Are You Smarter Than a Fifth Grader?

Well, are you?

Smarter than a fifth grader?

And if you insist that you are, is that a good thing?

I spend a good portion of every day taking lousy writing and changing it into something better, sometimes even persuasive.

(To be fair, some of that lousy text is my own, but let us just pretend that all the lousiness comes from outside my office.)

So what do I do all day long? How do you make lousy writing better?

Mostly, I just make complex and fancy writing much, much simpler. There is nothing more unreadable than a lawyer trying to sound smart.

Instead of showing off all that professional training:

  • Use short sentences.
  • Use characters as subjects.
  • Stick the characters right next to an action verb.
  • Use short, plain words.
  • Pick one subject for each paragraph and stick to it.

So what's the big deal? The big deal is we don't do it.

Try this: write one paragraph explaining to a client how a trial works. Or look at the summary of the argument for that draft brief.

How long is the paragraph? How big are the words? How long is each sentence? How much jargon did you use? Give it to your fifth grader. Can they understand it?

Yeah, that's what I thought. You're smarter than a Fifth Grader. We all are in the first draft. And it is not a good thing.

Call it law school poisoning.

And The Winner Is . . .

The Supreme Court of Texas is meeting in conference today,  August 15. It's the first conference in a while, given the summer court schedule. But without even warming up or stretching out, the court is managing to sandwich four days of conference in the next five work days.

I am sure it will reward us all with a blizzard of opinions on August 23. Hopefully, not all mine and not all at the same time please.

'K, thanks.

But at this time of year I like to troll the stats at SCOTXBlog and see who holds the record for longest pending cases.

Right up there is In re Whataburger Restaurants, complaining that the trial court did not state a valid reason for granting a new trial.

The Court asked for full briefing way back on April 15, 2011. You remember April 15, 2011, right? The top grossing movie was the animated feature "Rio." I remember it like it was yesterday.

OK, that was a lie. I don't remember. Two years is a long time ago. My teenager could not drive at that point. But we cannot give the prize to a case merely pending on the briefs.

Recently, we tipped our Stetson to the court for the record clearing of argued cases. But this year, elections or court turnover or rodents of unusual size ("ROUS's") have prevented it. So alas, one must give the prize to the case that has been pending the longest after argument.

Thus, the prize goes to Rio Grande Regional Hospital v. Lopez, which was argued February 9, 2012, appealing a judgment for nursing malpractice for failing to prevent a patient's suicide.

Of course everyone remembers February 9, smack dab in the middle of primary season. That day was notable for the State Department Briefing: the U.S. was trying to stop the violence in Syria and wanted to keep Iran from getting a nuke.

Or was that just yesterday? I guess the briefings in the last 18 months have run together.

Anyhow, strap yourselves in, because the dams are about to break on August 23. Law-oh-Palooza.

Secrets in the Twitter Age

"Rien ne pèse tant que un secret."

That's what La Fontaine said. For Luddite Americans like me, it means, "Nothing weighs more than a secret."

On the theory that a picture is worth a thousand French quotes, take a look at the illustration to the left. That is a graphical representation of how Twitter broke the Bin Laden story before President Obama did.

Someone leaked to Donald Rumsfeld's former Chief of Staff. He tweeted the news. It was re-tweeted 80 times in one minute and generated 300 reactions in three minutes. When a New York Times reporter came across the information in the Twittersphere, he re-tweeted to his 50,000 followers and the cat was well and truly out of the bag.

The author Robert Galbraith's secret identity had an even more direct route to fame. An anonymous source tweeted a columnist at the Sunday Times of London, and on July 14, the Times revealed Robert Galbraith was actually J.K. Rowling, formerly of Hogwarts School of Witchcraft and Wizardry.

Where did the source come by such a juicy secret? Was it the publisher trying to generate buzz? Was it Rowling herself, trying to sell books? No. The leak came from someone who was actually being paid not to talk.

The source was the best friend of the wife of a partner at J.K. Rowling's law firm.

Sure, secrets are heavy. And sure, J.K. Rowling's pseudonym is a GREAT secret. But good heavens, secrets ought to be a little lighter if you're actually being paid to carry them.

Never Take Directions From A Tax Lawyer

Hat Tip to About.Com

First, Kill All the Lawyers?


On reflection, I think there might be some lawyers in this picture that we'd keep.

Happy Independence Day from the Appellate Record.

Too Good To Be True


Hat tip to

Thank Goodness This Is My First Language

Hat tip to CAT Writing Studio

All Fun And Games Until Someone Lawyers Up


Hat tip to

Mistakes That Spell Check Will Never Catch

Ah the power of proof reading with your brain. Hat tip to Squidoo.

The Sprint

It's that time of year when appellate lawyers start to look at the calender and count pending cases on their fingers and toes.

I am no exception.

I was trolling around on Don Cruse's very handy SCOTX Blog doing just that. The Court was famously caught up at the end of last term. But alas, the prospects do not seem so bright this time around.

The Supreme Court of Texas is conferencing every week in June, but it will take a massive spring to get through all the pending work. As of this writing, here is the score card:

  • There are 37 argued cases awaiting opinion.
  • By comparison, 26 cases have been issued since February 1.

That's a lot of work to get through. The court isn't so much sprinting as sprinting with a full plate.