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2/26/09 10:41 AM
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HaMMerHouseFAN
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I'm currently working on my Appellate Brief (due next Friday) for Legal Research & Writing. Decent topic on a student who wore a homemade T-shirt to an event (is it school sponsored) that promoted medicinal mariijuana and had "bong hits" on it and the principal who was at the event suspended him for 5 days.

Any tips for writing appellate briefs for me?
2/26/09 3:58 PM
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Subadie
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Avoid the passive voice in general
 
But use the passive voice judiciously when it would create a clearer, more economical sentence. Sometimes, the passive voice is useful for a transition from one concept to another or to grapple with theoretical constructs that are not necessarily implicated by the facts of the case at bar. In those cases, the passive voice can be used because it is more economical. In all other instances, writing should be active, not passive.

Do not substitute nouns for verbs, or vice-versa
 
Doing so almost always slows a reader down or obscures the meaning of your writing. For example, the phrase ''they inflicted persecution on him when they imposed a death sentence in a closed court'' would be more active and concise if the nouns ''persecution'' and ''sentence'' became verbs: ''They persecuted him when they sentenced him to death in a closed court.'' Legal language is especially prone to nominalizations, and some nominalizations cannot be fixed because they are integral to legal standards. For example, the nominalization ''Request for Evidence'' in ''The Service Center issued a Request for Evidence'' cannot be converted to ''The Service Center requested evidence'' because ''Request for Evidence'' is a legal term of art that should not be changed. At the same time, do not convert nouns into verbs merely because doing so would be easier, because it can obscure the meaning of your writing. For example, the noun ''reference'' has become a verb in the following sentence: ''Counsel references an Eighth Circuit case.'' Revise the sentence by replacing the noun with an appropriate verb: ''Counsel refers to an Eighth Circuit case.''

Do not begin paragraphs with conjunctions; do not use conjunctions indiscriminately
 
Beginning paragraphs with ''but,'' ''therefore,'' ''however,'' and the like not only looks ugly, it also weakens the persuasiveness of the writing. These words generally imply that something has come before the word that is necessary to complete your loop of logic. If that something is segregated in a previous paragraph, it interrupts the flow of the logic. It also visually interrupts the flow of the argument and can confuse the reader. The use of ''however'' or ''therefore'' is sometimes necessary to break up an overly long or complex sentence. In that case, conjunctions may be used, but they should not substitute for good transitions.

Ensure parallelism
 
Parallelism is the use of the same grammatical form or structure for ideas in a list or comparison.76 For example, the following sentence has three ideas, two of which use past tense with a specific year, and one of which uses an ''-ing'' verb without a specific year: ''The applicant entered the United States in 1986, adjusting status three years later, and became a citizen in 1992.'' One way to rewrite this sentence so that its structure is parallel would be as follows: ''The applicant entered the United States in 1986, adjusted status in 1989, and became a citizen in 1992.'' The latter sentence is far easier to read and understand than the former sentence.
2/26/09 3:59 PM
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Subadie
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Connect your sentences
 
A reader will more quickly understand your writing if you link your sentences to each other by putting previously introduced information first, then adding new information. For example, if the first sentence reads ''The car is blue,'' the second sentence should read ''Blue cars are more difficult to see than yellow cars'' because the idea of ''blue cars'' is previously introduced information that the reader already knows. ''Yellow cars,'' on the other hand, is new information that the sentence introduces. The second sentence should not read ''Yellow cars are easier to see than blue cars,'' because that sentence introduces the new idea of ''yellow cars'' at the beginning, and the reader cannot immediately connect that new information to the prior sentence.

Avoid tag words and phrases such as ''clearly'' or ''in fact''
 
These words are almost always unnecessary. And they are almost always suspect. If an assertion is clear, this will be apparent from the manner in which it is presented--adding the word ''clearly'' accomplishes nothing. Usually, inclusion of this word also causes the adjudicator to suspect that the stated premise is not clear. The use of ''in fact'' carries similar implications and should be avoided for the same reason. It is appropriate, however, to use ''in fact'' to effectively counter a factual or legal misstatement by the court or the opposing side.

Apply verb-noun agreement
 
Sometimes a legal submission will contain sentences that are so long that by the time the writer gets to the verb it is no longer clear what the subject and direct object of the sentence are (or were). As a result, there are sentences where the conjugation of the verb does not match the relevant noun. Plural and singular nouns should be accompanied by the appropriate verb forms. Be very vigilant to avoid this common error.
2/26/09 4:00 PM
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Subadie
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Know the difference between the plural and the possessive
 
This grammatical error can be avoided by consulting a good style manual rather than relying on your computer's built-in grammar checker. If something sounds ''funny,'' it's usually incorrect. Style manuals are a quick and effective source for checking.

Use words and acronyms consistently
 
Do not use different words for the same legal concept or party. Especially in the law, certain words are terms of art and therefore must be used consistently. In legal writing, using different words to express the same legal meaning is a sign of inconsistency, causes confusion, and is sometimes rewarded with an AWO (Affirmance Without Opinion). Acronyms are another tricky device in legal writing. Too many acronyms are not only confusing but make most readers crazy. Inconsistently applied acronyms are worse. It is very important to explain all acronyms and limit them to those commonly used in the field.

Do not repeat yourself
 
Legal submissions would be much shorter if lawyers did not constantly repeat themselves. So, do not repeat yourself. Again, do not repeat yourself. Be alert to repetition in everything you write. Repetition can occur because the same idea is phrased slightly differently, or because it is buried in an overly complex sentence. Either way, it should be avoided.

Proofread
 
This is crucial, especially if you use templates for briefs, RFEs, or motions. There are certain errors that a spelling or grammar checker simply will not catch. Is the name and gender of your client correct? Did you choose the correct homonym (for example, ''principal'' versus ''principle'')? Did you include an errant apostrophe? Did you confuse the singular and plural? The list is endless, and the mistakes can only be discovered by reading and rereading your work. It is also very helpful to have someone else proofread your work.

Use formal language
 
Avoid contractions, colloquialisms, and slang. These words are not sufficiently formal for legal writing. Your writing should be elegant and flow easily, but it should never be casual.

Be careful with gender
 
Many courts now explicitly encourage counsel to use gender-neutral terms and avoid sexist language. Although the traditional male pronouns and male possessive (''he,'' ''him,'' ''his'') may in some cases be preferred, you should consciously decide to use them, rather than subconsciously using them as the traditional default. You have several options in this regard, depending on the context in which the pronoun is used. Following are some of these options:
- Use a plural noun. Instead of ''An asylum applicant establishes that he fears persecution when ...,'' try ''Asylum applicants establish that they fear persecution when ... .''

- Repeat the noun rather than using a pronoun. Instead of ''An asylum applicant fears persecution on account of political opinion when he has expressed a political opinion ...'' try: ''An asylum applicant fears persecution on account of political opinion when the applicant has expressed a political opinion ...''

- Use ''he or she'' instead of the male pronoun. Instead of ''An asylum applicant establishes that he fears persecution on account of his political opinion when ...,'' try ''An asylum applicant establishes that he or she fears persecution on account of political opinion when ...'' The downside to this method is that it is cumbersome. Although ''s/he'' is less cumbersome, do not use this because it is too informal for a legal submission.

- Use the pronoun that fits the gender of your client. If your client is a woman, use female pronouns when writing; if your client is a man, use male pronouns. However, do not vary the gender pronouns. Although interspersing the two kinds of gender pronouns is encouraged in other forms of writing, it can lead to confusion in legal submissions.
2/26/09 4:05 PM
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Subadie
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Regarding use of the word "clearly," I remember an exercise in law school. The professor had us search for every use of the word "clearly" in a case book. Practically every time, it was anything but clear. So, one trick of knowing some critical issue or area of uncertainty is to look for the word "clearly"
2/26/09 4:19 PM
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bflex
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Speak in plain english. Avoid heretofore's and therefore's etc. You should be able to give it to a legal novice and they should understand it clearly.
2/26/09 4:31 PM
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HaMMerHouseFAN
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Thanks for the tips. I appreciate them.
2/27/09 9:22 AM
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HaMMerHouseFAN
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By chance would someone possibly review it for me?
2/27/09 11:43 AM
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bflex
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Are you allowed to have it reviewed? I'm not assisting in any honor code violations!
3/3/09 2:50 PM
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pm1964
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Go download the briefs for the actual case, and plagerize it.

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