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

In 1984, I had an AP English teacher who taught me most of what I now practice as ostensibly "good" writing.  Her particular tool was the five paragraph essay:

• Introduction that signposts three points.
• Topic sentence and Point No. 1
• Topic sentence and Point No. 2
• Topic sentence and Point No. 3
• Conclusion

Nearly every brief I write is just an expansion of the five paragraph essay. What's more it seems to work.  So thanks for that, Mrs. L.

But this English teacher had an obsession: the sentence fragment.  In fact, she would have failed me for that last sentence.  She believed that no valid sentence could begin with a conjunction or connector.  If you did so, you were toast.  For no matter how crystalline or organized or beautiful the prose that came before, the conjunction was the poison pill, an automatic "F."  And for a kid who got lectures for a mere A-, nothing could be more terrifying.     

But see how I just keep doing it and doing it now?  Fun!  Liberating, actually.

Professor Wayne Schiess, presenter at the UT Conference on State and Federal Appeals says I can.  So there. 

If you're brave and confident, and if you're ready to make your writing more readable, I've got a recommendation for you.  In place of long, heavy transition words, use what I like to call "lite connectors."  Not all the time or in every sentence.  Just try a few.

* * * 

When you want the reader to know that the idea in this paragraph or sentence contrast with the idea from the previous one, you should make it known with the first word.  And make it known with as few syllables as possible.  . . . .

Of course you can begin sentences with but.  Accomplished writers have been doing it for centuries.  . . . .

So I recommend that in place of however, on the contrary, on the other hand, and the like, you try but and yet without a comma afterward. 

But Mrs. L will give me an F!  No, she won't.  Professor Schiess is right.

After attending that conference, therefore, I no longer have to write in this tortured syntax where formal, introductory clauses are inserted and set off with commas or even semicolons in order to guard against preparatory conjunctions, which are something up with which we will not put. 

It is too confusing.  It is too stilted.

The shorter sentence is more readable and has long been valid.  So I can follow the practice without fear of being failed. 

What's more the lite connector and the shorter sentence serve the values in The Elements of Style:

Omit needless words.

Be clear.

And if you do that, how can you be wrong?

Professor Wayne Scheiss's legalwriting.net blog is a great resource on how to (and how not to) persuade as a legal writer.  Recently Wayne wrote a post on the importance of good summaries. 

He noted how useless the usual motion preamble is for a judge looking at a computer screen showing his docket.  If you begin with the "COMES NOW" jargon along with defining all the parties with the inscrutable acronyms that seem to be a trial lawyer's fetish, all you've done is tell the judge what is already on his screen. 

As Professor Scheiss put it:

The information in that opening paragraph tells the judge who the defendant is--already stated in the case style. It says that the defendant is moving for summary judgment--already obvious from the title. And it says that support for the motion follows--obvious to every judge.

Instead, says Professor Scheiss (and Kendall), leave out the jargon and tell the Judge what you want and why you're entitled to it:

Say what you want, briefly, and then say or list why you should get it, in the same order in which you'll discuss those reasons in the body of the argument. 

Professor Scheiss publishes a good example:

William Adair and Tenet Corporation move for summary judgment on the plaintiff's discrimination claim for two reasons:

• They were never the plaintiff's employer under Texas law.
• The plaintiff has not exhausted her administrative remedies.

Be clear, clear enough for the 3 a.m. judge.  Don't hide the ball.  Don't play "Three Card Monty" with the Court. If you win "Three Card Monty" you lose.

But I'll advance an additional reason why a strong summary is important.  Beyond helping the judge, a good summary helps YOU.  It makes sure that YOU know what you want and WHY you are entitled to it.

As an appellate lawyer, it is common to pick up cases where someone else has done briefing at an earlier stage.  In that process, I have seen several cases where neither side gave the poor trial judge any help in hacking his or her way through the jungle to find the right answer. 

I recall one case where there was a defense with two elements and a Supreme Court of Texas Case resolving one element in our favor as a matter of law.  The trial team, however, started all the briefing with the OTHER, weaker element.  The controlling, Supreme Court case did not appear and was not discussed until the end of the argument on the element they listed second.

In another, there was a recent U.S. Supreme Court case right in the center of the fairway for both parties.  The case should have been all over both parties' briefs.  The opening brief by one party only mentioned it once (in a footnote toward the end), the response brief likewise mentioned it only once near the end of the brief, and the reply brief again cited it only once in a footnote.  Both sides argued the facts like they were talking to juries instead of filing for summary judgment.

Obviously, the lawyers in both cases knew about the precedents because they cited them.  But they had not thought through WHAT they wanted and WHY they were entitled to it.  If they had, their briefs and their arguments would have been entirely different. 

A strong summary forces the writer to answer those questions:

• What do I want?
• Why should I get it?

So, start strong.  Summarize.  Summarize for you and summarize for the Court.  The life you save might be your own.