De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

A Key Document is Missing from the Record–Now What?!

Posted in Uncategorized

It’s not an unusual situation: The appellate lawyer realizes late in the game that a key document–a crucial exhibit, maybe, or a necessary transcript–is missing from the record. The document is supposed to be in the record. Everyone assumed that it was in the record. But when the lawyer double-checked the table of contents to the record, she noticed that it wasn’t there. And let’s make things even worse: we’re late in the game, and the record has already gone off to Richmond.

This is the part of the story where people start to panic. It’s a natural reaction, but one that’s completely unnecessary. This is a fixable situation, and one that is more common than you think. Here’s  how to handle it in 5 easy steps:

  1. Remember to breathe.
  2. Make sure that the document is actually missing. It never hurts to double-check, and it’s relatively painless. Maybe you just breezed over the missing document.
  3. Call the Clerk’s office. Seriously. Before getting into any of the legal stuff, just try calling the office of Clerk of the Supreme Court of Virginia. It’s not unusual for a document to fail to make the trip to Richmond, and the Clerk’s office can often sort the whole thing out with a call to the clerk of the trial court.
  4. If that doesn’t work, prepare a petition for a writ of certiorari. Code Section 8.01-673(A) provides that “[t]he Supreme Court may . . . after reasonable notice to counsel in the appellate court, award a writ of certiorari to the clerk of the court below, and have brought before it, when part of a record is omitted, the whole or any part of such record.” Godfrey v. Commonwealth, 227 Va. 460, 465 (1984), and Washington v. Commonwealth, 216 Va. 185, 189 (1975), are also helpful. Rule 5:10 is pretty clear about what’ supposed to be part of the record; it’s usually pretty obvious when one of these items has been omitted as the result of a clerical error or oversight, and in my experience, opposing counsel is usually pretty reasonable about consenting to a petition to have them put back in. (In the unlikely event that opposing counsel disputes that, for example, a filed transcript or a rejected exhibit is part of the record, Rule 5:10(b) commits the dispute to the trial court in the first instance.) Just combine those authorities with a short, clear explanation of what happened. Aim for a 3-5 page document, and be sure to comply with Rule 5:4’s requirements for motions practice.
  5. Relax.


Yes, You Can Start a Sentence with “And” or “But”

Posted in Uncategorized

As longtime readers have no doubt picked up, I’ve got sort of a distinctive writing style for legal writing. If I had to characterize it, I’d say that it falls somewhere between “prickly” and “shrill.” Short sentences are crucial to this style, such as it is, both because they keep the pace moving and because I am unable to keep big ideas in my head for very long. Shrieking italics also help me to get my important points across.

It’s not easy to write these short, overheated sentences. I often have to start with a coordinating conjunction like “but,” “and,” or “so.”

This almost never poses a problem. But from time to time–and especially when I am coordinating with trial counsel–I’ll get comments back on a draft that seek to reword every one of these sentences. I push back gently, but usually wind up accepting the revisions–partly because the customer is always right, partly because I’m a pushover, and partly because I can’t really justify billing a client for debates over grammar.

In the course of these discussions, I’ve learned that a startling number of lawyers are convinced to a moral certainty that you can’t begin a sentence with “but” or “and.”

Applesauce. There’s no such rule.

Grammar Girl covers this issue thoroughly. Unfortunately, citing a Grammar Girl podcast doesn’t pack quite the persuasive weight that it  should, at least in highfalutin’ debates among educated professionals. So I’ve gone up a level: I purchased a copy of the 1965 edition of Fowler’s Modern English Usage. Why the 1965 edition? I really don’t know. I once heard (or read?) Bryan Garner insist on the Second Edition above all others as the definitive guide to English as she is spoke. Used copies are readily available on Amazon. I got mine for about $3.00. On Stephen King’s recommendation, I also picked up Warriner’s English Composition and Grammar for a similar price.

But I digress. Here is what the wise and wonderful H.W. Fowler has to tell us from beyond the grave about starting a sentence with “and”:

And beginning a sentence. That it is a solecism to begin a sentence with and is a faintly lingering SUPERSTITION. The OED gives examples ranging from the 10th to the 19th c.; the Bible is full of them.

(A “solecism” is “a mistake in speech or writing.” Yes, I had to look that up.) The superstition may have been “faintly lingering” fifty years ago, but lawyers are clinging to it like that extra space after a period and the uber-weird multiple indent at the start of a paragraph.

If Fowler’s not good enough for you, Grammar Girl pulled this zinger from the Chicago Manual of Style:

There is a widespread belief—one with no historical or grammatical foundation—that it is an error to begin a sentence with a conjunction such as and, but or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.

Still not convinced? In The Redbook: A Manual on Legal Style, our man Bryan Garner says:

When appropriate, use a coordinating conjunction to begin a sentence to emphasize contrast (but, yet), additional support for a proposition (and), an alternative (or), or a logical conclusion (so).

Finally, in Point Made: How to Write Like the Nation’s Top Advocates, Ross Guberman devotes a whole chapter to the one-syllable opener. He offers examples of sentences starting with “but” and “and” from the likes of John Roberts, Miguel Estrada, and Elena Kagan.

So there you have it: ample authority to justify your next punchy sentence.

When can you appeal a dismissal without prejudice?

Posted in Opinions and Analysis
Judge hammer.

Judge hammer.

So I’m a big nerd. I like trivia, and I enjoy some of the murkier procedural aspects of appellate litigation–in particular, the outer margins of appellate jurisdiction. As you’ve probably guessed, this makes me very popular at dinner parties.

In December, the Fourth Circuit handed down a nice little opinion on this point (appellate jurisdiction, not my waning status in the Roanoke Social Register). In Goode v. Central Virginia Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015), the court considered whether an order dismissing a case without prejudice was a final, appealable order. Our hero, Freddie Lee Goode, sued CVLAS for age and race discrimination. Applying what could only have been an intentionally absurdist reading of Twiqbal, the district court determined that Goode had failed either (1) to present direct or circumstantial evidence of discrimination, or (2) to make out a prima facie case of discrimination under the McDonnell Douglas framework. It therefore dismissed the case–not the complaint–without prejudice, and said nothing about leave to amend. Goode timely appealed.

The question presented was whether the Fourth Circuit had appellate jurisdiction–that is, whether the dismissal without prejudice was a final, appealable order under 28 U.S.C. 1291. It was not. As the court explained, an order dismissing a complaint without prejudice is not appealable if the plaintiff could have saved his action by amending the complaint. The court will apply this test on a case-by-case basis, but it offered some general guidelines. For example, have a fatal procedural defect like a failure to exhaust administrative remedies? No amendment will help you there; your dismissal without prejudice is likely appealable. But a routine case where the district court dismissed a complaint for pleading deficiencies? Easily cured by an amendment, and therefore not appealable. The court had consistently reached this result in unpublished opinions, and it used Goode to memorialize the rule in a precedential opinion. Because each of the district court’s grounds for dismissal was easily cured by amendment, its dismissal without prejudice was not appealable.

“But wait,” said Goode, “the district court never gave me leave to amend!”

“So what?” replied the panel. Even though the district court dismissed the case without leave to amend, Goode never affirmatively requested leave to amend (if leave to amend is even required after dismissal without prejudice, which is a question for another day). If he’d asked, the district court would have been almost constrained to grant leave to amend under Rule 15.

Finally, Goode pointed out that the district court had dismissed the case, not the complaint. Appellate courts in other jurisdictions have held that when a court dismisses the plaintiff’s entire action, rather than just the complaint, its order is appealable. The Fourth Circuit shrugged. It pointed out that there was no indication that the district court’s use of the word “case” instead of “complaint” was intended to have any special meaning.

All of which resulted in dismissal and remand.


Here are the main takeaways from Goode:

  1. An order dismissing a complaint without prejudice is an appealable final order when no amendment could save the plaintiff’s action.
  2. Always, always ask for leave to amend after a dismissal without prejudice.
  3. Trial courts and defendants continue to misapply Twiqbal.

Finally, some of you are probably wondering why I used such a trite image at the top of this post. Fair question. I used this picture because my stock photo service identified it as “judge hammer,” and something about the sheer illiteracy of that description speaks to me on a very deep level.

Good Advice from a Bad Man . . .

Posted in Uncategorized


. . . or at least, the author of the “bad-man theory” of the law. I was delighted to learn that Oliver Wendell Holmes, Jr., has his own wikiquote page. Here are some of his inspirational musings, which are sure to brighten your day:

  1. One has to try to strike for the jugular and let the rest go.
  2. A page of history is worth a volume of logic.
  3. Lawyers spend their professional careers shoveling smoke.
  4. A good catchword can obscure analysis for 50 years.
  5. The only simplicity for which I would give a straw is that which is on the other side of the complex — not that which never has divined it.
  6. A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
  7. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
  8. State interference is an evil, where it cannot be shown to be a good. [Except when forced sterilization is involved–see item 9, below.]
  9. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind….Three generations of imbeciles are enough.
  10. Get down, you fool! [A timely  suggestion to President Lincoln, who came under fire at Fort Stevens.]

What’s the Right Number of Assignments of Error?

Posted in Appellate Practice


Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer?

Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are surely some that merit zero.

That said, over the broad run of cases, I suspect that most appellate practitioners (and all appellate judges, ever) will go with “fewer.” But a surprising number of trial lawyers–and a huge number of clients–seem inclined to take the “more is more” route. I tend to disagree, for a few reasons:

  1. You get limited space to develop an argument on appeal. A petition for appeal in the Supreme Court of Virginia is limited to 35 pages; a merits brief is capped at 50 pages. And those aren’t real pages–they’re 14-point double-spaced Arial/Verdana/Courier pages. It’s tough to lay out the necessary background and develop more than 3-5 arguments in that space.
  2. Appellate judges have limited time and energy to devote to any particular brief. They already do way too much reading . They’re on record, over and over again, screaming from the mountain tops that they appreciate tight and efficient briefs. It’s probably worth taking them at face value on this one.
  3. Generally, anything in a brief that doesn’t help, hurts. It dilutes the force of your best arguments and strains the reader’s focus. It also increases the likelihood that you’ll say something stupid. This is a lesson that I have learned (and forgotten and relearned) many times over the course of my career.
  4. It’s difficult, but not impossible, to convince one judge that another judge made 2 or 3 outcome-determinative mistakes during the course of a trial. It’s a bit harder to convince one judge that another judge made 17 real mistakes during the course of a summary judgment hearing.
  5. If you can’t win with your best points, then you will probably lose with your weaker stuff. As the crusty old bastard said, one has to try to strike the jugular and let the rest go.

But you don’t have to take my word for it; longtime readers know better than to do something like that. Instead, you can remember this handy table that Judge Aldisert created:

No. of Issues Judge’s Reaction
3 Presumably arguable points. The lawyer is primo.
4 Probably arguable points. The lawyer is primo minus
5 Perhaps arguable points. The lawyer is no longer primo.
6 Probably no arguable points. The lawyer has not made a favorable initial impression
7 Presumptively, no arguable points. The lawyer is at an extreme

disadvantage, with an uphill battle all the way.

8 Strong presumption that no point is worthwhile


Slightly off topic, but . . .

Posted in Uncategorized
Not the same greenway that we're talking about, but you get the idea.

Not the same greenway that we’re talking about, but you get the idea.

The scariest moment in my life happened a few years ago. I’d taken Caroline and Jack down to the greenway, Roanoke’s riverside mixed-use path. It was a bright, cold day. Caroline was rambling along on her ridiculous Dora the Explorer bike, which was already two sizes too small. Jack had outgrown his balance bike but wasn’t yet comfortable enough to ride his bmx in traffic, so he was driving some scooter thing. I was bringing up the rear. The kids were, for the most part, under control and sticking to the right side of the path.

We were headed along a straightaway when Jack started to veer onto the left side of the path–and directly into the path of a large man on a road bike. You can probably see him already in your mind: spandex head to toe, like he was ready for the Tour. Maybe he felt like he was in the Tour, because it looked like he was pushing 20-25 mph. And he wasn’t slowing down. That didn’t really matter, because given the speeds and distances involved, he wasn’t going to be able to slow down. I caught Jack and dragged him out of the guy’s path just in time. If they’d collided, I swear the rider would have cut Jack in half.

Now, I say this as an avid cyclist and runner who uses the greenway on a regular basis: That rider was a clown. I know that Jack should have been on the right side of the path. So what? He was three or four years old and maybe 35 pounds. The cyclist had a duty to pay attention and keep his bike under control.

It still burns me up just thinking about it.

So fast forward to last week, when the Roanoke Times ran this article about a cyclist who won a $300,000 verdict after colliding with a runner. You can imagine that I was primed to have a negative reaction. But I read the article and didn’t see much of anything to get upset about.

Then I checked out the comments.

You should check out the comments. They’re nuts. Here’s a personal favorite:


Here’s another:

This makes me sad. Sad for this poor man. Sad that savvy bloodthirsty attorneys have the know how to pick out and seat the dumbest, most incopetant, and gullible juries; and guarantee an unjust verdict. I’m disgusted.

To be sure, these are some of the more strident comments. They’re not fairly representative of all of the comments in tone, but they do highlight some themes that run through a lot of the responses–and some of the comments I’ve heard on the street over the past week or so.

I’m afraid that the people raising these complaints are missing a few key points. In no particular order:

First, they don’t know anything about the case. That’s not their fault. One of the most notable features of the article is that it doesn’t summarize the evidence the jury heard. The reporter cites pleadings, motions, and out-of-court statements by the lawyers. But that wasn’t the case the jury heard. As a result, there’s nothing in the article that can fairly be read to suggest that the jury made a mistake, let alone that the jurors was incompetent or gullible. For example, the commentariat seems skeptical that the runner turned without looking. One commenter even thinks that the plaintiff should be held in contempt for lying on this point. But let’s give the jury a little credit. For all we know, the runner admitted that he turned without looking. People do have a refreshing tendency to tell the truth under oath.

It’s clear that plenty of people are upset about this result. But they’re upset about a mental picture that they’ve created about the case, without hearing the evidence. The case they’re complaining about may have little in common with the one that the jury actually heard.

Second, the lawyers involved in this case aren’t bottom feeders or monsters. I know  both of them. In fact, when I had to arrange a CLE  for the local Inn of Court a few years ago, I lined the two of them up to deliver a mock motions argument. I did that because they’re experienced and respected advocates. In particular, I’m confident that nobody in this case tricked the jury, packed it with fools, or snuck anything by defense counsel. The defendant’s lawyer is an AV-rated former president of the Virginia State Bar and a permanent member of the Fourth Circuit Judicial Conference. He is not, as they say, a potted plant.

Third,  there was a judge in the courtroom. He does this stuff for a living. Turns out that I know him, too. (Lots of name dropping in this post.) He is an excellent judge and, like defense counsel, he is not shrubbery. The article specifically notes that the judge found sufficient evidence of negligence to submit the case to the jury. This implies that the defense tested that evidence with a motion to strike. If so, the plaintiff’s case made it by both the defense and the judge on its way to the jury–which suggests that there was something to it.

Fourth, let’s be clear about what the jury found, and let’s try to put it in plain English. This appears to have been a straightforward negligence case with a contributory-negligence defense. As far as we can tell from the story, after hearing the evidence, the jury concluded that:

  1. The runner probably acted in an unreasonably dangerous manner (apparently by failing to keep a proper lookout);
  2. The runner’s (probably unreasonable) actions probably caused injury to the cyclist; and
  3. $300,000 was a reasonable estimate of the injuries that the cyclist suffered.

Also, the runner did not convince the jury that it was more likely than not that the plaintiff behaved unreasonably, and that her unreasonable behavior caused her damages. That’s it. The jury did not find that the runner was a bad person. It did not impose a per se rule that will make the greenway wildly dangerous for pedestrians or cause insurance premiums to skyrocket. It just listened to the evidence in this case, heard some instructions from the judge, and reached a few factual conclusions.

Nothing about those conclusions strikes me as offensive or wildly improbable.

The comments include sentiments like “I find it odd that a jury would be able to be convinced beyond a shadow of a doubt that the cyclist in no way contributed to her injuries.” That very well might be odd, but there’s no indication that it happened here. This wasn’t a criminal case. Nobody tried to prove anything beyond a reasonable doubt. The cyclist had to prove that the runner owed her a duty to exercise reasonable care, that he breached that duty, and that his breach of the duty caused her injury. She didn’t have to disprove the defendant’s assertions; the defendant had the burden of proving them. And when we talk about “proof” in a civil case like this, we’re just talking about proving that something is probably true–think “more likely than not,” rather than “beyond the shadow of a doubt.” When you think about what the jury actually did, it’s hard to get all that worked up.

Fifth, many of the comments suggest that somebody (or everybody) is acting in bad faith. The plaintiff’s lawyers put her up to it. Or she’s just out for the money. Or she’s lying. I don’t accept that, at all. In a PI case like this, both the plaintiff and the defendant are trying to work through one of the worst days of their respective lives.  They both hire lawyers to help them through the process, and they bring their claims to a judge and jury. These are all ordinary folks just trying to do the best they can in a difficult situation. Nobody is there for fun. The $300,000 the plaintiff won is not a jackpot; it’s compensation for damages that she actually suffered and proved to the jury–things like medical bills, lost wages, and pain and suffering. (Again, we don’t know the specifics because we don’t know the facts of the case.) It’s just intended to get her back to zero after the losses she suffered.

tl;dr This a lousy situation. But it’s not a lousy situation because someone won money, or because lawyers are vampires, or because your insurance rates will go up (they won’t), or because you can’t use the greenway anymore (you can). It’s a lousy situation because two people had a really bad day and someone got hurt. They hired lawyers, who worked the case up and brought it to a judge and jury. The members of the jury took two days out of their lives–away from their families, jobs, and friends–to listen to the evidence and deliver a verdict. There’s no indication that they did anything other than they best they could, given the situation. And like everyone else involved in the case, they deserve better than the treatment they’re getting.

The Art of Appellate Advocacy

Posted in Appellate Practice

You may have heard that William and Mary Law School did this thing where they sent a professor into a room with six justices from the Supreme Court of Virginia, asked them questions, taped the conversation, and put the video on the web. I fail to see why this is a big deal. I routinely enter a room with not six but seven justices. And I don’t get to ask the questions–I have to answer them, which is a heckuva lot harder if you think about it. While no one has yet videotaped that process (which is a shame from a business-development perspective), the audio is posted online for all of the world to hear.

And so I ask again: What’s the big deal here?

I’m kidding, of course. The William and Mary video, called “The Art of Appellate Advocacy,” is wonderful. Professor Laura Heymann moderated a two-hour long conversation with then-Chief Justice Kinser and Justices Lemons, Goodwyn, Millette, Mims, and Powell; Justice McClanahan wasn’t available for the taping, and Justice Kelsey was not yet on the Court at the time. The video of the full conversation is available here, and you can also watch various snippets organized by justice or topic area.

The content is fascinating (said the dork who runs an appellate blog.) The various justices discuss their views of judging, the mechanics of reviewing briefs and drafting opinions, their life experiences, and their reactions to oral argument. You can watch the entire two-hour conversation, or you can watch excerpts relating to a particular justice or topic area.

Here are a few of my quick reactions to watching the video:

  • It is now my life’s goal to get a beer with S. Bernard Goodwyn.
  • For a while there, it seemed like Professor Heymann really wanted to talk about legislating from the bench. Maybe not the most explosive topic, given the modest view that the SCV takes of its role vis-a-vis the legislature. In fact, I think Chief Justice Lemons characterized the Court’s approach as “minimalist.” No Herculean pretensions here.
  • Justice Millette identified some areas of law that need to be developed: Defamation in the employment context and multiple causation in asbestos cases. So, free pass at the writ stage if you can find one of those issues in your case?
  • Chief Justice Lemons mentioned that he’d like to think that the SCV is a very user friendly court. I’d say yes and no. Yes, in that the justices are very respectful of litigants and positions, both at oral argument and in their written opinions and orders.* This makes oral argument fun, which is a point that I should stop bringing up because it’s bad for business. But there’s a part of the process that it is not fun, and not user friendly, and that is the Court’s extremely strict approach to waiver doctrines and deadlines. Now, I get the arguments in favor of those positions (if you don’t, Justice Kelsey has a great article on them), but here’s my counter: The Fourth Circuit and its staff approach these issues in a much more flexible manner, and the sky hasn’t fallen at 1100 East Main Street. In my experience, the Fourth Circuit is a far more user friendly court than the SCV from the time a case is filed until the start of oral argument. After that, the SCV has a clear edge.
  • I like the video’s insight into the mechanics of drafting opinions. The basic process seems to be review briefs –> oral argument –> decision conference –> draft opinion –> circulate draft –> opinion conference after next writ argument –> revise opinion –> hand down decision at the end of the next court week.
  • Justices Millette, Mims, McClanahan and Kelsey all had the good sense to attend William and Mary (either undergrad or law school–or, in Justice Millette’s case, both). Tribe pride. Also, a tip of the cap to their fellow alum Jill Ellis ’88, who guides the USWNT into their quarterfinal matchup against China on Friday.

I’ll give you the link to the video again, because it really is worth watching.


* If you try hard enough, you may be able to imagine an alternate universe where justices occasionally behave in a less professional–and sometimes even appalling–way. Or you can just go here:

Legal Writing Tip: Focus Before Detail

Posted in Writing


Getting paid to write is, at least for me, the best part of being a lawyer. But while I may be, strictly speaking, a “professional writer,” I’m very much aware of my shortcomings in that field. And I’ve got plenty, as illustrated by the fact that–not to put too fine a point on it–nobody actually wants to read the stuff that I get paid to write. Judges and opposing counsel read my work because they have to; that certainly doesn’t mean that they like it. My clients read it because they’ve already paid for it. And my partners read my stuff primarily to make sure that our firm doesn’t get sued for defamation. Aside from that, there’s really not much of a reader base for my legal writing. If you don’t believe me, check the Amazon sale rankings.

So long story short, plenty of room for improvement here. That’s why I’m always on the lookout for ways to better the quality of my writing.

This brings us to last week’s Appellate Advocacy in Virginia seminar, which was presented by the Appalachian School of Law and Virginia Tech’s Science, Technology, and Law Program. The program offered tons of great content, including candid advice from Chief Justice Lemons, Justice McClanahan, Chief Judge Huff, Monica Monday, Frank Friedman, and Trish Harrington. (Maybe we’ll reward their candor by spilling their secrets in the weeks to come.) Jeffrey Breit gave us a sneak preview of the William & Mary School of Law’s video project, The Art of Appellate Advocacy, which will be unveiled next week at the state bar meeting. It looks fascinating.

Among the highlights of the strong program was Professor Timothy Terrell‘s discussion of legal writing. Professor Terrell is a co-author of Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing. (Amazon Best Sellers’ Rank: 168,037 in Books, 46 in Books > Law > Legal Education > Legal Writing. Clearly I can learn from this man.)

I haven’t read Professor Terrell’s book and was unfamiliar with his work going into the seminar. One of his major arguments seems to be that most technical writing (including legal writing) fails at the macro level because it dumps too much information onto the reader without offering any context or structure. His basic analogy is that if the information in a writer’s head is a liquid, too many legal writers just pour that information out directly onto their reader, without giving the reader a container in which to collect it. Thus, Professor Terrell stresses the need for “meta-information” in legal text–signposting, structural cues, and the like. The trick to good technical writing, in his view, is to make very complicated information seem straightforward and accessible. One of his mantras is “focus before detail”: Let the reader understand what it is that we’re discussing before going in for the deep dive.

Of course, you’ve heard advice like that before. And that last paragraph came at such a high level of abstraction that it provided exactly zero useful tips for actually improving your writing. What does Terrell’s advice look like in practice? How would we write a paragraph or two that gives a reader “focus before detail”?

Glad you asked, Imaginary Argumentative Reader.

Professor Terrell would direct you to do three things in your introduction, and really throughout your document:

  1. Make your reader smart.
  2. Make your reader attentive.
  3. Make your reader comfortable.

First, make your reader smart: Before digging in, forecast the information that you’re about to provide. This can be done in several ways:

  • Label: Tell the reader what the document is about, so she can put it in  context. For example, “This is a breach of contract case that turns on a single issue: Whether the trial court erred by admitting parol evidence of blah blah blah . . . .”
  • Map: Preview the document’s structure. For example, “Summary judgment is appropriate for three reasons. First, blah blah blah. . . .”
  • Point: Let the reader know what she should be looking for as she makes her way through the document.

Second, keep your reader’s attention. Professor Terrell offers two basic tricks here:

  • Bottom Line: Tell the reader how your document will help her in real life. Your powerful, syllogistic reasoning compels a certain result. Help the reader to understand why that result is important. Connect it to the reader’s circumstances. For example, “If the Court upholds this sanction, it will effectively eliminate blah blah blah . . . .”
  • Efficiency: Show the reader that you will not waste her time. Don’t be repetitive or verbose. Don’t present irrelevant information.

Third, make your reader comfortable.

  • Language: Using plain English and a classic prose style will show your reader that you are a normal person who occasionally interacts with other humans in their natural habitat. This is surprisingly important.
  • Ethos: Show why the result you seek is just and fair; this is far more compelling than bare legal argument. Also, show by your content, tone, and word choice that you are not an asshole. (Pro tip: If you are using adverbs to characterize your opponent’s actions, you are being an asshole. Trust me on this one.) These steps will suggest to your reader that you share some basic assumptions and worldviews, and help to put her at ease.

Overall, I found Professor Terrell’s presentation engaging, and I look forward to reading his book.

Screen Reading on the Rise at the Supreme Court of Virginia?

Posted in Appellate Practice

Woman Holding Traditional Book And E-book Reader

Look: I like toys. I work in a paperless law office. My enthusiasm for PDFs has rocketed to near-Svenson levels. I am a huge fan of tablets, and I probably do as much screen reading as any lawyer you’ll meet.

Even so, I’m a little concerned about a pair of orders that the Supreme Court of Virginia handed down on April 10.

One order establishes new Rule 5:13A, which will let the trial court prepare and transmit an electronic record, rather than a paper record, when a party notes an appeal. Perfectly reasonable.

The other order amends Rules 5:26 and 5:32 to save trees. Right now, the parties have to file one electronic copy and 15 paper copies of their briefs. The appellant also has to file either 15 paper copies or 10 electronic copies and 10 paper copies of the appendix. (Why ten PDFs instead of one? And can there be 10 PDFs instead of one, if there is only one appendix? Truly, these are questions for the philosophers.)  The parties need to serve their opponents with three paper copies of their briefs, and the appellant must serve the appellee with two paper copies (and possibly an electronic copy) of the appendix.

Effective July 1, the parties will file one electronic copy and 10 paper copies of their briefs, and they will serve only electronic copies. The appellant will file three paper copies and one electronic copy of the appendix, and it will serve only an electronic copy.

(Longtime readers will also note that that Supreme Court of Virginia has doubled down on its inexplicable fixation with 14-point Courier, Arial, and Verdana. H/t John O’Herron. Butterick weeps.)

Typgraphy aside, these changes signal a move toward reading briefs and appendices on the screen. That’s good for a lot of reasons; searchability, portability, and efficiency spring to mind. On balance, it is almost certainly the right move. But it’s not an exclusively positive development.

That’s because screen readers handle text differently than paper readers, as Robert Dubose explains. In general, paper readers study text, while screen readers skim it. Paper readers generally read from left to right, reading every word. Screen readers scan in an F-shaped pattern, scanning for visual cues like headings and bullet points, and they do not read every word. Paper readers generally enjoy better reading comprehension than screen readers. Screen readers generally face more distractions than paper readers. It’s generally easier to navigate a document in paper, although PDF does have the advantage of a word-search function.

As Greg May points out, facts like this mean that a shift toward reading briefs on the screen may not be a super-great development for the lawyers writing those briefs. As I writer, I’d prefer that my readers process every word; I’ve usually put them there for a reason, purple monkey dishwasher. As an advocate, I’m certainly in favor of reading comprehension. It helps to get my point across. And as a citizen, I’d prefer that the justices read briefs in a medium that encourages quiet contemplation, as opposed to one that seems designed to maximize distraction.

That said, there are certainly strategies you can employ to maximize the effectiveness of your writing for screen writers. And iPads are fun and portable and they blur the line between work and play. If electronic filing will trick a justice into spending time with my brief that he or she would otherwise devote to real life, who am I to complain?

How Not to Write an Appellate Brief, by George R. R. Martin

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Winter is coming. That sixth book? not so much.

Winter is coming. That sixth book? Not so much.

Today’s post considers the writing process of one of the most successful authors alive.

But first, a confession: Big nerd here. I could not be more excited for the new season of Game of Thrones that starts on Sunday. To get ready, I reviewed the Washington Post‘s interactive murderlog to catch up on relevant deaths. I binge-read Leigh Butler’s amazing Read of Ice and Fire for the first four books, in case the show forgot to kill anyone important. I watched Seth Meyers’ doomed dinner party with Jon Snow, just because it’s hilarious:

(Wait a minute . . . Robb Stark wasn’t stabbed at his own wedding. He was murdered at the Red Wedding, where Edmure Tully married Roslin Frey. You know nothing, Jon Snow!)

And in the course of my exhaustive preparation, I came across a blog post that makes a scientific wild-ass guess about Martin’s progress on The Winds of Winter, the long-awaited sixth book in his series. The post itself serves as prima facie evidence that, as big a tool as I am, I barely register on the SF geekdom spectrum.

More important for our purposes, though, the post includes a link to a summary of Martin’s writing process. Here’s the short version of that process:

  1. Martin does not have a hard outline for his seven-book series. He knows basically where the story is headed, and he lets it evolve organically. He ends each book when it gets too long, or when he reaches a natural breaking point.
  2. Martin writes lots and lots of draft chapters, then eventually finalizes them. He also writes partial chapters and fragments when ideas grab him.
  3. Martin does not write in a linear order. Instead, he occupies a particular character’s headspace and stay there for weeks, writing a series of point-of-view chapters for that character. This can result in timeline problems, and it can also cause him to write way too much material for a character just because he’s fun to inhabit (ahem, Tyrion).
  4. At the end of the writing process, Martin murders every character you love and throws in a scene where starving children fight over a half-cooked puppy. (Okay, I made this one up.)

This really struck me, because it’s just about the opposite of the way that you’d approach an appellate brief.

Now, I recognize that epic fantasy and appellate advocacy are about as distinct as any two genres can get. And I appreciate that Martin is a super-genius writing the great fantasy epic of our time, while I’m just a hack with a blog. Even so, his organic writing process is basically a recipe for missing deadlines and overshooting page limits. That’s generally okay, if you’re the American Tolkien putting together work that people will be reading fifty years from now.* It’s somewhat less okay if you’re bound by deadlines and strict word counts, and your readership has very limited time and patience. Martin’s writing process is an object lesson in what not to do as an appellate lawyer.

So how could we clean it up to make it work for us?

  1. Brainstorm, and hash out all of your ideas in the beginning of the process.
  2. Draft a hard outline. Explain your ideas in full sentences. Follow the outline.
  3. Write in a linear manner, from start to finish. That is how your reader will approach the document.
  4. Edit mercilessly. Aim to cut 50% of your first draft, and to file a brief that comes in at 50% of the page or word limit.
  5. Never kill off Oberyn Martell.

This may take some of the fun out of the process, but it also makes things a lot more efficient and predictable.

*Actually, no. Even then, it’s not okay. It leads to soggy filler like A Feast for Crows, a bloated travelogue wherein all of the characters we don’t care about wander about in the rain thinking sad thoughts.

Image of George R. R. Martin by David Shankbone (Own work) [CC BY 3.0 (], via Wikimedia Commons