Judith D. Fischer's blog

Advocating for Unpopular Clients

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Recently, a group called Keep America Safe posted a web ad asking, "Who are the al Qaeda Seven?"  The ad's apparent purpose is to besmirch lawyers who had advocated for detainees at Guantanamo Bay and are now working for the justice department.  The ad implies that, by representing Guantanamo detainees, these lawyers were somehow connected to al Qaeda and disloyal to the United States.

 

But that flawed position ignores some of the key values that undergird our legal system.  Our system of justice requires that both parties to a controversy have the opportunity to be represented by counsel.  As a society, we value this adversarial process highly, because we believe that allowing opponents to grapple with cases in the courtroom is the best way to uncover the truth.  This means lawyers must sometimes represent unpopular parties or causes.  For this reason, professional rules have long urged lawyers not to turn down a cause just because it is unpopular.

 

Meanwhile, the world is watching to see how we deal with the Guantanamo detainees.  If we sentence a detainee to prison or death, his trial should be fair, with no implication that he was framed or railroaded.  A primary way to defuse any such implication is to allow him the full benefit of a vigorous defense by counsel. 

 

It is worth noting that some detainees' lawyers successfully argued their causes in the United States Supreme Court.  One such lawyer, for example, prevailed in the Hamdan v. Rumsfeld case, which challenged the legality of the Bush administration's military commissions.  A majority of the Supreme Court agreed with him.  That lawyer fought for the ideals of our legal system.

 

It is also worth noting that some Guantanamo detainees were released without ever being tried, which suggests that they were not guilty of a crime.

 

We should highly value those lawyers who present a strong defense for unpopular clients, including Guantanamo detainees. By lessening the possibility that the innocent might be wrongly convicted, those lawyers allow us to be proud of the fairness of our legal system and to proclaim that fairness to the world.  We do ourselves no service if we try to frighten them into inaction. 

Departing Hyphens

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The Shorter Oxford English Dictionary has eliminated thousands of hyphens, Reuters reports.  A new edition of the dictionary has combined some formerly hyphenated words into single words (bumblebee and chickpea) and others into two-word phrases (ice cream and test tube).  The decision was partly based on a visual consideration--the belief that hyphens in the middle of words look ungainly.  The editors had also observed that people are increasingly unsure about how to use hyphens, especially in the age of text messages and tweets.

     This does not change the rule that a compound adjective placed before a noun must be hyphenated, especially where its meaning would otherwise be unclear.  The modifier two-word, above, is an example of such a compound adjective.  It would be ambiguous without the hyphen. 

                                    --The Word Aficionado

Judge Sonia Sotomayor’s Legal Language

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Judge Sonia Sotomayor 's background has been discussed at length since her nomination for a seat on the Supreme Court.  But what about her legal language?  In my study of federal judges, Judge Sotomayor received high marks for gender neutrality.  She took care to avoid gender-biased male pronouns in framing her case opinions, sometimes by using neutral pairs like "his or her."

For a fuller report of the study's results, see http://ssrn.com/abstract=1156985

                                    --The Word Aficionado

President Obama's Speech at Notre Dame

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Lately, I've been researching Abraham Lincoln as a writer.

I've also noticed how President Obama has drawn implicit parallels between Lincoln and himself, for example, by opening his campaign in Springfield, Illinois, where Lincoln practiced law.

Obama had a tough challenge in appearing at the Notre Dame graduation, due to controversy over whether he should receive an honorary degree because he is not in complete agreement with the official Catholic position on abortion.  Before Obama's speech, I wondered how Lincoln might handle the situation.  I believed Lincoln would confront the issue instead of dodging it, he'd try to bring people together, he'd use humor, he'd make some reference to God or the Bible, and he'd tell at least one story.  Obama did all of these.

After receiving his honorary degree, Obama confronted the surrounding issues with humor. "These honorary degrees are pretty hard to come by.  So far I'm only 1 for 2 as President.  Father Hesburgh [former Notre Dame president] is 150 for 150."  He then suggested that Father Hesburgh might give him some pointers.

Obama urged opposing sides to listen to each other, saying we should "open our hearts and out minds to those who may not think like we do."

There was a Biblical allusion to Jesus's command to love others, deftly tied to the tenets of other major world religions.

And Obama also told several stories.  Two were particularly appropriate because they related to the Catholic Church.  The first told how, when Obama was a community organizer, he worked with Catholics who influenced his decision to become a Christian.  The second told of the crucial work of Father Hesburgh on the commission whose product led to the Civil Rights Act of 1964, which paved the way for Obama's presidency.

These devices were just the right touch to defuse the tension.  Very Lincolnian.

 

Obama's Word Choice: "Stand with"

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President Obama recently chastised investment funds that would not compromise to keep Chrysler out of bankruptcy.  "I don't stand with them," he said. "I stand with Chrysler's employees and their families and communities. I stand with Chrysler's management, its dealers, and its suppliers. I stand with the millions of Americans who own and want to buy Chrysler cars."

 

            Obama's use of the phrase "stand with" was a little unusual, and some have suggested it was a careless misstatement -- that he really meant "stand for."   I think he meant exactly what he said.  If his purpose was to be firm but not polarizing, "I will not stand for" would sound too autocratic.  But with Obama's current popularity, many would respond well to the image of him standing with -- at the side of -- certain groups but not others. 

Issue Statements: Conclusion

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Here are more suggestions based on my study of lawyers' issue statements:     

6. A brief's credibility is enhanced where the total number of issues is restricted to a manageable few.  Judges don't like wading through extra verbiage.  Moreover, it's best to focus on your strongest points.  If you raise weak issues along with stronger ones, you'll dilute your credibility.

            7. It is often clearest to refer to the parties by their roles (such as employer and employee).  Using names may work if the brief has already introduced the parties.  But procedural titles on appeal (such as appellant and appellee) are less effective, because they require the court to keep checking the parties' positions in the case.

            8. The issue statement should advocate, but do so with subtlety.  Avoid extreme terms like "horrible."  For a more subtle approach, try stating the issue from the client's viewpoint.  If you represent the government, you might write this: 

Under the Fourth Amendment, were circumstances sufficiently exigent for a police officer's warrantless entry into an arrestee's home to procure shoes and additional clothing in order to safely escort the him three hundred yards down a rocky path to a squad car on a cold evening?

            9. The issue should be answerable by yes or no.  Issues in an either-or or open-ended format lose persuasive power by appearing equivocal. 

            Many lawyers attempt to evoke a "yes" answer that favors the client, but evoking a "no" answer can sometimes be effective.

            10. Conflicting court rules trump any of these recommendations. 

            Read the article reporting this study at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1277435

More about Issue Statements

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        My fifth suggestion for issue statements concerns their format.         Most individual issues in my study consisted of a single "sentence." These appeared in three basic formats:

            A.  The interrogative format

Example:  Is the owner of a house liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours? 

            This format often begins with a verb (such as "can" or "is").  Sometimes it begins with an introductory phrase, such as "Under Ohio contract law, . . . ."

            B.  The "whether" format

Example: Whether the owner of a house is liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours.

          Technically, the "whether" statement is not a sentence but a fragment, and it can lead to awkward phrasing.  But this venerable format is well established and is even preferred by some courts.  In each state I studied, at least 30% of the issues began with "whether."             

          Those who choose the whether structure should note that it is a declarative statement and should end with a period, as in the example above.

            C.  The declarative format

Example:  The owner of a house is liable in damages for injuries to a delivery person who fell on snow that had been on the property's private front walk for thirty hours. 

            At 12% of the single-sentence issues, this was the least common format.

            A smaller number--4.6%--of individual issues contained multiple sentences.  And 2.3% of the issue sections contained separate, substantive introductory material. 

            Suggestions.  I suggest that a brief writer consider using the most common format: state each separate issue as a single sentence.  That format disciplines the writer to boil the issue down into a short, comprehensible statement.  And, depending on the practice in the particular court, consider avoiding the awkwardness of the "whether" format by writing a question ending with a question mark.  

            The multi-sentence format has some adherents, but it remains significantly less common than the single-issue format.  The brief writer might use it if an issue is particularly complex and not susceptible of expression in a single sentence.

More Guidelines for Writing Issue Statements

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Here are two more guidelines based on my review of issue statements from lawyers' briefs:

3.  Unless the question is purely one of law or court rules direct otherwise, it is effective to include some legally relevant facts to put the issue in context, as in this example:

            Whether the United States satisfied the notice requirements of the Due Process Clause by sending a federal prisoner notice of an administrative forfeiture proceeding by certified mail addressed to the prisoner at the prison where he was incarcerated.

 

4.  The issue statement should not assume a point that the court must decide.  Avoid writing a statement like this:

            Under the California law of punitive damages, should the court find that the defendant acted with malice when all the facts necessary for a finding of malice have been established?

            This assumes the very point that must be established.  Instead, the writer should state the facts that arguably demonstrate malice, as in this example:

            Under the California law of punitive damages, did the manager of a grocery store act with malice where he knowingly left a banana peel on the floor of the store for one hour during its busiest time?

    Click here to read the article reporting the results of this study. 

Guidelines for Writing Issue Statements

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Recently, I examined issue statements (sometimes called "Questions Presented") in briefs filed in six states' highest courts.  I found that lawyers use a variety of formats for writing them.  For example, some follow the traditional guideline to express each issue in a single sentence, while others write multi-sentence issue statements.  I also found some issue statements that were verbose and confusing, as well as others that were clear and persuasive.  Here's one of the most cumbersome ones I found:

 

            Whether the trial court abused its discretion in finding that there was no confidential communication or attorney-client privilege between Mrs. Lynch and Attorney Julie Wills regarding the deed transaction that is the [sic] and whether the court commited [sic] error by allowing Attorney Julie Wills to testify over objection of Mrs. Lynch about Mrs. Lynch's instructions and expressed intent and about her competence at the time of the execution of the deed which the Plaintiffs Lynch seek to set aside on grounds of fraud, deceit, trickery and coercion (C 1, 2), when Ms. Wills was the attorney who prepared the deed that Plaintiffs Lynch seek to set aside and who also was the notary who completed the notary's acknowledgment in that deed certifying that Juanita Lynch, who was known to her, acknowledged before her on August 30th, 2004 that being informed of the contents of the conveyance, she executed the same voluntarily on that date and when Defendant was present during the meetings between Mrs. Lynch and Attorney Wills where the discussions about Mrs. Lynch's intentions were had and when instructions were given by her for preparation of the deed.

 

           That jumble of words is likely to repel a judge, who may simply be unwilling to invest the effort needed to unscramble it.  The lawyer could profitably have devoted some time to editing it.

 

            Here's an example of a more succinct and effective issue statement, from a brief in the United States Supreme Court case Dusenberry v. U.S. :

 

            Whether the federal government violated the Due Process Clause of the Fifth Amendment by failing to give actual notice to an inmate in its own prison system before it forfeited the inmate's property for its own benefit.

 

            These examples lead to two suggestions for writing a good issue statement:

 

            1.  Writing an effective issue statement takes time. Put sufficient effort into editing it, resisting the temptation to write it in a rush at the last minute. 

 

            2.  Clarity and succinctness are of key importance.  As Justice Antonin Scalia and Bryan Garner recently stated, clarity "trumps all other" attributes of good brief writing.  (Making Your Case: The Art of Persuading Judges 107 (2008)).  Clarity is especially important in the issue statement, which frames the controversy for the court and is one of your first chances lead the court toward the conclusion you want.

 

            More suggestions for issue statements will follow in this space.

            Click here to read the article reporting the results of this study.

 

 

More about President Obama's Rhetoric

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On the legal writing listserv, two issues were raised about President Obama's inaugural address. 

The first was an objection to the passive voice in the final sentence of this passage: "The challenges we face . . .  will not be met easily or in a short span of time.  But know this America: They will be met."

I think the passive voice works here.  It can be appropriate when a writer prefers not to specify an actor.  In this context, the active "We will meet them" would sound too heavy-handed, because it would seem to pull all listeners into "we."  Some listeners might bristle at being involuntarily signed onto the project.  "They will be met" suggests that some as yet unspecified persons in the Obama administration, in combination with others (maybe many citizens), will meet the challenges.  It's a less overbearing yet still forceful way of stating Obama's resolve.

The phrasing also works for reasons of form.  It creates a pleasing parallel structure, repeating the "be met" language from the previous sentence.  And as one list member observed, repeating the word "they" acts as a transition connecting the two sentences.  Another list member pointed out that the phrasing places the important word "met" in the position of emphasis at the end of the sentence. 

A second issue concerned this sentence: "We are a nation of Christians and Muslims, Jews and Hindus, and nonbelievers."  One list member thought the word "nonbelievers" indicated a value judgment.  But the only alternative wording I can think of is "atheists and agnostics," which would have distracted many listeners for whom that language is emotionally laden.  "Non-believers" seems more neutral, and Obama was being inclusive to mention that category instead of ignoring it (as U.S. politicians often do).

So I think both of these passages work well as Obama originally delivered them.

Hat tips to Ben Opipari, Sue Liemer, and Mary Beth Beazley.

 

                                 --The Word Aficionado