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    Appellate Issues

    Winter 2025

    AJEI: Legal Writing- A Workshop in Practical Linguistics

    BEAU O'NEAL WATKINS

    Mar 26, 2025

    3 min read

    Appellate Appellate Practice Courts & Practice Areas General Practice
    AJEI: Legal Writing- A Workshop in Practical Linguistics
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    Professor Jill Anderson, Dr. Elizabeth Coppock and Professor Ann L. Nowak presented an excellent workshop on issues in legal writing which we as attorneys sometimes fail to remember. This paper provides a brief summary of the workshop along with resources if the gentle reader wishes to learn more.

    Professor Nowak, Touro University, provided ten tips to avoid ambiguity. These ten were:

    1. Use serial (Oxford) commas.
    2. Keep nouns and verbs together.
    3. Use active voice.
    4. Avoid indefinite pronouns,
    5. Reposition misplaced modifiers.
    6. Be specific.
    7. Provide context.
    8. Put readers into your head.
    9. Proofread aloud.
    10. Utilize examples of bad writing. While these tips may seem redundant and more appropriate for a first year law student, even experienced attorneys can overlook the basics. For example, a missing oxford comma in O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017) caused significant litigation.

    Professor Jill Anderson discussed how to deal with ambiguous statutory interpretation. Specifically she focused on how just a few words could cause great confusion. Her lesson started with a traditional ambiguity, using the state song of Kansas, particularly the phrase, “the sky is not cloudy all day.” She pointed out this phrase is ambiguous.  Does it mean there is not a cloud in the sky, in other words full negation?  Or does it mean the sky was only cloudy some of the day, thus a partial negation? She then provided several examples of statutes which could be read either as partial or full negation.  To determine which reading was correct she used a tool called the “Square of Litigation.”

    Square of Litigation

    Square of Litigation

    Using the “Square of Litigation” the practitioner looks to the context rather than the grammar of the statute. Using the case of Caraco Pharmaceutical Laboratories v. Novo Nordisk, 566 U.S. 399 (2012), she then demonstrated how the square of litigation is used. Simplified, the case is about both companies trying to sell a diabetes drug. Novo Nordisk had a patent which had expired for the drug, but still had a patent for a method of use for the drug. Caro wanted to market the drug for a different method of use. The only way that Caro could win the case is if the language of the statute was a partial negation, which ultimately the Supreme Court decided was the correct interpretation based on the context of the actual statues which Congress had passed. Specifically, Congress intended to aid generic drug manufacturers and to read statute as full negation would thwart that intent. 

    Professor Elizabeth Coppock was the last presenter and applied the square of litigation to negation with conjunction and disjunction (Not + And/Or). She provided a lesson on De Morgan’s Laws and the importance of eliminating ambiguity as illustrated in the case of Pulsifer v. United States, 601 U.S. 124 (2024). This case involved whether a defendant had to meet all or just some of the “safety valve” provisions in the Federal Sentencing Guidelines to escape a mandatory minimum sentence.

    Square of Litigation

    Square of Litigation

    The Government contended the provisions were three distinct criteria and a defendant that fails to satisfy any one of the three was ineligible for relief. The Defendant favored an interpretation that amalgamated the criteria: if he does not have a combination of the three criteria he is entitled to relief. While the Court agreed that, when viewed in the abstract either interpretation would be correct, it was only through the examination of the entirety of all the subparagraphs, including not just what they say, but also how they relate to each other, and how they fit in other pertinent law is it possible to get an accurate understanding of the meaning of the statute. Ultimately, the Court concluded the Government’s interpretation was correct.

    The underlying lesson the speakers imparted was not about the intricacies of statutory interpretation and full versus partial negation, although that too was significant, but more importantly even seasoned attorneys must be thoughtful and conscious while writing and seek to constantly improve clarity, whether that is done through additional training or peer reviewing others’ writing. Writing, like all other areas in the “practice of law” involves hard work and practice and “practice makes perfect.”  

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