February 18, 2020 Appellate Issues | Winter 2020

Say What? An Interactive Experience in Effective Legal Writing With Ross Guberman

By Jonathan Sternberg

Early Friday morning at the 2019 AJEI Summit, attendees were treated to a solo presentation by well-known and ever-exuberant legal writing guru Ross Guberman, titled “Say What?  An Interactive Experience in Effective Legal Writing.”  Besides authoring books about legal writing, Mr. Guberman is the President of Legal Writing Pro LLC, an advanced legal-writing training and consulting firm, and the founder of BriefCatch LLC, which produces the BriefCatch legal editing software.

As his presentation title promised, Mr. Guberman’s presentation was indeed “interactive.”  First, Mr. Guberman in part sought to get the audience to discuss among themselves what they prefer in legal writing and why.  This was particularly enjoyable, as the AJEI Summit brings together state and federal appellate and trial judges and court staff, practitioners, academics, and others.  During Mr. Guberman’s presentation, the audience was seated at round tables in a large ballroom.  Each table contained a diverse compliment of attendees.  For example, this author’s table included two state intermediate appellate court judges, a state high court judge, and several appellate practitioners, which was typical of the groups throughout the room.  This provided a diversity of perspectives.  It also helped us to get to know one another.

But more than interacting with each other, Mr. Guberman brought the whole room together electronically to poll and then discuss our preferences.  He had everyone sign up for a temporary polling medium through PollEverywhere.com using our mobile phones or computers.  Then, he would broadcast a question to the room and ask for responses.  For example, he showed the room a paragraph from a recent Supreme Court brief seeking to summarize the arguments that the brief would include.  He then polled the audience on four different ways the sentence could have been stated, asking first what we individually thought was best, and then what we thought judges would prefer.  The audience would input “A,” “B,” “C,” or “D,” with the responses transmitted to Mr. Guberman’s PollEverywhere.com system and displayed on a screen.  When the answers were complete, he asked the tables to discuss what they had chosen and why, asking them to ask themselves, “What are preferences, where do they come from, and how do they matter?”  Then, he gave some lessons on what most judges and lawyers do prefer and why.

By repeating this method for each legal writing topic he discussed, sometimes broad, sometimes nitty-gritty, he was able both to inform the audience and to get the audience to internalize the topics by deliberating the answers and reasons among themselves.  Topics included:

  • “Under” versus “pursuant to.”  The majority of the audience preferred “under.”  Mr. Guberman agreed “under” was preferable because it is simpler, more common language.  But he said that when he started lecturing on legal writing that would not have been the most common answer.  He noted that like many of these issues, answers sometimes were generational.
  • Whether to use an appositive to describe a particular characteristic (e.g., “Mr. Jones, the defendant’s brother, said …” vs. “Mr. Jones was the defendant’s brother.  He said …”).  The audience was split on this issue.  Mr. Guberman agreed that an appositive could be appropriate, but cautioned that many writers botch the punctuation involved.
  • Two spaces or one space after a sentence.  Mr. Guberman said this is a perennially divisive issue.  The audience split two-out-of-three for two spaces.  He explained that using two spaces was left over from typewriter typography, and that the trend is moving toward one space.
  • How to designate a short name for a subject (e.g., “hereinafter ‘Act’”, “hereinafter ‘the Act’”, “the Act”, or “Act”).  The audience largely rejected using “hereinafter,” for which Mr. Guberman was glad.  He explained that the remaining two options were largely a matter of personal preference, but that as with all of these topics, writing should be with an eye toward making language simpler and clearer.
  • Footnotes.  Mr. Guberman first asked the audience to discuss among themselves how they thought footnotes should be used, including whether citations should be put in footnotes, footnotes should be sparing, or footnotes should be generous.  He then gave some examples of footnotes for the audience’s approval or disapproval.  For the most part, the audience preferred not to include the information at issue in footnotes at all, and instead to include it in the body of the text.  Mr. Guberman explained – and this author observed at his table – that there was a divergence of opinion between judges and practitioners over the use of footnotes.  Practitioners tend to use them widely, but judges tend to prefer that their use be restricted.  Mr. Guberman said that most judges disapprove of including all citations in footnotes, though this also is a divisive issue.
  • “Accordingly, …”  Mr. Guberman presented the audience with four possibilities for connecting a conclusion to the body that came before it.  Much of the audience approved of using “accordingly,” but he disagreed.  He said judges generally prefer just presenting the conclusion.

Mr. Guberman was careful to note that many of the quirks and idiosyncrasies found in what practitioners and judges have come to think of as “legal” writing often are the writers’ “guilty pleasures.”  We write “pursuant to” instead of “under” or use two spaces because we think we’re supposed to and it makes us feel good.  But he explained that regardless of how it feels, we should train ourselves to write more simply and directly, without regard for what we traditionally think legal writing “should” be.

Finally, Mr. Guberman walked the audience through how his BriefCatch software works.  He took writing samples from actual briefs and opinions and ran the software on them.  It functions somewhat like an add-on to the “grammar check” function of Microsoft Word.  But instead of finding just potential grammatical mistakes, it found legal writing errors – e.g., legalese, agreement problems, syntax issues – and suggested alternatives, with explanations.  It was impressive.

Mr. Guberman’s presentation was enjoyable and informative.  It made the audience of legal writers ponder and discuss why their preferences and quirks are what they are.  It was easy to see why he is such a popular legal writing authority, and we were lucky to have him at the 2019 AJEI Summit.

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Jonathan Sternberg

Jonathan Sternberg is an appellate lawyer with his own practice in Kansas City and St. Louis, Missouri.