Category Archives: Uncategorized

How To Botch Your Brief, Guaranteed.

According to Jim McElhaney, a well-known commentator on litigation in general and legal writing in particular, there are 12 ways to screw up your brief. He presents them here in detail: Dirty Dozen: 12 Ways to Write a Really Bad Brief. As you read through McElhaney’s litany, you’ll hear yourself saying, “OMG. How can anybody be this stupid?” Sadly, it isn’t that difficult to fall into some of these traps. Emotional involvement in a case is enticing; and before you know it, the blinders are on. And just because these mistakes are easy to make doesn’t mean they aren’t costly. … Continue reading

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Client Confidentiality In The LISTSERV Age.

Most lawyers are careful to protect client confidences, but that is becoming more and more difficult to do. These days lawyers, especially those practicing alone or in small firms, often discuss their cases with their peers in other firms. It’s not uncommon for a lawyer to call a friend and run down a set of facts to get some extra input, and some lawyers post fact patterns on LISTSERVs and seek the advice of other practitioners about what to do. This business of reaching outside one’s own office for practice advice is a growing trend, and I think there are … Continue reading

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Project-Based Attorneys: Are They Just A Phase?

In a recent article in The Legal Intelligencer, Melanie Klinghoffer and Greg Richter made the case that “project-based” lawyers make a lot of sense for “[m]anaging partners, practice group leaders and others with case management responsibility and hiring leverage who were used to having a deep pool of fungible workers to spin work to.” The article worries along at some length, explaining how LPOs are coming to the rescue of big firms and large corporate legal departments. All true, I’m sure, but I have trouble relating to the practice management problems of firms and departments with hundreds of lawyers. I … Continue reading

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What Does It Take To Become A Freelance Attorney?

The answer to this question depends on whom you ask. One popular perspective is that if you have lots of experience as a legal researcher, you’ll succeed as a freelancer. Another is that if you’re an experienced lawyer and you don’t have a job, then freelance lawyering might be right for you. Finally, there’s my favorite: If you’re tired of the law firm rat race and want to work at home, freelance lawyering is the answer. My take on this is that experience and skill as a legal researcher is a given. If you can’t do high quality work, your … Continue reading

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“Ruralsourcing!” At Last, The Perfect Term For What I Do.

In a few minutes I’ll be climbing into my 4WD pickup to drive into town. I won’t be taking the car, because the half-mile logging road that leads from my house to the nearest paved thoroughfare is a little sloppy at the moment–mud season in mid-coast Maine. Some things never change. From my office window, I look out on deer, wild turkeys, and in the warmer months, lobster boats. Once or twice a year I might see a person, and if I do, that person has an orange hat and a gun, and is here because the deer are here. … Continue reading

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So You Have Oral Argument Coming Up. Do You Want Questions?

I heard today that Supreme Court Justice Clarence Thomas has not asked a question in oral argument in five years. I don’t know if this is true or not (Who keeps track of this stuff?), but if I were preparing for argument before the US Supreme Court and trying to quiet down those butterflies, I can tell you what my first reaction to this news would be. I’d be thinking, “Fantastic; now if the other eight would only follow his lead, maybe I’ll be able to get through my argument in one piece.” That would be my natural reaction, but … Continue reading

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Is A Freelance Lawyer Really A “Lawyer”?

Not too long ago I had a conversation with a small firm attorney out west (I’m in Maine, so pretty much everybody is out west). She was interested in hiring me to do some research and writing for a trial memorandum. The main legal issue turned on a razor sharp understanding of a complex timetable. At one point in what had become a lengthy conversation, the attorney suggested that I get in touch with her client directly to sort out the facts for myself. I appreciated her confidence in me (it’s always nice to be trusted); but I declined to … Continue reading

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Are Personal Attacks OK In Legal Writing? Never.

Since the Tuscon shooting, many political commentators and politicians have been calling for a more civil tone in political debate.  A useful idea, to be sure; and it got me thinking about the tone we use in legal debate–that is, the documents we file in court in aid of our cases.  For the most part, I think, the written back-and-forth in civil litigation is pretty tame.  Lawyers usually argue the facts and the law, and leave the personal attacks alone.  Occasionally, though, some of us wander into that nether world where questioning the motives or character of opposing parties or … Continue reading

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“Res Ipsa Loquitur” Forever? I Hope Not.

Personally, I’ve never cared for the use of Latin in legal writing.  To my ear, terms like “res ipsa loquitur” and “inter alia” just look and sound pretentious, and I think they interrupt the flow of a legal argument (Who really wants to shift languages mid-thought?).  I also don’t favor using “the said” in front of every noun that crops up, and I try not to write “subsequent to” when “after” will do nicely.  These practices just complicate things more than necessary.  For years now some legal writing scholars, including Bryan A. Garner, have been beating the drum for using plain  English in our … Continue reading

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Your Freelance Lawyer Is Waiting For You On The “Cloud.”

It used to be that if someone’s head was “in the clouds,” that was a bad thing.  No more.  These days everybody has either moved to the “cloud,” or they’re packing their bags.  People are shifting office operations from the office to the internet, and for very good reasons.  A small business owner named Gene Marks recently posted an excellent blog piece in Forbes describing why he is about to make the leap.  You can read it here.  His story is far from unique.  My law firm had a similar near-death experience with our in-house server about 3 years ago, … Continue reading

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