A Lingo for Talking About Cases

Posted: May 30th, 2012 | Author: | Filed under: Talking About the Cases | Tags: , , , , | 2 Comments »

Discussing case law is an art form and shorthand phrases make your job easier, as long as you don’t slip into legalese. A case can be distinguishable, controlling, relevant, analogous, seminal or binding.

Discussing patterns in the case law is even more challenging. Try these frequently used phrases:

  • In Smith v. Jones, this Court squarely addressed. . . .
  • The First Circuit has long recognized. . . .
  • No reported cases hold that. . . .
  • Only one reported case holds that. . . .
  • The most analogous cases hold that. . . .
  • The Ninth Circuit has long expressed a strong preference for. . . .
  • Although this Court has expressed a strong preference for . . . , it has frequently allowed . . . under similar circumstances.
  • This Court has entertained. . . .
  • This Court has considered. . . .
  • This Court is poised. . . .
  • The Supreme Court has not been sympathetic to. . . .
  • This Court imposes. . . .
  • This District follows a recent trend. . . .
  • The court cautioned against. . . .
  • No court has directly addressed. . . .
  • As a general rule, the courts have. . . .
  • That decision represents an extreme departure from. . . .

 

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2 Comments on “A Lingo for Talking About Cases”

  1. 1 Gregg Schaaf said at 12:34 pm on June 1st, 2012:

    Well done. Thank you.

  2. 2 mariebuckley said at 12:57 pm on June 1st, 2012:

    Glad you find it useful!


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Farther or Further?

Posted: May 24th, 2012 | Author: | Filed under: Grammar, Punctuation, and Usage | Tags: , , , , | No Comments »

Farther refers to physical distance. (Remember that far suggests distance.)

  • I will not carry this trial bag any farther!

Further refers to extent or an abstract idea.

  • I won’t discuss it any further.

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Believe it or not, my book contains a riveting section on worrisome words like these. Be the first on your block to know.

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Skip the facts. Tell a story instead.

Posted: May 17th, 2012 | Author: | Filed under: Story or Facts | 1 Comment »

The universe is made up of stories, not of atoms.

—Muriel Rukeyser

Every case begins with a story—the story of who the parties are, what brought them together and what went wrong. Stories win cases, not lists of facts or citations. Why? Because story is the context in which facts happen. Stories have emotional appeal. We remember stories but we forget facts. Therefore, you are missing an opportunity if you just list facts without telling the story first.

In legal writing, the story always turns on the parties. Who are the players? How do they know each other? What went wrong? Who did what to whom? Your job is to look beyond facts and data to find that bigger story. And while most legal issues may ultimately turn on narrow facts, those facts will be lifeless and forgettable if you have not wrapped them in the larger context of a story.

Put the Story First.

Where do you tell your story in legal writing? It’s all about the story so the story always goes first—in the opening or the introduction. Again, who are the parties? What brought them together? What went wrong? Even if your paper requires a detailed statement of facts, the first paragraph should simply tell the background story. Save the gory details for later.

Keep the Story Short.

The story or background facts rarely require more than a few sentences.  Even a colleague who admonishes you to “skip the facts” will not object to two or three sentences explaining the context in which an issue arises.

Write for the Next Person to Pick Up the File.

If your reader knows your topic, you need not restate every fact. However, your target reader is not just the attorney who asked you to write the paper. You must also write for the next person who might review the file—and who may not know the background of your case. Two or three sentences that explain the background story give your work context and perspective and make your work useful for other lawyers researching the same topic later. A new reader should be able to understand your paper without needing to go back to the case file for basic background information. (Similarly, you need not explain general legal principles or statutes if your reader already knows the relevant law, although you may want to paraphrase the law for later readers.)

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Stay tuned for later posts in which we will talk about how to tell a human story.

P. S.  My Book contains many more tips on writing.

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One Comment on “Skip the facts. Tell a story instead.”

  1. 1 A Lawyer's Guide to Writing » Blog Archive Editing legal writing said at 6:08 pm on November 15th, 2012:

    […] it begin by explaining the background story in two or three sentences? (Who are the players? How do they know each other? What went […]


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Stuck? Tips for Overcoming Writer’s Block

Posted: May 16th, 2012 | Author: | Filed under: Efficient Work Habits | Tags: , , , , , | No Comments »

In the past few posts, we’ve talked about the good work habits that lead to fast, efficient writing. You know that you should work on a big, clean screen and avoid multitasking so that you can find the “flow.”  You know that you should have a plan before you start writing. In this post, let’s talk about techniques for fending off writer’s block.

Create a Routine.

You will write more easily if you have a consistent routine. Do you need morning sun to charge your brain? Set aside morning time for writing. Does a messy desk sap your focus? Clean your desk. Can’t function without caffeine? Pour that coffee. If you have a consistent routine that works for you, use that routine to transition to writing mode quickly.

Think with Your Hands.

Stuck? Try thinking by hand on a blank unlined sheet of paper. (If you are a techie, draw on an iPad or other device.) Working with your hands, rather than on your computer, will force you to think on the right side of your brain. You’ll step outside a linear mode of thinking and see new connections between ideas.

Try to get your project on one page—a “work page” or a mind map. If you can’t get your thoughts down to one page, you have not yet identified your major themes and you don’t understand your project. Think of your work page as a loose master plan for your paper or the top layer of your writing. It should be an overview of your big ideas and a catalyst for the writing process, rather than a linear outline of your paper. And let your work page or mind map evolve as your write. Your goal is to make notes, rather than take notes.

Find a Good Model.

Before you begin writing, find a good form or model to work from. If you are writing for a colleague, find a similar paper written by that person. Working from a form isn’t cheating. It’s efficient and smart. Your firm wants you to build on forms and models that have already been vetted and have an official seal of approval. Indeed, most law offices compile databases of models just for this purpose.

Write in Layers by Working from the Middle Out.

Writer’s block often begins with a misguided effort to write in a linear fashion, beginning at Point A and proceeding in an unbroken line to Point Z. But the process of writing is different than the process of reading. Although we want our readers to zip seamlessly through a paper in an unbroken line, legal argument—like Rome—is built in layers. Therefore, you may want to build your writing in layers, as well.

The “lead” sections of your paper are where you add the most value, but they are also the most difficult sections to write. So take shortcuts by writing the easier middle sections first because they are often straightforward case discussions. Layer on your top layers of thought—your opening, your headings, and your topic sentences—after you have written the easier middle sections.

  • Write pods or cells first. Every topic has a few easy and obvious arguments that require only two or three sentences. Capture those sentences in small pods or cells. These pods or cells are the middle of your paragraphs. And you can write these pods as you research. You may even want to jot down these pods directly on the case before you file it. (But if you do paste in pods from cases, be sure to edit your final paper carefully so that it reads like a deep, thoughtful analysis of the case law, rather than a cut-and-paste exercise.)
  •  Label each pod with a topic sentence. Next, determine the purpose of each pod. Ask yourself why you grouped certain cases together. The answer to that question becomes the opening sentence to your paragraph. Simply “label” each pod—and turn it into a paragraph—by “wrapping” it with your topic sentence.
  •  Organize the paragraphs. Move and group paragraphs to find a coherent order. Work from general to specific, using successive paragraphs to narrow concepts down.
  •  Layer on headings. After you have turned your pods into paragraphs and grouped paragraphs together, “wrap” those paragraph groups with substantive headings that explain why you grouped those paragraphs in one section.
  •  Wrap your paper with your opening. Next, “wrap” the body of the paper with an opening that includes the factual background, the issue (if it’s not clear from the facts), and your conclusion.
  •  Make recommendations. Finally, step back and tell your reader what to do next.

Or Write the Ending First.

Or write your concluding Recommendations section first. It will give you a goal to work toward.

Get Your First Draft on Paper Quickly.

Type your first draft as quickly as possible. Don’t fuss over details yet. Simply aim to create a working document.

Some writers try to write their first draft slowly, aiming for a more finished first product. Although slow drafting is not efficient for professional writing, in which speed and efficiency are so important, common techniques for “slow” writing include writing in longhand or writing with the less dominant hand. Frankly, I don’t recommend either technique.

Talk to Yourself As You Write.

As you write, write notes to yourself to save your ideas for revisions or additions. (Insert your thoughts as comments in Track Changes, but be sure to scrub those comments before finalizing the draft.) If you write your comments directly on text, include a character before the comment so that you can search for and delete the comments from the final paper. (I sometimes use a double bracket, like this [].)

Find the Gold.

If you use your first draft as a tool to “get it all down” or if you find yourself editing windy writing from a colleague, begin by separating the good from the bad. Work quickly through the paper, starring only those “Aha!” concepts that strike you as pivotal. Mark extraneous sentences with an X in the margin. Mark salvageable material with a question mark. Then rework the paper around those few concepts that you have starred.

Write Directly from Your Research Files.

An advocate’s job is to persuade a court that there is precedent for an argument, so precedent is the best place to start. Review your research files as you write. Build on the arguments and language you have already highlighted and labeled in the copied cases. Review the cases for factual analogies and focus on those facts as you write.

Save Deleted Material.

As you write, save deleted material to the clipboard and label it as deleted material. When you have finished writing, copy the deleted material into a separate document. You never know when you may want to retrieve your brilliant, but discarded, sentences.

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On your mark! Get set! Write!

P.S. These posts (and more tips) are collected in My Book.

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More Good Writing Habits: Think. Plan. Write. Think More. Plan more. Rewrite.

Posted: May 9th, 2012 | Author: | Filed under: Efficient Work Habits | Tags: , , , , , | No Comments »

In the past few posts, we’ve talked about habits that lead to efficient writing, such as working on a Big Clean Screen and Finding the Flow. Today, let’s dig deeper and focus on the importance of planning before you write and refining that plan while you write. Here goes.

Think First. Write Later.

Word-processing software is irresistible. It can seduce you to start writing before you have begun thinking. Practice safe writing. Put your major thoughts in place before you begin writing. At the very least, collect your thoughts on a single, scribbled work page or a mind map. (I’ll talk more about mind mapping in later posts, but it’s the same technique you learned in junior high school.)

But Begin Writing Before You Have Finished Thinking.

You will learn about your topic simply by writing about it. So, while you must have some plan in place before you begin writing, that plan will change as you write. Let it change. If you stay flexible and open to new ideas while you write, your paper will become deeper and more relevant. And if you wait to start writing until you have finished thinking, you may never start writing at all.

Have a Plan.

But you must have some plan in place before you begin—whether it is a scribbled work page or a detailed, numbered outline. For example, before William Langiewische wrote his 70,000 word article, “American Ground: Unbuilding the World Trade Center,” in The Atlantic Monthly (July and August, 2002)—the longest magazine article ever published—he created a handwritten flow chart taking up several feet of butcher paper. (Langiewische’s butcher-paper outline is reproduced in this Columbia Journalism Article.)

Outline As You Go.

Outlining works. It is a flexible, efficient tool for organizing your thoughts. But many lawyers avoid outlining, believing it requires them to have a global vision of their paper before they write.

Instead, outline in piecemeal fashion while you write. Begin with the most obvious themes: What is your most important case or line of cases? What headings summarize those cases? Then work through your research, case by case, creating new headings and plugging cases into existing headings.

If you approach outlining as a tool, rather than a rigid guideline, outlining will give you control over your writing because it will keep you focused on the big picture. Again, the goal is to have a perfected outline in place by the time you finish writing.

Once you have finished writing and your outline is complete, use that outline as the master key for proofing the structure of your paper. If the outline is perfect, then so is the structure of your paper. The craft of legal writing becomes art through masterful use of structure, so your finished outline is your best resource for fine-tuning structure.

Outline from Memory.

The mind is a wonderful sifting device. If you let your ideas ferment in your brain, the cream will rise to the top. So begin outlining from memory. Your best ideas are probably the ones that come to mind first.

Use Your Research Files As an Outline.

If you have filed your research carefully, those files can also serve as your outline. Keep a careful filing system, with files for major topics and sub-files for lesser topics. Arrange the files in a logical order and order the cases or statutes within each file, as well. The resulting order will resemble the dreaded linear outline and involves only a fraction of the effort involved in creating a linear outline from scratch.

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Next, we’ll talk about thinking with your hands, writing in layers, and talking to yourself while you write. (It helps to be a little bit crazy.) Stay tuned.

P.S. Chapter 12 of  My book covers The Process of Writing and Overcoming Writer’s Block in more detail.

 

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Good Writing Habits That Will Make Your Writing “Flow.”

Posted: May 2nd, 2012 | Author: | Filed under: Efficient Work Habits | Tags: , , , , | 1 Comment »

My clients often complain to me about how long it takes them to write their papers. I remind them that good writing takes time and care. But we all want to be faster, cleaner and skinnier—both in writing and in life. So this week we are talking about the discipline of writing. What are the habits that will help us to write more efficiently? Yesterday, we talked about Working On a Big, Clean Screen. Now that you are sitting calmly in front of your giant screen, what’s next?

Find the “Flow”

Writing is a solitary activity. Writers and other creative people are often most productive—and most happy—when all other distractions are shut out so that they become totally immersed in their work. In his groundbreaking work, Flow: The Psychology of Optimal Experience, the influential psychologist, Haly Csikszentmihalyi, describes the feeling of “flow” that accompanies total absorption in work:

Concentration is so intense that there is no attention left over to think about anything irrelevant, or to worry about problems. Self-consciousness disappears, and the sense of time becomes distorted. An activity that produces such experiences is so gratifying that people are willing to do it for its own sake, with little concern for what they will get out of it, even when it is difficult or dangerous.

Carve Out Time for Writing

Because writing is so demanding, you must set aside time to make it happen. Shut out the world, if only briefly. The essence of writing is reflection and a single block of uninterrupted time will make you productive and focused.

Try working in 45-minute segments, with a 15-minute break as the hour ends to turn to other tasks. 45/15 works like a charm for me.  I can always focus my wandering mind for 45 minutes and email (and life) lose their hold during those writing minutes, because I know I have 15 minutes coming soon to turn life back on. When the next writing hour starts, I feel refreshed and sharp and I see things that I didn’t see when I stopped writing.

Don’t try to push your writing time much beyond and hour and a half. It’s hard to keep a sustained focus for hours and hours. And, in our busy professional lives, it’s not always wise or professional to expect the world to leave us alone for hours on end.

Avoid Multitasking While You Write. (That means no email.) 

Yes, your colleagues expect you to check your email constantly unless you are Asleep or in a Tunnel and your employment contract prohibits sleeping anyway. But switching between tasks makes you less efficient, particularly with complicated tasks such as writing. A 2005 study, No Task Left Behind? Examining the Nature of Fragmented Work,  found that office workers were interrupted an average of every 11 minutes and that, after each interruption, it took 25 minutes to return to the original task. Twenty-five minutes!

After being interrupted, you may not remember where you were in writing a paragraph or dissecting a case. Do you really have a half hour available to get back in your groove? Are minor interruptions, such as email, worth a half hour of your time? Turn off the incoming sound on e-mail so that you feel less like you are on call. Check email if you must, but limit yourself to once an hour. Try holding your phone calls and shutting the door.

And if you really can’t ignore the juicy little ping of email, use a program that shuts the damn thing down and saves you from yourself.

Stop Surfing

The Internet is irresistible. Resist. Resist. Resist. Disconnect while you write. The world will still be there when you return and no one will have even noticed that you were gone.

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In my next posts, I’ll share more tips for whipping your writing life into shape. Stay tuned!

P.S. from the Shameless-Self-Promotion Department: My book is brimming with tips like this.

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One Comment on “Good Writing Habits That Will Make Your Writing “Flow.””

  1. 1 A Lawyer's Guide to Writing » Blog Archive Good Writing Habits said at 9:56 pm on May 9th, 2012:

    […] talked about habits that lead to efficient writing, such as working on a Big Clean Screen and Finding the Flow. Today, let’s dig deeper and focus on the importance of planning before you write and […]


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Work Habits for Efficient Writing

Posted: May 1st, 2012 | Author: | Filed under: Efficient Work Habits | Tags: | 2 Comments »

“And I know it seems easy,” said Piglet to himself, “but it isn’t everyone who could do it.” 

—A. A. Milne                                   

Writing is a discipline so it requires efficient, disciplined work habits. Since we lawyers are being paid to write, we do not have the luxury of waiting for inspiration to strike. Like any professional writer, we must produce on demand.

If you develop good writing habits, those habits will become ingrained. Over time, you will find that writing becomes easier and faster. You will become less bogged down in the process and will have more time to immerse yourself in the final product. So focus on building good habits now. You’ll reap results immediately in improved papers. You live the results for years as your writing life evolves to entail less struggle and more reward.

In the next few posts, we’ll talk about the process of writing, including how to develop good writing habits and how to overcome writer’s block. Here are a few tips to get us started.

Work on a Big Screen

One of the most effective techniques for improving productivity is the size of your computer screen—and the bigger the better. A 2005 New York Times article, Meet the Life Hackers  discusses research by one of the world’s leading experts in “interruption science,” Mary Czerwinski. She found that people completed tasks from 10 percent to 44 percent more quickly if they worked on a massive, 42-inch screen. While most of us probably do not have the luxury of 42-inch screens, you should opt for as large a monitor as you can justify. If you work from a laptop, plug it into a generous monitor.

Keep Your Screen Clear

And keep your screen as clear as possible while you are writing. Czerwinski’s research also showed that a clean screen led to a calm mind and improved productivity.

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Now that you are sitting calmly before your humongous screen, stay tuned for more posts on good writing habits.

P.S. from the Shameless-Self-Promotion Department: my book contains many more scintillating tips like this.

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2 Comments on “Work Habits for Efficient Writing”

  1. 1 A Lawyer's Guide to Writing » Blog Archive Good Writing Habits said at 9:52 pm on May 9th, 2012:

    […] few posts, we’ve talked about habits that lead to efficient writing, such as working on a Big Clean Screen and Finding the Flow. Today, let’s dig deeper and focus on the importance of planning before […]

  2. 2 A Lawyer's Guide to Writing » Blog Archive Writer's Block said at 2:57 pm on May 16th, 2012:

    […] talked about the good work habits that lead to fast, efficient writing. You know that you should work on a big, clean screen and avoid multitasking so that you can find the “flow.”  You know that you should have […]


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His or Her? Avoid the Gender Minefield by Using Plurals.

Posted: April 24th, 2012 | Author: | Filed under: Grammar, Punctuation, and Usage, Plain English: Tips | Tags: , , | No Comments »

It’s hard isn’t it? As lawyers, we don’t always know the gender of the person we are writing about or we are writing about abstract issues that could apply to anyone—male or female. His sounds sexist and it is inaccurate where you don’t know the gender. Her sounds a little too political. His or Her is more accurate than either word alone, but it still sounds awkward and technical.

You can avoid the gender minefield by using plurals. Rewrite A student may leave his or her books on the tables as Students may leave their books on the tables.

And never use his/her. His/her fails the test for plain English because it is not even pronounceable.

In a longer work, such as a book, you can always turn to the marvelous Dr. Spock for an answer. In his classic book, Baby and Child Care, Dr. Spock talked about his abstract babies by alternating between his and her. It worked in 1946 and it is still a good technique. (Dr. Spock introduced each abstract baby, by saying “Let’s say it’s a boy (or a girl).”  That introduction that would not be necessary today, since we are accustomed to thinking across genders.)

 

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Make Your Citations User-Friendly: Avoid Using “Supra”

Posted: April 4th, 2012 | Author: | Filed under: Talking About the Cases | No Comments »

Use the Book Reference, Rather than Supra

Don’t make your readers look back in your paper to piece together a complete citation. Your goal should be to keep your readers’ eyes moving forward and to make every citation as user-friendly as possible. Supra citations—such as Smith, supra at 222—send your readers scurrying back through your paper to find the original book reference. They stop your readers eyes from moving forward and interrupt the pace of your writing.

Don’t send your readers on a wild goose chase. Instead, repeat the book reference and say Smith, 400 F.2d at 222. If your readers are likely to know the name of the case, skip the name and simply say 400 F.2d at 222.

Use Id. Citations—But Not Too Many

Even though id. citations may require your readers to look back in the paper, id. citations are less troublesome than supra citations. Because id. citations refer to the immediately preceding citation, your readers do not have to wander far to complete the citation. And id. citations are so short that they are rarely disruptive. So, even though you should substitute the book reference for supra citations, you can leave your id.  citations alone.

But use id. citations as an editing signal. Id. citations at the end of two or more consecutive sentences usually mean the sentences can be combined.

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So make life easy for your readers. Don’t send them hunting for basic citation information.

 

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Avoid Restating the Other Side’s Argument

Posted: March 29th, 2012 | Author: | Filed under: Mission Critical Stuff, Talking About the Cases | Tags: , , , , | No Comments »

Don’t fall into the trap of restating the other side’s argument as a prelude to attacking that argument. A true advocate never dedicates a sentence to explaining the opponents’ position.

For example, if the issue is whether your client has defrauded customers, don’t dedicate a sentence to the other side’s argument that “Courts will pierce the corporate veil where the corporation has defrauded its customers.” Instead, restate the argument from your client’s angle: “The courts will not allow a pierce where a corporation is adequately capitalized unless there are clear markers of fraud.” Or work opposing authority into an “although” clause to avoid dedicating a whole sentence to discussing that authority. For example, say “Although courts have pierced the veil where corporations have defrauded their customers, our clients never acted fraudulently.

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Make your opponents do their own work. Don’t do it for them.



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How to “Scrub” Hidden Metadata from Word Documents

Posted: March 28th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Proofreading, Word Processing Tips | Tags: , , , | No Comments »

What is Metadata?

Most Word documents contain hidden metadata that shows the history of the document. That data shows when the document was first created, who authored the document, total editing time, and the last time the document was modified. Even more troubling, if the document was edited in Track Changes, those comments and revisions may still be accessible even though you have turned off Track Changes.

You never want your opposing counsel or a judge to see a comment in your brief explaining that a certain case goes against your position, but that you have decided not to cite that case. And you certainly don’t want them to see a comment that may contain confidential information about your client. Indeed, you don’t want to share information that might seem harmless, such as the date you created the document or the amount of time you spent editing the document.

The PDF Option

If you are sharing a document that does not need to be edited or revised, save it as a PDF before sharing. The PDF will not show hidden metadata.

How to “Scrub” a Word Document

But if you must share a document in Word format, you’ll need to take some extra steps to “scrub” hidden metadata from the document. Indeed, you might want to “scrub” your documents as a matter of routine before sharing them with anyone outside your office.

First, you should instruct Word  to warn you before you save or send a file that has been edited with Track Changes:

  • Click on the File tab
  • Select Options
  • Go to the Trust Center box
  • Click on Trust Center Settings
  • Click on Privacy Options on the right
  • Check Warn before printing, saving or sending a file that contains track changes or comments.

Second, you must scrub the paper of hidden metadata. Turning off Track Changes will not scrub your paper of comments. Instead, you must use the Document Inspector to remove the hidden metadata. Here’s how:

  • Click on the File tab
  • Click Check for Issues in the Prepare for Sharing box
  • Click Inspect Document
  • Check four of the six boxes: (1) Comments, Revisions, Versions, and Annotations; (2) Custom XML Data; (3)Document Properties and Personal Information; and (6)(at the bottom) Hidden Text.
  • The Document Inspector will then identify the types of hidden data in the document and give you the option to Remove All of each type of data.

The Document Inspector will not remove highlighting, so you must remove it yourself:

  • Click the File tab
  • Click Options
  • Click Display
  • In the box for Page Display Options, turn off Show highlighter marks.

Work from Templates to Avoid the Problem of Metadata

In The Lawyer’s Guide to Microsoft Word 2007, Ben Schorr offers a great suggestion for limiting metadata. He suggests that you avoid the common practice of working from existing documents, because existing documents may still contain metadata. Instead, he recommends that you work in your office’s squeaky-clean templates and copy passages from the donor document into the template as needed. (Every lawyer should have Schorr’s book on their desk. Here’s the link to the updated version: The Lawyer’s Guide to Microsoft Word 2010. ) But remember, if you work in Track Changes in the new document, you will have to scrub it when you are done.

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So never share your secrets. How clean are your documents?

(By the  way, my book, contains many more tips like this.)

 

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How to Proof for Formatting Errors

Posted: March 23rd, 2012 | Author: | Filed under: Plain English: Tips | Tags: , , , | No Comments »

As you get close to finishing your paper, work in a view that shows what your paper will look like when printed. In Microsoft Word, my favorite views are Print Layout and Full Screen Reading View. If you have been working with Track Changes turned on and are not ready to accept all changes, review the document in Final view, without markups showing. (Click the Review Tab/go to the Tracking box/keep Track Changes enabled/select Final (not Final Show Markup)). Editing in these views is similar to editing on hard copy—only better because you can make the actual corrections as you go.

The Print Preview view is particularly useful for catching formatting errors. (To get to Print Preview view, click on File and select Print or use CTRL+F2. The Print Preview view will show on the right of your screen.) Scroll through your paper quickly, using the page up and page down keys, to review for formatting and style. For example, scroll through to check that all Roman-numeral or primary-level headings are written in parallel construction, such as sentences or phrases. Now go back to the beginning and review each heading quickly for consistency in capitalization, such as the use of initial caps. Now scroll through even more quickly to be sure that those headings are sequentially numbered. Finally, page through at warp speed to check indents and line-spacing. Next, look for any tables to be sure that they are all aligned correctly. Now check page numbers. Next, drop down to your subheadings or secondary headings and run those headings through the same levels of review. If you page through at lightening speed, your eye will easily pick up on any problems with margins, indents or spacing. Indeed, as you proof some of these design elements, your eye can stay in the same place on the screen—making it easier to pick up things like a shift in indents or margins.

Yes, this is a multi-step process, but each step goes quickly. And the errors show up in neon lights if you are focusing a laser eye on looking only for that type of error.

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Eight Steps for Proofreading

Posted: March 21st, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Proofreading | Tags: , , , | No Comments »

1. Go to the Zone

Again, proofreading is a different skill than writing or editing and it requires a different mindset. As you take this final pass at your paper, you must resist the urge to think the big thoughts. Ignore content. Get out your magnifying glass and drop down to the level of sentences and individual words.

2. Divide Tasks

Don’t read your paper through from beginning to end and try to catch every error. Instead, approach each proofreading task separately. First, check spelling. Next, read sentence by sentence or paragraph by paragraph for syntax errors. (I suggest you read backwards. Read on.)  Next, check formatting and design issues.

If you approach each proofreading task separately, you will be sure that you complete each proofreading task and that you give each task the attention it needs.

3. Spellchck

Oops! I mean spell check. Spellcheck is annoying—and annoyingly smart. (Why does it remind me of the Recalculating voice on my GPS?) Spellcheck should be your front-line defense against embarrassing spelling errors. It won’t catch misused words, such as principal instead of principle, but it will catch most of your spelling errors.

Many lawyers avoid spell checking because Spellcheck highlights many legal terms as spelling errors. However, if you add these words to your custom dictionary, Spellcheck will stop chastising you every time you use these words. (To add a word to your custom dictionary, right click on the squiggled word and click Add to Dictionary in the pop-up box. If Add to Dictionary does not show up as an option, it’s because you have not yet created a custom dictionary. I’ll post on that fascinating topic later.)  Add common legal terms, client’s names and technical terms that you use frequently to your custom dictionary.

4. Read Your Work   s       l       o       w       l       y

Spellcheck will not reliably differentiate between common homonyms, such as there and their, or catch properly-spelled-but-misused words such as complaint, instead of compliant. So you must actually read your work at least once to catch errors. The key is to read slowly. But how do you slow your self down?

5. Read Backwards by Paragraph

Most of us are so programmed to work at top speed that we need a technique to slow us down to proofreading speed. First, print out your paper. Then work backwards from the end of the paper to the beginning. Some people suggest reading each line backwards or each sentence backwards, but that level of backwardness is too glacial for me. Instead, try reading backwards by paragraph. Treat each paragraph as if it were an island. Start with the last paragraph and read it through. Then move up to the second-to-last paragraph and so on. If you are really error prone, treat each sentence as an island and work backward sentence-by-sentence.

6. Put a Check Beside Each Paragraph As You Read

Once you are satisfied with a paragraph or sentence, put a check beside it. The hand slows the mind down, so manually putting a check beside each paragraph or sentence will force you to  read carefully.

7. Review Headings Separately from Text

Substantive headings are an editing tool because they verify a strong foundation. Therefore, even if your paper does not require a separate table of contents, treat your headings as a unique unit and review them separately. Are headings correctly numbered? (Again, confusing standard numbering will make your headings work against you, rather than for you.) Does each heading lead into the next? Are all headings written in parallel grammatical structure? Are subheadings correctly labeled?

8. Use Your Word-Processing Program to Help You Proofread

As you write, use word-processing features to avoid errors. Use the Autocorrect function to correct proper nouns that you often misspell, to be sure you are using your chosen identifying terms throughout, or to assure consistent usage (such as % instead of percentage or its instead of it’s). (To add a word to Autocorrect, click on the File tab/click Options/click Proofing/click Autocorrect Options/check Replace text as you type/fill in the word you want replaced and the word you want to replace it with/click OK. ) Set up Grammarcheck to require periods inside quotations. (Click on the File tab/click Options/select Proofing/in the box for When correcting grammar and spelling in Microsoft Word, click Setting/click Punctuation required with quotes/select Inside.)

Once you are done writing, use the Find function to weed out pesky constructions and common punctuation errors. Search for by to weed out passive voice and for ment and ion to weed out nominalizations. Weed out pesky adverbs by searching for ly. And keep a mental list of terms that you commonly misspell and then search for those terms. I can’t spell lose for the life of me, so I always search for loose as part of my proofing ritual.

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By the way, it took me forever to proof this post!

P.S. from the Shameless-Self -Promotion Department: My Book has lots more tips like this!

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The Importance of Proofreading.

Posted: March 20th, 2012 | Author: | Filed under: Proofreading | Tags: , , , | No Comments »

When senior attorneys express concern to me about a young colleague’s work, they invariably focus on minor proofreading errors. This laser focus on perfection—justified, or not—means that you, too, must focus on proofreading. Lawyers and judges are crazy about the little things so you must aim for perfect. Yes, perfect is the enemy of done. But in the legal world, you are not done until it is perfect. Sloppy proofreading errors will detract from your credibility and drive your colleagues to distraction.

Failing to perfect your paper can also damage your reputation in a very visible way. In 2004, a federal district court judge in the Eastern District of Pennsylvania reduced the fees due to a lawyer by $30,000 where the court considered the lawyer’s work “careless, to the point of disrespectful.” In a scathing opinion, the court gleefully repeated some of its favorite typographical errors and characterized those errors as “epidemic.” I’m not citing or linking to the opinion here, because I promised not to pick on people in this blog. But the opinion has been widely discussed on the Internet—increasing its visibility on search engines. You never want to find yourself in the position where a Google search of your name delivers a scathing indictment of your abilities.

Proofreading is a different skill than writing or editing and it requires a different mindset. It’s tedious, scientific work. It  requires you to resist the urge to think the big thoughts and to drop down to the level of sentences and individual words.

In my next posts, we’ll discuss some of the techniques for proofreading, so stay tuned!

-Marie

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Subliminal Fear of Subparagraphs

Posted: March 15th, 2012 | Author: | Filed under: Grammar, Punctuation, and Usage, Most Popular Posts | Tags: , , | No Comments »

Many of us harbor deep, subliminal fears about writing in subparagraphs. We wonder when we should use subparagraphs instead of prose or bullets. We forget how to punctuate the little buggers. And we sweat about grammar—particularly “parallel construction.” Let’s address each fear.

When to Use Subparagraphs

Subparagraphs are helpful if you have a list of similar items and some items are more important than others or the order of the items matters. If all the items are equally important, you can use Bullets instead.

How to Punctuate the Little Buggers

When using subparagraph format:

  1. put a colon at the end of the phrase that introduces the subparagraphs;
  2. put a number at the beginning of each subparagraph;
  3. conclude each numbered subparagraph with a semicolon;
  4. put and or or after the semicolon in the penultimate paragraph; and
  5. end the last subparagraph with a period.

Since White Space is so delicious, your reader will love you for indenting your subparagraphs and putting a blank line between them.

If you are the squishy type, you can squeeze your subparagraphs into a traditional paragraph, with no indents and no line spaces. The squishy version is fine if you have only a few subparagraphs, but otherwise the white-space version goes down more easily. The same rules apply in the squishy format: (1) use a colon to introduce the subparagraphs; (2) put a number at the beginning of each subparagraph, but put the number in parentheses so it is easy to pick out of text; (3) put a semicolon at the end of each subparagraph; (4) put and or or at the end of the penultimate paragraph; and (5) finish with a period.

In other words, your subparagraphs should look like the subparagraphs I just wrote.

The All-Important And or Or

In legal writing, the words and or or are often the most important part of the subparagraph, so be sure that you use them correctly. And signifies that every element of the test matters. The five parts of misrepresentation, for example, always require the word and because a party must satisfy all five elements of the test. If the elements are optional or interchangeable use or.

Never ever use and/or. And/or is sloppy, ugly writing and it fails the test for plain English because it’s not a phrase we would use in conversation. (If you use and/or in conversation, your problems are far deeper than anything I can help you with here.)

Parallell Construction

Writers frequently make grammatical errors when writing subparagraphs because the front half of their sentence (the part before the colon) does not fit nicely with the back half (the part after the colon). To avoid these grammatical errors, “glue” the front and back of the sentence together. Mentally copy the words in each subparagraph to the end of the introductory phrase before the colon. Does the glued-together sentence make grammatical sense? If not, make whatever edits are necessary to make the two halves of the sentence fit together grammatically. Do this for each subparagraph.

Or simply begin each sentence the same way. Even the most subparagraph-challenged writers usually write the first subparagraph correctly. So use the same construction in later subparagraphs and your subparagraphs will glue together in the most grammatically wonderful way. For example, in my subparagraphs above, each subparagraph begins with a command: put, put, conclude, put, end.

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So fear not. Number away.



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The Three Essential Rules for Writing

Posted: March 13th, 2012 | Author: | Filed under: Mission Critical Stuff, Most Popular Posts, Structure (Important Stuff Here) | Tags: , , | 1 Comment »

All my suggestions for powerful writing boil down to three guiding principles. And these principles apply not only to formal briefs and memoranda, but to the many mediums in which modern lawyers work—letters, email, blogs, newsletters and even PowerPoint.

The Three Rules

1. Use plain English.

2. Lead from the top.

3. Tell your reader what to do next.

Rule One: Use Plain English

We’ve all heard the common admonition to “use plain English.” Our clients speak a modern language and we should too. So if you would not use a word or phrase when speaking with a colleague, don’t use it in your writing. Speak human.

Rule Two: Lead from the Top

The principle of “leading from the top” is the single, most effective tool for strong writing and the essential rule for structuring any piece of writing. If you open your paper by telling your reader what is important, they will look for that information as they read. When you present that information later, the reader will seize on it and it will click quickly, like a puzzle piece snapping into a space that you have already prepared for it. And the principle of leading from the top is like a fractal because it applies on large and small scales. Lead a paper with your conclusion. Lead a section with a substantive heading. Lead a paragraph with a summary sentence. Lead an email with a strong subject line. Lead the message itself with a summary sentence. Leading from the top is the key to tight, logical writing.

Rule Three: Tell Your Reader What to Do Next

Sane people don’t read briefs, contracts and business letters for pleasure. They read them because they are being paid to read them or because they have a problem and need to read them. What do they want? They want to know what to do next and your job is to tell them. What is the client’s problem and what should they do next? What relief are you asking the court to grant?  What do you want your colleague to do after reading your e-mail or your letter? Use your writing to make things happen in the real world.

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So one, two, three. Get set! Write!

(If you want a deeper explanation of these three principles, my book covers these principles and others in much more detail.)

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One Comment on “The Three Essential Rules for Writing”

  1. 1 A Lawyer's Guide to Writing » Blog Archive The importance of pattern in legal writing said at 9:40 pm on May 31st, 2012:

    […] The most common examples of pattern in legal writing are forms. Because we are so familiar with common legal forms, they make reading easier because we know where to look in the form for certain information. But don’t be enslaved to a form. Use a form only if it follows the three essential rules of writing. […]


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More Clichés: Let’s Get our Ducks in a Row!

Posted: March 1st, 2012 | Author: | Filed under: Most Popular Posts, Plain English: Tips | Tags: , , | No Comments »

We lawyers are not alone in our use of clichés. Clichés seem to have infiltrated most professions. Police fear the word now and jazz it up to at this point in time and their investigations are always ongoing. In the business world, all job applicants are innovative, results-oriented, dynamic team players with a proven track record. Once those team players are hired, they are at the mercy of human resources departments that are always magnanimously reaching out to someone or, less magnanimously, downsizing or reallocating resources. The business world is relentlessly proactive and cheerily focused on optimizing results and utilizing resources. In those hallowed halls of business, someone always wants to dialogue, to circle back, or to get face time. There are matrices to build and paradigm shifts to navigate. To be a valued employee, you must row in the same direction, hit the ground running, and get your ducks in a row. And once your ducks are in a row, you must be on your game so that you can run a smell test to discern when someone has put lipstick on a pig.

If your husbandry skills are lacking, you can always leave the business world for academia where students must demonstrate competency or proficiency and avoid risky behaviors. But educators are ready to help by providing support services, by nurturing life-long learners, and by encouraging emerging readers. (But I do admire the optimism!) And when those emerging readers finish emerging, they can learn about books from literary critics, who always seem to find the books that are translucent, gripping, haunting, riveting, compelling, lyrical and evocative.

Admittedly, some professional clichés serve a real purpose in spoken language. They are picturesque or funny and the shared language encourages bonding among enslaved tribes. But clichés don’t belong in our writing because our writing should be slightly more formal than our speech.

So let your writing identify you as a member of the human race, rather than as a member of a particular profession. Now, I’m off to put lipstick on my pig . . . .

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Legal Clichés that Should Be Illegal

Posted: February 28th, 2012 | Author: | Filed under: Plain English: Tips | Tags: , | No Comments »

Welcome to cliché week on my blog! Every profession has its own clichés. This week, we’ll review some common clichés in the legal profession and the world beyond.

Clichés are a writer’s cop-out. Using clichés suggests that you can’t find your own words. Avoid tiresome clichés and speak human instead.

Let’s start with some common legal clichés :

  • within the purview of
  • slippery slope
  • Achilles’ heel
  • Pandora’s box
  • fishing expedition
  • part and parcel
  • lion’s share
  • pulled out of whole cloth
  • can’t see the forest for the trees
  • the devil is in the details
  • all fours
  • red herring
  • fraught with peril
  • second bite at the apple
  • cut to the chase
  • it is axiomatic that
  • eminently qualified
  • incumbent upon
  • dilatory tactics
  • begs the question

… and so on ad nauseum.

Coming next: clichés from other fields, such as human resources. (Friends, we are not alone.)

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Steer clear of the school of redundancy school.

Posted: February 17th, 2012 | Author: | Filed under: Plain English: Tips | 2 Comments »

As writers, we often try to add emphasis by piling similar words on top of each other—words that are often redundant and add little. Stick with the unadorned word and avoid redundant phrases, such as these:

Redundant phrases                            why

the end result                                       All results are end results.

the general public                                The public means the general public.

interrelationships                                  All relations are inter.

personal friends                                    All friends are personal.

return back                                          There is no place to return to but back.

individual person                                   Each person is an individual.

the upcoming future                             The future is always upcoming.


2 Comments on “Steer clear of the school of redundancy school.”

  1. 1 Oliver Lawrence said at 4:04 pm on February 17th, 2012:

    For ‘upcoming future’, presumably the mythical writer meant ‘immediate future’, as opposed to the long term. And you can have ‘interim results’, especially in a financial context, so I don’t think ‘end result’ is necessarily tautologous.

    Redundancy can also arise within a single word, as the lamentable ‘irregardless’ (try ‘regardless’ or ‘irrespective’ instead) reminds us.

  2. 2 mariebuckley said at 3:49 pm on March 1st, 2012:

    All good points. But “immediate future” is much better than “upcoming future.” I see your point on financial results, too. Thanks for pointing these out.


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Don’t bring no double negatives . . .

Posted: February 14th, 2012 | Author: | Filed under: Plain English: Tips | Tags: , , , | No Comments »

We all know to avoid double negatives, such as “He is not bringing no bananas.” But we should be equally wary of the double or triple conceptual negative, in which one negative concept cancels out another negative concept, which cancels out the original negative concept.

For example, what is “a decision vacating an injunction prohibiting the state from requiring a sex offender to register?” Think positively and say “The decision allows the state to require a sex offender to register.” If you must explain the procedure more precisely, do so in a follow up sentence: “Specifically, the court vacated an injunction. . . .” (Your reader will forgive the conceptual double negative in the “specifics” if you have already translated the double negative for them.) What does it mean if “A court reversed a decision enjoining the enforcement of a regulation that prohibited the use of alcohol?” Simply say that “The Appellate court allowed the town to prohibit the use of alcohol” and follow up with a sentence detailing the procedural history, if necessary. “The speech would not be an unprotected expression under the First Amendment” means that “The speech would be a protected expression.” “The court voted not to allow” means that “The court voted to prohibit.” “It is unlikely to be inaccurate” means “It is likely accurate.”

So don’t be so negative. Stay positive!

-Marie

P. S. My book, The Lawyer’s Essential Guide to Writing (ABA 2011), zealously avoids double negatives.  #shamelessbookpromotion

 

 

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