Bench & Bar

NOV 2013

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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be the client, so keep that in mind in terms of how you frame the description of the client's conduct or problem. Another consideration that young lawyers should keep in mind is that when writing internal documents for a boss, the specific preferences of that more senior lawyer, one who may well sign your paycheck, should be kept in mind. In other words, until you have seniority, you should conform to your boss's expectations to the extent possible from a professional and ethical stand point.10 Overall, regardless of the specific legal audience, every legal reader is a busy and critical one. She has expectations about how the arguments are organized and supported with legal authorities. She also appreciates clarity, brevity, and use of "plain English" over legal jargon.14 Keep these expectations in mind to ensure your legal reader is left with a positive and confident reaction to your writing. SCOPE Third, ask yourself what the scope of the document is, and take care to stay within that scope. Otherwise, you may annoy your boss or waste your client's money. If you believe that other issues might affect the outcome of the case, ask the assigning attorney or requesting client if the issues have already been considered or if someone else is handling them.15 This, in turn, will also save you time. Moreover, staying within the scope of the issue or case in a court document will show you respect the judge's time and perhaps also her jurisdiction.16 STANCE Finally, ask yourself what stance is required by the document – formal or informal and objective or persuasive – and stick with that requisite stance throughout. Annotated Statutes Annotated Rules: Supreme Court Civil - Criminal & Rules of Evidence Thousands of Kentucky Topics in our Legal Digest Weekly Synopsis of All KY Appellate Decisions! Appellate Decisions For All 50 States - Federal & Bankruptcy Courts Still Just $34.95 per Month Call for a free 30 day trial - 502-731-4617 www.LawReader.com th 314 7 Street - Carrollton, KY 41008 While most legal writing is formal, your law office may expect more informal writing for internal documents. This could save you time and show you are aware of the preferences of those you work with. Documents filed with the court should always be more formal, and they should comply with the formatting requirements for the relevant court and perhaps also the specific judge. When the document's stance is objective, the facts should include both good and bad facts for the client and should be framed neutrally. You must give proper weight to arguments on both sides of the issue.17 In contrast, court documents should subtly persuade, which means including all of the facts yet characterizing them in the light most favorable to the client. In conclusion, the next time you begin to draft a legal document, remember to take a P.A.S.S. Asking the questions demanded by this acronym will benefit new and experienced lawyers alike. The end product will be better organized and focused, will be appropriately formatted, and will more directly and effectively speak to the specific legal audience to whom it is directed. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 for Law Students, at 20 (Carolina Academic Press, 2013); Diane R. Donahoe, Experiential Legal Writing: Analysis, Process, & Documents, at 64-65 (Aspen, 2011); Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook, § 18.2 (Aspen, 5th ed. 2006). Enquist & Oates, supra note 1, § 18.2. Laurel Currie Oates & Anne Enquist, Just Memos, § 6.2 (Aspen, 2d ed. 2007). Enquist & Oates, supra note 1, § 18.2.2; see also Donahoe, supra note 1, at 161. Collyn A. Peddie, "The Ten Commandments of Legal Writing," 32 Houston Lawyer 36, 37 (July/August 1994). Wayne Schiess, Writing for the Legal Audience (Carolina Academic Press, 2d ed. 2013) (October 2013). Id. Oates & Enquist, supra note 3, § 6.1. Id. § 6.2 See Wayne Schiess, "The Five Principles of Legal Writing," 49 Practical Lawyer 11, 14 (June 2003). Peddie, supra note 5, at 36. Antonin Scalia & Bryan A. Garner, Making Your Case: the Art of Persuading Judges, § 12 (Thomson/West 2008). Enquist & Oates, supra note 1, § 18.2.1. E.g., Mark K. Osbeck, "What is 'Good Legal Writing' and Why Does it Matter,?" 4 Drexel L. Rev. 417, 427-40 (Spring 2012); Richard C. Wydick, Plain English for Lawyers, at 3-6 (Carolina Academic Press, 5th ed. 2005). Donahoe, supra note 1, at 65. Scalia & Garner, supra note 12. Oates, supra note 3, § 6.2. 17 Another common audience is the judges with whom you file a motion or brief. As you draft the legal document, always remember that judges are very busy. "They are overburdened, underpaid, and, in general, hate having their time wasted."11 Select among the arguments to make and legal authorities to cite with this in mind. The judge won't appreciate your "everything but the kitchen sink" approach to the document.12 Lawyers should also keep in mind that important secondary audiences for court documents include the judges' law clerks, the client, opposing counsel,13 and sometimes even the general public in high profile cases. This means that all facts should be conveyed accurately yet in the best light for the client, and all authorities relied on should be relevant and good law. ISN'T IT TIME FOR YOU TO CHECK OUT LAWREADER? E.g., Laura P. Graham & Miriam E. Felsenburg, The Pre-Writing Handbook B&B; • 11.13

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