Did gyre and gimble in the wabe;

All mimsy were the borogoves,

And the mome raths outgrabe.

Beware the Jabberwock, my son!

The jaws that bite, the claws that catch!

Beware the Jubjub bird, and shun

The frumious Bandersnatch!

--Lewis Carroll

nunc nuper narravisti, sed nunc Anglice.

--Henry Beard, Latin for All Occasions, p. 35.

D. What did you bring that book that I did not want to be read to out of up for?

-- a boy to his father

What is wrong with these pictures?

Makes your fingers fall off.

--Kentucky Fried Chicken Ad, as mistranslated abroad.

To move the cabin, push button of the wishing floor. If the cabin should enter more persons, each one should press the number of wishing floor. Driving is then going alphabetically by natural order. Button retaining pressed position shows received command for visiting station.

--Elevator directions in a Madrid hotel.

Is forbidden to steal hotel towels please. If you are not person to do this, please not to read notis.

--"Notis" in a Tokyo hotel room.

English well talking.

--Sign in a Majorcan shop.

The flattening of underwear with pleasure is the job of the chambermaid.

--Notice in a hotel in Yugoslavia.

Policeman: What countryman are you?

Sailor: I am sailor belong to the Golden Eagle, the British ship.

Policeman: Why do you strike this jinriksha man?

Sailor: He told me impolitely.

Policeman: What does he told you impolitely?

Sailor: He insulted me, saying loudly "the Sailor, the sailor" when I am passing here.

Policeman: Do you striking this man for that?

Sailor: Yes.

Policeman: But do not strike him for it is forbidded.

Sailor: I strike him no more.

--from The Practical Use of (English) Conversation for Police Authorities, quoted in Jack Seward, The Japanese, 1972.

Correctly English in 100 Days

--East Asian book

A mouse is what is eaten or caught by a trap or a cat.

--From David Mellinkoff, Legal Writing: Sense and Nonsense, p. 59.

All the king's servants, and the people of the king's provinces, do know, that whosoever, whether man or woman, shall come unto the king into the inner court, who is not called, [there is] one law of his to put [him] to death, except such to whom the king shall hold out the golden scepter, that he may live: but I have not been called to come in unto the king these thirty days.

Esther 4:11; King James Version (1611).

Any person who, by means of any machine, instrument, or contrivance, or in any manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable,, or instrument of any internal telephonic communications systems, or who willfully and without consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any such wire, line or cable, or is being sent from or received at any place within this state, or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of thee acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison not exceeding three years, or by both such fine and imprisonment in the county jail or in the state prison.

--California Penal Code � 631(a) quoted by Richard Wydick.

Exodus 8:7 Altered Version

[A]s the Lord In accordance with the

commanded . . . he directive theretofore

lifted up the rod and received from higher

smote the waters of the authority, he caused

river . . . and all the the implement to come

waters that were in the into contact with the

river were turned to water, whereupon a

blood. And the fish polluting effect was

that were in the river perceived. The

died; and the river consequent toxification

stank; and the reduced the conditions

Egyptians could not necessary for the

drink the waters of the sustenance of the

river; and there was indigenous population

blood throughout all of aquatic vertebrates

the land of Egypt. below the level of con-

tinued viability.

Olfactory discomfort

standards were

substantially exceeded,

and potability declined.

Social, economic and

political disorientation

were experienced to an

unprecedented degree.

--Exodus 8:7 (Translated by Richard Wydick).

Common sense would dictate that in order to recognize common grammar problems, one must be familiar with common grammar rules.

This manual is not designed to replace a good grammar book. In fact, it is inadequate to replace a substandard grammar book. Instead, it provides just enough grammar to illustrate common grammatical errors found in legal writing. Here is a quick over-view of the major topics addressed in this section:

Parts of speech (but you will not be required to diagram a sentence)

Verb tenses

Who/whose/whom

Plural forms of words

Prepositions

Nouns stand for a person, place, or thing. Pronouns stand for nouns. English nouns and pronouns have three cases: nominative (subject), genitive (possessive), and objective (direct or indirect objects or objects of prepositions). The nominative and objective of nouns is always the same. Pronouns can have different forms for nominative and objective. There are two grammatical numbers in English: singular and plural.

The nominative is used for the subject of a sentence. The subject is the one who performs the action described by the verb. The objective is the one for whom or for which (indirect object) or to whom or to which (direct object) the action is performed.

You identify the subject, direct object, and indirect object of a sentence by its position in the sentence:

The man gave the boy a goat.

He give it to him.

He gave him a goat.

A verb is an action word or a word showing state of being. It can take an object (transitive) or not (intransitive). "To be" is a linking verb.

English is honored in the Guiness Book of World Records for having the most irregular verbs of any language. Even native speakers of English hesitate before writing the past tense of "to swim," "to stink," or "to sneak." Some of the most common irregular verbs you may encounter in legal writing include the following:

Subject-verb agreement is such a problem because English verbs only have one remaining inflection for person and number. The third person singular form of verbs adds "-s."

I walk we walk

you walk you walk

he walks they walk

she walks it walks

The verb "to be" is irregular. It is conjugated as follows:I am we are

you are you are

he is they are

she is it is For all practical purposes, the verb "to be" is so natural you need not worry about it too much. The only real concern is whether certain subjects are singular or plural.

Each, every, and many are singular.

Many is plural.

Anybody, everybody, somebody, nobody, anything, and everything are singular.

Few and both are plural.

Singular nouns ending in "-s" are still singular:

A compound subject is plural:

Two singular subjects connected by "or" or "nor" are singular:

When a singular subject and a plural subject are joined by "or" or "nor," you use the verb form appropriate for the part of the "or" clause that is nearest the verb:

Some writers say to try to put the plural side of the "or" clause next to the verb, but there is really little basis for that rule.

About the only thing that you must remember about the genitive is that genitive pronouns do not have apostrophes (with the sole exception of "one's," which means "that which belongs to one.")

This is tricky because the possessive of genitive pronouns is often confused with the following contractions:

The possessive of it is its (no apostrophe), if you are talking about something that belongs to a thing.

The possessive of who is whose (no apostrophe), if you are talking about something that belongs to an undetermined person.

The possessive of you is your.

The who/whom issue is a big pain in the neck. Fortunately the use of whom is dying out. Unfortunately it is not dying out fast enough. Perhaps our grandchildren will not have to fool with it, but we do.

When who refers to the subject of a sentence the correct form is "who." Since we rarely think in grammatical forms, a substitution can be helpful. Here is a hint: see if the words he, she, or they can substituted for who. If so, would be appropriate to use who in the sentence.

Whom is the objective form of the word who. See if the words him, her, or them would be appropriate.

When who introduces a subordinate clause its case depends upon its function in that subordinate clause. The same is true of whoever:

The object of "to" is the phrase, not the word whoever:

Pronouns on either side of "to be" are in the nominative case. Although may people say feel that this sentence is wrong or awkward, the following sentences correctly utilize who/whom:

Plurals of English words can be a problem, especially in written English:

Back in the days of telegrams a movie director was making a movie that called for some mongoose action. He sat down to write a note to the animal trainer. He wrote, "Bill quick bring two mongooses."

He looked at the note and decided that it did not look right and began again. "Bill send me two mongeese."

That looked worse than the first. He again tore up the note and wrote. "Bill bring over two mongoose."

That did not look right either so he finally tore that note up as well and wrote, "Bill send me a mongoose, and while you are at it send me another one."

Prudent writers sometimes re-word a thought simply to avoid using a questionable or improper form of a word. Both of us have done so in our legal writing, because the old adage of better safe than sorry is not a bad motto.

An adjective modifies nouns.

An adverb modifies verbs, adjectives, or other adverbs.

It is possible to define prepositions, but for our purposes it's easier to give examples:

A prepositional phrase is a preposition plus complement. The complement can be a phrase, a noun or a pronoun. Occasionally there will be other words in the phrase, such as an article (a, an, or the) or an adjective:

A preposition takes an object. An object should be in the objective case. But when the complement is a phrase, the case of pronouns in that phrase depends on their function within that phrase.

A common misconception is that none of the words in the above table may appear at the end of a sentence (see non-errors, below). Do not overdo it. Once at bedtime a young boy asked his father:

Conjunctions are words used to connect words or constructions. "And" and "but" are conjunctions.

Interjections (using a sentence that would end in an exclamation mark) are common in law offices during the course of the day, but are seldom used in legal writing. The few times we have seen an "!" in a brief, it appeared out-of-place and ill-advised.

English grammar is very dependent on word order. The dangling participle is an example of misuse of English word order. A participle is formed from a verb. It can stand alone as an adjective or be combined with different helping verbs to form different verb tenses.

The present participle ends in "-ing."

The past participle ordinarily ends in "-ed," but it can also be irregular and formed without the use of "-ed."

The perfect participle consists of the word "having" added to a past participle.

The placement of a participle in relation to other parts of the sentence affects what part of grammar the participle becomes. When a participle appears before a noun or a pronoun, it functions as an adjective:

When it appears after a helping verb, it is a verb:

When it appears in a phrase, the phrase is called a participial phrase.

When a participial phrase begins a sentence, it modifies the subject of the sentence. In the example above, the participial phrase describes Mr. Bananaberry.

Sentences in which the introductory participial phrase does not modify the subject are ungrammatical because they have a dangling participle:

Word order is essential in English because there are few clues as to the function of words in a sentence. English retains only a few inflections (a change in the form of word, usually by affixation, to indicate a change in its grammatical function), and even those inflections are not terribly useful to show the function of words.

Antagonyms or contranyms are words which have two or more contradictory meanings. When using these types of words in a sentence, it is essential that the correct meaning of the word be apparent from the context of the sentence. Examples which are used in the legal profession include:

apparent:

Unclear

Obvious

assume:

To have

To pretend to have

enjoin:

To order someone to do something.

To order someone not to do something.

sanction:

Authoritative permission or approval.

A penalty for disobedience.

Moods. One of the grammatical features typical of Indo-European languages -- of which English is one -- is that verbs have moods. The mood system in English has almost disappeared. Nevertheless, there are still three moods in standard business English.

As English verbs have lost most of their inflected forms, there is often no visible difference to show the mood of a verb. English has three moods, the indicative, the subjunctive, and the imperative.

Indicative states a fact or asks a question.

Imperative makes a command or a request to the person addressed.

Subjunctive has a number of uses.

The present subjunctive is identical in form to the present indicative in all but the third person singular (he, she, or it) and with the irregular verb "to be." The present subjunctive is used after "that" clauses to introduce a situation that the subject wishes to bring about:

Small differences of meaning are conveyed with the present subjunctive.

means John has the money, and that fact is important.

means John better get enough money to buy a new car. He may not have enough yet.

The present subjunctive is used in several archaic formulas. It means "no matter how," "no matter what" or "even if" in phrases such as:

It follows the archaic "lest":

It is also used in the phrase "come . . . . " when "come . . . . " means "when . . . . comes":

The past subjunctive is a natural in legal arguments. It is used for "counterfactual" conditional statements. This is the quintessential legal argument for which lawyers are both revered (by clients) and reviled (by opponents).

If there were any evidence that the Defendant was elsewhere at the time of the accident, he had a chance to produce that evidence at the hearing.

If there were any merit to the argument that a snake can be a household pet, Defendant must still show that he was the rightful owner of the snake.

Again, a fine distinction can be made using the past subjunctive.

Some so-called errors are recognized as "non-errors" by most grammarians. Most of these "non-errors" originated when writers on grammar and usage fell into one of the logic, common sense, or "better language" comparison traps.⁽²⁾

The problem with non-rules is that far too many people believe they are actually real rules. If your reader does not know any better, he or she will think you do not know any better. Therefore the best recommendation is to never commit a "non-error" unless it is necessary to prevent your sentence from sounding confusing, ambiguous, strained, or awkward.

Split infinitives. It is impossible to split an infinitive in Latin. Therefore, prescriptivists argue, we should not separate "to" from the rest of the verb. Under this logic, the introduction to Star Trek:

is incorrect. But it sure sounds better than saying:

However, there is no actual rule of grammar against splitting an infinitive when style requires it.

Prepositional phrases ending a sentence. It is impossible to end a Latin sentence with a preposition. Even the most poorly educated Roman would not have done such a thing. The Latin rule is the functional equivalent of an English rule that you should never end a sentence with the word "the."

In English, however, a preposition is often separated from its object. Worse yet, prepositions are also used as parts of verbs.

"To look out" is different from "to look."

You may scream, "Look out!" to a person in danger, even though you end your sentence with a preposition.

If you are still confused, consider this story attributed to Winston Churchill:

An editor once "corrected" Churchill's writing to move a preposition from the end of a sentence. Churchill restored the original, noting that this was the sort of "bloody nonsense" up with which he would not put. After that, many versions of this story began to circulate. Churchill was again edited. This time by those who felt such a refined man as Churchill should not have used the term "bloody." In many reference books you will see "arrant pedantry," or "nonsense" or even "English."

What do you think he said?

In 1762, Bishop Robert Lowth wrote "A Short Introduction to English Grammar." That book created a number of arbitrary rules, including the one about prepositions at the end of sentences. Bishop Lowth was not an absolutist on the point, but many who came after him were absolutists.

Modern grammarians, for the most part, see no merit in this so called rule. George Curme, a renowned student of the grammar of Germanic languages, states that a preposition "often has a characteristic position at the end of a sentence or clause." This is particularly true with short sentences and questions:

But see William Safire, Fumblerules, who states unequivocally that this "rule" exists and should be strictly followed. For the proposition that Safire, in general, is a pretentious blowhard, see Steven Pinker's article in The New Republic, "Grammar Puss" (1/31/94).

Between v. among. Here is a short history lesson which explains the between/among dichotomy.

Language traditionalists believed that Anglo-Saxon was a better language than its modern daughter language. These people focused on the origin of between: "between" contained the Anglo-Saxon form for spelling of the number "2" -- "two." This spelling is comparable to the word "twain," which means "two." Therefore, figured these literal linguists, between should be used when there are two objects. By process of elimination, they decreed that "among" should then be used when there are more than two objects.

However, even traditionalists are forced to recognize that between should be used when comparisons of more than two things are made:

Using among in that sentence is just silly:

Also, most traditionalists would not expect you to say:

Conjunctions. Most of us who are baby boomers can easily name at least one part of grammar because of the catchy tune of Conjunction Junction -- what's your function?

Keep in mind that there is nothing wrong with beginning a sentence with a conjunction ("but" or "and"). But you should be careful how often you do it. And it can certainly be overused. But there is no rule that prohibits this usage. And it sometimes makes your writing flow more naturally. But as this paragraph illustrates, continually beginning sentences with "but" and "and" gets on the reader's nerves.

Nevertheless, there is no real rule against beginning a sentence with a conjunction.

The bottom line: If you use a word incorrectly, someone will notice -- especially if you use the word incorrectly in a legal pleading. Below are just a few of the words which are continuously misused.

Abstruse means "hard to understand."

Obtuse refers to a person who is slow to understand.

Legal writing is abstruse enough already, but it is even more incomprehensible when read by an obtuse lawyer. Both words are very negative.

In legal writing, rarely is either word appropriate.

Accede means "to comply with."

Exceed means "to surpass."

Adapt means "to change something so that it will fit with something else."

Adopt means "to take something on."

To take a child as one's own, one adopts the child.

Advice is a noun.

Advise is a verb.

When Myron Lerner tells Mr. Bananaberry to sue Mr. Robinson, he gives him advice, that is, he advises him.

To affect means "to influence, to change, or to assume."

Affect is ordinarily a verb, but it can be a noun in the field of physiology meaning "emotional."

Effect is used as a noun to mean "the result or impression." When used as a verb it means "to bring about or to cause."

To alter means to change. It is a verb.

An altar is a table used in religious services.

An allusion is a reference.

An illusion is a mirage.

Alternate is an adjective meaning "by turns" or "going back and forth among two [or more] things."

Alternative is an adjective meaning "offering a choice between two [or more] possibilities." The "[or more]" of the last sentence was debated by traditionalists, who believe that alternatives should only apply to two, not more, choices. (See the discussion about between/among above.) The Third Edition of Fowler's Modern English Usage announces the surrender of the traditionalists on that issue.

Alternative does not mean "new and improved."

The Arkansas Supreme Court has expressed its disapproval of the "and/or" construction in Boren v.Qualls, 284 Ark. 65 (1984):

It is obvious this problem has arisen because the interrogatory employed an imprecise term, "and/or," when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labeled "equivocal," "obscure" and "meaningless," at worst "slovenly," "improper" and "a linguistic abomination." (See cases cited in Words and Phrases, Perm. Ed., pages 640 to 647). It has no place in modern practice, least of all in discovery interrogatories. A list of condemnors includes a number of our own cases. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976); Guerin v. State, 209 Ark. 1082, 193 S.W.2d 997 (1946).

Id.

In legal writing, it is better to stick to the formal use of anticipate as "to expect something in advance and to prepare for it."

If you know something is coming but you don't do anything about it you expect it, but don't anticipate it.

To appraise is "to set or determine a value of something."

To apprise means "to notify, to warn, or inform." (This word may come up on your spell check as "apprize," which is not incorrect but not recognized by most attorneys as the correct spelling.

Both words are used as verbs.

Averse means "disinclined."

Adverse means "hostile or unfavorable."

Both are adjectives.

The preposition between is used to describe "a relationship involving two persons or things."

When more than two persons or things are involved you should use the word among.

The only exception to that rule is when you are talking about considering things in pairs as well as in a group. For example:

In that sentence you are saying that you should consider Little Rock and Paris, Little Rock and Beijing, and Paris and Beijing.

Remember that "between" is a preposition. It takes an object, so the following sentence is correct:

Blatant means "conspicuous," but it has a pejorative (negative) tone.

Therefore, only use it to mean "objectionable and conspicuous."

Some people confuse the meanings of bring and take because the Southern dialect treats those words differently than they are treated in standard business English.

To bring refers to "motion toward speaker."

To take refers to "motion from the speaker."

When discussing travel plans with someone at your destination, you use that person's point of view. For instance when I am speaking to someone in Massachusetts I will tell him,

When relaying the same information to a person in Mississippi, I will tell him:

Capitol means "a building."

Capital refers to "a seat of government."

A capitol is often located in the state capital.

Capital also means "the money that capitalists invest. Some would restrict the term capitalist to a person who invests capital, not an adherent to the teachings of Adam Smith.

That leaves no convenient term for a poor person who supports the ideology of capitalism.

Although Marxists might suggest that the appropriate term is capitalist dupe, we would suggest that as long as the context makes it clear, capitalist is a convenient term for "a believer in capitalism regardless of his or her net worth."

Some may even feel that the term capitalist to mean "investor" is pejorative.

The difference between casual ("blase or carefree") and causal ("involving or constituting a cause," as in the "causal connection" between the negligence of a defendant and the injuries received by the plaintiff.) does not confuse many people.

However, "causal connection" is an important, and often-used, term of art in the law. One could easily make a typographical error which would render the plaintiff's actions meaningless, and the defendant's allegations groundless.

Claim should be limited to its special limited meaning of "assertion of a right or title to something."

In plain English the word claim has a broader meaning, but in legal usage claim does not mean "to allege, to argue, to declare, or to assert a fact." It certainly is not something done by a court, unless the court asserts right or title to something. A court does not claim that a higher court's decision compels its result.

According to Maggie, "claim" is a valid alternative to using "allege, argue, declare, assert, state, etc." This use somewhat implies that no merit exists in the party's assertions.

A compliment is "flattering speech or praise."

A complement is "something that completes."

To compose means "to make up."

To comprise means "to include, contain, or to consist of."

Conclusory. This word officially exists absolutely nowhere in the English (American) language except the State of Wyoming:

After painstaking deliberation, we have decided that we like the word "conclusory," and we are distressed by its omission from the English language. We now proclaim that henceforth "conclusory" is appropriately used in the opinions of this court. Furthermore, its usage is welcomed in briefs submitted for this court's review. Webster's, take heed!

Greenwood v. Wierdsma, 741 P.2d 1079, 1086 n. 3 (Wyo. 1987).

A confidant is "a friend or advisor." This word comes from the French and is often written with an "-e" on the end when the person in whom you are confiding is a woman.

Confident means "sure or certain."

Convince means "to cause someone else to believe that something is true."

You persuade someone else to act.

Lawyers are referred to as counsel.

"A deliberative group" is a council.

Lawyers can also be called attorneys or legal representatives of a party.

Disinterested means "without bias or impartial."

Uninterested means "bored."

You want a disinterested, but not uninterested, judge. Judges should be disinterested, that is, "not have any personal interest in the outcome of a case." They should not be uninterested, but with the quality of legal writing these days, it is often quite a challenge for them to remain interested.

The opposite of disinterested and uninterested is, unfortunately, interested.

To elicit means "to get someone to say something." The most common use is:

Illicit is "illegal or at least naughty."

Emanate means "to originate from or to come out of."

Eminent means "well known."

Imminent means "threatening or impending."

A famous person is eminent. Something getting ready to happen is imminent. Therefore, when a famous person is about to state something profound, you could say:

There's also a word, "immanent" but if you are not a philosopher or a theologian trying to define God, you don't care.

Enormity

According to Maggie, go ahead and use the word to mean "largeness" or "bigness."

According to Gerry, you cannot use the word enormity. The meaning of the word is in the process of changing. It is one of the battlefields on which the war between traditionalists and modernists is currently being waged.

At one time it meant "outrageous or extreme wickedness." For the last fifty years, however, it has been used to mean "bigness." Traditionalists are disgusted, and sometimes offended, by misuse of the word. Offense is especially likely to result if the word is associated with something belonging to the traditionalist, such as the "enormity" of his or her ego.

Modernists often feign ignorance of the older meaning of the word. Even when they are willing to admit that they are aware of the older meaning, modernists see its use as pretentious at best.

So if you mean bigness say "enormousness." If you mean evil say "wickedness."

Fact is a basic word. Definition is difficult.

It comes from the Latin factus, the past participle of facere, to do. Literally it means "a thing done." It's a first cousin to the word feat, which is defined as "an action, deed, or course of conduct." Oxford English Dictionary, definition of "fact.

Black's Legal Dictionary defines it as:

A thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence; an actual happening in time space or event mental or physical; that which has taken place. A fact is either a state of things, that is, an existence or a motion, that is, an event. The quality of being actual; actual existence or occurrence.

Black's Law Dictionary 531-33 (5th ed. 1979).

If these vague definitions are somehow less than informative, perhaps we should consider what fact is not.

First, facts are true. There is no such thing as a "false fact." Also, referring to "true facts" would be redundant.

Second, facts are not rules of law. Therefore, this sentence is incorrect:

Plaintiff's failure to allege the tort of battery is due to the fact that battery requires an unwanted touching.

The legal element of "an unwanted touching" is not a fact. It is a rule of law.

In legal matters, an issue is a question to be resolved. You attempt to resolve an issue by applying the law to the facts. This is why the factual/legal distinction is important.

Something must be said about the phrase "the fact that." Undoubtedly it is overused, but equally undoubtedly it is often necessary to convey the meaning you want to convey.

According to Maggie, do not use this phrase. Instead, just state your fact.

Farther refers to "distance."

Further refers to "time or degree."

Although most people no longer make this distinction, it is always safer to do so. Nobody objects to the proper usage. A few curmudgeons remember the distinction and will expect you to remember it, too.

According to Maggie, I must be a curmudgeon.

The word fewer is used with plural nouns.

The word more is used with mass nouns.

Fewer refers to things that can be counted. Less refers to things that can't be counted.

Don't talk about "less people" or "less cars" in legal writing.

To flaunt means "to display in a showy manner."

To flout means "to treat with contempt."

To imply means "to suggest."

To infer means "to assume, deduce, or arrive at a conclusion."

You can imply something to someone else:

To infer means to perform the mental act of reaching a conclusion:

Irregardless is not a word and should not be used, regardless of what anyone tells you.

To lay means "to put." In the present tense, you say:

For the past tense, say:

For the past perfect tense, use:

Progressive tense:

To lie means to recline.

There is another to lie, which means "to tell a falsehood." That one's easy.

Notorious is like blatant. It is pejorative, but some people don't realize it. Notorious means "famous in a bad way."

Don't use the phrase "orders of magnitude" in legal writing. If you're not a scientist or a mathematician, you don't know what it means. If you are a scientist or a mathematician, your audience doesn't know what it means. I would explain this in more detail, but I don't know what it means.

Principal means "chief" or "leading." It also refers to "a capital sum of money" or "a chief official at the school."

A principle is "a general truth or a rule."

Stationary means "fixed."

You send letters on stationery.

Since legal language uses archaic words such as "therefor" we must distinguish that word from the common standard American English therefore.

In legalese therefor means "for that thing."

The standard English word therefore means "consequently."

When you "attempt to do something," the appropriate phrase is to try to do something.

To try and do something is colloquial.

Unique is not subject to comparison. Unique means "something is one of a kind."

Something or someone cannot be the "most unique" or "more unique."

There is a list of words which convey absolute qualities not subject to comparison. The list includes:

equal

perfect

dead

universal

supreme

uncomparable

pregnant.

The legal profession lives and dies by the use of words. If you use the wrong word, omit something important, or insert something that doesn't belong there, dire consequences may result, the worst of which is being sued for malpractice by your own client.

The average Joe on the street would probably tell you that lawyers follow these principles on a daily basis:

1. Never use one word where ten will do.

2. Never use a small word where a big one will do suffice.

3. Never use a simple statement where it appears that one of substantially greater complexity will achieve comparable goals.

4. Never use English where Latin, mutatis mutandis, will do.

5. Qualify virtually everything.

6. Do not be embarrassed about repeating yourself.

7. Do not be embarrassed about repeating yourself.

8. Worry about the difference between "which" and "that."

9. Never refer to your opponent's "arguments"--he makes only "assertions," and his assertions are always "bald."

10. If a lay person can read a document from beginning to end without falling asleep, it needs work.

-- Daniel R. White, Still the Official Lawyer's Handbook, p. 176.

There are numerous reasons which explain why legal writing is typically so bad.

There is a financial interest in writing impenetrable contracts.

There is a financial interest in keeping laypersons from dabbling in the law. Incomprehensible legalese supports that interest.

The language of the law is the privileged mode of communication among the initiates.

Law students have a few hours of legal writing instruction in which they are taught to write short, comprehensible, jargon-free sentences. They spend countless hours decoding leading case law, the most ponderous, turgid, and verbose abuse that the English language has ever endured. Cases decided by courts as old as the Kings Bench in 1611 tend to be incomprehensible.

The effect of three years dedication to the dissection of bad prose is hard for lawyers to overcome.

This is part of the process of "learning to think like a lawyer."

The law is a set of abstract rules and principles. Writing about abstractions is always more difficult than writing about concrete subjects.

"A term of art" is "a technical word or expression that conveys a fairly well agreed meaning." It saves the many words that would otherwise be necessary to convey the meaning. When the question is whether to use a term of art instead of a plain English word, consider:

Is there a plain English equivalent? If so, does it have the connotations that the term of art has?

Is ceremonial language required or expected here? If so, use it.

If not, is the term of art sharper than the plain English word.

"Fee simple absolute" is sharper than any standard English term for "complete ownership of an interest in land."

"Writ of certiorari" is sharp. It has a specific meaning.

Is "mens rea" more precise than "guilty mind" in your context?

"Bona fide" is not necessarily sharper than "good faith." When "bona fide" is used in statutes, such as the Uniform Commercial Code, however, it is sharper than "good faith." A "bona fide dispute" under Arkansas Code Annotated � 4-3-311(a)(ii) has a particular legal meaning:

(a) If a person against whom a claim is asserted proves that

(i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim,

(ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and

(iii) the claimant obtained payment of the instrument,

the following subsections apply.

If you are referring to a dispute under the above Code provision, you should use the statutory Latin phrase. A "bona fide dispute" is not exactly the same as a "good faith" dispute, but we didn't draft the UCC -- really boring people did.

Many ceremonial phrases are redundant:

This phrase is used often and with abandon, yet it says the same thing four ways. Unfortunately, people (including attorneys, clients and judges) expect these redundant ceremonial phrases. The eye catches them. They have a specialized legal meaning. Phrases such as this should be used in documents that are designed to perform a function ("instruments") but should be avoided, except in quotations, in documents designed to persuade.

While using legal terms of art is an essential part of drafting documents, attorneys are not paid by the word (contrary to what most people believe.) Moreover, overkill may lead to confusion and lessen the impact and application of a document. Finally, the argument that "this is the way we've always drafted this document" is no excuse for poor drafting.

In the following paragraph, I can use only five (5) words to achieve exactly the same legal result:

Know all men by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit, and use whatever in, of, and concerning this chattel, otherwise known as an orange, or citrus-orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice for his own use and behoof, to himself and his heirs in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints, or conditions whatsoever, any and all prior deeds, transfers, or other documents whatsoever, now or anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.

--Martha Faulk & Irving M. Mehler, The Elements of Legal Writing.

The following paragraph is a portion of an actual Order issued by an agency of the Federal Government:

The instant Order, to which this statement is hereby appended, promulgates the subject CB rules, metamorphosed into "plain English" (i.e., visual stimuli more readily perceived and assimilated by median human cognitive faculties and processes). This endeavor has proven to be a salutary and laudatory exercise in efficacious re-regulation designed to bring government in to a more symbiotic and empathetic interrelationship with its mass democratic constituency. In a word, this item marks the ascendancy of semantic simplicity over obfuscatory verbiage inimical to the common weal. I am gratified that this collegial body today gives approbation to the felicitous regulatory enterprise concluded herein.

10-4 Good Buddy!

FCC Commissioner Fogarty, quoted in David Mellinkoff, Legal Writing: Sense and Nonsense, p. 76.

The goal of legal writing, then, becomes finding that middle ground between common language and the outdated and outlandish stuff in the two examples above. Otherwise, one might suffer the fate of the verbose attorney in the following case:

ANONYMOUS, Judge

Forasmuch as it now appeared to this court by a report made by the now Lord Keeper being then Master of the Rolls, upon consideration had of the plaintiff's Replication according to an order of the 7th of May, of Anno 37 Reginae, that the said Replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same Replication, and by whose advise it was done, to the end that the offender might, for example's sake, not only be punished, but also be fined to her Majesty for that offence; and that the defendant might have his charges sustained thereby. (The execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginae, suspended without any express cause, shewed thereof in that order, and was never since called upon until the mater came to be heard on Tuesday last, before the Lord Keeper, at which time some mention was again made of the same Replication);

And for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff's son, that the said Richard himself did both draw, devise, and engross the same Replication, and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated--proceeding of a malicious purpose to increase the defendant's charge, and being fraught with much impertinent matter not fit for the court;

It is therefore ordered, that the warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall on Saturday next, about 10 of the clock in the forenoon, and then and there shall cut a hole in the midst of the same engrossed Replication which is delivered unto him for that purpose, and put the said Richard's head through the same hole, and so let the same Replication hang about his shoulders with the written side outward, and then, the same so hanging, shall lead the said Richard bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the Bar of every of the three Courts within the Hall, and then shall take him back again to the Fleet, and keep him prisoner until he shall have paid �10 to her Majesty for a fine, and 20 nobles to the defendant for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this court for the abuse aforesaid.

For those unfamiliar with the antiquated language employed by Judge Anonymous, the hapless attorney was sanctioned and required to wear his 120-page brief pleading around his neck at the courthouse -- while in session. And you thought Rule 11 imposed tough penalties.

Lawyers and judges can, on occasion, communicate much with few words:

28 Mich.App. 294

Lawrence DENNY, Plaintiff-Appellant,

v.

RADAR INDUSTRIES, INC., Defendant

Appellee.

Docket No. 8422.

Court of Appeals of Michigan,

Div. 2

Dec. 2, 1970

Leave to Appeal Denied March 9, 1971

Released for Publication March 5, 1971

J. H. GILLIS, Judge.

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn't. We couldn't.

Affirmed. Costs to appellee.

An overlooked area of legal writing deals with "typographical conventions" -- that is, capitalization, the proper use of punctuation (as in a legal citation) and other related matters.

Becoming proficient in both grammar and typographical conventions separates nondescript paralegals (and legal secretaries and assistants) from those that are "worth their weight in gold."

Another point that ought to be made here is that while some legal work can be learned and executed by rote memorization, the bulk of legal work involves a higher level of intellectual involvement. Learning "how" or "why" is just as important as "what" if you endeavor to become more than the type of paralegal that needs to be told what to do for every task, every day.

The answer to this question has both easy and difficult answers.

The easy part of the answer can be found in the bibliography in this section. Bookstores have no lack of shelf space devoted to grammar. The UALR School of Law has a bookstore that carries Black's Law Dictionary, The Bluebook, A Uniform System of Citation and other useful reference books used in the legal field.

The difficult answer involves learning, and applying, the rules of grammar, and becoming familiar with the ins and outs of the legal profession. There are no short-cuts or easier ways to becoming a competent legal drafter. Both of us not only own, but use and re-use, numerous reference books.

Here are just a few of the many useful books available:

Baker, Thomas E., Rationing Justice on Appeal, West Publishing Co., 1994.

Beard, Henry, Latin for All Occasions, Villard Books, MCMXC.

Block, Gertrude, Effective Legal Writing, Third Ed., Foundation Press, 1986.

Brendel, Leroy A. and Elsie L. Leffingwell, English Usage Drills and Exercises, Second Ed., McGraw-Hill, 1977.

Bryson, Bill, Made in America: An Informal History of the English Language in the United States, William Morrow & Co., 1994.

Bryson, Bill, The Mother Tongue, English and How It Got That Way, William Morrow & Co., 1990.

Burtness, Paul S. and Jack E. Hulbert, Effective English for Colleges, South-Western Publishing Co., 1986.

Curme, George O., English Grammar, Barnes & Noble, 1947.

Dernbach, John C. and Richard V. Singleton, II, A Practical Guide to Legal Writing and Legal Method, Rothman & Co., 1981.

DeVries, Mary A., Legal Secretary's Complete Handbook, Fourth Ed., Prentice Hall, 1992.

Dworsky, Alan L., The Little Book on Legal Writing, Rothman & Co., 1992.

Faulk, Martha and Irving M. Mehler, The Elements of Legal Writing, Macmillan Pub. Co., 1994.

Fowler, H. Ramsey, The Little, Brown Handbook, Third Ed., Little, Brown and Company, 1986.

Brand, Norman and John O. White, Legal Writing: The Strategy of Persuasion, 2d Ed., St. Martin's Press, 1988.

Gowers, Sir Ernest, The Complete Plain Words, David R. Godine, 1986.

Hopper, Vincent F., 1001 Pitfalls in English Grammar, Barrons Educational Services, Inc., 1970.

Lutz, William, Doublespeak, Harper & Row, 1989.

Mellinkoff, David, Legal Writing: Sense and Nonsense, West Publishing Co., 1982.

Mellinkoff, David, The Language of the Law, Little, Brown & Co., 1963.

Moskovitz, Myron, Winning on Appeal, The Michie Co. (Revised Ed. 1985).

Pinckert, Robert C., Pinckert's Practical Grammar, Writer's Digest Books, 1986.

Pinker, Steven, The Language Instinct: How the Mind Creates Language, William Morrow & Company, Inc., 1994.

Pyles, Thomas, The Origins and Development of the English Language, Harcourt Brace Jovanovich, 1971 (2d Ed.).

Ricks, Christopher and Leonard Michaels, Eds., The State of the Language, Univ. of California Press, 1990.

Sabin, William A., The Gregg Reference Manual, Seventh Ed., MacMillan/McGraw-Hill, 1993.

Safire, William, Fumble-Rules, Doubleday, 1990.

Shaw, Harry, Dictionary of Problem Words and Expressions, McGraw-Hill Book Co., 1987.

Squires, Lynn B. and Marjorie Dick Rombauer, Legal Writing, West Publishing Co., 1982.

Strunk, William Jr. and E. B. White, The Elements of Style, Third Ed., Macmillan Publishing Co., 1979.

Tarshis, Barry, Grammar For Smart People, Pocket Books, 1992.

Watkins, Dillingham and Martin, Practical English Handbook, Fifth Ed., Houghton Mifflin Company, 1978.

White, Daniel R., Still the Official Lawyer's Handbook, Penguin Books, 1983.

White, Daniel R., Ed., Trials and Tribulations: Appealing Legal Humor, Catbird Press, 1989.

Wydick, Richard C., Plain English For Lawyers, Carolina Academic Press, 1979.

Legal writing is used for three main purposes:

x functional

x informational

x persuasive

Functional writing is writing designed to achieve a particular result. The document itself does something. Writings called instruments are ordinarily functional. Examples of functional writing are:

wills

contracts

complaints

deeds

Functional writing often must include magic words. For that reason, archaic ceremonial language is often appropriate in functional writing:

I, O. Julius Bananaberry of Little Rock, Pulaski County, Arkansas, being over the age of eighteen years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills and codicils heretofore made by me at any time:

1. I request that my valid debts be paid as soon as reasonably possible following my demise.

2. I give and bequeath to my nephews, Huey, Dewey, and Louie Bananaberry the sum of four million Dollars, to be paid out of my estate after the payment of my debts.

3. I give and bequeath to Dionysius Hipp the following described personal property:

a. My prized collection of arsenic flavorings.

b. A rattlesnake.

c. My autographed copy of Final Exit.

4. I give and devise to Elspeth Bluenose the following described real property lying and being situated in the County of Pulaski, State of Arkansas:

Edgehill Subdivision, Allsopp Park, the Northeast corner of Section Twenty Two (22), and the Southeast corner of the Northeast Quarter (NE 1/4) of Section Twenty Two (22), all in Township Two (2) North, Range Twenty Two (22) West, Pulaski County, Arkansas, and the present right of way of the inside curve of Highway 10.The Northwest Quarter of the Southwest Quarter of the Eastwest Quarter of the Seventh.

5. I give, devise and bequeath the following described property, in equal parts, share and share alike, to Huey, Dewey, and Louie Bananaberry:

My comic book collection

The furniture in my recreation room

The giant stuffed bear which I killed with a grenade from a helicopter.

7. I give, devise and bequeath all of the rest, residue and remainder of my estate, whether real or personal, and wherever situated, to my wife, Lovey Bananaberry. In the event that she should predecease me, I then give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal and wherever situated, to my cat, Rover and my dog, Fluffy, in equal parts, share and share alike, per stirpes.

8. I nominate, constitute and appoint Hiram Tweedle as executor of my estate under this will and request and direct that he be permitted to serve without bond.

In Witness Whereof, I have hereunto set my hand this Seventeenth day of August, 1999, in the presence of William Jefferson Clinton and Jerry Falwell, who at my request attest the same in my presence and in the presence of each other.

________________________________

O. Julius Bananaberry

We, William Jefferson Clinton and Jerry Falwell, do hereby certify that O. Julius Bananaberry, the testator in the above and foregoing will, subscribed the said will in our presence, at the time declaring to us that said instrument was his will; and we, at his request, and in his presence, and in the presence of each other, now sign our names hereunto as attesting witnesses, this Seventeenth day of August, 1999.

________________________________

William Jefferson Clinton

________________________________

Jerry Falwell

STATE OF ARKANSAS )

)SS

COUNTY OF PULASKI )

Subscribed and sworn to before me, a Notary Public, on this day of , 1999.

NOTARY PUBLIC

My Commission Expires:

PREPARED BY:

Harriet Cheatham

CHEATHAM & HOWE

Humongous National Bank Building

Suite 2500

Capitol and Main Streets

Little Rock, Arkansas 72201

The will does not have to be persuasive. It need not be interesting. But it must be accurate, complete, and understandable.

The register of this document ranges from ceremonial to formal. Some ceremonial language is required by the law.

Informative writing is used to convey information. The goal is to communicate objectively. Examples are:

memoranda

letters to clients

statements of facts in briefs.

Informative writing should be in the formal or informal register, depending on the recipient.

Persuasive writing is designed to convince the reader to accept a certain viewpoint. The classic example is the argument section of a brief.

Ceremonial language is almost never persuasive. It is here that your writing must be at its tightest. It must be interesting. It must be, for lack of a better word, good.

Which register applies, if any at all, to this legal opinion?

R.C. BARRY, J.P.

This is a suit fore Mule Steeling in which Jesus Ramirez is indited for steeling one black mare mule, branded O with a 5 in it from Sheriff Werk. George swares the mule in question is hisn and I beleeve so to on hearing the caze I found Jesus Ramirez gilty of feloaniusly and against the law made and provided and the dignity of the people of Sonora steelin the aforesade mare mule sentenced him to pay the costs of Coort $10 and fined him $100 more as a terrour to all evil dooers. Jesus Ramirez not having any munney to pay with I rooled that George Werk shuld pay the costs of coort, as well as the fine, and in defalt of payment that the said one mare mule be sold by the Constable John Luney or other officer of the Court to meet the expenses of the Costs of the Coort, and also the payment of the fine aforesaid.

H.P.Barber the lawyer for George Werk insolently told me there were no law for me to rool so, I told him that I didn't care a damn for his booklaw, that I was the law myself. He continued to jaw back I told him to shut up but he wouldn't I fined him $50 and committeed him to gaol for 5 days for comtempt of Coort in bringing my roolings and dississions into disreputableness end as a warning to unrooly persons not to contradict this Coort.

Aug. 21, 1851

John Luney, Constable

The "register" of language is the style as defined by the circumstances in which the language is used. The register of writing is sub-classified by:

the field of discourse [science, advertising, or here law];

the mode of discourse [spoken or written]; and

the manner of discourse [as defined by the social relations between the parties and the levels of formality necessary.]

When the field and mode are understood, the word "register" signifies "manner." For purposes of this course, we consider the field of law and the written mode. The "manner" or "register" will vary according to the purpose of the writing.

Registers are divided into four types:

familial,

informal,

formal, and

ceremonial.

We seldom use the "familial" register in legal writing. One exception might be in-house electronic mail. Familial register is reserved for family members or close friends. We ordinarily make no effort to correct or edit our writing. We assume that our reader has a great deal of familiarity with the topic and the situation, so it is usually unnecessary to do a lot of explaining. Much is understood. Much is left to the imagination.

Informal register is common in interoffice memoranda. We check our spelling, we write in complete sentences. Contractions are appropriate.

Formal writing is required for anything designed to leave the office. Most of this course will deal with formal legal writing.

Finally, because of legal traditions, some of our writing is ceremonial. Part of courtroom procedures is ceremonial, as when the bailiff intones, "Hear ye, hear ye, hear ye. All rise, the Honorable Court is now in session. God save this Honorable Court." The use of the term, "Your Honor," is ceremonial. The phrase, "May it please the Court," is ceremonial. Some documents written by lawyers are ceremonial. Wills and deeds are particularly ceremonial. Subpoenas and summonses are ceremonial.

In ceremonial language old fashioned phrases are prescribed. Most ceremonial language involves the use of Early Modern English vocabulary and grammatical forms. Modern English is the English used from around 1500 A.D. until today. Shakespeare wrote in Modern. The King James version is in Modern English. Middle English is the language of Chaucer:

Whan that Aprill with his shoures soote

The droghte of March hath perced to the roote,

And bathed every veyne in swich licour

Of which vertu engendred is the flour;

Whan Zephirus eek with his sweete breeth

Inspired hath in every holt and heeth

The tendre croppes, and the yonge sonne

Hath in the Ram his halve cours yronne,

And smale foweles maken melodye,

That slepen al the night with open eye

So priketh hem nature in hir corages;

Thanne longen folk to goon on pilgrimages . . .

It can be read with difficulty. Old English is almost completely unintelligible, as exemplified by this excerpt from Beowulf:

Modern English is divided into Early Modern ( or Tudor) English (sixteenth century). Middle Modern English (seventeenth century) and Current Modern English ( eighteenth through twentieth century).

Most lawyers can not write in ceremonial. No lawyer should. Ceremonial language is not much use for communicating anything more than is covered by traditional formulas.

We may open with ceremonial language, but when we have to say something new, there is no prescribed formula. We must then switch to the formal level.

This switch, from ceremonial to formal, then allows us to put our own talents to use and draft legal documents from scratch.

The Bananaberry v. Robinson problem gives us the opportunity to evaluate many types of legal writing.

The first document that would be generated resulted from Mr. Bananaberry's consultation with Ms. Cheatham. This event would typically trigger an internal memorandum for the file. Such memoranda can be quite informal, approaching familial.

The next document would be triggered by some preliminary investigation regarding the viability of legal action.

To:	HLC	Memorandum
From:	ML
Subject:	Bananaberry v. Robinson
Date:	Jan. 9, 2000

Dear Harriet:

I met with Mr. Bananaberry and Hiram Tweedle, an expert I have retained - I hope you don't mind - to check out the situation at Groovy Mood Ring Company, Inc. On January 5, 2000.

The first thing we did is inspect the code. This does appear to be a classic Y2K problem. The offending lines of code were as follows:

INPUT "ENTER DATE OF SALE"; DATE$

IF LEN(DATE$)=2 THEN DATE$=CHR$(2,DATE$)

IF DATE$>2000 THEN DATE$=CHR$(2,DATE$)

It is Mr. Tweedle's opinion, with which I heartily concur by the way, that Mr. Robinson fell below the standard of care for a reasonable computer programmer when he piggybacked the old subroutine in his order compliance module without reviewing the old code for potential problems including the Y2K problem, which was, of course, by then, well recognized by professionals in the computer science field.

Mr. Bananaberry is a pleasant and affable fellow.

Nevertheless, when UPS brought a truckload of his mood rings back

at approximately 10:00 a.m. Mr. Bananaberry became agitated. He opened a box of rings which the automated order filling system had sent in compliance with an order made by a now- non-existent corporation in 1962. If one were to judge by the color of the rings, Mr. Bananaberry was quite dissatisfied.

Next we proceeded to evaluate the damage to Mr. Bananaberry's hardware. It was munged. We were interrupted by the mailman, who brought a number of inquiring letters and a bill from Mr. Robinson for $400.00 for his consultation of January 2, 2000. Curiously, it was typed on a manual typewriter. Anyway, we went back to inspect the damage.

Most of the machines were no longer functional. The machines that were functional showed signs of extensive wear. Strange, as the machines were all less than two years old.

We definitely need to sue Mr. Robinson. All this damage was caused by his negligent programming.

The next order of business would entail notifying your client about the status of the firm's preliminary investigation.

CHEATHAM & HOWE

Attorneys at Law

Harriet Cheatham

Attorneys at Law Associates:

Warren Howe

Humongous National Bank Bldg. V.I. Ulyanov

Bill High

Suite 2500 Myron Lerner

Helen Highwater

Capitol and Main Streets Fred Flintstone

Little Rock, AR 72201

(501) 688-7706

Fax: (501) 372-5147

January 10, 2000

Re: Bananaberry v. Robinson

Dear Mr. Bananaberry,

As you know, Ms. Cheatham has asked me to work with you in preparing your action against Will Robinson, et al, arising out of Mr. Robinson's malpractice in failing to account for the Y2K problem in adapting your old software for incorporation into the new computer program he wrote to manage your fully automated mood ring factory, which caused you to sustain damage in excess of the amount required for federal diversity jurisdiction.

I propose that we initiate an action in the Circuit Court of Pulaski County, Arkansas against Mr. Robinson, setting forth in separate counts our complaint, a draft whereof is enclosed herein, our claims for breach of contract, malpractice, breach of express warranty, breach of implied warranty for a particular purpose, and negligence, each count which I believe will be sustained by the admissible and material evidence which we have gathered to date. I further propose to propound sixty separate interrogatories and requests for production, copies whereof are attached hereto in sequence following the draft of the complaint.

Should you have any questions regarding the aforementioned course of action which I recommend herein, kindly direct said questions to the undersigned.

Sincerely,

Myron Lerner

Attorney at Law

B. Know Your Audience and What You Want to Say.

When a man is called upon to make a speech,

the first thing he must decide is what to say.

-Gerald Ford

Never forget your audience.

Myron forgot his audience in his letter to Mr. Bananaberry. Although sophisticated business clients expect their lawyers to bury content in incomprehensible verbiage when necessary, they do not appreciate it when that skill is used against them.

Mr. Bananaberry did not retain counsel to initiate an action. He hired a lawyer to sue somebody.

Write plain English to clients. Explain legal procedures when necessary. Only use legalese when there is no other way to convey your meaning. Then explain all legal terms in standard English.

Maintain a consistent tone -- in the register; and in the dialect.

Myron's memo to Harriet shifts in tone:

Next we proceeded to evaluate the damage to Mr. Bananaberry's hardware. It was munged.

"Munged" is cyberbabble for "destroyed." "Cyberbabble" is to computer specialists what legalese is to lawyers. Myron uses both.

The register tone of this memo ranges from formal to familial.

The dialect tone of this memo switches from cyberbabble to legalese.

Shifts in register and dialect render this memo unreadable.

Know your audience.

Remember, Harriet Cheatham cannot operate her microwave oven. She adds up her billable hours on an abacus. She confesses to being a technological illiterate.

Why, then, is Myron giving her computer code?

Also consider that when Myron refers to the old program, he calls it the old program, the old subroutine, or the old code.

Is there a difference between these three terms?

If so, he should make the difference clear. If not he should be consistent in using a word to describe the old program.

Understandability trumps variety. Use the same word to refer to the same thing.

In most prose you use variation to avoid repeating the same word. In legal writing this practice leads to confusion.

Know what you want to say.

Myron's memo is stream of consciousness at its worst. James Joyce could create a work of art in stream of consciousness style; Myron cannot.

Mr. Bananaberry might be a likeable fellow. You might like him even if he were not paying you by the an hour for your services. Nevertheless, your evaluation of his personality does not belong in the middle of this memo. That is true even though it makes the point that Mr. Bananaberry's mood rings are effective.

On that point, what is the relevance of the effectiveness of the mood rings to the central premise of this memo?

Is it relevant that Mr. Robinson typed his most recent bill on a manual typewriter? Perhaps it is. Perhaps Mr. Robinson has Year 2000 software problems of his own. The relationship is not apparent. If this detail is relevant, its relevance should be explained. If it is not relevant, it should be left out.

In real life, the mailman interrupted the hardware inspection. There is no reason for art to imitate real life in this respect.

Does Myron know what he wants to say? The lack of organization and the persistent intrusion of irrelevant material suggest that Myron is not really sure what is important and what is not. Even if Myron does know what he wants to say, his memo would lead the reasonable reader to conclude that he does not.

What would the reasonable writer, or listener, conclude after hearing Mr. Hall's attorney, Mr. Orr, in the following case:

Roger HALL (Plaintiff), Respondent

v.

W.A. BROOKSHIRE (Defendant)

Appellant

No. 29274.

St. Louis Court of Appeals.

Missouri

Dec. 20, 1955.

Motion for Rehearing or to Transfer to

Supreme Court Denied Jan. 13, 1956.

* * * * *

The last remaining point raised relates to the argument of plaintiff's counsel. It is contended that the argument was inflammatory, prejudicial, unethical and untrue. The transcript contains only extracts from Mr. Orr's argument which the defendant claims were prejudicial. After argument of the case here the defendant moved to amend the transcript by filing an additional transcript of the full argument. This additional transcript that he sought to file shows that near the outset of the oratory of which the defendant complains learned counsel for the plaintiff stated:

"You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped Him in the road and they sought to entrap him. They asked Christ : "Shall we continue to pay tribute unto Caesar?" And you will remember, in the Book of St. Matthew it is written that Christ said: "Render ye unto Caesar the things that are Caesar's and unto God the things that are God's."

The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ.

The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation. It is not, however, even pendulously attached to the argument following, which deals with taking from Brookshire and rendering unto Hall.

C. Mechanics of Legal Writing

1. Capitalization

Practitioners generally should follow rule 8 on matters of capitalization, with the following modifications and additions:

(a) Court. In addition to capitalizing "Court" when naming any court in full or when referring to the U.S. Supreme Court, practitioners should also capitalized "Court" in a court document when referring to the court that will be receiving that document:

In Brown v. Board of Education the Court relied heavily on social science data.

The Court of Appeals for the Ninth Circuit held otherwise.

This Court has already ruled on Defendant's Motion to Dismiss.

But:

The court in Watkins clearly was trying to distinguish earlier precedent leading in the other direction.

(b) Party designations. Capitalize party designations such as "Plaintiff," "Defendant," "Appellant," "Appellee," and so forth when referring to parties in the mater that is the subject of the court document or memorandum:

Plaintiff herein responds to Defendant's baseless allegations of misconduct.

Appellees claim that this line of reasoning applies to the instant case as well.

But:

In that case, which has since been seriously undermined, the plaintiffs alleged that the defendant acted in bad faith.

(c) Titles of court documents. In a court document or legal memorandum, capitalize the titles of court documents that have been filed in the matter that is the subject of the document. Do not, however, capitalize a reference to a court document by the generic name of the document rather than by its actual title or a shortened form of its title:

In their Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss, Plaintiffs argue that Defendants are strictly liable for Plaintiffs' injuries. Plaintiffs further claim in their Memorandum in Opposition that there is ample case law on their side.

For all the above reasons, Appellant's Petition for Rehearing ought to be granted.

The Court's Order of May 7, 1990 directs Plaintiffs to cease widget production immediately.

But:

Defendant's responses to the first set of interrogatories were filed on January 6, 1987.

There is no doubt that the initial temporary restraining order was within the bounds of the Court's discretion.

The Bluebook: A Uniform System of Citation, p. 17.

2. Numbers

Spell out numbers when the numbers can be written in one or two words.

Be consistent, never spell some numbers out and use numerals for others in the same sentence, especially when the numbers are parallel. You may, however, combine numerals and number words in very large numbers (e.g. "8.6 million").

Never begin a sentence with a numeral.

Always use numerals for dates.

3. Punctuation

One of the most misused types of punctuation is the comma. Here are four "Comma Laws" to keep in mind.

' Insert a comma between coordinating conjunctions and independent clauses. Examples of coordinating conjunctions are and, but, for, and nor. However, a comma should not be placed between two independent clauses; otherwise, you will have a comma splice. Instead, use a semi-colon to separate the two clauses.

' After using a long dependent clause, insert a comma before a subsequent independent clause.

' Use a comma before the word "and" in a serial list.

According to Maggie, this rule is in a constant state of flux. I recommend you pick either way, and then be consistent when you apply your version.

' Non-restrictive clauses should be separated from the remainder of the sentence by using commas. Restrictive clauses should be not separated from remainder of the sentence with commas.

As for any other punctuation usage, we recommend that you invest in a good reference book and refer to it often. Even when you think you know the correct usage of punctuation, check the book.

Quotations can be summed up with two simple rules:

" Remember to place ending punctuation inside quotation marks, such as a period or question mark, as well as commas. A lot of times, this doesn't look right because the punctuation has no reference to the quoted material. I don't get it either.

" When quoting 50 words or more, indent the quote and do not use quotation marks.

" Only use quotation marks when you are quoting someone or a passage from a book, or are attempting to distinguish a word from the rest of a sentence.

Do not, however, use quotes around words for no particular reason. I see this most often in advertisements:

Baggy Pants by Susie ZZZ Air Service

"The Pants that Fit" "We're the Best"

There is absolutely no valid reason to place quotation marks around either of those statements. I doubt that either Susie or ZZZ Air Service is actually quoting someone, or that the quotation marks signify a term of art.

Apostrophes have two functions:

'Make a word possessive:

Mary's gun; Jim's doll.

'Indicate missing letters, as with contractions:

"Let us" becomes "let's"; "1998" becomes "'98"

'However, DO NOT use an apostrophe to make a word plural!! (Can you tell this is one of my biggest pet peeves?)

I have one cat; I have fifteen cats; I do not have fifteen cat's.

Learn to use other punctuation effectively, such as colons, semicolons, and dashes. It will give you an opportunity to vary the look and feel of your Briefs.

Legal citations have a unique format, which is explained in The Blue Book. Therein, you will also find the proper citation format -- which includes punctuation as well as font attributes -- for cases, legal authority and varioous types of reference publications.

D. Taming Legalese

The trap of using legalese comes not just from using certain words, but from how the writer arranges the words in a legal document, whether it be a letter, pleading or brief. Here are some tips to keep in mind when writing.

The beginning of a sentence is a place of special emphasis. Don't waste it with useless information.

The goal is short simple sentences with active verbs that convey crucial action in three lines or less.

Be careful not to overstate your position. Do not volunteer to prove more than you need to prove.

Avoid insulting your opponent or the court. Eschew phrases like

Nobody could conscientiously contend that . . . .

Defendant's argument is ludicrous.

Here appellant abandons the strategy of distorting the record in favor of lying about it.⁽³⁾

There are an infinite number of ways to get your point across in a far more subtle manner. Understatement can by a writer's ally.

Avoid snide or patronizing language.

The law is an ass.

There are some facts of which you do not seem to be aware.

Prefer 20th century English unless ceremonial register is expected.

Avoid pomposity.

Omit excess words. As Professor Strunk said, "Make each word tell."

Some writers distinguish "meaning words" from "function words."

Meaning words are words that convey a specific idea. Meaning words are nouns, verbs, adjectives, adverbs, and sometimes pronouns.

Function words indicate the relationships among meaning words. Prepositions, articles, conjunctions, helping verbs, and other such words are ordinarily function words.

The distinction is not always clear, but the best way to identify meaning words is to imagine the stereotyped caveman. The caveman speaks only in content words:

Gronk see dog.

Gronk kill dog.

Gronk eat dog.

Legislature repeal prohibition no eat dog.

Gronk permitted eat dog now.

Although caveman syntax is to be avoided, you should also avoid a high ratio of function words in your writing. You will not make any points with the Court when your Brief is peppered with:

Obviously, the Plaintiff is a fool.

The function word "obviously" has no real function in that sentence. If the Plaintiff is a fool, the Court will be able to figure it out and the statement need not be stated. If the Plaintiff is not a fool, guess who looks like one now?

Avoid equivocal language. Lawyers hesitate to write simple, declarative sentences.⁽⁴⁾

Lawyers want to hedge, in case they've made a mistake. This is one of the classic symptoms of not being quite sure what you're talking about. And it shows.

Prefer the literal to the figurative.

In a related note, the following sentence is physically impossible, just plain wrong, and may instill the reader with a distrust of your perception or intelligence:

She was literally walking on air.

It would far more appropriate to say:

She was practically walking on air.

Prefer the concrete to the abstract.

Prefer the positive to the negative. The "not un-" construction should be used sparingly. It is not unannoying.

Prefer the specific to the general.

Put your writing in context.

Use literary devices such as rhyme, alliteration, puns, or poetic language very sparingly. That doesn't mean never use such devices.

The perfect quotation sometimes can convey an idea better than you will be able.

Prefer the active to the passive voice. Certainly the passive is appropriate in moderation. Those who suggest the passive should never be used are extremists.

The passive may be used where the identity of the subject is unimportant, understood, or unemphasized. An occasional passive construction gives variety to sentence structure.

However, if you endeavor to apply the active voice to your legal writing as much as possible, your documents will convey a more forceful message to the reader.

Avoid intrusive phrases:

The third witness, who was the only unbiased person at the scene of the accident, testified that he did not see what happened.

Do not make your reader read through the sentence more than once.

Make sure your point of view is consistent. Don't change the point of view in mid-sentence:

You should study; otherwise, one can fail.

We appreciate it, and I look forward to seeing you.

Make sure your register is consistent. You should use formal register unless there is a good reason. Good reasons include:

Ceremonial register is required.

Informal is appropriate.

Convey one idea per sentence. While short sentences are preferred, sometimes legal ideas are too complex for short sentences.

Vary sentence length to avoid monotony.

Some final notes on this topic:

Foreign in law often refers to another state. In standard English foreign is something from another country.

Therefore means that a conclusion follows what has come before. Therefor is archaic or ceremonial English for "for it."

Wherefore is archaic for "why."

When Juliet says, "Wherefore art thou Romeo?" she's saying "Why are you Romeo?" -- not "Where are you, Romeo?"

E. Facts and Issues.

One of the most effective ways to produce bad writing is to fail to understand your subject. So to avoid bad writing, you must first know what you are talking about, and what you want to say about your subject.

The first stage is to garner your facts. Do your research. Find out what you need to know, and what you have to do to know it. Sometimes research is appropriate. Sometimes investigation is needed. Sometimes you must deal with uncertainties.

Start by organizing your facts chronologically. However, if certain series of facts are unrelated until later, keep related facts together.

Remember you have to admit adverse facts or the other side will remind the court. Put your best foot forward, but admit unfortunate facts against you, and deal with them. The worst place to have to discuss unfavorable facts is in a reply brief.

Once you have your facts under control, you must organize your facts. Outlines are common. Most word processors make outlining easy. The Bananaberry problem can be outlined as follows:

I. Identity of parties.

A. O. Julius Bananaberry

i. Our client.

ii. Owner of Groovy Mood Ring Company

B. Will Robinson

i. The defendant

ii. Robotics engineer and computer programmer

II. Facts

A. Mr. Bananaberry needed to modernize

B. Bananaberry hired Robinson to automate his factory

C. Robinson contracted to perform the modernizations.

D. Robinson retained part of an old program for use in his system.

E. The old program used two digit numbers to represent years.

F. On January 1, 2000, the automated system malfunctioned, causing damage

i. It manufactured unnecessary rings

ii. It destroyed the physical plant of the building

iii. It destroyed a great deal of the equipment.

iv. It caused rings to be shipped when unnecessary.

v. It caused defective rings to be shipped to current customers.

vi. It caused Mr. Bananaberry to suffer loss of reputation in the mood ring community.

vii. It exhausted Mr. Bananaberry's reserves of the rare chemical phlogiston.

G. Bananaberry returned and found the problem.

H. He contacted Robinson to repair the problem.

III. Analysis

A. Using the old program without testing it was negligent

B. Failure to anticipate Year 2000 problems was negligent.

C. The automatization failed to perform as warranted.

D. The failure of the automatization directly caused economic losses to Bananaberry.

IV. Recommendation

A. File suit against Will Robinson.

This is just one example of an outline.

Even the best outline will be adjusted as you think through your problem. Sometimes you will see that entries under one topic should be moved to another. The outline should never be considered complete.

Never sacrifice clarity of your writing for the sake of sticking to your outline.

The outline is a tool, not a straight jacket.

Principles of Organization

"Brief" is an "antagonym." It means "short" and "a document filed by a lawyer in court." Briefs are usually not brief. Organization is essential to writing a "brief brief" -- which is not necessarily an oxymoron.

You must organize by topic. You must use judgment to impose higher level structure in your legal writing. Topics often have headings and subheadings.

A good rule is to have a heading or subheading for at least every five pages of text.

According to Maggie, I think every three pages is better. If you have five solid pages of text, your topic may be too large to put under one heading.

Structure your document. Structuring a document calls for judgment.

Tell the court what the case is about. You must remember to give enough background. You cannot assume that the judge knows the facts.

Refer to evidence that supports your version of the facts.

A simple structure for short briefs is the "PS" or "Problem, Solution" structure.

A structure you can impose in longer briefs is the "IRAC" structure. That is: "Issue, Rule, Application, Conclusion."

The issue is the question. The rule is the applicable rule of law. Application requires you to apply the law to the facts. Then you recommend a solution in the conclusion.

Organize your topics by strength.

Put your best foot forward. Pick the argument you believe the court is most likely to accept and start with that argument. The court will expect you to start off with your best argument. If a court rejects your first two arguments, you have very little chance on your third.

If your arguments are equally strong, organize your topics by levels of difficulty.

Assume there is a procedural point, a purely legal point, and a factual point.

The procedural point stands or falls regardless of the facts, and sometimes regardless of the merits of the claim.

The purely legal point may have merits, even though you construe the facts in the light most favorable to your opponent.

The factual point will involve the type of complicated facts that are found in real cases.

In Bananaberry v. Robinson, assume Mr. Robinson files a Motion for Summary Judgment in Mr. Bananaberry's claim against him. Robinson alleges that the summons and complaint was delivered by the process server to a janitorial robot at his home. He further alleges that Mr. Bananaberry's Complaint fails to state a cause of action because Arkansas does not recognize the tort of computer programmer malpractice. Finally, Robinson submits an affidavit from six other programmers that they have examined Mr. Robinson's work and found nothing wrong with it.

The logical order of Mr. Robinson's motion is as follows:

1. Inadequate service of process.

2. The complaint fails to state a cause of action.

3. The complaint is meritless on its facts.⁽⁵⁾

The first topic does not involve the substantive law or the facts. It is the least difficult. The issue there is: Does service on a household robot comply with the requirements of Rule 4 (d) of the Arkansas Rules of Civil Procedure?

[Service shall be had] [u]pon an individual, other than an infant by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.

If service on a robot does not comply with this Rule of Civil Procedure, it does not matter whether Arkansas recognizes the theory of programmer malpractice. It also does not matter whether Mr. Robinson actually committed malpractice.

All that matters is whether a janitorial robot is a "person" "residing" at his house.

There may be a question of the age of the robot.

As far as level of difficulty is concerned, this is the simplest argument, mainly because the issues surrounding proper service are well defined in Arkansas law.

The second topic involves the substantive law, but it really does not involve the facts.

Even taking the facts in the light most favorable to Mr. Bananaberry, if Arkansas does not recognize the tort of programmer malpractice, that claim must be dismissed. This is the next level of difficulty. It does not matter whether Mr. Robinson actually committed malpractice.

The most difficult and complex topic is the third one, that there Arkansas does not recognize programmer malpractice.

That requires the analysis of at least eight factual affidavits filed by Mr. Robinson. Mr. Bananaberry will likely file eight factual affidavits in response.

Therefore, the logical order of this argument is:

1. Procedural

2. Legal

3. Factual.

The order strongest to weakest is almost always correct, but even here use judgment. The order "procedural, legal, factual" is not always the correct one. Sometimes the factual argument can be relatively simple. A procedural argument can be highly complex. The order should proceed from the simplest argument to the most complex.

If you convince the court with your simplest argument, the court does not need to bother itself with the more complex arguments.

Do not forget to end by telling the court what you want the court to do.

It is amazing how often lawyers write brilliant arguments and then fail to tell the court what remedy they seek.

Do you want the Court to deny the Defendant's Motion? Do you want the Court to grant attorneys fees? Do you want the Court reverse the jury verdict and enter a judgment in favor of your client?

III. WRITING TO NON-LEGAL PROFESSIONALS

A. Writing to the Client

Avoid using legalese.

Explain legal terms when necessary.

Remember your client's real interest.

Candor is essential. Do not hide unpleasant facts in pile of legalese.

Communication with the client cannot be avoided. In fact, the Model Rules of Professional Conduct requires that an attorney communicate with the client.

B. Writing to Others

Others can include experts, doctors and witnesses. These people do not understand legalese, either.

The complete disclosure due the client (above) is not necessarily afforded others involved in the lawsuit. This does not mean that you can lie to them, but you do not owe them the fiduciary duty of full disclosure.

Do not burden these people with information that has no bearing on their role in the lawsuit. They simply have no need to know that your opponent failed to respond to discovery, or that your client smokes marijuana -- unless that information has an impact on the person's duties.

Be as brief, but as informative as possible. Address only information which is essential to their ability to fulfill their "job" in the lawsuit.

CHEATHAM & HOWE

Attorneys at Law

Harriet Cheatham

Attorneys at Law Associates:

Warren Howe

Humongous National Bank Bldg. V.I. Ulyanov

Bill High

Suite 2500 Myron Lerner

Helen Highwater

Capitol and Main Streets Fred Flintstone

Little Rock, AR 72201

(501) 688-7706

Fax: (501) 372-5147

July 21, 2000

Dr. Zachary Smith

Computer Expert

Re: Bananaberry v. Robinson

Dear Dr. Smith:

The defendant's attorney will take your deposition at our office on July 30, 2000, at 2:00 p.m. Please arrive at 1:00 p.m. so that Myron Lerner can discuss your deposition testimony with you.

Enclosed is a copy of the code utilized by Mr. Will Robinson in the Y2K program he wrote from Mr. Bananaberry.

Should you have any questions prior to the deposition, please call.

Sincerely,

Suzy Que

Paralegal to

Myron Lerner

Attorney at Law

IV. WRITING FOR USE IN THE OFFICE

Legal writing done solely for in-house use generally can use a more informal register than writing for an outside audience. The goal of in-house writing is usually informative, rather than persuasive writing.

A. Organization of the File

In order to effectively find needed documents, a file must be organized in some meaningful manner. Generally, a file can be broken down into the following parts:

Pleadings

Correspondence

Exhibits

Medical information

Notes and memos

Discovery

Depositions

Motions and Briefs

Legal Research

Use any system as long as it is meaningful to you, helpful in your work, and can be understood and used even by a lawyer.

B. Internal Legal Memoranda

Drafting internal legal memoranda can be used for a variety of purposes, including noting your status on receipt of documents, reporting your conversation with a potential witness, or setting out the law applicable to a particular case.

Regardless of the ultimate purpose, keep in mind that these documents are typically protected under the "attorney work product" rule, and are not subject to discovery. This is the appropriate spot to honestly evaluate the strengths and weaknesses of your case. Without full disclosure of all adverse information, even about your own client, the attorney cannot accurately access the viability of a claim.

Memorandum

To: ML

From:

Subject: Bananaberry v. Robinson

Date: July 25, 2000

I contacted Dr. Zachary Smith, the world-renowned computer expert. He reviewed the code written by Will Robinson.

He intends to testify at the deposition on the 30th that the code was flawless and could not have caused the incident with the mood rings.

Dr. Smith claims that the problem encountered by Bananaberry could only have occurred if Bananaberry failed to place a dust cover over the computer keyboard, and dust got inside the keyboard circuitry.

I then contacted Global Monopoly Computer Company, which manufactured Bananaberry's computer system. A dust cover is included as standard equipment on all its computers. Also, a large red label is attached to each computer. The label warns the customer that using the dust cover is essential, and that the warranty on the computer will be voided if the customer fails to do so.

Finally, I contacted Bananaberry. He acted flustered when I quizzed him about receiving the dust cover with the computer, and when I asked him whether he remembers whether a warning label was attached to his computer. I didn't believe his answers to me. We need to follow-up on this development.

V. WRITING TO AND FOR OTHER LAWYERS

A. Communication with Courts

Ex parte communications with courts are prohibited. In any correspondence with a court, always send a copy to opposing counsel.

Judges are busy. Nobody appreciates clear, concise, and accurate correspondence as much as judges.

CHEATHAM & HOWE

Attorneys at Law

Harriet Cheatham

Attorneys at Law Associates:

Warren Howe

Humongous National Bank Bldg. V.I. Ulyanov

Bill High

Suite 2500 Myron Lerner

Helen Highwater

Capitol and Main Streets Fred Flintstone

Little Rock, AR 72201

(501) 688-7706

Fax: (501) 372-5147

June 10, 2000

Re: Bananaberry v. Robinson

Pulaski County Circuit No. CV 20-43284720

Dear Judge Plegge:

Please set the above case for a jury trial at the Court's earliest convenience.

Sincerely,

Myron Lerner

Attorney at Law

cc: Jacqueline Hyde, Attorney at Law

Runne, Laquelle and Hyde

B. Pleadings

According to the Arkansas Rules of Civil Procedure, there are only eight kinds of pleadings: Complaint, Answer, Cross Claims, Counter Claims, Third Party Complaints and Answers to Cross Claims, Counter Claims, Third Party Complaints.

The register used for pleadings is ordinarily formal, although ceremonial language is sometimes used.

Pleadings are like instruments, in that the goal of pleadings is to perform a function. Pleadings must say what needs to be said. They are seldom persuasive. They should be informative. The primary goal, however, is to make the right statements so that you can later present your case in court.

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

TWENTIETH DIVISION

O. JULIUS BANANABERRY PLAINTIFF

-Vs-

No. CV 20-43284720

WILL ROBINSON DEFENDANT

COMPLAINT

COMES Plaintiff O. Julius Bananaberry, by and through his attorneys, Cheatham and Howe, and for his Complaint against Defendant Will Robinson, states:

---

WHEREFORE, Plaintiff O. Julius Bananaberry prays that judgment be entered against Defendant Will Robinson, for costs, attorneys fees and for all other just and proper relief.

C. Motions and Briefs

Motions, and particularly Briefs in Support of Motions, should be persuasive. Occasionally, ceremonial language is found in Motions. Ceremonial language has no place in Briefs.

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

TWENTIETH DIVISION

O. JULIUS BANANABERRY PLAINTIFF

-Vs-

No. CV 20-43284720

WILL ROBINSON DEFENDANT

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

COMES Defendant, Will Robinson, by and through his attorney, Ms. Jacqueline Hyde, of Runne, Laquelle and Hyde, and for his Motion for Summary Judgment, states:

1. Plaintiff bases his claim against Defendant on the theory of programmer malpractice;

2. Pursuant to Arkansas Rules of Civil Procedure 12(b), Plaintiff fails to state a claim upon which relief can be granted, and fails to state facts upon which relief can be granted;

3. Plaintiff failed to properly serve Defendant a copy of his Complaint pursuant to Arkansas Rules of Civil Procedure 4;

4. Pursuant to Arkansas Rules of Civil Procedure 56, no genuine issues of material fact remain to be determined, and Defendant is entitled to judgment as a matter of law.

WHEREFORE, Defendant Will Robinson prays that his Motion for Summary Judgment be granted, that Plaintiff O. Julius Bananaberry's Complaint against him be dismissed, and for all other just and proper relief.

D. Discovery Documents

Discovery documents include Interrogatories, Requests for Admissions, Requests for Production of Documents, and other similar methods use to find out what the other side knows.

Discovery documents are rarely persuasive. They are usually functional, designed to impose a duty of disclosure on your adversary.

There is a tendency for lawyers to object to any discovery request which is in any way unclear. The only way to reduce the risk of non-responsive answers is to be excessively clear. Sometimes, it is necessary to belabor the obvious.

Utilizing definitions at the beginning of a discovery request may assist in warding off "vague" objections.

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

TWENTIETH DIVISION

O. JULIUS BANANABERRY PLAINTIFF

-Vs-

No. CV 20-43284720

WILL ROBINSON DEFENDANT

PLAINTIFF'S REQUESTS FOR PRODUCTION OF DOCUMENTS

COMES Plaintiff O. Julius Bananaberry, by and through his attorneys, Cheatham and Howe, and propounds the following Requests for Production of Documents to Defendant Will Robinson.

The following definitions apply to the Requests for Production of Documents made herein:

(1) The terms "you" or "yourself" as used herein refer to the defendant answering these interrogatories.

(2) The term "your vehicle" or "your motor vehicle" as used herein refers to the vehicle owned, operated or occupied by the defendant, as identified in the plaintiff's pleadings.

(3) The term "plaintiff's vehicle" or "plaintiff's motor vehicle" refers to the vehicle owned, operated or occupied by the plaintiff, as identified in the plaintiff's pleadings.

(4) The terms "occurrence" or "alleged occurrence" as used herein refer to the facts of each activity, event or transaction as set forth in the plaintiff's pleadings.

---

E. Rewriting, Editing, and Proofreading the Final Draft

How to Know When to Stop.

In the Arkansas Appellate Advocacy handbook, Gerry Schulze's first draft read:

A good advocate knows what to say and when to say it.

A superb advocate knows when to shut up.

Unfortunately, his editor changed "shut up" to "stop talking."

Page limits in law have a different purpose than page limits in college. In college page limits are a minimum. In court page limits are a maximum. You are never obliged to use up your pages. In fact, "less is more" should be applied to legal writing, especially to Briefs.

Here are some clues you may have gone on too long.

10. You fall asleep while proofreading your own work.

9. You recognize entire sentences repeating.

8. You drop your draft on your foot-and it hurts.

7. You run out of space on your hard drive when you try to save your document.

6. You have made any given point more than twice.

5. You recognize entire sentences repeating.

4. You catch your transcriptionist sabotaging your dictaphone.

3. Your executive summary of a document is longer than the document.

2. A reader politely suggests that your brief would make a good law review article.

And

1. You reach the Conclusion and you've forgotten what your point was.

Rewriting.

There's really no such thing as a final draft in the law office. There's just the last draft completed before the deadline.

Revising and Polishing.

Here are some tried-and-true tips to cut the excess fat from your prose.

You know what you are talking about. Let someone who does not know what you are talking about read your document if at all possible. Return the favor.

If you can't get anyone to read what you have written, try putting it to one side and coming back to it later.

Personally, I find I do my best editing when preparing for oral argument by reviewing briefs which have already been filed.

Do a paragraph by paragraph analysis of your work.

Does each paragraph have a point?

Is there a sentence stating the point?

Do the other sentences support that point.

Are the paragraphs arranged in a logical sequence.

Is there a smooth transition from one paragraph to the next.

Should blocks of paragraphs have a header?

Vary the length of your paragraphs. Use short (one or two sentences) paragraphs sparingly. Remember that short paragraphs can be good for a transition.

Sometimes editing requires a sentence by sentence analysis. If you have a sentence that does not work check:

Is there a grammatical error? Identify the subject, verb, and object. Unless there is a reason, put the subject, verb, and object in that order.

Check for unnecessary words.

Keep the verb as close to the subject as possible.

Keep modifiers near the words they modify

Keep related parts of the sentence together.

Avoid strings of prepositional phrases whenever possible.

Move parenthetical thoughts to other sentences where possible.

Try to restrict your sentence to one idea.

Recheck for misplaced modifiers. A modifier at the beginning of a sentence modifies the subject. Modifiers in the middle of sentences can be ambiguous. Does the modifier clearly modify either that which comes before or that which comes after. Make sure that it is clear that modifiers at the end of the sentence clearly modify what you want them to modify. They can modify the entire sentence or the concluding phrase.

Make sure you say what you mean.

And mean what you say.

1. "Should" implies that there is a right way and a wrong way to use language. In school we were taught that some forms are right and others are wrong. To the scientific student of language, there is no form which is inherently right, and no form which is inherently wrong. It is not a sin to say "ain't," even in church. Right usage is simply usage which is accepted by the language community as right.

Who gets to decide? In English there is no person or group of persons with the recognized authority to decide that a particular usage is right or wrong. Many writers have taken upon themselves to prescribe which usage is correct, and which usage is incorrect. This has been going on for centuries. Some authorities rely on the usages they hear in their communities. Unfortunately, however, many of the authorities also relied on such inaccurate guides. The most inaccurate guides are logic and common sense. It is also seldom helpful to impose the structure of other languages on English. Comparison with other languages is even more likely to mislead those who believe other languages are superior to English.

2. A few centuries ago, linguists believed that languages such as Latin, Ancient Greek, and Hebrew were superior to their modern degenerate offspring. Modern day linguists know that this is utter nonsense, but it is not difficult to understand where this idea came from. Greek and Hebrew were used to write the scriptures-the Word of God. Latin was the language of the Roman Empire. Admiration for the classical world was at its peak after the renaissance. Because of this "respect for the elders," classical rules of grammar, particularly from the Latin, were imported into English.

3. I must confess that this is a direct quote from one of my briefs as a young lawyer. Gerry.

4. Or perhaps, to be more precise, a survey of certain legal writing might lead one to believe that in some circumstances -- not necessarily representative of legal writing as a whole -- a number of lawyers are, perhaps, heesitant to express a concept in a simple, declarative sentence where they feel such candor and forcefulness is inappropriate, maybe.

5. In order to adequately assist in drafting a Response to this Motion for Summary Judgment, you must be familiar with the following two defenses to a cause of action: "failure to state a claim upon which relief can be granted," and "failure to state facts upon which relief can be granted."

The first means that there is no legal remedy available to the plaintiff upon which he can base his Complaint. The second means that there is a legal remedy available, but the plaintiff's facts don't rise to the level needed to sustain such an action.

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