation with a major law firm, Akin Gump.

The rebirth of SCOTUSBlog as more a form of SOCUTSNews was unavoidable and has been a long time coming. You don’t get very far as a Supreme Court litigator by pointing out how unprincipled and political many of the Court’s decisions are. You also don’t become a major media source for commentary by pointing out that the court’s key opinions are loaded with rank hypocrisy — consider how often the five “Federalist” judges these days use ambiguous federal statutes to pave over state-created rights — or that their poorly-reasoned opinions often raise more questions than they answer.

Truth is, as a blog gets more popular, it tends to get more “mainstream” and less provocative. That’s not necessarily a bad thing; SCOTUSBlog was never particularly edgy, and there are plenty of people around more than happy to criticize our robed overlords. I couldn’t be happier that SCOTUSBlog has a bright and secure future as the primary source for plain-vanilla apolitical analysis of the Supreme Court; it’s the first place I go for information about the Court. No offense to the New York Times or NPR, but, when they report on the latest opinions, they simplify matters for their non-lawyer audiences, and they don’t helpfully link to the lower court opinions and the merits briefs.

The SCOTUSBlog revision puts into perspective some trends I’ve seen in the universe of practicing lawyer blogs. (Put aside the legal academic blogs and media ventures unaffiliated with firms; they have separate trends.) It seems the practicing lawyer blogs are separating into three general classes of blogs, which I’ll call the mainstream, the personalities, and the marketers.
Continue Reading The Three Types Of Practicing Lawyer Blogs

As a lawyer, you’re either a conversationalist, a counselor, a writer, a storyteller, or some mixture of them all. I spend a fair amount of my time reading or writing pleadings and briefs, a fair amount of time either preparing a story (through discovery and depositions) or telling a story (at a court hearing or at trial), and the remainder of my time counseling clients.

Consequently, I’m a sucker for any advice from writers and storytellers, and have previously referenced the methods of writers like David Mitchell and Philip K. Dick, as well as storytellers like Jay-Z and David Mamet. (I’d be remiss in mentioning David Mamet in an article about writing and advocacy without also also referencing Christopher Hitchens’ animadversion against Mamet’s book.)

So naturally I was drawn to NPR’s new story on Poet Laureate Philip Levine:

Levine’s work is most famous for its urban perspective, and its depiction of blue-collar life in Detroit. But while he was working in the factories, he found nothing poetic about them.

“I found the places hateful.” His job at Chevrolet Gear and Axle was hard, he says, “and the work was exhausting.” …

Why was it so hard? Levine quotes another poet laureate, William Wordsworth: “‘Poetry is made up of emotion recollected in tranquility.’ I didn’t have any tranquility,” Levine says. “I was full of anger. I was very aware of the fact that I was being exploited and the people around me were being exploited. There was a mythology about us: We were stupid and lazy and we deserved what we were doing, our dumb work.”

The whole article is worth a read, in part for his stories about that blue collar work, which remind me of Studs Terkel.

Levine adds:
Continue Reading Poet Laureate Philip Levine On Writing “Where The Poem Leads”