The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

Well, it's been a quiet week in the SCOTX and the Fifth Circuit, my home courts. Not a whole lot of opinions of note coming out this time of year.

Nevertheless, I was flipping through the recent offering from the Fifth Circuit, and my head kind of exploded.

Or it would have if the document had been written by a practitioner instead of an Article III Judge.

Article III judges have reached a station in life that they can force me to turn the pages if they like. Practitioners? Not so much.

After the break, a harmless rant on why you're not Agatha Christie and should not try to write like her. 

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Great institutions only become great if their people build them that way.

Texas lost just such a builder on February 11 with the death of Justice Joe Greenhill.

After the jump, we feature a personal remembrance of Judge Greenhill by my colleague, Judge Scott Brister, who served as Judge Greenhill's law clerk before later serving on the Supreme Court of Texas himself.

Pictured: Judge Greenhill (left) and Judge Scott Brister (right) on the occasion of Judge Greenhill's last visit to the Court in 2007.

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Short words are best and the old words when short are best of all.

--Winston Churchill

At the suggestion of a reader, I recently got 100 Ways To Improve Your Writing by Gary Provost. It was not written for lawyers, which makes it the perfect tool for improving your legal writing.

Building on the two, recent posts about my exploding cranium (here and here), the more legal something is, the less readable it becomes. So the goal of every legal writer ought to be to write like a writer--or maybe like a reader--not like a lawyer.

Provost's book is filled with useful rules and reminders to assist in that effort. For example, the first rule in the sixth chapter, "Twelve Ways to Give Your Words Power" is  "Use Short Words."

Short words tend to be more powerful and less pretentious than longer words. Rape is a powerful term; sexual assault isn't. Stop is stronger than discontinue.

The quotation at the top of the post shows that this idea was not unique to Provost. Sir Winston would have agreed. And if he picked up one of your briefs:

• "Prior to" would become "before."
• "Subsequent to" would become "after"
• Phrases like "pursuant to" and "in conformity therewith" and "heretofore" and "wherefore" and "inter alia" are banished to the dust bin of all legalistic flotsam.

All Latin-derived mush should be replaced by reliably stolid, Anglo-Saxon words with heft and power.

As someone who towers at 5 foot 5, I am delighted to hear that short means power.

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I am sure you noticed it, did you not? Judge Posner recently had the good sense to agree with us here at the Appellate Record.

You mean you didn't see it? Judge Posner just wrote an article (pdf) in which he opined (in substance) that the Bluebook and its authors are full of beans.

He may have put it a bit differently, but we at the Appellate Record have long thought so. After the break, a homily on when it is best to use improper form, and what this has to do with my head exploding.

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 A foolish consistency is the hobgoblin of little minds, adored by statesmen and philosophers and divines.

--Ralph Waldo Emerson

Five (5) days ago, or maybe it was six (6), I got one (1) e-mail from a blog reader and appellate-lawyer-colleague. His head had exploded, and I don’t blame him. Mine would have too.

On the whole, we appellate lawyers are quite used to collaborating with others. We can brief with a committee of twelve (12). We can harmonize three (3) sets of edits. We know that there’s more than one (1) way to skin a cat.

But then, there are four (4) or five (5) things that make one’s (1’s) head explode. After the break, I’ll disclose one (1) of the things that makes my head explode and try to draw a broader lesson that may be of use.

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