How Not To Be Read

We here at the Appellate Record pride ourselves on providing the best insights on legal writing you'll find anywhere.

And I've said it a million times, we never exaggerate.

We also pride ourselves in talking about ourselves in the plural, the royal "we," when in reality it's just me sitting here tapping the keys.

But I digress.

Today we have the ultimate legal writing tip if you want the court (or any other audience) to avoid reading large portions of your writing. This technique is so effective that,  if properly used, I daresay you could drop an F-Bomb in the middle of a brief and the court would never notice.

Let me know how that works out for you.

Curious? Well, it has to do with telling the court what the cases say rather than telling the court what the cases mean. After the jump, I--we--will explain.

Block quotes.

Yep, that's it. Block quotes. Judges don't read them.

Why? Because they're a laborious waste of time and space in briefs that received too little thought and precious little analysis.

 

All a block quote does is tell the court exactly what a case says, usually right after you've told the court what a case held.

See the fictional example above.

And the change in margins subliminally signals to the reader, "You don't need to read this part because I just told you what it says anyway."

But it is not the function of a brief to tell the courts what the cases say. They have Westlaw for that. Any prelaw wannabe can manage that.

Our job, and the job of a brief, is to tell the courts what a case means. Why is it significant to this case? Why is it well reasoned or poorly reasoned? Why is it binding or why not? Merely reciting the facts, the procedural history, the holding and providing a quotation does not do that.

Much better to state the legal rules of a case and tie them directly to your own facts. How?  "This plaintiff cannot state a claim for failure to warn of the ravine because a gaping chasm, which (as here) exceeds 500 feet, is open and obvious as a matter of law. See Schmedlep v. Dumfinkle, 685 S.W.3d. 444, 447 (Tex. 2011) ('blah blah blah blah blahbitty blah.')."

But that requires analysis. That requires thought. You can't cut and paste analysis. You can't fake thought. 

Most lawyers would rather die than think.

Many have. 

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Comments (3) Read through and enter the discussion with the form at the end
GB - February 17, 2012 8:46 AM

I feel like a blockhead. I've been using block quotes with greater frequency lately. The first one was free, and then, well, you know what happened next. I was highlighting text, shrinking margins, and single-spacing entire pages of briefs.

Must. Think.

One suggestion -- perhaps you should add a comma after "feet" in your proposed solution. If you aren't a fan of the comma, think of using em dashes on either side of that parenthetical comment. Or not.

Brom - February 17, 2012 11:16 AM

I've known for a long time that I need to be wary of block quotes. But that hasn't kept me from using them. I just make sure to restate the important points in the main text, so that even if a reader skips the block quote, they'll still get the point.

The last time I used a block quote, it was a portion of a statute that provided the basis for the claim under discussion. I felt like it was important to have the statutory language there; even though anyone interested in reading it could go look it up, I didn't want to make anyone take that additional step. But, not taking any chances, I followed the block quote with a paraphrase in the main text and a description of the statute quoted from caselaw.

Now this article has me wondering: would it be better to avoid block quotes entirely? I'm not so sure. I still think there are times when you need them. You don't want to make the judge put down your brief and go look something up; better to include it. Just include it in such a way that your brief won't suffer if it gets skipped....

Kendall - February 17, 2012 11:21 AM

There is a methadone for the addiction to block quotes. Pick up a lousy brief that is all recitation after recitation of cases with block quotes and force yourself to read it. For me, that means finding something I wrote myself with too little thought.

And yes, several have e-mailed or commented about whether you have to become a teetotaler on block quotes. Aren't there times when block quotes are necessary? Like the statute example Brom gives. The answer is that you should NEVER use them, except when you SHOULD use them. And Brom hit the nail on the head. That's the next post! :)

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