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Clearing the Fog of Words United States Courts
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Lynn N Hughes, Lynn N Hughes is a United States District Judge in Houston. Before his federal appointment in 1985 he was a Texas trial. judge for six years Since 1973 he has been an adjunct. professor at South Texas College of Law He has also taught. twice at the University of Texas He serves on the advisory. board of the Law Economics Center of George Mason,University s Law School in Virginia. He received his bachelor of arts from the University of. Alabama his doctor of jurisprudence from the University of. Texas and his master of laws from the University of Virginia. He got something of a business education by running a. mining equipment venture in 1969 70, Judge Hughes served as co chairman of the Houston World. Affairs Council in 1999 2000 and is a member of the Council. on Foreign Relations He has been an advisor to the Houston. Journal of International Law since 1980, Also he has been an advisor on constitutional law and. privatization to the European Community Moldova,Romania Albania Belarus and the Ukraine.
515 Rusk Avenue Room 11122,Houston Texas 77002 2605. 713 250 5900, Clearing the Fog of Words Writing for Effect and Efficiency. Lynn N Hughes,United States District Judge,1 Introduction. Ancestor worship in the form of ritualistic pleadings has no more disciples. JOHN MINOR WISDOM Circuit Judge, Thompson v Allstate Ins Co 476 F 2d 746 749 5th Cir 1973. Prose is architecture not interior decoration and the Baroque is over. ERNEST HEMINGWAY,B Convention, When I speak of simplified clear forms I inevitably get the reaction that.
somebody out there requires bad writing That is not true Abundant bad writing. is no more proof that it is somehow necessary than abundant bad architecture is. proof of the inherent unattractiveness of physics, The State Bar of Texas conducted a survey of state judges Over 80 of. them preferred a radically simplified version of papers This should assuage fears. you may have of being criticized for brevity and clarity The United States District. Court for the Southern District of Texas has officially and formally endorsed the. use of plain language in court, Look at the forms attached to the Federal Rules of Civil Procedure They. exhibit little of the wasteful nonsense that has become commonplace They were. written by old lawyers in the late 1930s, If you insist on filing a paper you must want something from the court. that the other side does not want you to have otherwise there is no need for it. There are four steps, 1 The first step is to think No document can rise above the thought that. generated it, 2 Tell the court briefly clearly and precisely what you want.
3 Tell the court briefly clearly and precisely why legally and factually. you ought to get what you want, 4 Furnish the court with a proposed order that grants the relief specifically. 2 Definitions, A Motions Motions are requests for the court to act the court acts through orders. Whenever you want the court to do something you move If you cannot find a. form to adapt slavishly mimic usually just call it a motion for whatever you. want The extrinsic proof of the facts if you need it should be appendices In. modern practice the motion itself frequently includes argument and authority. but in longer more complex motions the motion should be separate from the. argument If nothing else they look shorter separated A two page brief on. jurisdiction and a three page one on limitations are much easier to use than. having to find the different sections of a longer memorandum. B Briefs Briefs are presentations of legal authority with the associated facts to. support a request There is a reason they are called briefs they are supposed to. be short Pages of text and citations untethered to the specifics of your case may. impress your client but it will only irritate the judge. C Orders An order is a judicial act Directed verdicts and injunctions must be. supported by articulated reasons but most orders including final judgments are. expressions of the decision alone, D Transaction Documents Contracts deeds wills board minutes and other office. practice papers are simply aids to memory Many of them are working documents. in that the client must refer to them occasionally to know her responsibilities. making their ease of use critical, Yes facts The judge either is inundated with trivia or given only elegant. propositions of law to apply to mere names As T H Huxley said There is nothing like. a sordid fact to slay a beautiful theory It is essential that you give the court the facts. that it needs to understand who is doing what to whom Develop the ability to present. the factual context of a legal question in one brief paragraph at the beginning At least. one third of motions for summary judgment are denied or postponed because the court. is not supplied the right facts and invariably these facts are not contested Hone your. sense of relevance to focus on the facts that make the picture complete but brief Isolate. and furnish the court with the pertinent material operative facts. You cannot effectively argue your case or the precedential cases if you do not. understand what happened to the people in them, A Language Once you understand what it is in your case that the judge needs to.
know express those facts as crisply as possible Be concrete and specific not. vague and abstract John Brown was hanged tells the reader more than either. that he was killed or that he died Economy and precision aid each other. B Uncontested Facts to support a motion especially a dispositive one need to be. uncontested that means that the other side has no good faith basis for. questioning the fact s truth A good faith basis usually requires a precise. assertion of a contrary version of that same fact rather than a simple no it s not. Simply assert those facts that you can support later those assertions however are. your representations to the court and your professional reputation depends on. their being true in the number,4 The Case s Style, Remember that the style is the first part read It is used to route the paper The style. should be simple and accurate, A Number Because most courts have a central file operation and thousands of cases. the correct action number is critical In the long twisted history of your case. occasionally look at the fee receipt or other original document to make sure you. have not erred along the way, B Capacity Do not put the capacities of the parties in the style There is no. requirement that the style contain anything except the proper name of the entity. who is a party A style that described the plaintiff as only Thomas A Hendricks. Plaintiff if pleaded in the body could well support Hendricks in all these. capacities a individually b as guardian of Garret A Hobart non compos. mentis c as trustee of the Mondale Electronics Inc Pension Fund and d as. attorney in fact for W Rufus King Ltd The rules require you to plead your. client s capacities it does not say to put them in the style. C Common Names The rules allow you to sue entities in their common names but. if you choose to use an assumed name like a corporate division do not put an. explanation of its derivation in the style If there are multiple names being used. for a party explain at the beginning of each paper who is who. A Informative Label the paper something useful Motion for Summary Judgment. is not helpful Clinton s Motion for Judgment on Limitations is Order is. meaningless Interlocutory Dismissal of Clinton is so obviously meaningful that. it may actually get entered on the docket intelligibly. B Short The label must be truncated Clinton Banking Trust Company of. Delaware Inc s Motion to Disqualify Attorneys for the Third Party Defendant. Thomas A Hendricks or in the Alternative for Sanctions is positively sick Make. it say Clinton s Motion to Disqualify Hendrick s Counsel. C Agreed If the motion is agreed put the word agreed in the caption It will be. placed in a stack of routine matters for reasonably quick direct disposition by the. 6 The Body, A First Paragraph Say something useful right at the start The first 100 words of. virtually every court paper are pointless recitations and formalisms Summarize. the document in thirty five Start strong Many judges will not get past the first. fifty words so use them well, B Number Label and List Use some form of numbers other than roman numerals.
add labels that identify the paragraph or section and list in columns all strings of. more than three things like dates amounts or names Do not mix your. numbering system Be consistent Unless you can write your zip code in roman. numerals right now do not use them at all If you think the clients like or expect. them why don t you bill your clients in roman numerals. C Brevity Clarity and Precision This label defines your goal to plead properly you. must accomplish all three Saying something twice badly is not equal to saying. it once right When you must use legal terms use the correct one do not use. tendered when you mean delivered A lease does not equal a bailment Detail and. precision are not the same thing, D Humor Be careful You do not have to be morbid or ponderous but most humor. is pointed and it risks offending the reader to the benefit of your victim. E Exaggeration Do not overstate anything not your facts not your law Calling law. clear or blackletter does not persuade Do not claim more for a case than it. will actually support use suggests for holds when that fits. F Emotion Anger and insults are counterproductive Ours is supposed to be an. intellectual enterprise although the quest for justice may properly generate some. restrained indignation modest amazement and appreciated irony Squash. emotion especially an emotional reaction, G Quotations Shorten long quotations by the honest use of ellipsis Long. quotations from contracts and statutes rarely can be read easily Leave out the. trivia redundancies and unnecessary qualifications Hidden in most statutes is. a simple statement but it has been qualified to death. H Typographic Oddities, 1 Capital Letters Capitalize only proper nouns All nouns are not proper. even if they were used as titles earlier in the document Just because you. have filed a paper called a motion for a summary judgment does not make. the phrase summary judgment require capitals every time it is used. Never capitalize whole words in the text that includes ships names. 2 Quotation Marks Do not put them around exhibit numbers or names used. as shorthand references like Bank and Exhibit A that is silly. 7 Structure, The structure of a legal argument is x is true because a b and c are true Structure your. briefs and motions like that Start with your conclusion so your reader will know why. you are telling him all the details, A Nature of the Request Similar to the statement of the case paragraph in a.
complaint the first paragraph in a motion must succinctly tell the court the. essence of the problem, B Specifics The first paragraph is supplemented by the minimum number of details. to support the request, 1 Who Who wants whatever is being sought Most cases have more than. two parties so using the terms plaintiff movant and defendant is not. helpful This is true for all papers, 2 From whom It is critical to say exactly which party you are addressing. there may be a dozen recalcitrant parties who need compelling. 3 What Say what you want from the court Do not say that you want your. motion granted In simple precise terms tell the court the specific relief. you want compulsion yes but how Do you want a costs award a claim. struck or a punitive assessment If you have alternative requests make. each of them specific show your priority and furnish an order that is. adaptable to each one or include several orders, 4 Why Conclude with your authority for the relief requested A reference. to a rule is usually enough add a case applying it under similar facts if you. think it is a hard decision If the motion has to explain much more than. this then it probably should be argued in a separate brief. 9 Supporting Material, A Joint Statement Try to get both sides to agree to a statement of facts Most of the.
time there is no argument over facts like the location of a principal office date of. a firing or authenticity of a letter, B Depositions If deposition testimony is used excerpt the parts you need as an. attachment or quotation To be safe you may want to file the entire transcript. with the clerk but compress into a handy form the part you really want the judge. to read If a lot of a deposition is used file the whole document with a vertical. line of blue in the margin for one party and a red one for the other side. C Affidavits Make them simple and direct not abstract legal conclusions sworn to. by a vice president of accounting Make affidavits short and factual Rather than. saying that all lawful offsets and credits have been made say that there were none. to make or that the only one is the deduction of 4 250 from the proceeds from. the sale of collateral Break the affidavit into short numbered paragraphs so that. they may be referred to easily, D Chronology A column of dates with the associated event to its right is an effective. way to show the context of the suit especially if you need to discuss a sequence. of events Use time lines, E Admissions If you do your discovery properly the results should be easy to. transfer into support for your motion Either quote the admission or accurately. paraphrase it Only file the whole set of admissions when the other side quibbles. in its response, F Attachments and Summaries Never attach a one half inch stack of invoices or. similar stuff to a motion That is why we have rules about accounts If you are. too lazy to prepare a proper summary that lists the invoice number date and. amount with credits shown similarly and with totals I am too lazy to do it for. you If invoices are contested you may attach an example to show the signature. or other fact not easily stated with the same force that a copy carries. G Dates Do not include mindless recitations of who filed what when Dates should. be only as specific as the information needs to be Saying that a suit has been. pending since the spring of 1983 is better for conveying the passage of time than. the false unnecessary precision of saying that it was filed on April 10 1983. H Assumptions If you assume for the purpose of a motion that the other s fact is. true make sure the conditional nature of your assent is clear so that a court of. appeals does not render against you,10 Responses, A response to a motion is simply a counter motion You answer a motion by showing.
that what the movant asserts is not true requiring that something else be true which you. must establish, A Extension If you need more time to respond sensibly ask for it but ask for a. specific new date for a specific reason not just some time for some discovery. B Denials A negation usually implies that you know something to be true that is. different from the movant s position Be prepared to show what the actual fact is. Rather than answering by saying that the allegations in a paragraph are denied. restate the paragraph as an admission or denial in your own wording of the item. You can correct minor misstatements and rephrase the allegation so that it is less. harmfully colorful Which of these two answers communicates better. Your defendant admits the allegations contained in XVII. Wheeler admits that it is a Delaware corporation with its. principal office in Chicago Illinois and is registered to do. business in Texas, A Conclusion first Start your brief with a succinct statement of your position and. then add the facts of the case as you discuss each authority to the extent they are. necessary It is frustrating to read case citations without knowing where the. author is trying to take us and how that case relates to the issues being decided. B Citations More are not better The strongest is a twenty year old supreme court. case with two recent applications by a court of appeals with facts as near your. facts as you can get Use brief parentheticals to show the context of the cited case. like promissory note or land contract but do not write long explanations as. part of the citation Do not put citations in the middle of sentences Write a. statement and put the citation after the sentence If the whole paragraph is. derived from a source of authority put the citation at the end of the paragraph. do not put id after each sentence If the case is hard to find attach a copy Do. not highlight headnotes, C Brief Be succinct Focus on the specific facts and legal propositions that. illuminate your position Shorten quotations from statutes and contracts. Do not submit a proposed order that grants the motion Submit one that orders the relief. you want You really do not want your motion to dismiss granted what you want is their. complaint dismissed This case is dismissed is hard to misunderstand. A Separate Judgment Rule The federal rules require that an appealable order be. contained in a separate judgment That means that it is not part of the opinion. nor buried in the findings and conclusions The traditional Memorandum and. Order violates this rule Since it is unfortunately difficult to tell which orders are. appealable always embody the court s decision in a simple document that speaks. in the present tense active voice if possible Injunctions of every kind are. different they require reasons in the order itself. B Ordered Adjudged and Decreed The repetition of this mindless trilogy is wasteful. and stupid How does the court adjudge a motion to substitute counsel. 1 A judgment is the determination on the merits of the rights of the parties. 2 A decree is a judgment in equity Because both the United States and. Texas court systems merged law and equity long ago you can use either. word but the use of both is redundant, 3 An order is a judicial determination of all preliminary proceedings and of. ultimate dispositions not on the merits Order is the generic term for all. actions by a court, C Signed Entered Rendered and Done The signature line for either a federal or state.
judge should be Signed 2005, 1 The act of a judge s signing his name is rather cleverly called signing. Under Texas rules signing is the essential date, 2 Rendition is the court s public announcement of a decision usually orally. in court but sometimes done through a letter or other paper with findings. and conclusions The act of rendition when the whole process is in. chambers is simultaneous with the signing of the order because a private. rendition is self contradictory Omit rendered unless you are preparing. a written order for something actually rendered earlier and for which it. may be important to note the time or circumstance of its rendition. 3 Entry is the clerical act of noting on the court s summary record of the. case docket sheet the fact that the judge has signed an order or. rendered an unwritten order Judges do not enter clerks do Under the. federal rules entry is the essential date, 4 Using done as the signature line s verb is a practice that apparently. developed to obscure the distinction between signed and entered. Sometimes the lag between the acts was embarrassingly large It makes. the record equivocal and should not be used, 5 Using denied and dismissed is contradictory A denial is a judgment on. the merits and if ruled on it cannot be dismissed A dismissal is a ruling. disposing of it other than on the merits and it cannot be ruled on by a. denial if it is being dismissed, D Recitations Whether it is a final judgment or a house keeping order keep it bare.
and decisional Omit all recitations of intermediate steps or background The. only potentially helpful exception is that of who moved that may help separate. the ninety three orders compelling something and help the clerk keep track of. which motions have been decided, At law it is not necessary to state in a judgment any of the. precedent facts or proceedings on which it is based Recitals as. to service of process and appearance are unnecessary either as to. jurisdiction or to the regularity of the judgment, FREEMAN JUDGMENTS 124 1925 citing Texas and federal cases. But in America the decree does not ordinarily recite either the bill. or answer or pleadings and generally not the facts on which the. decree is founded, Whiting v Bank of the United States 13 Pet R 13 14 1824 Story J quoted. in Hamilton v Ward 4 Tex 356 361 1849, E Authority for Writs The parties are automatically entitled to have the clerk issue. the writ appropriate to the judgment of the court no authorization or direction. in the judgment itself is necessary nor should it be included Many proposed. collection judgments end with the granting of whatever writs are necessary to. enforce the judgment That is wrong A judgment for money does not ordinarily. entitle the judgment creditor to mandamus injunction certiorari or many other. writs I t is unnecessary if not improper to incorporate an order or direction. for the issuance of execution or other process 1 FREEMAN JUDGMENTS 170. 1925 citing Bludworth v Poole 53 S W 717 719 Tex Civ App Galveston. 1899 no writ accord Troutenko v Troutenko 503 S W 2d 686 Tex Civ App. Houston 1st Dist 1973 no writ, F Writs Writs are the papers signed and issued by the clerk not the judge giving.
notice of some event in the litigation for example. 1 The writ of summons or citation gives notice of the inception of the suit. to those who are included, 2 The writ of subpoena notifies a witness to show up. 3 The writ of injunction gives notice that the court has decreed that. something shall not be done and, 4 The writ of execution notifies the sheriff and the public that he is. authorized to seize and sell the property,13 Conclusion. I do not expect sympathy for the judges who have to sort through the thousands of pages. delivered to them each week I know that your client expects documents that he can understand. I know that your client would like to have his position presented with clarity and precision with. attractive cogency I know that judges want to decide on the factual and legal merit of an claim. with frankly as little wasted effort as reasonable. Legal Writing,Lynn N Hughes,1 Winston Churchill Cabinet Memorandum 1940. 2 John J Pershing Memorandum 1918,3 Land title diagrams from brief in Fifth Circuit.
4 George C Marshall Note 1944, 5 First page of brief by a solicitor general without formalisms. 6 Opening closing by Brandeis Hughes Kellogg 1894, 7 Opening closing from Pennzoil s Texaco brief 1986. 8 A Standard Motion Revised,9 Omit Recitations in Orders. 10 Typographical Conventions for Vessels,11 Word Hints Five Minutes to Clearer Writing. 12 Texas Rules of Evidence 902 10 b,13 Duval County Letter 1971.

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