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November 09, 2011 Articles

Book Review: Ross Guberman's Point Made

It's one thing to pick up some tricks from a law professor who teaches legal writing; it's another to pick them up from Seth Waxman or Carter Phillips.

By Sanford Hausler

Point Made: How to Write Like the Nation’s Top Advocates
Ross Guberman
Oxford University Press 2011

As someone who not only engages in the practice of appellate advocacy but who also has a great love for the practice, I find that my shelves are replete with books relating to both written and oral advocacy. I buy those books in the hope that I will pick up a trick or two worth using in my practice—and, to a greater or lesser extent, I generally get my money’s worth. Reading the advance press on Point Made: How to Write Like the Nation’s Top Advocates, which promised to be a book full of such tricks, I rushed online to order a copy. It’s one thing to pick up some tricks from a law professor who teaches legal writing; it’s another to pick them up from Seth Waxman or Carter Phillips.

Of course, the “tricks” are filtered through an author. Ross Guberman is the president of Legal Writing Pro, a company that appears to be a competitor of Bryan Garner’s Law Prose. Mr. Guberman has an impressive academic background, having studied at Yale, the Sorbonne, and the University of Chicago Law School. I certainly cannot argue with his selection of lawyers from whose works he illustrates his principles of legal writing—they are all truly among the nation’s top advocates.

Guberman does not give us the usual blather found in most books on legal writing. There is no major discussion of the passive voice, for instance. And while much of his material is not new, his presentation, replete with concrete examples, is both novel and helpful. Although it is sometimes difficult to ascertain whether Guberman is pulling examples from his experts’ briefs to prove his points or whether his points arise organically from the briefs, it matters little: For the most part, the points made are worth taking to heart.

That is not to say that everything in the book is golden. There is the occasional slip. For instance, on page 44, Guberman says:

Take this opening sentence from the fact section of a Ted Wells motion to dismiss. . . . With little fanfare, Wells lets the court know that it’s dealing with a commercial dispute between sophisticated parties, one of which apparently soured on a once-promising deal.

Ted Wells is a fabulous attorney, no doubt, but the line quoted falls far short of Guberman’s buildup:

This matter arises out of Terra Firm’s purchase of EMI in May 2007.

The line says nothing about a dispute, let alone a commercial dispute; it provides no information about the sophistication of the parties and is silent on the soundness of the deal. It may well be that the Wells quotation might have conveyed more when read in context, but that is one of the failings of Guberman’s book. All we get are short snippets from what we assume to be (and what likely are) masterful briefs. This failing might be cured—it’s not too late, Ross!—by posting the full briefs on Law Writing Pro’s website, so that students of the art of written advocacy can see the full work of Ted Wells and his compatriots.

Of course, Guberman’s overstatement of the Wells quotation will not deter the reader from getting Guberman’s point—that the fact section of a brief should start with a sentence that encapsulates the dispute. Guberman gives numerous other examples. Indeed, Guberman gives many examples for each of his propositions—sometimes too many. But, of course, the reader can just skip examples once he or she gets the point.

Guberman occasionally goes off on a seemingly pointless frolic. For example, he spends quite a bit of time debunking the controversy about parentheticals after case citations (pages 130–40). What controversy, you might ask, and rightfully so. Guberman does not enlighten us as to who is fighting this war—the controversy has escaped my attention. But even assuming that there is a controversy, much of the 10-page discussion relating to parentheticals is standard stuff taught in first-year law school classes. It is hardly a startling development that Morgan Chu and Ken Starr know that a parenthetical should begin with a gerund (an -ing form of a verb) or that Paul Clement puts full-sentence quotations in his parentheticals.

Similarly, Guberman’s section on our friend the hyphen (in forming what I call a unit modifier) seems pointless. Is it really that important to know (as Guberman tells us on page 204) that Chief Justice Roberts did not use a hyphen (correctly) in phrases such as “critically important employer” and “potentially competing demands”? And it’s not at all clear why he bothers with an oddball quotation from Justice Ginsburg (on page 184) to show us it’s all right to write a brief in blank verse.

And sometimes Guberman’s examples make me doubt his propositions. For example, in a section entitled “Mince Their Words: Merge pithy quoted phrases into a sentence about your own case,” he advocates inserting short phrases from cases into sentences about the client’s case. But the quotation marks in the example taken from a brief by Miguel Estrada (on page 108) just look too clumsy: The example has too many quotation marks too close together:

Nor is there the slightest evidence that [Sanders] was a “financially vulnerable” “target” of “economic injury” inflicted by Madison Square Garden.

Sometimes even a good idea can be misused, even by as talented an advocate as Mr. Estrada.

But enough carping. Point Made provides much food for thought for the experienced advocate. Even where Guberman makes points that are (or should be) well understood by appellate (and non-appellate) attorneys, his use of concrete examples by “the nation’s top advocates” shows us how those points can be used to advance a case in the most effective way. And, at times, he goes against the common wisdom, showing us a way to do something that others might advise us not to do. Let’s look at block quotes, routinely used by brief writers and just as routinely criticized by legal writing experts. Guberman knows that block quotes are not popular with some. He quotes five judges (on pages 141–42) who say as much. But he believes that block quotes can be properly used and so do his experts—Steven Shapiro, Walter Dellinger, Carter Phillips, and Virginia Seitz. And his experts show us how it is done.

Guberman also jumps into the controversy over the use of footnotes. Unlike the controversy over parentheticals, this is a true controversy. Some judges claim they don’t read footnotes. Some advocates feel that if this is true (and I’m not convinced it is; at any rate, I’ll bet the law clerks read them), even with respect to some judges, it is unwise to use them. Not Guberman. Although he tells us flat out (on pages 146–47) the situations in which footnotes are inappropriate—to stay within the page limit (a reason unlikely to have staying power now that courts are adopting word limits), to insert unnecessary citations, and to take a pot shot at your adversary—he provides us with a list of situations in which he feels that footnotes are appropriate (page 148):

To show widespread adoption of a principle

To buttress a point in the text

To distinguish authorities not deemed worthy of discussion in the text

To preempt a counterargument

And, of course, he shows examples of such footnotes written by preeminent advocates Andrew Frey, Mary Jo White, Theodore Olson, and Richard Taranto. It’s hard to argue with success.

Oh, and—joy of joys—Guberman disagrees (on pages 147–48) with the view of his competitor, Bryan Garner, that all citations should be dropped to footnotes. I have yet to meet an individual who agrees with, let alone abides by, Garner’s rule, but it’s nice to know that Guberman agrees with me.

Guberman brings to his readers’ attention principles that should be self-evident but that are often overlooked. For instance, Guberman, in a section entitled “Peas in a Pod: Link your party with the party in the cited case” (pages 104–07), tries to cure attorneys of what he considers a bad habit:

One of the other bad habits lawyers-to-be pick up in law school (and often keep for decades) is mentioning that a case is “on point,” only to rehash all the facts of that case in an endless paragraph stuffed with citations and quotations. Then, in a new paragraph, the attorney starts with “that case is just like the present case,” only to rehash all the facts from the current dispute.

The best advocates do the opposite: They link the parties, old and new alike, as soon as they can.

The examples he cites all contain sentences in which the party is said to be in precisely the situation of a party in the cited case, saving space and strengthening the argument.

I was writing a brief at the time that I read this principle, and although I was not writing paragraphs like the lawyers-to-be whose bad writing habits he decries, I was able to strengthen certain paragraphs in my brief by using his advice and the examples he provides—I hope to the benefit of my client.

That is why I recommend this book to your attention. If the lessons contained therein gave me reasons to reexamine and improve my writing, there is no reason to believe that it cannot do the same for others. Although not every word is a gem, Guberman provides sound advice supported by the practice of the best in the business. If 10 people read this book, I imagine that each of them would find different sections of the book to be helpful. But I believe that they all would be helpful. What more can be asked of a book like Point Made?

Keywords: litigation, appellate practice, ross guberman, point made: how to write like the nation's top advocates, bryan garner, brief writing

Sanford Hausler is of counsel with Cox Padmore Skolnik & Shakarchy in New York, New York.

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).