Oscar vs. Jeff: Trial lawyers and appellate counsel do different jobs, and it may show in their writing
Two firms are collaborating on a brief for Julius Joints Inc. Oscar and his team were trial counsel, and the client wants Oscar, who has represented Julius for years, to stay on through the appeal. Jeff’s firm, an appellate boutique, has been hired as lead counsel for the matter.
That Jeff and Oscar have very different approaches to writing became apparent during Oscar’s first round of redlines on Jeff’s briefs. Jeff noticed that Oscar made edits that create the type of legal writing Jeff avoids. Yet Jeff instructed his team to accept every plausible edit from Oscar’s team—which ultimately amounted to about 20% of Oscar’s suggestions.
Jeff’s team has concluded that Oscar seems (1) unfamiliar with style manuals such as The Chicago Manual of Style, The Redbook and The Bluebook; (2) wedded to some old-style legal conventions that will disserve the client before an appellate court; and (3) unaware of recent writings on legal advocacy.
Jeff has worked with such co-counsel before, and he’s hoping that a little diplomacy will smooth things over. But now Oscar has phoned. Here’s how it goes:
Oscar: Jeff, I generally like the new draft. I appreciate that you’re the appellate specialist, but I think there are many things about this brief that just won’t appeal to the court.
Jeff: Tell me. I’m always open to improvements.
Oscar: Good. I’ve represented Julius Joints for many years. All my filings use the possessive Julius’—just the apostrophe, no extra s. My understanding is that that’s correct for a word ending in s. So please make this correction.
Jeff: There are two conventions here. The Associated Press Stylebook agrees with you—no extra s—but The Chicago Manual of Style has always been to the contrary. Like Strunk & White, Chicago recommends Julius’s, with the extra s.
Oscar: I don’t like it. Please change it.
Jeff: By happenstance, I discussed this issue with Julius’s general counsel, Susan, and she told me that the in-house style at Julius is using the extra s.
Oscar: I’ve never been told that. Let’s move on, then. On page 2, I removed your ellipsis, which shows that you’re changing a quotation. At our firm, we don’t like changing quotations. We want to present the words of a precedent exactly as they appeared. When you change quotations, the court will doubt your reliability. Why have you restored the ellipsis?
Jeff: The ellipsis is necessary to remove an extraneous word that makes no sense in the context of this brief.
Oscar: I checked. It’s just the word also.
Jeff: Right. It makes no sense to have a stand-alone quotation that begins, “Jones also relies on the general ‘presumption’ that administrative action is subject to judicial review.’”
Oscar: Why not?
Jeff: Because the also makes no sense. Yet the quotation makes perfect sense without it.
Oscar: I don’t think the court will appreciate having words omitted willy-nilly. You’ve done it several times.
Jeff: We’re not omitting words willy-nilly. We omit them purposefully. If a word or phrase makes no contextual sense in our brief, then we omit it to avoid distracting the reader.
Oscar: What if the judge or a law clerk checks to see what you’ve omitted?
Jeff: So much the better. A sensible reader will see immediately why we omitted the word—to prevent confusion.
Oscar: There’s another problem, then. Sometimes you use three ellipsis dots, sometimes four. You’re inconsistent.
Jeff: We’re not being inconsistent at all.
Oscar: How can you use three dots sometimes but four times on other occasions?
Jeff: There’s a difference. Three-dot ellipses occur midsentence. When you have four dots, one of them is actually the period at the end of the sentence. So you have four dots when a sentence has ended in the midst of what’s omitted. You’ll find this discussed in both Chicago and The Redbook. It’s standard stuff.
Oscar: I’m not familiar with it.
Jeff: Believe me, we’re not infallible, but we’re doing our utmost to follow established conventions.
Oscar: Well then, tell me this: Why are you inconsistent with the phrase sham marriage? Sometimes you’re hyphenating it, and sometimes you’re not.
Jeff: Yes. We hyphenate it as a phrasal adjective—as with sham–marriage bar or sham-marriage determination. If sham marriage stands alone as a noun phrase, no hyphen. But if the phrase modifies a noun that follows it, then it’s hyphenated as a phrasal adjective. It’s a basic grammatical distinction.
Oscar: I think the judge will find it jarring.
Jeff: Oscar, if you’ll look at the recent decision of the U.S. Supreme Court in Bouarfa v. Mayorkas—the case we’re citing throughout this brief—you’ll see the very same distinction fastidiously followed: sham marriage as a noun phrase but sham-marriage bar hyphenated. I promise.
Oscar: I’ll look at that. But isn’t it just make-work? You’re spending the client’s money having to look all these things up.
Jeff: Believe me, Oscar. My team has this stuff memorized. To us, it’s similar to spelling. We’d no sooner leave sham-marriage bar unhyphenated than we’d spell marriage with one r.
Oscar: Let’s move on. You’ve changed lots of the citations that we supplied in our last set of comments. I see that you’re deleting Inc. at the ends of some party names but not others. These are inconsistencies.
Jeff: No, Oscar. [Jeff is using his politest voice.] We’re just following The Bluebook. If a company’s name ends with both Co. and Inc., the Inc. gets dropped. So Inc. never follows Co. But if it’s Julius Joints Inc., the Inc. isn’t dropped.
Oscar: You’re having people look all this stuff up?
Jeff: No. They just know it.
Oscar: I don’t think they’re as careful as you seem to believe. They changed a lot of our citations to introduce inconsistencies. When they shortened Corporation in case names, they put a period at the end of Corp., but when they abbreviated the word International in a case name, they forgot the period. What about that?
Jeff: We purposely omitted the period because Int’l is a contracted abbreviation. The Bluebook specifies that contracted abbreviations don’t take periods.
Oscar: You have an answer for everything, it seems. We trial lawyers don’t trouble our heads with these kinds of minutiae.
Jeff: The Bluebook editors do like their minutiae. Believe me, in our final review, we’ll try to be sure it’s in tiptop shape.
Oscar: You’re telling me, I guess, that all these points I’m raising are things you’re quite conscious of.
Jeff: Yes. We appreciated your thoughtful insertions. We restyled them to keep them consistent with our style in the rest of the brief.
Oscar: I suppose I’ll recede on my other comments. This brief certainly isn’t my traditional style, but maybe that just says my style needs work.
Jeff: You’re a terrific lawyer, Oscar, and it’s a pleasure to work with you.
And so the brief got filed, the lawyers moved on to other clients’ problems, and everybody lived happily ever after. But be assured that in all his other briefings, Oscar stuck to his old way of doing things.
Bryan A. Garner is the author of The Winning Brief, Garner’s Modern English Usage and Legal Writing in Plain English.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
