Litigation Support Tip of the Night

June 19, 2020

When writing an issue statement, don't try to do it with one sentence, and certainly don't begin with 'Whether' or another interrogative word.  An issue statement should follow a chronological order, and end with a pointed question.   Putting an issue statement in a single sentence may lead to the object becoming too distant from the verb. 

Garner gives this example of a bad issue statement:

Whether an order of the National Labor Relations Board directing the petitioner to pay back pay to an employee, who was discriminatorily laid off for union-organizing activity in violation of Section 8(a)(3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(3), but only up to the date on which the petitioner discovered that the employee was an undocumented alien not authorized to be employed in the United States, is a proper exercise of the Board's authority  to remedy petitioner's violation of section 8(a)(3) of the Act? 

This statement is better:

The National Labor Relations Board ordered petitioner to pay back pay to an employee who was discriminatorily laid off for union organizing activity, but only up to the date when petitioner discovered that the employee was an undocumented alien not authorized to work in the United States.  Was this order a proper exercise of the Board's authority to remedy petitioner's violation?

The premise and the question should be in separate sentences.  

Don't use the under / does / when technique that is sometimes taught in law school.  

 - under a law to be applied

 - does asks the legal question

 - when certain facts occur.

Garner recommends avoiding an issue statement like this one:

"Under state law, does Bob Wilson have a claim for defamation when he is accused of committing a crime it was physically impossible for him to perform?"

June 9, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts

A good brief should open by addressing the deeper issues at hand, and in 90 seconds make clear its primary point.  Premises making reference to facts should be quickly stated, and then a yes or no question should be asked so that only one answer to it appears to be possible.  Draw a conclusion after reviewing the issues in 75 words or less.   Use a specific, but dispassionate tone.  

 This is an example of how not to begin a brief:

This lawsuit concerns an action for breach of warranty and/or fraud which was commenced in the Court of Common Pleas of Marion County, Indiana in August of 1983.  The plaintiff sought to recover certain specific damages from the defendants arising from and admitted breach of warranty.  The plaintiff asked the jury to return a verdict in its favor in the amount of $1,076,347.64. 

This is a good example of a brief that presents the issue effectively:

Plebinol's jury demand was for damages of nearly $1.1 million. But after the jury awarded $839,000, the intermediate court unanimously decided that nearly $263,000 of the $1.1 million demand had been improperly submitted.  Instead of offsetting this amount against the actual verdict, however the court offset it against the inflated demand, as if the jury somehow knew to reject the improper portion.   Shouldn't the improperly submitted amount have been offset against the verdict actually rendered? 

June 8, 2020

The First Department of the New York State Appellate Division has posted guidelines for e-filings.  See, FORMATTING SPECIFICATIONS AND GUIDELINES FOR ELECTRONICALLY FILED DOCUMENTS 

1. All filings must be in the PDF/A format, and be text searchable. 

2. PDFs can be up to 100 MB in size, but the Court requires that the files be compressed so they are as small as practicable. 

3.  Hard copies must be identical to the PDF, and should be corrected if the PDF is revised. 

4. Bookmarks are required for each section listed in the Table of Contents.  The guidelines specifically state that, "PDFs that contain skeletal bookmarks (i.e. missing headings), minimal Table of Contents or no bookmarks will be returned for correction."

5. Bookmarks only need to be entered for the volume to which a PDF belongs, but if an exhibit is split between more than one volume, there should be an indication of this.

6. The bookmarks should display when the PDF is opened.   In Acrobat this can be set under File . . .  Properties. . .Initial View.   Set the Navigation tab to 'Bookmarks Panel and Page'. 

7. In Document Properties, also set the PDF to open to the 'COVER'. 

8. The pagination of the PDF should also be set to reflect the page numbers used on the document.  So in other words the page number show on the toolbar should reflect that at the bottom of the page.  In Acrobat you can select multiple page thumbnails, and right click to select 'Number Pages'.   There is an option to set different styles of numbering for a given range. 

9. There should be one PDF for each volume.   The brief and the appendix should not be in a single PDF, unless the hard copy has them attached as well.

June 2, 2020

It's important to know how to use hyphens, en dashes and em dashes correctly. 

A hyphen is used to separate two words that go together, such as in a compound adjective. For example: 

The green-eyed gentleman.

An en dash should be used between the ends of a range, such as those of numbers or time periods.  For example:

Page numbers 110–150.

An en dash can be entered with the alt code 0150.  

An em dash is used in place of commas or parentheses to set a phrase apart from the rest of a sentence.  For example:
The partners—David and Alice—went to court.

An em dash can be entered with the alt code 0151.   An en dash is half of the length of an em dash. 

June 1, 2020

Be sure to know the editing marks that are used for proofreading a hard copy of a document.  It's possible to enter some of these symbols with Unicode references and it's common to circle the marks which use letter abbreviations. 

1. ₰        Delete (enter with the Unicode reference 20B0). 

2. ⁐      Close up space (enter with the Unicode reference 2050). 

3.            Transpose / tr. 

4. #         Insert a space. 

5. ital.     Italicize. 

6. rom.    Remove italics. 

7. bf         Boldface.

8. lc         Make lowercase. 

9. cap.     Make uppercase. 

10.           Insert text.

11. ¶         Start a new paragraph (enter with the Unicode reference 00B6).  Simply write 'No ¶' to remove a paragraph break. 

12   1        Insert em dash. 


13.   1        Insert en dash.


14. sp        Spell out. 

15. stet.     Let stand.

16. wf         Wrong font.

17.               Insert parentheses. 


18. ⁂      Insert a break in the text for a new section (enter with the Unicode reference 2042). 

May 31, 2020

Garner cites several law journal articles and books published by judges and others, in order to make clear that briefs submitted by attorneys often include errors (such mistakes in grammar or simply a 'jerky' style) which can only be detected by proofreading carefully and often.  The attorney will ultimately be held responsible for any unintentional mistakes.  Every attorney should assume that his or her brief contains some mistakes.  Take these steps to find them:

1. Begin by checking for mistakes in substance.  It is not unusual for a brief to contain contradictory assertions.  

2. A brief should not be merely edited line by line.  It should be re-written.   

3. Confirm that the central point is clearly conveyed by the brief.

4. Confirm that all counter arguments have been addressed.

5. Verify that one argument made in the brief leads to the second and each successive argument.

6. Consider if an analogy could be useful for any of the arguments. 

7. Make sure the brief has an appropriate tone. 

8. Make several passes: once for punctuation; once for formatting; once for transitions; once to confirm the headings are consistent. 

9. Triple-check citations and cross references. 

10. Inconsistencies can be detected by reading a brief backwards.

May 23, 2020

Two years ago, the Cornell Law Review published the results of a survey of more than 500 jurors who served at federal trials.  Hon. Amy J. St. Eve & Gretchen Scavo, What Do Juries Really Think: Practical Guidance for Trial Lawyers, 103 Cornell L. Rev. Online 149 (2018).  The authors of the study are a judge for the United States District Court for the Northern District of Illinois, and a former Winston & Strawn LLP partner.   The article discusses jurors' thoughts about lawyers' use of technology and the presentation of evidence that paralegals help prepare.  Here are some key points:

1. Jurors prefer that attorneys use technology to present evidence. 

2. Jurors appreciate the use of timelines.  They want evidence to presented chronologically. 

3.  The main issue the surveyed jurors focused on was "attorney organization, preparation, and efficiency".  Id. at 155. 

4. Jurors frequently complained that they were not able to hear the attorneys.  The authors recommend testing the acoustics of the courtroom before the trial begins. 

5. "Many jurors are accustomed to learning through technology, and technologically enhanced presentations present an ideal platform to summarize and connect the dots between the evidence presented at trial and the applicable law in a way that is especially useful for visual learners." Id. at 169-70. 

6. Jurors have a preference for evidence that is displayed visually on screens. 

7.  Jurors will be critical if attorneys cannot use technology effectively.  They complained when attorneys did not learn how to use hardware beforehand. 

8. Every trial tech who has been in the hot seat will appreciate that the authors admonish lawyers to, "take the time to learn about and practice with the courtroom's technology so that the trial is not a dress rehearsal."  Id. at *170. 

9. Jurors prefer that deposition designations not be made for long excerpts of testimony. 

10. Focus on the relevance of exhibits and do waste time discussing unimportant details. 

11. Give the jury sufficient time to read exhibits that are displayed to them. 

The article also points out that jurors "despise--and are even insulted" when attorneys excessively repeat questions or basic concepts.  Id. at 153.  They also do not like it when attorneys are hostile to each other, or when they attack witnesses.  

The article ends with this conclusion: "Effective use of technology helps, as does organizing evidence into a cohesive timeline or other easy to-follow summary."  Id. at 174.  

May 17, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts

Don't discount the importance of the most mundane and common of paralegal tasks.   Garner stresses that inaccurate citations are prejudicial to the interests of a client.  He advises that someone other than the author of the brief check citations, and that they be painstaking in their review.  'Cold-checks' are best. 

Garner claims that it takes only 15 seconds to confirm the case name, volume, page, and abbreviations of a legal citation are correct.  (As opposed to 15 minutes in pre-online legal research service age.)  While a tool like Lexis BriefCheck can expedite the process, this seems like an exaggeration to me.  Perhaps legal citations that have been correctly entered will take no longer than 15 seconds.  If a volume number is entered incorrectly, BriefCheck won't suggest a correction.

Garner does acknowledge that it may take "one full day" to check the legal and fact citations in a brief.  Keep that estimate in mind the next time an associate gives you an impossible deadline!

May 14, 2020

Note that when filing a declaration in federal court, it's common to begin the declaration by making a reference to 28 U.S.C. § 1746.  For example: 

"Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:"


"I, Clarence Darrow, hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that . . . "

28 U.S.C. § 1746 provides that a matter may be supported by an unsworn declaration as being true under the penalty of perjury.  The stature specifies that this language should be used:

“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

So one might begin a declaration like this:

. . .  and conclude it his way:

In any event, be sure to include a reference to 28 U.S.C. § 1746.  

May 2, 2020

The California Style Manual  specifies an alternative citation style to the common one used in the The Bluebook.   The rules of the state courts in California allow either style to be used in a brief so long as one style is used consistently.   However, a citation guide posted to the web site of the Judicial Council of California directs the use of the California style:

The California style is distinguished by enclosing citations in parentheses and putting the venue and year between the case name and reporter cite.  A cite to a decision in the Bluebook style which appears as:

Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012)

. . . will appear in the California style as:

(Hoosier Racing Tire, Corp. (3d Cir. 2012) 674 F.3d 158)

The California Style Manual also directs the old fashioned distinction between ibid. and .id , the former being used when the cite is to the same page in the immediately preceding authority.   Citations to statutes, books, and law review articles are also enclosed in parentheses. 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

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