Exercises from Legal Writing in Plain English by Bryan A. Garner Copyright 2001, Bryan A. Garner Published by the University of Chicago Press (www.press.uchicago.edu) Section 1. Have something to say--and think it through. Exercises Begin the following exercises by looking up the cases cited. Then write a casenote for each one-- that is, a short case synopsis that follows a standard form: (1) case name and citation; (2) brief facts; (3) question for decision; (4) holding; (5) reasoning. Your finished product should fit on a five-by-seven-inch index card (front and back). The exercises are increasingly challenging for either or both of two reasons: first, the increasing complexity of the legal principles involved; and second, the increasing difficulty of the language used in the opinions. When you're finished, have a friend assess how easy it is to understand what you've written. Here's an example of a casenote: Case: Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974). Facts: While driving in city traffic, Henderson found that, despite repeated attempts, she couldn't brake. To avoid injuring anyone, she ran into a pole. An investigator later found that part of a rubber gasket from the air filter had gotten into the carburetor. Henderson sued Ford on various theories, including defective design. Her expert witness didn't criticize the design of the gasket, carburetor, or air filter, but did say that the positioning of the parts might have been better. No one testified that the air-filter housing was unreasonably dangerous from the time of installation. Yet the jury determined that the air-filter housing was defective and that this defect had caused Henderson's damage. Question: The expert witness didn't testify that the design was unreasonably dangerous--only that it could be improved on. Is this testimony sufficient to support a jury finding that a product's design is unreasonably dangerous? Holding: Mere evidence that a design could be made better--without evidence that the design itself was unreasonably dangerous--is insufficient to impose liability on a manufacturer. Reasoning: A person suing on a design defect must provide some evidence that the design of the product made it unreasonably dangerous. Specifically, the evidence must show that a prudent manufacturer who was knowledgeable about the risks would not have placed the particular product in the stream of commerce. Mere speculation that a product might be improved on does not constitute evidence of a design defect. A manufacturer is not required to design the best product scientifically possible. Basic Write a casenote for Serrano-Moran v. Grau-Gaztambide, 195 F.3d 68 (1st Cir. 1999). If you belong to a writing group or class, bring a copy of your casenote for each colleague. Intermediate Write a casenote for Floudiotis v. State, 726 A.2d 1196 (Del. 1999). If you belong to a writing group or class, bring a copy of your casenote for each colleague. Advanced Write a casenote for Atlas Food Systems & Services, Inc. v. Crane National Vendors, Inc., 99 F.3d 587 (4th Cir. 1996). If you belong to a writing group or class, bring a copy of your casenote for each colleague. Section 2. For maximal efficiency, plan your writing projects. Try nonlinear outlining. Exercises Basic While planning and researching a legal memo, fill out a whirlybird. (You're ready to begin once you know enough about the problem to have an idea or two.) Use unruled paper. Take your time. Fill as many major and minor branches as you can, and feel free to add more branches. Then, when the paper starts getting full--and only then--create a linear outline using bullets. Remember that you're working on the basic unit of organization: once you have that, you'll organize further according to issues and answers. Intermediate Do the same with a trial or appellate brief. Advanced Do the same with a journal article or continuing-legal-education paper. For this one, you might need a large sheet of butcher paper. Section 3. Order your material in a logical sequence. Use chronology when presenting facts. Keep related material together. Exercises Basic Improve the sequence of ideas in the following sentence. Start like this: "In March 2000, Gilbert Spaulding applied to the Workforce Commission for extended unemployment benefits." Then use one or two extra sentences. * The lower court did not err by affirming the Workforce Commission's denial of Spaulding's request for extended unemployment benefits, since those benefits were not available during the period for which he sought eligibility. Improve the sequence and phrasing of ideas in these sentences, perhaps by breaking them into separate sentences: * The state supreme court reversed the intermediate appellate court's affirmance of a summary judgment granted to Pilsen Corporation, the plaintiff, which had only requested a partial summary judgment on the discrete issue of fraud. * The issue is whether Davis Energy has granted its neighbors an easement to use a private road that enters a Davis fuel-storage yard, when for three years Davis has had a guard at the road's entrance but has posted no other notice about private property or permission to enter, and for seven years the owners of adjacent property have used the road to reach their own property. * The Plaintiff Los Angeles Dodgers, a corporation with offices and its principal office in Los Angeles, California, is the owner of a professional baseball team that, since 1958, has played baseball in Los Angeles, California, and before 1958 played baseball in Brooklyn, New York, under the name "the Brooklyn Dodgers," but in that year moved the site of its home games from Brooklyn to Los Angeles. Intermediate Rewrite the following passages to reassemble the elements in chronological order. Again, you might need to break one or more sentences into separate sentences. * This action arose out of a request by Pan-American to cancel its surety bond posted with the Land Reclamation Commission to ensure reclamation on a portion of the Prelancia Fuels mine site. The Commission filed a petition for declaratory judgment and application for a temporary restraining order and preliminary injunction on February 16, 1996, to determine whether Pan- American could lawfully cancel its surety bond. Pan-American made its request after legislation had been passed that, according to Pan-American, would increase its liability under the bonds. The trial judge disagreed with Pan-American. At the request of the Commission, after a brief evidentiary hearing, a temporary restraining order and preliminary injunction were granted on February 16, 1996, preventing Pan-American from canceling the bond at issue until final judgment on the declaratory-judgment action. * In Sinclair, the court awarded the niece of Sinclair a constructive trust. Sinclair's niece was suing Purdy's estate for one-half interest in property that she claimed her uncle owned and had promised to bequeath to her in exchange for caring for him until his death. The court observed that the property was purchased in his sister's name. This was done for business purposes and because he and his sister shared a close relationship. There was also an agreement between the siblings that the sister would be allowed to keep only half the property. The court ruled that withholding the property from the niece would be a breach of promise; hence, a constructive trust was awarded in favor of the niece. * Kathcart filed the instant patent application on April 11, 2000, more than one year after he filed counterpart applications in Greece and Spain on November 21, 1998. Kathcart initially filed an application in the U.S. on November 22, 1997, claiming most of the same compounds as in the instant application. When he filed abroad, however, in 1998, he expanded his claims to include certain ester derivatives of the originally claimed compounds. It is the claims to these esters, which Kathcart has made the subject of a subsequent continuation-in-part application, the application now before the court, that are the issue here. Both foreign patents issued prior to the instant application in the U.S., the Greek patent on October 2, 1999, and the Spanish patent on January 21, 1985. Advanced Find a published case in which the presentation of the facts is marred by disruptions in chronology. Write a short explanation specifying why the unchronological narrative was difficult for you to read. Rewrite the factual statement as best you can, omitting irrelevant facts and putting in brackets any facts you might want to add (but weren't given in the case itself). If you belong to a writing group or class, bring a copy of your before-and-after versions for each colleague. Section 4. Divide the document into sections, and divide sections into smaller parts as needed. Use informative headings for the sections and subsections. Exercises Basic Find a pre-1950 law-review article or treatise with long stretches of text uninterrupted by headings. Devise appropriate headings. If, as a result of this exercise, you find that the organization is poor, note the organizational deficiencies. If you're a member of a writing group or class, bring a copy of the relevant pages and be prepared to explain where your headings would go and to discuss any organizational problems you uncovered. Intermediate In a state administrative code, find a regulation having at least three sections with headings that don't adequately describe the sections' contents. Devise better headings. If you're a member of a writing group or class, be prepared to explain why your edits would improve the regulation. Advanced Find a proxy statement or prospectus with long stretches of uninterrupted text. Break up the long paragraphs into smaller paragraphs and add headings where appropriate. For a model of this approach, see Garner, Securities Disclosure in Plain English SectionSection 41-43 (1999). If, as a result of this exercise, you find that the organization is poor, note the organizational deficiencies. If you're a member of a writing group or class, bring a copy of the relevant pages and be prepared to explain where your headings would go and to discuss any organizational problems you uncovered. Section 5. Omit needless words. Exercises Basic Delete at least four consecutive words in the following sentences, replace those words with just one word. You may rephrase ideas and rearrange sentences, but don't change the meaning. * Even assuming that the fog caused injury to Roelke, Amskills had no duty to prevent that injury because it was idiosyncratic and Amskills could not have been expected to foresee such injury. * At no time prior to the initial public offering did the underwriters or any officers, directors, or employees have knowledge of any facts that would suggest that "Palm Harbor" could not be completed on schedule and in accordance with specifications. * Beale has wholly failed to allege facts that, if true, would establish that competition among the nation's law schools would be reduced or that the public has been in any way injured, and this failure to allege facts that would establish an injury to competition warrants the dismissal of her restraint-of-trade claim. * The Business Corporation Law does not address the ability of a New York corporation to indemnify individuals who are not its employees. * The court examined a number of cases and stated that there appeared to be only a limited number of instances in which there would exist a duty to disclose the illegal conduct of persons who, through political campaigns, seek election to a public office. Intermediate Revise the following sentences to make them as lean as you can without changing the meaning: * The County sent an inspector who made observations as to the condition of the sidewalk and concluded that it was uneven. Although a review of the caselaw reflects that there are no decisions in the Eleventh Circuit concerning this issue, the great weight of federal authority favors the exclusion of third parties from a Rule 35 independent medical examination. * There is caselaw for the proposition that use restrictions are not always strictly enforced when a lease is assigned by a tenant in bankruptcy and the property in question is not part of a shopping center. * The court appeared to premise much of its opinion upon the argument that consumers stand at a significant disadvantage in product-liability actions based on ordinary negligence principles. Consequently, strict product liability was intended to relieve the plaintiff of the burden of having to prove actual negligence. * With respect to matters not covered by the provisions of the Uniform Rules for the New York Court of Claims (the Uniform Rules), the Court of Claims adheres to the rules set forth in the Civil Practice Law and Rules (the CPLR). Ct. Cl. R. Section 206.1(c). Because the Uniform Rules do not discuss disclosure of expert witnesses, it follows that the Court of Claims' rules on the subject are governed by the CPLR. * There are cases that are factually similar to the present case, but that are controlled by older statutes--i.e., the pre-1965 legislative scheme. There are no cases that have been explicitly decided under Section 1511 since the 1965 amendment, so it is unclear what effect the amendment has on cases that are factually similar to the present case. * Arbitration as a means of settling disputes was at first viewed by the courts with much disfavor, but today is being used increasingly as a substitute for litigation for the adjudication of disputes arising out of contracts. * The court rejected the defendant's argument that the headlines were not the product of sufficient skill or effort, finding that because many of the headlines consisted of eight or so words that imparted information, copying of the headlines might at least in some instances constitute copyright infringement. * To say that one who has contracted to serve for a number of years at a low salary or at distasteful work and seeks to better his or her condition by a contract with another party should be penalized in every case by inability to enforce this second contract seems harsh, and under these or other extenuating circumstances, the courts have often deemed damages to be sufficient recompense to the injured employer without also invalidating the second contract. Advanced Rewrite the following 193-word paragraph in fewer than 130 words without changing the meaning: In addition to the two cases cited just above, both (as mentioned) dealing with the California State Bar Rules of Conduct, Rule 3-310 of the California State Bar Rules of Professional Conduct describes circumstances in which an attorney is embroiled in the representation of adverse interests. Rule 3-310 is concerned primarily with situations in which the attorney's duty of loyalty and duty of confidentiality to clients are called into question. Therefore, to date, there are no Rule 3- 310 cases disqualifying a district attorney as a result of a prosecution of an individual whom the district attorney used or is used as a witness in another prosecution. Most cases that involve district- attorney conflicts under Rule 3-310 consist of a former attorney-client relationship between an accused and a district attorney. In such cases, the rule serves to protect an accused from a prosecution in which a district attorney unfairly benefits from information gained during the course of his or her representation of the accused. Other Rule 3-310 cases involve overzealous prosecutions in cases where a district attorney is for one reason or another personally or emotionally interested in the prosecution of the accused. or Find a wordy sentence that you can reliably cut in half without changing the meaning. Cut it. If you're a member of a writing group or class, bring a copy of the before-and-after versions for each colleague. Section 6. Keep your average sentence length to about 20 words. Exercises Basic Break each of the following long sentences into at least three separate sentences: * Appellee Allied Indemnity of New York respectfully suggests that oral argument would be of little benefit because the dispositive issue has been recently authoritatively decided by the Texas Supreme Court in National Union Fire Insurance Co. v. CBI Industries, Inc., 907 S.W.2d 517 (Tex. 1995), and by this Court in Constitution State Insurance Co. v. Iso-Tex, Inc., 61 F.3d 405 (5th Cir. 1995), because the facts and legal arguments are adequately presented in the briefs and record, and because the decisional process would not be significantly aided by oral argument. [91 words] * Although no Kansas cases were found that explicitly hold that Kansas requires a corporation to have a valid business purpose in order to engage in certain specified corporate transactions, either for mergers or consolidations, or for a sale of assets followed by a dissolution and liquidation, in a 1994 Supreme Court of Kansas case involving a cash-out merger where the dissenters claimed the defendant's board of directors breached its fiduciary duties to the dissenters, the court cited as one of the trial court's pertinent conclusions of law that it is not necessary for a corporation to show a valid corporate purpose for eliminating stockholders. [105 words] * The court of appeals noted that the Environmental Protection Agency (EPA) had already issued the applicant a National Pollution Elimination System permit for the actual discharge of wastewater, which would occur from the outfall pipe, and that the issuance and conditions of such permits were generally exempt under the Clean Water Act from compliance with the Environmental Impact Statement (EIS) requirement, and accordingly the court concluded that the Corps had properly excluded the environmental implications of the discharges from the outfall pipe from its analysis and instead considered only the construction and maintenance of the pipeline itself in determining that the issuance of the permit did not constitute a major federal action. [112 words] Intermediate Rewrite the following passages to make the average sentence length under 20 words: * At best, the lack of precise rules as to the treatment of routine corporate transactions forces investors and others who seek to understand accounting statements in all of their complex fullness to wade through pages of qualifying footnotes, the effect of which is often to express serious doubts about the meaningfulness and accuracy of the figures to which the accountants are attesting. Equally bad, while the footnotes, carefully read and digested, may enable the sophisticated analyst to arrive at a reasonably accurate understanding of the underlying economic reality, the comparison of figures published by one firm with those of any other is bound to result in seriously misleading distortions. Indeed, the figures for any given company may not be comparable from one year to the next, for although auditing standards require that the principles used by a firm must be "consistently applied" from year to year, the "presumption" of consistency may be overcome where the enterprise justifies the use of an alternative acceptable accounting principle on the basis that it is preferable. [Average sentence length: 57 words] * It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by states and by Congress. [Average sentence length: 51 words] * Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood-and-canvas lawn chair that was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered that the plaintiff, Ruth Garratt, was about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair, whereupon, due to the defendant's small size and lack of dexterity, he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. [Average sentence length: 126 words] * Since it is undisputed that the sugar was stolen, and that it was purchased by Johnson, the question at issue for jury determination is the state of Johnson's mind when he purchased it. While the jury is unauthorized to convict unless it finds that Johnson himself had guilty knowledge, such knowledge may be proved by circumstances here to warrant the conclusion that Johnson, when he purchased the sugar, knew it to have been stolen, and did not in fact honestly believe that the sellers were sugar dealers or were properly authorized by the Ralston Mill to sell sugar for it. In arriving at this conclusion, the jury might have considered the time and arrangements for the purchases, statements of Johnson to Gordon showing that he knew that he was taking a risk, the absence of any invoice or regular billing procedure, the contradictory statements of Johnson after his arrest, and the unlikelihood of the sellers' having come into possession of such large quantities of sugar to be sold below wholesale price in a legal manner. [Average sentence length: 58 words] Advanced Find a published piece of legal writing in which the average sentence length exceeds 40 words. Rewrite it to make the average under 20. Section 7. Keep the subject, the verb, and the object together--toward the beginning of the sentence. Exercises Basic Edit the following sentences to cure the separation of related words: * Ms. Lenderfield, during the course of her struggle to provide for her children as a single parent, accrued considerable debt to her family and others. Chesapeake's assertion that it is not a proper defendant in this case and, therefore, that relief cannot be granted is incorrect. * The court, in finding that Officer McGee was acting more as a school employee than as a police officer in searching Robinson, ruled that an official's primary role is not law enforcement. Intermediate Edit the following sentences to cure the separation of related words: * Plaintiff's testimony that he had never had a back injury and had never been treated by a doctor for a back ailment before this workplace accident is suspect. * The Trustee, at any time, by an instrument in writing executed by the Trustee, with the concurrence of the City Council evidenced by a resolution, may accept the resignation of or remove any cotrustee or separate trustee appointed under this section. * In Barber v. SMH (US), Inc., the Michigan Court of Appeals held that the plaintiff's reliance on a statement made by the defendant that "as long as he was profitable and doing the job for the defendant, he would be defendant's exclusive representative" as establishing an oral contract for just-cause employment was misplaced. * Taxes imposed by any governmental authority, such as sales, use, excise, gross-receipts, or other taxes relating to the equipment, except for the personal-property tax, for which Biltex, Inc. is assessed and liable by applicable law, must be reimbursed by Calburn, Inc. Advanced Find a published legal example of either subject-verb separation or verb-object separation. (The worse the separation, the better your example.) Retype the sentence, with the citation, and then type your own corrected version below it. If you're a member of a writing group or class, bring a copy of your page for each colleague, and be prepared to discuss your work. Section 8. Prefer the active voice over the passive. Exercises Basic Edit the following sentences to eliminate the passive voice: * Testimony was heard from the plaintiff and from three witnesses on behalf of the corporation. * This is a purely legal question to be determined by the court. * McCormick's motion for partial summary judgment on the duty to defend should be denied. * Plaintiff's opposition violates Rule 313 of the California Rules of Court and may be disregarded by the court. Intermediate Count the passive-voice constructions in the following paragraphs. Decide which ones you would change to active voice. Change them. * The intention of the donor is established at the moment the funds are dedicated to a charitable cause. This dedication imposes a charitable trust for the donor's objective as effectively as if the assets had been accepted subject to an express limitation providing that the donation was to be held in trust by a trustee solely for the purpose for which it was given. It is imperative that the objectives of individuals who give to charity be strictly adhered to. * There are situations in which a motion for rehearing should be granted. Before the enactment of CPLR Section 5517, it was held that when such a motion was granted, any appeals from the prior order would be dismissed. The CPLR was amended to "alter caselaw holding that an appeal from an order had to be dismissed upon entry in the court below of a subsequent order." [Citation.] Thus today, Section 5517(a) states that after a notice of appeal from an order has been served, the original appeal will not be affected if a motion for rehearing is entertained. The appeal will be neither mooted nor canceled by the grant or denial of a motion for rehearing. * Jurisdiction was conferred on the district court by 28 U.S.C. Section 1331. The complaint was dismissed with prejudice on March 31, 1999, and judgment was entered in favor of the Cauthorns. A timely notice of appeal was filed by Perkins on April 7, 1999. Jurisdiction is conferred on this court by 28 U.S.C. Section 1291. * During the taxable years at issue, the replacement fuel assemblies had not begun to be used by the company for their specifically assigned function, namely, to generate electrical power through nuclear fission. Nor were the assemblies placed in a state of readiness for their intended use during the years in which they were acquired. That did not occur until the spring of 2000, when, after more than a year of careful planning, the reactor was shut down, various maintenance tasks were performed, spent fuel assemblies were removed, the reactor was reconfigured using the new fuel assemblies in conjunction with partially spent assemblies that were not replaced, and low power testing was performed to ensure that the reconfigured reactor core performed safely in accordance with specifications. Only after those procedures had been successfully completed did the replacement fuel assemblies generate salable electric power and, hence, income to taxpayer. Only at that point could the replacement fuel assemblies be considered to have been placed in service. Advanced Find a published passage--two or three paragraphs--in which more than 50% of the verbs are in the passive voice. Retype it, providing the citation. Then, beneath the original, show your rewritten version. or In the literature on effective writing, find three authoritative discussions of the situations in which the passive voice can be preferable to the active. Consolidate what those authorities say. In how many situations is the passive voice better? Section 9. Use parallel phrasing for parallel ideas. Exercises Basic Revise the following sentences to cure the unparallel phrasing: * The court relied heavily on the district court's statement that the would-be intervenors retained the right to appear through counsel, to participate in the fairness hearing, to conduct discovery, and standing to appeal the court's approval or disapproval of the class-action settlement. * Tenant will probably not be able to have the lease declared void and unenforceable for vagueness because it contains all the essential elements of a lease: a description of the premises, the amount of rent to be paid, the term of the lease, and identifies the parties. * The Younger doctrine also applies to a state civil proceeding that is (1) ongoing, (2) implicates important state interests, and (3) affords an adequate opportunity to raise federal claims. Intermediate Revise the following sentences to cure the unparallel phrasing: * The essential elements of a fraud claim under New York law are that: (1) the defendant made a misrepresentation (2) of a material fact (3) that was intended to induce reliance by the plaintiff (4) which was in fact relied upon by the plaintiff (5) to the plaintiff's detriment. * Where there are already allegations of defects in design, manufacturing, and warnings, a claim that the manufacturer should have recalled its 1999 products is redundant, prejudicial, and directed to the wrong institutional forum. * Under Georgia law, the elements necessary for the application of equitable estoppel are (1) a false representation or concealment of facts, (2) it must be within the knowledge of the party making the one or concealing the other, (3) the person affected thereby must be ignorant of the truth, (4) the person seeking to influence the conduct of the other must act intentionally for that purpose, and (5) persons complaining must have been induced to act by reason of such conduct of the other. Advanced Rewrite the following paragraph from a loan agreement so that you highlight the parallel phrases. The parenthetical letters--except for "(A)"--have been deleted. Simply reinsert the missing parenthetical letters "(B)" and "(C)" for the phrases that are parallel to the phrase introduced by "(A)." Study the passage first. Once you've decided where the letters should go, set off the listed items separately (see Section 34). You might want to edit the sentence, of course. But be careful not to change the meaning. 2.1 No Default or Violation of the Law. The execution and delivery of this Loan Agreement, or the bond indenture, and any other transaction documents by the Authority, will not result in a breach of the terms of, or constitute a default under, (A) any indenture, mortgage, deed of trust, lease, or other instrument to which the Authority is a party or by which it or any of its property is bound or its bylaws or any of the constitutional or statutory rules or regulations applicable to the Authority or its property. Section 10. Avoid multiple negatives. Exercises Basic Recast the following sentences in positive form: * Notice will not be effective unless it is delivered in person or by certified mail, return receipt requested. * In the absence of any proof to the contrary, the court should presume that the administrator's functions have not ceased. * No termination will be approved unless the administrator reviews the application and finds that it is not lacking any requisite materials. Intermediate Recast the following sentences in positive form: * There is no issue of material fact that Renfro cannot establish that Aniseed, Inc. owed her a duty to prevent the injury she claims to have suffered. * Bendola cannot be permitted to stand on nothing more than unsubstantiated and self-laudatory statements as a basis for denying summary judgment. * No reason for refusing confirmation of the master's report not covered by the exceptions in the rule is disclosed by the record or urged by the defendants. * A plan shall not be treated as not satisfying the requirements of this section solely because the spouse of the participant is not entitled to receive a survivor annuity (whether or not an election has been made), unless both the participant and the spouse have been married throughout the one-year period ending on the date of the participant's death. Advanced Find a sentence in published writing that is burdened with at least two negatives that you can easily--and with no change in meaning--recast in the positive. If you're a member of a writing group or class, provide each colleague with a copy of the original (with a citation) and your revised version. Section 11. End sentences emphatically. Exercises Basic Rewrite the following passages to make the sentence endings more emphatic: * This Court dismissed the whistleblower claims against the Governor on August 27 in response to the Governor's Plea to the Jurisdiction. * The right to stop the work is the single most important factor in determining whether a party is in charge of the work within the meaning of the Act. * The Commission is not in a position to provide additional affidavits and other evidence to support its contention that Bulworth and Islington are an integrated enterprise at this time. * The court may authorize a preappearance interview between the interpreter and the party or witness if it finds good cause. * Silver Sidings contends that it had no control over the hazardous substance released to create the emergency, and that the Department of Natural Resources therefore has no jurisdiction over Silver Sidings under the Spill Bill (see Section 260.510, RSMo 1994). In fact, Silver Sidings owned the property where the release occurred, owned the underground storage tanks from which the hazardous substance was released, permitted the hazardous substances to be stored in its tanks on its property, and had every right as a landowner to control how its land and tanks were used--all relevant factors under the Spill Bill. Thus, Silver Sidings is "a person having control over a hazardous substance involved in a hazardous-substance emergency" within the meaning of the Spill Bill. Intermediate Find a journalist's article in which the last word in the article is especially arresting. Be prepared to explain why. or In published legal writing, find a paragraph in which the sentence endings are unemphatic. Rewrite the paragraph to spruce it up. Advanced In the literature on effective writing, find support for the idea that sentences should end emphatically. If you belong to a writing group or class, prepare a page with at least three quotations to this effect. Provide full citations to your sources. Section 12. Learn to detest simplifiable jargon. Exercises Basic Translate the following passages into plain English: * A prehearing conference was held on July 15, 2000, and the result of said conference was that Rawson was given an extension of time until August 6 to respond to Vicker's motion. Rawson subsequently failed to file any response thereto. * In the event that any employee is requested to testify in any judicial or administrative proceeding, said party will give the company prompt notice of such request in order that the company may seek an appropriate protective order. * The court asks whether the plaintiff is guilty of unreasonable delay in asserting its rights. Such determination is committed to the trial court's sound discretion. The emphasis is on the reasonableness of the delay, not the length of such delay. * Subsequent to the Bank's dishonor and return of the forged check, the United States served the aforementioned subpoena upon the Bank and directed the Bank to deliver to his office forthwith, upon receipt, at any time and from time to time, any and all bank checks, cashier's checks, and similar items stolen in the robbery that transpired on July 2, 2000. Intermediate Translate the following passages into plain English: * All modifications, interlineations, additions, supplements, and/or changes to this Contractual Amendment are subject to and conditioned upon a fully executed, signed, and dated acceptance, approval, and confirmation at Pantheon's corporate headquarters. * An interpreter is needed if, after examining a witness, the court arrives at the conclusion that the witness is without the ability to understand and speak English at a sufficient level of proficiency to comprehend the proceedings in such a way as to assist counsel in the conduct of the case. * This letter shall confirm our understanding and agreement that if your loan application on the above-described property is approved, you shall occupy the same as your primary residence within thirty (30) days of the closing date. You are aware that if you shall fail to do so, such failure shall constitute a default under the Note and Security Instrument executed in connection with your loan, and upon occurrence of such default the full and entire amount of the principal and interest payable pursuant to said Note shall become immediately due and payable at the option of the holder thereof. * Pursuant to the provisions of SectionSection 3670, 3671, and 3672 of the Internal Revenue Code of the United States, notice is hereby given that there have been assessed under the Internal Revenue Code of the United States, against the following-named taxpayer, taxes (including interest and penalties) which after demand for payment thereof remain unpaid, and that by virtue of the above-mentioned statutes the amount (or amounts) of said taxes, together with penalties, interest, and costs that may accrue in addition thereto, is (or are) a lien (or liens) in favor of the United States upon all property and rights to property belonging to said taxpayer. Advanced Find a published piece of legal writing that is thick with legalese. Prepare a short memo--no more than three pages--in which you (1) show at least two paragraphs from the original, (2) show how you would edit the passage, and (3) explain briefly why you made your edits. If possible, cite authority (such as a usage guide--see Section 48) in support of your edits. or In the literature on legal language and legal writing, find three quotable paragraphs (each from a different writer) discussing legalese. Assemble the quotations and citations. If you belong to a writing group or class, bring a copy of your quotations for each colleague. Section 13. Use strong, precise verbs. Minimize is, are, was, and were. Exercises Basic Rewrite the following sentences to eliminate the be-verbs: * Jones is in agreement with Smith. * The professional fees in this project are entirely dependent upon the planning techniques that the client is in favor of implementing. * The judge is of the opinion that it is within sound judicial discretion to determine whether, once the claim is asserted, the crime-fraud exception is applicable. * Where there is no express agreement, it is ordinarily taken that the authority was to last for what was a reasonable time in light of all the circumstances. Intermediate Rewrite the following passages to eliminate the be-verbs: * There was no light-duty work that was available at the company. The company's actions were hardly discriminatory when there was no showing that the company was practicing any type of discriminatory preference. * Several members were in attendance, and those present were in agreement that the board's action was violative of the bylaws. * This evidence is indicative that the company was desirous of creating a monopoly with the operating system. * Since there is a limited number of persons with the requisite skills, it is increasingly difficult for the company to hire personnel who are qualified. Advanced In a piece of published legal writing, find two meaty paragraphs--consecutive ones--in which be-verbs predominate. Type the paragraphs, preserve an unedited version, and then revise them to reduce the number of be-verbs by at least 75%. If you're part of a writing group or class, bring a copy of the before- and-after versions for each colleague. Section 14. Turn -ion words into verbs when you can. Exercises Basic Improve the following passages by changing all but one or two of the -ion words. Do any -ion words need to stay? * An interested party may make an application for a modification or revocation of an antidumping order (or termination of a suspension agreement) in conjunction with an annual administrative review. A revocation application will normally receive no consideration by the board unless there have been no sales at less than fair value for a period of at least three consecutive years. * In analyzing the ADA claim, the court noted that the decedent's termination and the reduction in AIDS benefits by the company occurred before the ADA became effective. Plaintiff nonetheless made the allegation that maintaining the limitation on AIDS benefits beyond the effective date of the ADA--in effect discrimination between plan members with AIDS and members without AIDS-- constituted a violation of the general rule of Title I. * The determination that reasonable grounds exist for the revocation of parole should first be made by someone directly involved in the case. Yet we need make no assumptions in arriving at the conclusion that this preliminary evaluation, and any recommendations resulting therefrom, should be in the hands of someone not directly involved. Intermediate Edit the following sentences to reduce the number of words ending in -ion: * In the event of termination of this Agreement by Sponsor before expiration of the project period, Sponsor must pay all costs that the University has accrued as of the date of termination. * The federal district courts have discretion over supervision of the discovery process, the imposition of sanctions for discovery violations, and evidentiary rulings. * Although compliance with the terms of the Act should provide Hince some protection from state or local actions, the actual degree of protection remains uncertain because of the absence of any prior judicial interpretation of the Act. * Any violation of the terms of probation established by the Board will result in revocation of VanTech's authority to conduct itself as a public-utility operation. * In addition, the imposition of punitive damages here would be a violation of the constitutional provision containing the prohibition of ex post facto laws. Advanced Find a paragraph in published legal writing with at least three -ion words that need editing. Retype the paragraph, with its citation, and then type your own revised passage below it. If you're a member of a writing group or class, bring a copy of your page for each colleague, and be prepared to discuss your work. or Research the literature on effective writing for additional support for eliminating -ion words. What are the various terms that writing authorities use for these words? Section 15. Simplify wordy phrases. Watch out for of. Exercises Basic Revise these sentences to minimize prepositions: * Jenkins knew of the existence of the access port of the computer. * This Court did not err in issuing its order of dismissal of the claims of Plaintiff. * Courts have identified a number of factors as relevant to a determination of whether the defendant's use of another's registered trademark is likely to cause a state of confusion, mistake, or deception. * One way in which a private party can act preemptively to protect the enforceability of the rest of the provisions of a contract, in the face of one void provision, is to insert a severability clause. * Any waiver of any of the provisions of this Agreement by any party shall be binding only if set forth in an instrument signed on behalf of that party. Intermediate Revise the following passages to minimize prepositions: * Henry II had genius of a high order, which never manifested itself more clearly than in his appreciation of the inevitability of the divergence of the paths of crime and of tort, and in his conception of crimes as offenses against the whole community. * The recognition of the propriety of a court's overruling its own decisions places those decisions on the plane of merely persuasive authority and causes our theory of judicial precedent to be substantially like the theory held on the continent of Europe. * Penfold had no knowledge of the amount of money paid--and could not have had knowledge of this--in advance of Penfold's review of its financial position in 2000. Thus, Penfold's profit-sharing is neither deserving of nor subject to the protections of Title III. * In the case of R.E. Spriggs Co. v. Adolph Coors Co., 94 Cal. App. 3d 419 (Cal. Ct. App. 1979), the Court of Appeal of California addressed the estoppel effect of a cease-and-desist order. The court was of the view that the trial court erred in failing to apply the doctrine of collateral estoppel, since the factual issue in dispute had been litigated and decided in an earlier case involving the enforcement of an FTC cease-and-desist order. * One or both of the aspects of the function of the court must suffer. Either consideration of the merits of the actual controversy must yield to the need of detailed formulation of a precedent that will not embarrass future decision, or careful formulation must give way to the demand for study of the merits of the case at hand. Advanced Find a published passage in which you can improve the style by cutting the ofs by at least half. Type the original, and then handwrite your edits so that they're easy to follow. If you're part of a writing group or class, bring a copy for each of your colleagues. Section 16. Avoid doublets and triplets. Exercises Basic Edit the following sentences to eliminate the redundancies without changing the meaning: * Licensee will perform the work in compliance with all applicable laws, rules, statutes, ordinances, and codes. * While the witness's truthfulness and veracity may be inquired into on cross-examination, it cannot be further challenged by the introduction of extrinsic evidence relating to matters not already in the record. * If the bailee fails, refrains, or refuses to perform any obligation under this agreement, the bailor may, at its option, perform the obligation of the bailee and charge to, bill, or otherwise recover from the bailee the cost of this performance. * Seller must cooperate with and assist Buyer in this process, without bearing the costs or expenses associated therewith. Intermediate Find two examples of doublets or triplets in your apartment lease, mortgage, car-loan agreement, or other personal contract. Suggest a revision that eliminates the redundancy without (in your opinion) changing the meaning. If you're part of a writing group or class, bring a copy of the before-and-after versions for each colleague. Advanced In the literature on legal language, find at least three discussions of the origin and modern use of doublets and triplets. Write a short essay (1,000 to 1,500 words) reporting your findings. Section 17. Refer to people and companies by name. Exercises Basic Rewrite the following paragraph from a summary-judgment brief. Substitute names for procedural labels. Assume that the movant (your client) is Pine National and that the plaintiff is Peter Foster. You'll undoubtedly see the need for other edits, so improve the style as best you can. Movant has conclusively established that Plaintiff did not initiate this lawsuit against Movant until after the expiration of the applicable limitations period. Plaintiff does not dispute this. Instead, Plaintiff seeks to avoid application of the limitations bar by (1) asserting that this is a case of misnomer, in which case limitations would be tolled, and (2) asserting that, under Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990), factual issues exist as to whether Movant was prejudiced by the late filing. Yet the evidence before the Court establishes as a matter of law that this is a case of misidentification (which does not toll limitations), not one of misnomer. Further, Plaintiff has not responded with any proof of a basis for tolling limitations under the equitable exception to the statute of limitations described in Enserch. The exception is inapplicable under the facts before this Court, and, therefore, prejudice or the lack thereof to Movant is not a relevant inquiry. Plaintiff's claims against Movant are barred by limitations as a matter of law. Intermediate Find a legal document in which defined legal labels, such as mortgagor and mortgagee, have caused the drafter to avoid pronouns, as a result of which the style becomes embarrassingly repetitious. Rewrite a paragraph or two of the example. If you're part of a writing group or class, provide each colleague with a copy of the example and the revision. Advanced Find some authority that supports (or contradicts) the idea that you should refer to parties by name. Look at the literature on brief-writing and contract drafting. If you're part of a writing group or class, be prepared to discuss the authority you've found. Section 18. Don't habitually use parenthetical shorthand names. Use them only when you really need them. Exercises Basic Rewrite the following paragraph to eliminate the shorthand names: The statement of the procedural history of this matter, as stated in the Appellant's brief, is essentially correct. The claimant, Keith W. Hillman (hereinafter "Hillman"), filed his claim for benefits from the Criminal Injuries Compensation Fund, Va. Code SectionSection 19.2-368.1 et seq., on July 27, 2000. His claim was denied by the Director of the Division of Crime Victims' Compensation (hereinafter "the Director") on August 27, 2000 because his conduct contributed to the infliction of his injury and because he had failed to cooperate with law enforcement. On December 20, 2000, Hillman requested a review of the denial of benefits. On April 8, 2001, Hillman was given an opportunity for an evidentiary hearing before a deputy commissioner pursuant to Administrative Bulletin No. 25, attached hereto as Addendum A (hereinafter "Add. A"). Intermediate Find a judicial opinion in which the parties are methodically defined at the outset. If you're part of a writing group or class, bring a copy of the first two pages. Be prepared to discuss whether you think the definitions serve any real purpose. Advanced Find a legal document in which the introduction of shorthand names seems pedantic--or, worse still, absurd. Decide how you would deal with the issue if you were the writer. If you belong to a writing group or class, be prepared to discuss your findings and your proposed solutions. Section 19. Shun newfangled acronyms. Exercises Basic In a law journal, find a passage that contains too many acronyms. Pick out one paragraph, type it (with citation), copy it, and then revise it to minimize the acronyms while you avoid repeating cumbersome phrases. If you're part of a writing group or class, bring a copy of your before-and-after versions for each colleague. Intermediate In a book or article, find 10 to 20 acronyms. On a single page, present the acronyms together with their meanings. If you're part of a writing group or class, bring a copy for each colleague and be prepared to discuss (1) the extent to which you think the acronyms save time in communication among specialists, (2) the extent to which you think they impede understanding for ordinary readers, and (3) the relative desirability and feasibility of making the field more understandable to more people. Advanced In the literature on effective writing, find two sources that discuss the use of acronyms. Distill their guidance and write a one-page report on your findings. If you're part of a writing group or class, bring a copy for each colleague. Section 20. Make everything you write speakable. Exercises Basic Rewrite the following openers and closers from letters to make them speakable: * Enclosed please find the following documents: * Pursuant to your instructions, I met with Roger Smith today regarding the above-referenced cause. * Please be advised that the discovery cutoff in the above-referenced cause is Monday, March 20, 2000. * Pursuant to my conversation with Alex in your office on today's date, I contacted the trustee. * This letter is for the purpose of retaining your services as a consultant regarding the above- referenced matter. * Thank you in advance for your courtesy and cooperation in this regard. Please do not hesitate to contact me should you have any questions regarding this request. Intermediate In a law review, find a long sentence or a short to medium paragraph that strikes you as particularly unspeakable. Type it, provide a citation, and set out a bulleted list of reasons why you consider it difficult to read aloud. If you belong to a writing group or class, bring a copy for each colleague. Advanced In a judicial opinion, find a two- or three-paragraph passage that strikes you as being particularly unspeakable. Type it, provide a citation, and set out a bulleted list of reasons why you consider it difficult to read aloud. Rewrite the passage. If you belong to a writing group or class, bring a copy of your before- and-after versions for each colleague. Section 21. Plan all three parts: the beginning, the middle, and the end. Exercises Basic Find a brief or judicial opinion that has a particularly good opener and closer. (For a brief, you might look at books with model briefs. You might also look at continuing-legal-education materials on appellate practice.) If you belong to a writing group or class, bring a copy for each colleague. Be prepared to explain why you think the introduction and conclusion are effective. Intermediate Find a research memo that has no proper opener or closer--that is, one that's all middle. Write both a summary that could be added at the start and a fresh conclusion. If you're part of a writing group or class, bring a copy of your work for each colleague. Be prepared to discuss the problems in the original and how you tried to solve them. Advanced Find a motion (or memorandum in support) or a brief that launches straight into a statement of facts. Write a new preliminary statement that could be inserted at the beginning of the motion or brief. If you're part of a writing group or class, bring a copy of your summary for each colleague. Be prepared to discuss the problems in the original and how you tried to solve them. Section 22. Use the "deep issue" to spill the beans on the first page. Exercises Basic In your own words, state the principal issue decided by a court in a published opinion. Use the deep- issue technique. Intermediate Find a judicial opinion that takes several paragraphs before getting to the point. Rewrite the opening paragraph with a more satisfactory opener. If you're part of a writing group or class, bring a copy of both versions for each colleague. Advanced Take a published case that includes a dissenting opinion. Frame the deep issue decided by the majority. Then frame the most nearly corresponding issue that a dissenter would have wanted. If you're working in a group, be prepared to discuss the basic disagreement between the two sides. Below is an example of how you might frame divergent issues on the same point: #1 Missouri's Spill Bill imposes liability on a "person having control over a hazardous substance" during a hazardous-substance emergency. Binary Coastal, as a landowner, controlled its land when it installed gasoline tanks and then leased the land to a service station. In February 2000, a hazardous-substance emergency occurred on the land. Was Binary Coastal a "person having control"? #2 Missouri's Spill Bill imposes liability specifically on "a person having control over a hazardous substance" during a hazardous-substance emergency. In January 2000, Binary Coastal leased some land to a service station but had nothing to do with day-to-day operations or with the activities involving hazardous substances. In February, Binary Coastal's lessee experienced a release of hazardous substances. Did Binary Coastal have control of these substances at the time of release? And here's an example from a published caseNebraska Equal Opportunity Comm'n v. State Employees Retirement Sys., 471 N.W.2d 399 (Neb. 1991).--one in which no judge dissented. Yet you might well conclude that the hypothetical dissent (#2) is the better view. #1 Under principles of statutory construction, when statutes are in conflict, the specific controls over the general. In 1986, the Legislature narrowly tailored the retirement statutes so that a retiree over the age of 55 who decided on a lump-sum payment of benefits would forfeit certain other benefits. The Equal Employment Opportunity Commission now claims that this amendment is impermissible in light of the 1963 age-discrimination statute, which is broadly worded. Which statute controls? #2 Since 1963, the statutory law of this state has prohibited age discrimination. Yet in 1986, the Legislature amended the retirement statutes in a way that forced retirees over the age of 55 to forfeit some of their benefits if they chose a lump-sum payment--but allowed those under 55 to make this choice with no such penalty. Did the Legislature intend this anomalous reversal of its long-held policy against age discrimination? Section 23. Summarize. Don't overparticularize. Exercises Basic Rewrite the following passage to improve the story line by omitting needless details: On September 25, 1997, in a Texas federal district court, R&B Music sought injunctive relief against the McCoys to prevent them from any further use or disclosure of R&B's trade secrets. On September 26, 1997, the Texas court issued an order restraining the McCoys from using or disclosing certain R&B property and proprietary information. On September 26, 1997, the court set an evidentiary hearing for Tuesday, October 7, 1997, on R&B's preliminary- injunction motion. On October 6, 1997, the McCoys moved to dismiss for an alleged lack of venue and personal jurisdiction. Alternatively, they asked the court to transfer the case to an Illinois federal court under 28 U.S.C. Section 1404 or Section 1406. On October 7, 1997, when the parties arrived for the injunction hearing, the Texas court indicated an intent to hear testimony and rule on the McCoys' dismissal or transfer motion, to which R&B had been given no chance to respond. The testimony established that both of the McCoys had had significant contacts in Texas for the past eight years--including daily phone calls and faxes to and from R&B; their three visits to R&B's Texas headquarters; and their work in negotiating R&B contracts with Texas musicians. On October 8, 1997, the Texas court transferred the case to this Court, noting that the transfer was for the reasons stated on the record. As the October 7, 1997 transcript reveals, the Texas court decided that while it has personal jurisdiction over John McCoy, it lacked personal jurisdiction over Kate McCoy. According to the court, the case should be transferred because "to accord relief to R&B down here while leaving the Illinois court to deal with Kate McCoy simply would not provide an effective situation" for any of the parties. The judge did not indicate which statutory section governed the transfer. On October 8, 1997, in the same order, the Texas court further ruled that its September 26, 1997 order restricting both John and Kate McCoy from using or disclosing R&B's trade secrets would remain in effect until further orders of the Illinois court. On October 13, 1997, R&B filed the present supplemental motion for a preliminary injunction, asking this Court to extend and expand the injunctive relief already granted by the Texas court. Intermediate Rewrite the following passage to prune the overparticularized facts and to improve the story line. The passage comes from an appellant's brief--specifically from a section entitled "Nature of the Case and Material Proceedings in the Lower Courts," just after the preliminary statement. On December 26, 1999, the Division of Child Support Enforcement ("DCSE") issued a Mandatory Withholding of Earnings Order directing the Social Security Administration to deduct $200.00 per month for current child support and $100.00 per month for payment on child- support arrears. On June 18, 2000, Skelton filed a Motion to Quash the Mandatory Withholding of Earnings Order with the Buchanan County Juvenile and Domestic Relations District Court. In the pleading, Skelton requested that the withholding order of the Division be reduced and that he be given credit against arrears for the amount of social-security benefits received by the children, and that the court recalculate the arrears. Hearings on the Motion to Quash in Buchanan County Juvenile and Domestic Relations District Court were held on September 11, 2000, and October 13, 2000. At the September 11, 2000 hearing, the court entered a temporary order requiring $28.50 per month toward current support and requiring $71.50 per month toward the arrears. The Motion to Quash was treated as a Motion for Reduction. The court took the issue of arrears under advisement and directed that the counsel for the parties prepare briefs on the issue concerning credit for a lump-sum social-security payment. The child support was set by using the appropriate code provisions, and neither party objected to the child-support award or the arrears payment. On October 13, 2000, the Buchanan County Juvenile and Domestic Relations District Court denied the Motion to Quash and ruled that "credit for social-security payments made to the children as to debt owed to the Division is denied. The Court declined to exercise equitable relief for Mr. Skelton (Appellee) as to any debt owed to custodial parent. Appeal Noted in open court, so no bond is required for appeal." This matter was subsequently appealed and tried de novo in the Circuit Court of Buchanan County. At the circuit-court level, the court denied the Division's request for an appeal bond and ruled that Skelton should receive credit for the $7,086.10 lump-sum social-security benefits paid on behalf of the children of Mr. Skelton. This reduced the child-support arrears from $14,017.14 to $6,931.04. At the date of the circuit-court hearing, all the children were over the age of 18. The circuit court was reminded that on October 14, 1995, Skelton was found guilty of contempt by the Buchanan County Juvenile and Domestic Relations District Court and was advised "to immediately notify the court of any change in employment, layoff, reduction in wages or hours worked." The court further warned that "no further delinquency would be tolerated and any change in circumstances must be followed up with a petition to decrease, or contempt sanctions will be imposed." Advanced Find a passage in which too much detail impedes the progress of the writer's thoughts. If you're part of a writing group or class, be prepared to discuss why you think the detail is excessive and how you might prune it. Section 24. Introduce each paragraph with a topic sentence. Exercises Basic Write a new topic sentence for the following paragraph--one that you could insert at the beginning while leaving the following sentences intact: Over the past 100 years, legal publishers developed an intricate set of printed materials that controlled the flow of legal information. Most of this apparatus was built around cases. Elaborate systems of reporting, digesting, tracing, and evaluating cases developed. Until very recently, mastering these systems was the essence of learning legal research. The lawyer graduating from law school in 1975 had to know much more than someone who graduated in 1875, because the use of traditional paper-based, case-centered tools had grown more complex. But it was still a system built on the old paradigm of the paper-information world. This old-style research is the only kind of research that some senior lawyers, judges, and law professors accept as legitimate. That will change in the course of the next generation, but it hasn't yet changed completely. Meanwhile, the new world of legal research is rooted in electronic information. In the past 30 years, the variety of electronic databases has grown and the information that they store, as well as the search methods for using them, have improved enormously. Even the Internet carries a wide range of legal information. The modern researcher must know how to retrieve these modern tools. Intermediate In published legal writing, find a four-page passage with strong topic sentences. Underline them. If you're part of a writing group or class, bring copies of your work to the next meeting. Advanced In published legal writing, find a four-page passage with weak topic sentences. Edit the passage to strengthen them. If you're part of a writing group or class, bring copies of your work to the next meeting. Section 25. Bridge between paragraphs. Exercises Basic The following sentences are consecutive paragraph openers from Lawrence Friedman's Crime and Punishment in American History (1993). Identify the bridging words, as well as the bridging method (pointing word, echo link, explicit connective), in each paragraph opener, beginning with the second. Remember that each of these paragraph openers is followed by several other sentences in the paragraph. You're not trying to link the sentences listed; rather, you're trying to spot words in each paragraph opener that relate explicitly to what must have come at the end of the preceding paragraph. 1. The automobile made its first appearance on the streets, for all practical purposes, in the first decade of this century. 2. By 1940, the United States had become an automobile society. 3. The numbers have continued to rise, as automobiles choke the roads and highways, and millions of people, living in the land of suburban sprawl, use the automobile as their lifeline--connecting them to work, shopping, and the outside world in general. 4. Thus, a person who parks overtime and gets a "ticket" will get an order to appear in court and face the music. 5. In many localities, traffic matters got handled by municipal courts, police courts, justices of the peace, and sometimes specialized departments of a municipal court. 6. The traffic court judge, as one would expect, did not have the prestige and dignity of a higher- grade judge. 7. The root of this evil was, perhaps, the fact that defendants did not--and do not--see themselves as criminals, but rather as unlucky people who got caught breaking a rule that everybody breaks once in a while. 8. This attitude came to the surface in a 1958 American Bar Association report on traffic matters in Oklahoma. Intermediate In published legal writing, find an exemplary passage (four pages or so) illustrating good bridges. At the outset of each paragraph, box the bridging word or words. If you're part of a writing group or class, bring a copy for each colleague, provide the full citation on each copy, and be prepared to discuss your findings. Advanced In published legal writing, find a passage (four pages or so) illustrating an absence of bridges. Either add a bridge where needed or else explain in the margin why the problem isn't fixable by an editor. If you're part of a writing group or class, bring a copy for each colleague, provide the full citation on each copy, and be prepared to discuss your findings. Section 26. Vary the length of your paragraphs, but generally keep them short. Exercises Basic In published legal writing, find a three- or four-page example of nicely varied paragraph lengths. Identify something specific that you like about the passage. If you belong to a writing group or class, bring a copy for each colleague and be prepared to discuss your example. Intermediate Break down each of the following passages so that it contains three to five separate paragraphs. Find the best places for starting new paragraphs. * When the courts of equity created the equity of redemption, they ignored the parties' explicit intention. They allowed the mortgagor to regain the property by performing the secured obligation after the legal title to the property had vested absolutely in the mortgagee. This vesting took place according to both the parties' express language in the mortgage deed and the effect that the law courts gave the language. After their original intervention, equity courts developed the doctrine prohibiting the clogging of the mortgagor's equity of redemption. Under this doctrine, even though the mortgage is in default, no agreement contained in the mortgage can cut off a recalcitrant mortgagor's equity of redemption without the resort to foreclosure by the mortgagee. Courts won't enforce a mortgagee's attempts to have the mortgagor waive the right to be foreclosed in the event of a default. The prohibition against clogging has been characterized by a variety of labels. The most common characterization associated with the doctrine in the United States is "once a mortgage, always a mortgage." This is only another way of saying that a mortgage can't be made irredeemable. The clogging doctrine, as a corollary of the equity of redemption, prevented evasion by ingenious and determined mortgagees. These mortgagees had tried using many types of clauses that, while recognizing the existence of the equity of redemption, nullified or restricted its practical operation. * Before an intelligent study of criminal law can be undertaken, it is necessary to focus on the single characteristic that differentiates it from civil law. This characteristic is punishment. Generally, in a civil suit, the basic questions are (1) how much, if at all, defendant has injured plaintiff, and (2) what remedy or remedies, if any, are appropriate to compensate plaintiff for his loss. In a criminal case, on the other hand, the questions are (1) to what extent, if at all, defendant has injured society, and (2) what sentence, if any, is necessary to punish defendant for his transgressions. Since the criminal law seeks to punish rather than to compensate, there should be something about each course of conduct defined as criminal that renders mere compensation to the victim inadequate. This follows from the truism that no human being should be made to suffer if such suffering cannot be justified by a concomitant gain to society. No rational assessment of the kinds of activity that should be punished can be undertaken without some analysis of the purposes of punishment. Those purposes most frequently mentioned are reformation, restraint, retribution, and deterrence. * Declaratory remedies furnish an authoritative and reliable statement of the parties' rights. Other remedies may be added if necessary, but the declaratory remedy itself makes no award of damages, restitution, or injunction. The chief problem in obtaining declaratory relief lies in the rules of justiciability--rules that courts will not issue advisory opinions, decide moot cases or those that are not ripe, or deal in any dispute that does not count as a case or controversy. Although people might settle legal arguments between themselves by going to the law library or calling the librarian, they cannot call on the courts this way. These concerns grow out of procedural and process values. They involve what we think about the nature of courts and judicial work. Before declaratory-judgment statutes were enacted, plaintiffs obtained relief that was sometimes essentially declaratory by suing for injunctive relief, or to quiet title to land, or to rescind a contract. When the declaratory judgment performs an analogous function, the case is justiciable and such relief is appropriate. Yet it is not possible to describe adequately all the instances in which these concerns will prevent declaratory relief. Declaratory relief is often useful in contract disputes. A good example is the dispute over liability-insurance coverage. The insured tortfeasor, the insurer, and the injured victim all need to know whether insurance covers the claim. When the insurer insists that it does not cover the claim and the others insist that it does, declaratory judgment is a good resolution. Advanced In published legal writing, find an example of grossly overlong paragraphs. Suggest the natural points for additional paragraph breaks. If you belong to a writing group or class, bring a copy with your paragraph markings for each colleague. Section 27. Provide signposts along the way. Exercises Basic Find a piece of published legal writing--such as a book chapter, a judicial opinion, or a law-review article- -in which the writer uses signposts effectively. Photocopy a section that illustrates the signposts and highlight them. If you're part of a writing group or class, bring a highlighted copy for each colleague. Intermediate Find a piece of published legal writing--such as a book chapter, a judicial opinion, or a law-review article- -in which the writer omits signposts where they're needed. Photocopy a section that illustrates the lack of signposts, and then edit the page by hand to supply them. If you're part of a writing group or class, bring a copy for each colleague. Advanced One of your coworkers, in a hurry to leave for a two-week vacation, has come to you for help with a memo that needs to go out immediately. She leaves it with you. Although you don't know much about the subject--and don't know Ezra Bander, the recipient--do your best to rewrite the memo to clarify how many items your colleague is attaching. To: Ezra Bander From: [Your colleague's name] Subject: Group Annuity Policies Date: March 15, 2000 Attached are two photocopies of the policy files for five of the six group annuity contracts the N.Y. examiners selected for further review. To be as responsive as possible to the examiners' request, we have attached the applicable Administration section's complete file for each client relating to the contracts in question (other than PSR (GA-8192)). For PSR we have attached the Contract section's correspondence file since it is the most complete source of client information. Please note that for the GIC files (on page 1 of the list attached to your request), we consider certain pricing information to be proprietary and confidential. Therefore, we have added a Request for Confidential Treatment to the applicable portions of these files. We discovered that the jurisdiction for one of the contracts the examiners selected (GA-8180 Lucent) is actually Massachusetts. Please let us know if there is another contract you want to review. Due to the complexity of the SBCD Communications file, we created a timeline to facilitate the examiners' review (which was created solely to help the examiners follow the file). We are unable to send the original policy files since we have ongoing relationships with these clients. However, we have certified to N.Y. (see attachment) that we have copied the files they requested. Also, attached to each of the five files are all related state filing materials, including any prefilings under Circular Letter 64-1, the submission packages to the Dept. of forms, any correspondence with the Dept., and approvals from the Dept. if received. The files have been reviewed by the business area and appropriate legal counsel. If you have any questions, please call me. Section 28. Unclutter the text by moving citations into footnotes. Exercises Basic Look up at least three cases listed below, all of which put citations in footnotes. Identify the stylistic differences you notice between these cases and other cases (in the same volume) having citations in the text. * Alizadeh v. Safeway Stores, Inc., 802 F.2d 111 (5th Cir. 1986). * Alamo Rent A Car, Inc. v. Schulman, 897 P.2d 405 (Wash. Ct. App. 1995). * Warden v. Hoar Constr. Co., 507 S.E.2d 428 (Ga. 1998). * KPMG Peat Marwick v. Harrison County Fin. Corp., 988 S.W.2d 746 (Tex. 1999). * M.P.M. Enters. v. Gilbert, 731 A.2d 790 (Del. 1999). * Aleck v. Delvo Plastics, Inc., 972 P.2d 988 (Alaska 1999). * State v. Martin, 975 P.2d 1020 (Wash. 1999) (en banc). * In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999). * Williams v. Kimes, 996 S.W.2d 43 (Mo. 1999) (en banc). * United States v. Parsee, 178 F.3d 374 (5th Cir. 1999). * McGray Constr. Co. v. Office of Workers Compensation Programs, 181 F.3d 1008 (9th Cir. 1999). * Minneapolis Public Housing Auth. v. Lor, 591 N.W.2d 700 (Minn. 1999). Intermediate Rewrite the following passages to put all citations in footnotes and otherwise improve the style: * Having initially remanded the question of attorney's fees to the Circuit Court following its decision in Greenwald Cassell Assocs., Inc. v. Department of Commerce, 15 Va. App. 236, 421 S.E.2d 903 (1992), the Court of Appeals' subsequent review of that remand in Greenwald Cassell Assocs., Inc. v. Guffey, No. 2190-93-4, 1994 Va. App. LEXIS 649 (Va. Ct. App. Nov. 8, 1994), provides an ample basis to determine the appropriateness and thoroughness of the appellate review conducted. * In certain narrow exceptions, a court may consider patents and publications issued after the filing date. In re Koller, 613 F.2d 819, 824 (C.C.P.A. 1980). For example, in deciding an appeal from the denial of an application, the Federal Circuit relied upon an article published in 1988, five years after an application's filing date, to conclude that the level of skill in the art in 1983 was not sufficiently developed to enable a scientist to practice the invention claimed. In re Wright, 999 F.2d 1557, 1562 (Fed. Cir. 1993). Similarly, in Gould v. Quigg, 822 F.2d 1074 (Fed. Cir. 1987), the same court upheld a decision to permit the testimony of an expert who relied on a subsequent publication to opine on the state of the art as of the applicant's filing date. Id. at 1079. The publication was not offered to supplement the knowledge of one skilled in the art at the time to render it enabling. Id. In addition, later publications have been used by the Court of Customs and Patent Appeals numerous times as evidence that, as of the filing date, a parameter absent from the claims was or was not critical, Application of Rainer, 305 F.2d 505, 507 n.3 (C.C.P.A. 1962), that a specification was inaccurate, Application of Marzocchi, 439 F.2d 220, 223 n.4 (C.C.P.A. 1971), that the invention was inoperative or lacked utility, Application of Langer, 503 F.2d 1380, 1391 (C.C.P.A. 1974), that a claim was indefinite, Application of Glass, 492 F.2d 1228, 1232 n.6 (C.C.P.A. 1974), and that characteristics of prior-art products were known, Application of Wilson, 311 F.2d 266 (C.C.P.A. 1962). Nonetheless, none of these exceptions "established a precedent for permitting use of a later existing state of the art in determining enablement under 35 U.S.C. Section 112." Koller, 613 F.2d at 824 n.5. Advanced Rewrite the following passage, putting all citations in footnotes. Improve the flow of the text. Decide what case names you might want to weave into your narrative--and how you can best accomplish this. III. Attorney's Fees In reality, Ohio law is in conflict as to whether attorney fees may be claimed as compensatory damages (which would provide the foundation for punitive damages). Of course, Ohio law has long permitted recovery of attorney fees, even in the absence of statutory authorization, where punitive damages are proper and first awarded. Roberts v. Mason, 10 Ohio St. 277 (1859); Columbus Finance v. Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975); Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552, 558, 644 N.E.2d 397, 402 (1994). However, the important question for our purposes is whether obtaining punitive damages is the only way in which to recover attorney fees, or if attorney fees can be recovered "before" punitive damages and used as the requisite compensatory foundation (actual damages) necessary for recovery of punitive damages. Several cases hold that attorney fees cannot be recovered unless punitive damages are first awarded. See Olbrich v. Shelby Mut. Ins. Co., 469 N.E.2d 892 (Ohio App. 1983); Ali v. Jefferson Ins. Co., 5 Ohio App. 3d 105, 449 N.E.2d 495 (1982); Stuart v. Nat'l Indemn. Co., 7 Ohio App. 3d 63, 454 N.E.2d 158 (1982); Convention Center Inn v. Dow Chemical Co., 484 N.E.2d 764 (Ohio. Com. Pl. 1984). However, a close reading of the Ohio Supreme Court's decision in Zoppo suggests that such a requirement might not be necessary: Attorney Fees may be awarded as an element of compensatory damages where the jury finds that punitive damages are warranted. Columbus Finance, Inc. v. Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975). Zoppo, 71 Ohio St. 3d at 558. Furthermore, in the earlier decisions of Spadafore v. Blue Shield, 21 Ohio App. 3d 21 (1985), an Ohio appellate court held that damages "flowing from" bad faith conduct may include: lost time at work and . . . mileage and other travel costs due to the additional [testimonial] examination which was held out of town . . . . An obvious loss to [the plaintiff] was the cost of the lawsuit to enable recovery of his claim . . . . Id. Other courts have alluded to the possibility of litigation expenses and/or attorney fees as compensatory damages. See, e.g., LeForge v. Nationwide Mut. Ins. Co., 82 Ohio App. 3d 692 (1992) ("reasonable compensation for the . . . inconvenience caused by the denial of the insurance benefits"); Eastham v. Nationwide Mut. Ins. Co., 66 Ohio App. 3d 843 (1990) ("evidence of . . . costs in this case, including expenses incurred in collecting (on the coverage) attorney fees, lost interest . . ."); Motorists Mut. Ins. Co. v. Said, 63 Ohio St. 3d 690, 703-04 (1992) (Douglas, J., dissenting) ("litigation expenses are primary compensatory damages in bad faith claim") (overruled in part by the Zoppo decision). Moreover, in Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St. 3d 157, 648 N.E.2d 488 (1995), the Ohio Supreme Court upheld a trial court's award of attorney fees to the insureds who were forced to defend their right to coverage (against the insurance company) in a declaratory judgment action. The court acknowledged the "anomalous result" that might arise when an insured is required to defend his/her right to recover under an insurance policy, but cannot recover the damages incurred thereby. Brandenburg, 72 Ohio St. 3d at 160. Section 29. Weave quotations deftly into your narrative. Exercises Basic In the following passage, edit the lead-in to the quotation. Make the second sentence sharper and more informative. To do this, you'll need to figure out (1) what the point of contrast is with the first sentence (that is, what the But is contrasting with), and (2) what the point of the quotation is. Keep your revised lead-in under 15 words. This Court held that Julia was entitled to damages for loss of consortium and affirmed that portion of the judgment. But the Court also held as follows: [A] claim for negligent infliction of mental anguish that is not based on the wrongful-death statute requires that the plaintiff prove that he or she was, among other things, located at or near the scene of the accident, and that the mental anguish resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observation of the incident, as contrasted with learning of the accident from others after the occurrence. Julia has not met either of these requirements and therefore may not recover for mental anguish. Thus, . . . Intermediate In a single legal publication, find two examples of well-introduced quotations. Highlight them. Provide the full citation for your source. If you're part of a writing group or class, bring a copy for each colleague. Advanced In a single legal publication, find two examples of poorly introduced quotations. Photocopy the pages containing the lead-in and the follow-up to each quotation, and edit each passage to supply a new lead-in that asserts something about the quoted material. Provide the full citation for your source. If you're part of a writing group or class, bring a copy for each colleague. Section 30. Be forthright in dealing with counterarguments. Exercises Basic Identify a judicial opinion that is written in such a way that the losing party would probably be satisfied that the court dealt fairly with the points it raised. If you're part of a writing group or class, be prepared to explain why that is so. Intermediate Identify a newspaper editorial that does not deal squarely or fairly with counterarguments. If you're part of a writing group or class, be prepared to (1) explain what the counterargument is, and (2) speculate about why the writer ignored the counterargument. Advanced Rewrite the editorial to make it more credible. Section 31. Draft for an ordinary reader, not for a mythical judge who might someday review the document. Exercises Basic Revise the following sentences so that they aren't so obviously directed to the judicial interpreter: * Nothing expressed or implied in this Agreement is intended or shall be construed to give to any person or entity, other than the parties and the Buyer's permitted assignees, any rights or remedies under or by reason of this Agreement. * The Corporation and the Executive explicitly agree that this Agreement has been negotiated by each at arm's length and that legal counsel for both parties have had a full and fair opportunity to review the Agreement so that any court will fully enforce it as written. * The employee explicitly acknowledges and agrees that the agreement not to compete, set forth above, is ancillary to an otherwise enforceable agreement and is supported by independent, valuable consideration as required by Texas Business and Commerce Code Section 15.50. The employee further agrees that the limitations as to time, geographical area, and scope of activity to be restrained are reasonable and do not impose any greater restraint than is reasonably necessary to protect the goodwill and other business interests of the employer. Intermediate In a formbook, identify a legal document that no one apart from an expert would likely understand. If you're part of a writing group or class, be prepared to discuss (1) the extent to which people other than experts might need to be able to understand the document, and (2) at least three characteristics of the document that make it particularly difficult. Advanced Revise one or two provisions (about 200 words total) from the document you identified for the Intermediate exercise. Produce before-and-after versions. If you're part of a writing group or class, bring a copy for each colleague. Section 32. Organize provisions in order of descending importance. Exercises Basic Reorganize the following paragraph from a commitment letter for the purchase of unimproved land. (A commitment letter is a lender's written offer to grant a mortgage loan.) Group the sentences according to whether they (1) specify the purpose of the letter, (2) state a buyer commitment, or (3) clarify the limitations of the letter. Then rewrite the passage in four paragraphs. Create a new introductory paragraph, and then create three paragraphs numbered (1), (2), and (3). No sale or purchase agreement nor contract of sale is intended hereby until ABC Company (Buyer) and Lucky Development Company (Seller) negotiate and agree to the final terms and conditions of a Sale-and-Purchase Agreement. Buyer shall exercise its best efforts toward securing such commitments from high-quality department and specialty stores as are essential to establishment, construction, and operation of a regional mall. For the 111.3 acres of land in the Benbow House Survey, Abstract 247, the total consideration to be paid by Buyer to Seller, in cash, shall be equal to the product of Five and 50/100 Dollars ($5.50) multiplied by the total number of square feet within the boundaries of the land, in accordance with the terms and conditions that shall be contained in a subsequent Sale-and-Purchase Agreement mutually acceptable to and executed by Buyer and Seller within sixty (60) days from the date hereof. Buyer shall exercise its best efforts to enter into the Sale-and-Purchase Agreement within the stated time period. In the event Buyer and Seller cannot come to final agreement on the terms and conditions of a Sale-and-Purchase Agreement within sixty (60) days from the date hereof, this letter of commitment shall be null and void and neither party shall have any liabilities or obligations to the other. Intermediate Reorganize and rewrite the following paragraph from an oil-and-gas lease. If you feel the need, break the passage into subparagraphs and add subheadings. 9. The breach by Lessee of any obligations arising hereunder shall not work a forfeiture or termination of this Lease nor cause a termination or reversion of the estate created hereby nor be grounds for cancellation hereof in whole or in part unless Lessor shall notify Lessee in writing of the facts relied upon in claiming a breach hereof, and Lessee, if in default, shall have sixty (60) days after receipt of such notice in which to commence the compliance with the obligations imposed by virtue of this instrument, and if Lessee shall fail to do so then Lessor shall have grounds for action in a court of law or such remedy to which he may feel entitled. After the discovery of oil, gas or other hydrocarbons in paying quantities on the lands covered by this Lease, or pooled therewith, Lessee shall reasonably develop the acreage retained hereunder, but in discharging this obligation Lessee shall not be required to drill more than one well per eighty (80) acres of area retained hereunder and capable of producing oil in paying quantities, and one well per six hundred forty (640) acres of the area retained hereunder and capable of producing gas or other hydrocarbons in paying quantities, plus a tolerance of ten percent in the case of either an oil well or a gas well. Advanced In a statute book or contract formbook, find a document (no more than ten pages) with provisions that aren't in a well-organized order of descending importance. Give it what professional editors call a "macro-edit"--that is, edit for organization without worrying much about sentence-level problems. If you're part of a writing group or class, bring a copy of your cleanly edited version for each colleague. Be prepared to explain your edits. Section 33. Minimize definitions. If you have more than just a few, put them in a schedule at the end--not at the beginning. Exercises Basic In the literature on legal drafting, find additional authority for the idea that good drafters minimize definitions. Intermediate In a formbook or statute book, find a contract or statute in which definitions account for at least 40% of the length. If you're part of a writing group or class, be prepared to discuss your views on (1) why the drafter resorted to so many definitions, (2) the extent to which you consider the definitions a help or a hindrance, and (3) whether any of the definitions are downright silly. Advanced In a formbook or ordinance book, find a short contract or ordinance in which definitions account for at least 20% of the length. Rewrite it without definitions. If you're part of a writing group or class, be prepared to discuss any difficulties you might have had. But try hard--and try again--to overcome these difficulties in your redraft. Section 34. Break down enumerations into parallel provisions. Put every list of subparts at the end of the sentence--never at the beginning or in the middle. Exercises Basic Revise the following paragraph to put the enumerated items in separate subparagraphs. At the same time, be sure that you don't create unnumbered dangling flush text. 7.7 Insurance. Borrower shall provide or cause to be provided the policies of insurance described in Exhibit I, together with such other policies of insurance as Lender may reasonably require from time to time. All insurance policies (i) shall be continuously maintained at Borrower's sole expense, (ii) shall be issued by insurers of recognized responsibility which are satisfactory to Lender, (iii) shall be in form, substance and amount satisfactory to Lender, (iv) with respect to liability insurance, shall name Lender as an additional insured, (v) shall provide that they cannot be canceled or modified without 60 days' prior written notice to Lender, and (vi) with respect to insurance covering damage to the Mortgaged Property, (A) shall name Lender as a mortgagee, (B) shall contain a "lender's loss payable" endorsement in form and substance satisfactory to Lender, and (C) shall contain an agreed value clause sufficient to eliminate any risk of coinsurance. Borrower shall deliver or cause to be delivered to Lender, from time to time at Lender's request, originals or copies of such policies or certificates evidencing the same. Intermediate Revise the following passage to cure the left-branching problem: If at any time the Federal Energy Regulatory Commission should disallow the inclusion in its jurisdictional cost of gas, cost of service, or rate base any portion of the cost incurred because of this gas purchase or the full amount of any costs incurred by Buyer for any field services or facilities with respect to any well subject hereto, whether arising from any term or provision in this Agreement or otherwise, including but not limited to price and price adjustments, the prices provided for herein, then Seller agrees that the price will be reduced to the maximum price for gas hereunder which the Federal Energy Regulatory Commission will allow Buyer to include in its jurisdictional cost of gas, cost of service, or rate base and Seller shall promptly refund with interest all prior payments for gas purchased hereunder which exceed the amount Buyer is permitted to include in said cost of gas, cost of service, or rate base. Advanced In a contract formbook, find a 200-plus-word paragraph that contains a series of romanettes (i, ii, iii). Rewrite the paragraph to set off the listed items, and make any other edits that improve the style without affecting the meaning. If you're part of a writing group or class, bring a copy of the before-and-after versions for each colleague. Be prepared to discuss your edits. Section 35. Delete every shall. Exercises Basic Edit the following sentences for clarity, replacing the shalls: * Escrow Agent shall be entitled to receive an annual fee in accordance with standard charges for services to be rendered hereunder. * Each member shall have the right to sell, give, or bequeath all or any part of his membership interest to any other member without restriction of any kind. * The occurrence of any one or more of the following shall constitute an event of default: (a) Borrower shall fail to pay any installment of principal or interest on an advance . . . . * After completion of Licensee's work, Licensee shall have the duty to restore the License Area to its former condition, as it was before the Licensee's entry into the License Area. * The sender shall have fully complied with the requirement to send notice when the sender obtains electronic confirmation. Intermediate In the following extract from a licensing agreement, count the various ways in which duties are stated. Edit the passage for consistency. 7.3 Ownership and Use of the Marks and Copyrights. Licensee shall not claim any title to or right to use the Marks except pursuant to this Agreement. Licensee covenants and agrees that it shall at no time adopt or use any word or corporate name or mark that is likely to cause confusion with the Marks. 7.4 Compliance with the Law. Licensee will use the Marks and copyright designation strictly in compliance with all applicable and related legal requirements and, in connection therewith, shall place such wording on each Licensed Item or its packaging as Licensee and Licensor shall mutually agree on. Licensee agrees that it will make all necessary filings with the appropriate governmental entities in all countries in which Licensee is selling the Licensed Item or using the Marks to protect the Marks or any of Licensor's rights. 7.5 Duty of Cooperation. Licensee agrees to cooperate fully and in good faith with Licensor for the purpose of securing, preserving, and protecting Licensor's rights in and to the Marks. Licensee must bear the cost if Licensee's acts or negligence have in any way endangered or threatened to endanger such rights of Licensor. Advanced In a contract formbook, find a document in which shall appears inconsistently. On a photocopy, highlight every shall, as well as every other verb or verb phrase that seems to impose a requirement--such as must, will, is obligated to, agrees to, undertakes to, and has the responsibility to. If you're part of a writing group or class, bring a highlighted copy for each colleague. Be prepared to discuss (1) how serious the inconsistencies are, (2) how you think they might have come about, and (3) how easy or difficult you think it would be to cure the problem in your document. Section 36. Don't use provisos. Exercises Basic Revise the following passages to eliminate the provisos: * The quantity of product whose delivery or acceptance is excused by force majeure will be deducted without liability from the quantity otherwise subject to delivery or acceptance; provided, however, that in no event will Buyer be relieved of the obligation to pay in full for product previously delivered. * Contractor will be reimbursed for travel and subsistence expenses actually and necessarily incurred by Contractor in performing this Contract in an amount not to exceed $2,000; provided that Contractor will be reimbursed for these expenses in the same manner and in no greater amount than is provided in the current Commissioner's Plan. * The Borrower may, at any time and from time to time, prepay the Loans in whole or in part, without premium or penalty, upon at least one business day's notice to the Lender, specifying the date and the amount of the prepayment; provided, however, that each such prepayment must be accompanied by the payment of all accrued but unpaid interest on the amount prepaid to the date of the prepayment. Intermediate Revise the following passages to eliminate the provisos: * If Seller's production of the product is stopped or disrupted by an event of force majeure, Seller must allocate its available supplies of the product to Buyer based upon the same percentage of Seller's preceding year's shipments of products to Buyer in relation to Seller's total shipments for the product, provided, however, that to the extent that Seller does not need any tonnage that is available in excess of the allocation of products to Buyer, it must make that tonnage available to Buyer. * This Agreement will terminate upon the termination of the Merger Agreement under Section 6.1 or two years from the effective date of this Agreement, whichever occurs earlier; provided that if the Merger Agreement is terminated under Section 6.1(d), 6.1(g), or 6.1(h) of that agreement and at the time of termination there has been an acquisition proposal as described in Section 14 of that agreement, then this Agreement will not terminate until four months after the termination of the Merger Agreement or payment to the parent company of a termination fee under Section 6.2, whichever occurs earlier. * When the Lease term expires, if Renton has fully complied with all its obligations under the Lease, Renton will be entitled to a 20% interest in the profits of Jamie Ridge in the form of a nonmanaging membership interest, and the right to lease or buy for nominal consideration approximately 1.6 acres, in an area designated by Jamie Ridge, for the purpose of operating a garden nursery, provided that any such lease or sale would be contingent upon the nursery's purpose being permitted under all applicable laws, and provided further that the area designated for the nursery would be burdened by a restrictive covenant prohibiting any other use thereof. Advanced In a federal statute or regulation, find a passage containing at least two provisos. Rewrite the passage to eliminate the provisos and otherwise improve the style. If you're part of a writing group or class, bring a copy of the before-and-after versions for each colleague. Section 37. Replace and/or wherever it appears. Exercises Basic Edit the following sentences to remove and/or: * AmCorp and Havasu have the sole right to use inventions covered by this Agreement and to obtain patent, copyright, and/or trade-secret protection or any other form of legal protection for the inventions. * Immediately upon notice from Licensor, Licensee must discontinue the printing and/or manufacture of licensed items at every print shop and/or the making of those items. * No change, waiver, and/or discharge of this Agreement is valid unless in a writing that is signed by an authorized representative of the party against whom the change, waiver, and/or discharge is sought to be enforced. * The settlement is binding on all the creditors and/or classes of creditors and/or on all the stockholders or classes of stockholders of this Corporation. Intermediate Find three cases in which courts have criticized the use of and/or. Quote and cite the relevant passages. Advanced In state statutes or regulations, find three sentences in which and/or appears. Retype them, providing citations, and then edit them to remove and/or without changing the original drafter's meaning. If you're part of a writing group or class, bring a copy of the before-and-after versions for each colleague. Be prepared to discuss your edits. Section 38. Prefer the singular over the plural. Exercises Basic Edit the following sentences to change the plural to singular when appropriate: * Employees who have earned more than 25 credits are eligible for positions under Section 7. * The fire marshal is responsible for issuing all the permits listed in this section. * All the shareholders of the corporation have only one vote. * If the appealing parties have not satisfied the requisites for interlocutory appeals, their appeals will be dismissed. * When issues not raised by the pleadings are tried by the express or implied consent of the parties, they must be treated in all respects as if they had been raised by the pleadings. Intermediate In a state-court rulebook, find a rule that is undesirably worded in the plural. Photocopy the rule and edit it to fix the problem you've identified. If you're part of a writing group or class, bring a copy of your edited version for each colleague. Advanced In the literature on legal drafting, find additional authority for the idea that a singular construction typically works better than a plural one. Section 39. Prefer numerals, not words, to denote amounts. Avoid word-numeral doublets. Exercises Basic Fix the numbering problems in the following passage: Before the entry of the final decree on June 5, 2000, the parties participated in four (4) hearings before three (3) Commissioners in Chancery, took three (3) additional sets of depositions of healthcare providers, and had at least twelve (12) ore tenus hearings. The court granted a divorce on the ground of separation in excess of one year, granted spousal support and Five Thousand Dollars ($5,000.00) in costs and attorney's fees to the wife, and equitably distributed the property. Intermediate In the literature on legal drafting, find two authoritative discussions on any aspect of word-numeral doublets, such as the idea that words control over numerals (and why). If you're part of a writing group or class, bring the authorities with you and be prepared to report on them. Advanced Find two cases in which courts have had to interpret documents that contain discrepancies in doubled-up words and numerals. Brief the cases and, if you're part of a writing group or class, be prepared to discuss them. Section 40. If you don't understand a form provision--or don't understand why it should be included in your document--try diligently to gain that understanding. If you still can't understand it, cut it. Exercises Basic Decide whether you think the provisions described below have any real meaning. If you're part of a writing group or class, be prepared to defend your position. * No savings and loan holding company, directly or indirectly, or through one or more transactions, shall . . . acquire control of an uninsured institution or retain, for more than one year after other than an insured institution or holding company thereof, the date any insured institution subsidiary becomes uninsured, control of such institution. [12 CFR Section 584.4(b).] * "Spouse" is defined as the person to whom the Cardholder is legally married or the person with whom the Cardholder is cohabiting as husband and wife and has been cohabiting for at least two years provided that where there is a legally undissolved marriage and the Cardholder is cohabiting with a person as husband and wife and has been so cohabiting for at least two years, the spouse is the person with whom the Cardholder has been cohabiting. * The 911 provider shall not impose, or fail to impose, on Company any requirement, service, feature, standard, or rate that is not required of the incumbent local exchange company. Intermediate Interview a lawyer who (1) has practiced transactional law for at least ten years, and (2) can recall a situation in which a provision relating to some other deal had meaninglessly crept into draft contracts where the provision didn't belong. Take specific notes on the interview. If you're part of a writing group or class, be prepared to report your findings. Advanced Find a reported case in which a party has had to argue that a sentence or paragraph is essentially meaningless. Write a casenote. Decide whether you agree with the court's resolution of the issue. If you're part of a writing group or class, bring a copy of both the case and your casenote for each colleague. Section 41. Use a readable typeface. Exercises Basic Find three sets of court rules that specify different typefaces or point size. Analyze the differences among them. If you're part of a writing group or class, be prepared to report your findings and to discuss which rule might result in more readable court papers. Intermediate Find two regulations (state or federal) that contain typeface specifications. Summarize those specifications and their purpose. If you're part of a writing group or class, bring a one-page summary for each colleague. Advanced Find two nonlegal sources that discuss which typefaces are most readable. Retype the most pertinent passages and provide citations. If you're part of a writing group or class, bring a copy for each colleague. or Find authority for the proposition that a sans-serif typeface is often best for headlines, while a serifed typeface is best for text. Section 42. Create ample white space--and use it meaningfully. Exercises Basic Find a legal document in which ample white space appears. If you're part of a writing group or class, bring two or three photocopied pages for each colleague. Be prepared to discuss whether you think the writer used white space well or poorly, and why. Intermediate Find a legal document with insufficient white space. If you're part of a group or class, bring a copy of the two most cramped-looking pages for each colleague. Be prepared to speculate on why the pages look the way they do. Advanced Redesign the pages that you found for the Intermediate exercise. Section 43. Highlight ideas with attention-getters such as bullets. Exercises Basic Find one or more uses of bullets in the Federal Rules of Appellate Procedure. Consider (1) why you think the drafters used bullets in those places but not elsewhere, and (2) to what extent the presentation follows the guidelines given in this section. Intermediate Find and photocopy a court rule containing a page with a list that would benefit from bullets. Retype the passage to improve it. Advanced In the literature on effective writing, find two discussions of bullets. If you're part of a writing group or class, be prepared to talk about what additional information you learned from those discussions. Section 44. Don't use all capitals, and avoid initial capitals. Exercises Basic Find a ghastly example of all-caps text in a brief or formbook. Then read it closely to see how many typos you can find. If you're part of a writing group or class, bring a copy for each colleague. Intermediate In the literature on typography or on effective writing, find two authorities stating that all-caps text is hard to read. Type the supporting passage and provide a citation. If you're part of a writing group or class, bring a copy for each colleague. Advanced Find a state or federal regulation requiring certain sections of certain documents to be in prominent type. Interview a lawyer who sometimes prepares these documents. Consider (1) how lawyers comply with the requirement--especially the extent to which they use all capitals, (2) whether capitals are actually required, and (3) whether you think there is a better way to comply with the requirement. Section 45. For a long document, make a table of contents. Exercises Basic In a contractual formbook, find a 10- to 20-page contract that has no table of contents. Make one for it. If you're part of a writing group or class, bring a copy of your table for each colleague. Be prepared to discuss whether your outline would result in any major edits--especially edits that might cause the drafter to reorganize the document. Intermediate Find a state statute or regulation (10-25 pages) that has no table of contents. Make one for it. If you're part of a writing group or class, bring a copy of your table for each colleague. Be prepared to discuss whether your outline would result in any major edits--especially edits that might cause the drafter to reorganize the document. Advanced Find a brief, an IPO prospectus, or an asset-purchase agreement that has a table of contents. Photocopy it, and then compare it with the relevant example in this section. Write a two- or three-paragraph essay comparing and contrasting the two. If you're part of a writing group or class, bring a copy of your essay for each colleague, along with the table of contents you found. Section 46. Embrace constructive criticism. Exercises Basic Find a book chapter or a law-review note or article in need of a good edit. Retype a substantial section--at least one full page (but omit substantive footnotes)--in triple-spaced format. Then edit it. If you're part of a writing group or class, bring a copy of the marked-up version for each colleague. Intermediate Agree with a colleague that the two of you will do some mutual editing. Each of you will then write a three-paragraph persuasive essay. (Don't forget Section 30.) Exchange the essays, edit them within a specified period, and then meet to discuss your edits. Each of you should agree to (1) listen open-mindedly to the other's edits, and (2) refrain from making unduly negative remarks on your colleague's essay. Each of you should use your colleague's edits to revise the original. Advanced If you're part of a writing group or class, write a five-page essay defending a controversial legal position. Polish it. Make three copies (keep the original for yourself) and bring them to the meeting. The leader or instructor will divide the class into groups of three for purposes of exchanging papers. You'll then edit the essays from the other two people in your group, and they will edit yours. Try not to edit lightly. Write a note at the end of each paper you edit, noting both strengths and weaknesses; cover both style and content. (Say something positive if you can--and you always can.) When you return the following week, you'll have two sets of edits--possibly even three, if the leader or instructor has also edited your essay. Use the best edits (at least half) to revise the essay. Section 47. Edit yourself systematically. Exercises Basic Take a short legal memo (two to five pages) that you or someone else has written, and work through the LawProse Editing Method. First, type it word for word into the computer. Then work through the edits step by step. Create a new draft after each stage. If you're part of a writing group or class, make a copy of your before-and-after versions for each colleague. Intermediate In a real-estate formbook, find a short lease or other contract to which you can apply the LawProse Editing Method. First, type it word for word into the computer. Then work through the edits step by step. Create a new draft after each stage. If you're part of a writing group or class, make a copy of your before- and-after versions for each colleague. Advanced Take a substantial document that you've written--such as a term paper or law-review note--and work through the LawProse Editing Method. Be systematic: carry out only one type of edit at a time. If you're part of a writing group or class, be prepared to discuss what this experience was like for you--and what (if anything) you learned about editing. Section 48. Learn how to find reliable answers to questions of grammar and usage. Exercises Basic Correct the usage errors in the following sentences. Cite a usage book that deals with the error in each sentence. * When Margot arrived, Rodney told her that David had laid down because of his pain. * Mrs. Clements testified that Kenneth was waiving the gun wildly and pointing it at Bill. * Counsel testified that because the testimony would have harmed her case, she opted to forego it for reasons of trial strategy. * Since the Oneida line of cases are now binding federal law in California, this Court is bound to follow them. * The cost of any arbitration proceedings will be born by the party designated by the arbitrators. * The gas would likely be inventory under the Idaho statutes defining the term, but these provisions might not apply since they do not effect Idaho taxable income. * Texas law prohibits the unjustified interference with a parties' existing or prospective contractual relations. * For the reasons stated in Jones's initial motion, Jones maintains that the Court's August 27 order precludes Fillmore from preceding on count six in this action. * The laws of the State of Massachusetts (irrespective of its choice-of-law principals) govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the parties' rights and duties. * Neither Mr. Robinson's affidavit nor Plaintiffs' deposition testimony carry the force of law. Intermediate Take two of the usage guides recommended here and find two others not mentioned. Be prepared to report on each guide's answers to the following questions: 1. Is it ever permissible to split an infinitive? If so, when? 2. Where should an adverb go in relation to a verb phrase? That is, not an infinitive, but a verb phrase. 3. Is it grammatically correct to begin a sentence with And? 4. Which is correct: self-deprecating or self-depreciating? 5. What is elegant variation? Is it good or bad? 6. What is a fused participle? Is it ever acceptable to use one? 7. What is the difference between historic and historical? 8. What is the difference between farther and further? Advanced Prepare a bibliography of ten usage guides, including at least three of the ones listed in this section. Write a one-paragraph comment on each book's strengths and weaknesses. Section 49. Habitually gauge your own readerly likes and dislikes, as well as those of other readers. Exercises Basic Interview two law professors who don't teach legal writing. Ask about their likes and dislikes in their on- the-job reading. Ask them to put aside what they do in their own writing and to focus exclusively on their readerly likes and dislikes. Prepare a composite similar to the one listed in this section. If you're part of a writing group or class, bring a copy for each colleague. Intermediate Interview three practicing lawyers who have been members of the bar for at least ten years. Ask about their likes and dislikes in their on-the-job reading. Ask them to put aside what they do in their own writing and to focus exclusively on their readerly likes and dislikes. Prepare a composite similar to the one listed in this section. If you're part of a writing group or class, bring a copy for each colleague. Advanced Do both the Basic and Intermediate exercises. Then write a short essay (1,000 to 1,500 words) reporting your findings. Section 50. Remember that good writing makes the reader's job easy; bad writing makes it hard. Exercises Basic Find a published judicial opinion that, in its opening paragraph, makes you feel stupid. Analyze why this is so. If you're part of a writing group or class, bring a copy for each colleague and be prepared to discuss your example. Intermediate Find a published judicial opinion that, in its opening paragraph, makes you feel smart. Analyze why this is so. If you're part of a writing group or class, bring a copy for each colleague and be prepared to discuss your example. Advanced Find a brief that, in its first few pages, makes you feel stupid. Rewrite the opener so that it would be immediately comprehensible to a generalist reader. If you're part of a writing group or class, bring a copy of your before-and-after versions for each colleague.