persuasive writing by liz daily kurt hermansen

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PersuasiveWritingBy Liz Daily

& Kurt Hermansen

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PersuasiveWritingBy Liz Daily& Kurt Hermansen

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Tip Sheets (Handout)

John B. McEntire, IV |Federal Defenders of Eastern Washington and Idaho

Senior Litigator

10 N. Post Street, Suite 700

Spokane, WA 99201

509.624.7606

Teaches advanced legal writing at Gonzaga University School of Law

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How to defy the odds

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PersuadeFocusEvolve

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Before jumping into our four topics.

Polling question #1:

Which do you draft first?

1. Statement of facts; or

2. Issue statement

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ConciseConnectedClean

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INTRODUCTIONCore Writing Skills: 1

1. Kurt — Frame the persuasive “Deep Issue” to compel your answer.

2. Liz — Concise writing

3. Kurt — Connect ideas

4. Liz — Edit, edit, edit …

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Core Skill #1: “Deep Issues”in criminal motions & appeals

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Convert Surface to Depth

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Surface Issue = Disease

So, what’s the cure?

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Deep‐Issue (Syllogism) Checklist1. Consist of separate sentences

2. Contain max. 75 words

3. Have enough factual detail to convey story

4. End with a question mark

5. Appear at very beginning of brief/motion— not after a statement of facts

6. Be simple enough that a stranger, preferably even a nonlawyer, can read & understand it

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Deep Issue = Syllogism

1. Rule: All men are human

2. Key Fact: Socrates is a man

3. Conclusion: Thus, Socrates is human

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Persuasive issue must:

1. State the question

2. Provide the answer

3. Justify the answer

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Deep Issue’s Goals:

• Brevity (nutshell)

• Clarity

– Clarity is paramount

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Deep Issue is specific not abstract

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Compare Syllogism Sample #1

A mitigating‐role adjustment under USSG § 3B1.2 is warranted where the defendant is substantially less culpable than the average participant. Applying § 3B1.2, courts should compare defendants to participants in the overall criminal scheme. Here, the district court refused to compare Valdez‐Garate to other participants in the drug‐trafficking organization, and instead compared him to average couriers in typical drug‐importation offenses. Did the district court err by comparing Valdez‐Garate to hypothetical average couriers?

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Compare w/ Syllogism Sample #1A

When applying USSG § 3B1.2, courts should compare defendants to actual participants in the overall criminal scheme. Here, the district court expressly refused to compare Valdez‐Garate to the participants in the drug‐trafficking organization for which he agreed to smuggle drugs. Instead, the court compared Valdez‐Garate to hypothetical average couriers in other drug‐importation offenses. Did the district court err by refusing to compare Valdez‐Garate to participants in the overall criminal scheme?

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Poll: Is #1 or #1A better?

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Hard Work

Edit.

Edit.

Edit.

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Bad whether rule

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Poll Q

Who won in Honeycutt?

A. The government;

B. the Defense

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Compare

Under 21 U.S.C. § 853(a)(1), a person convicted of violating a federal drug lawmust forfeit to the government “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” Does 21 U.S.C. § 853(a)(1) mandate joint and several liability among co‐conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy?

Forfeiture under § 853(a)(1) of the Comprehensive Forfeiture Act of 1984 is limited to property the defendant himself actually acquired as the result of the crime. Terry Honeycutt, had no ownership interest in his brother's store and did not personally benefit from the illegal sales. Does §853(a)(1) permit forfeiture as to Terry Honeycutt?

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Deep issue Honeycutt v. U.S. (2017)

(1) [Rule] Forfeiture under § 853(a)(1) of the Comprehensive Forfeiture Act of 1984 is limited to property the defendant himself actually acquired as the result of the crime.

(2) [facts] Terry Honeycutt, had no ownership interest in his brother's store and did not personally benefit from the illegal sales.

(3) Q: Does § 853(a)(1) permit forfeiture as to Terry Honeycutt?

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Recap: Deep Issue (Syllogism) Checklist

1. Consist of separate sentences

2. Contain max. 75 words

3. Have enough factual detail to convey story

4. End with a question mark

5. Appear at very beginning of brief/motion — not after a statement of facts

6. Be simple enough that a stranger, preferably even a nonlawyer, can read & understand it

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How to defy the odds

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Core Writing Skill #2:CONCISE Legal Writing

Subtitle: Whereby pointers are humbly submitted to the audience with the end goal that such pointers will effect the improvement of the audience’s works of legal writing by keeping them short, concise, simple, and straightforward and by

avoiding verbosity, prolix prose, repetition and redundancies, while also endeavoring to ensure that sentences are held devoid of too many words and at the same time not including vastly divergent concepts that have the effect of completely confusing the reader, by means of which, the reader could become

massively unpersuaded by your argument …

“This brief is too short!”

‐‐ No judge, ever

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2. Liz — Cultivate concision3. Kurt — Connect ideas


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5 word‐slimming techniques

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#1Vivify Verbs

#2 Cut Clutter

#3 Quote in quips

#4 Save your

cites

#5Simplify to strengthen

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#1 Vivify Verbs

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Avoid passive voice

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“Mistakes were made.”

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Avoid passive voice

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“Mistakes were made.”

Key sins of passive voice:

• hides the actor

• wordy

• harder to read

• less interesting

Avoid passive voice, sometimes

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“The room was meticulous. The floors were vacuumed, the beds were tidy, and the furniture was dusted.”

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The actor is unimportant or unknown

You want to hide the actor (“mistakes were made”; “the deadline was missed”)

The important point is the thing being acted upon (as in scientific research)

To place your point of emphasis at the end of the sentence

To create cohesion

To avoid gendered pronouns

Anytime the passive voice simply sounds better or better conveys your message


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Anytime the passive voice simply sounds better or better conveys your message

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Uncover buried verbs

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The doctrine is applicable to this case.

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Officer Jones made an arrest.

In order to make a determination in regards to …

The Court can grant a reduction of sentence …



‐ The doctrine applies …

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In order to make a determination in regards to …


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‐ Officer Jones arrested ...In order to make a determination in regards to …





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‐ To determine …The Court can grant a reduction of sentence …

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‐ To determine …The Court can grant a reduction of sentence …

‐ The Court can reduce …




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‐ Officer Jones arrested …In order to make a determination in regards to …

‐ To determine … The Court can grant a reduction of sentence …

‐ The Court can reduce …

Usually ends with:

‐tion/sion

‐ment

‐ence/ance

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Use strong verbs

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“There is” & “there are”

“There are five errors thatcompel reversal.”

Use strong verbs

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“There is” & “there are”

“There are five errors thatcompel reversal.”

“Five errors compel reversal.”

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Use strong verbs

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Adverb + verb

briskly walked

abruptly stated

cried loudly

quickly went

read carefully

loudly stated

Use strong verbs

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Adverb + verb Stronger verb

briskly walked marched, strode

abruptly stated snapped

cried loudly bawled, wailed

quickly went ran, rushed, bolted

read carefully pored over, combed through

loudly stated yelled, shouted

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#2 Cut clutter

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Purge prepositions

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“We have considered the appellant’s argument that the trial court’s denial of the admission of the report in question into evidence is reversible error.” (24 words)

“We have considered the appellant’s argument that the trial court committed reversible error by refusing to admit this report into evidence. (21 words)

“We have considered whether the trial court erred by refusing to admit this report.” (14 words)

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Root out repetition

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Shorten these: to these:

absolutely essential essential

close proximity to close to

completely eliminated eliminated

necessary requisite necessary

general consensus consensus

join together join

prior experience experience

refer back refer

will in the future will

basic essentials essentials

Shorten these: to these:

advance planning planning

visible to the eye visible

circle around circle

square in shape/black in color square/black

worthy of merit worthy

Root out repetition

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More repetitious redundancies

VIN number

ATM machine

12 noon

added bonus

cease and desist

end result

null and void

alter or change

clearly and unambiguously

force and effect

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Liquidate legalese

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Liquidate legalese

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Which style of writing is more persuasive?

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Liquidate legalese

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Liquidate legalese

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• enoughAdequate number of

• nowAt the present time

• whenDuring such time as

• before/afterPrior to/Subsequent to

• ifIn the event that

Why use one word when you can use more than one?

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Liquidate legalese

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Why use English when you can use Latin?

Illustrate through images

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2089

3116

1392

3897

1727

2749 2729

7130

April May June July August September October November to11/19

Bureau of PrisonsMonthly Inmate COVID‐19 Cases

0

2000

4000

6000

8000

10000

12000

14000

16000

18000

WEEKLY BOP INFECTIONS MARCH 2020 TO CURRENT


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May 2013 FBI Meeting

June 2013 FDIC Deposition

Sept. 2013 FBI Meeting

Direct Exam @ Trial

Four hours Three hours

Did not mention meeting with the defendants

Did not mention meeting with the defendants

First mentioned meeting with the defendants

Adds new details about meeting

Q. Did anyone other than Walsh encourage you to purchase the property? A. No.

“more than likely” “I am certain that is what happened.”

No promise of non‐prosecution

No promise of non‐prosecution

Government promises not to prosecute

No risk of prosecution

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Two rules:

The image must be simple and immediately

understandable

Always lead with a tee‐up

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#3 Quote in quips

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Quote in quips

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Quote in quips

Are the words themselves at issue in the allegations?

Is the language of the source especially vivid, colorful, or precise?

Will a direct quotation harness the credibility of the evidence more effectively?

Will the exact words emphasize an important or contested point?

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Quote in quips

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When you do need the

quote:

Don’t quote facts

Use shorter snippets

Tee up your block quotes

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Quote in quips

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Because it violates due process, the Ninth Circuit reverses for prosecutorial misstatements even where the court also finds that there was sufficient evidence to convict. For example, in Sanchez‐Soto, a drug smuggling case, the Ninth Circuit held as follows:

[T]he prosecutor misstated the evidence by incorrectly quoting Marta as referring to 1500 American dollars. In fact, her comment was ambiguous on this point and could have been referring to any currency, including pesos, the currency of her home country of Mexico. This difference is significant because Sanchez's explanation for the comment—payment of a dog‐sitting fee—is significantly less plausible if Marta received $1500 rather than 1500 pesos (roughly $100). While the prosecutor could reasonably have inferred that Marta was talking about American dollars, he could not flatly state that this was what she said. See United States v. Kojayan, 8 F.3d 1315, 1321 (9th Cir. 1993) (holding that it is "definitely improper" for a prosecutor to make "unsupported factual claims" during closing).

Quote in quips

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124 words quoted 163 words total

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Quote in quips

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Quote in quips

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Quote in quips

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Quote in quips

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Because it violates due process, the Ninth Circuit reverses for prosecutorial misstatements when a prosecutor misstates a witness’s testimony. For example, in Sanchez‐Soto, a drug smuggling case, the Ninth Circuit held that a prosecutor misstated the testimony by quoting a witness as referring to “1500 American dollars,” when her actual testimony was ambiguous about the type of currency. The prosecutor could “reasonably have inferred” the witness meant dollars, not pesos, but he could not “flatly state” that was what she said. 617 F. App’x at 698.

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Quote in quips

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Because it violates due process, the Ninth Circuit reverses for prosecutorial misstatements when a prosecutor misstates a witness’s testimony. For example, in Sanchez‐Soto, a drug smuggling case, the Ninth Circuit held that a prosecutor misstated the testimony by quoting a witness as referring to “1500 American dollars,” when her actual testimony was ambiguous about the type of currency. The prosecutor could “reasonably have inferred” the witness meant dollars, not pesos, but he could not “flatly state” that was what she said. 617 F. App’x at 698.

124 8 words quoted 163 86 words total

#4 Save your cites

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Save your cites

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citations

Save your cites

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Save your cites

What if you really need a string cite? Try a bulleted list instead.

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New York courts have held that the following types of activities by a defendant are evidence of doing business in the state:

• maintaining an office in New York (W. Lowenthal Co. v. Colonial Wooden Mills, Inc., 38 A.D.2d 775, 776 (3d Dep’t 1972);

• soliciting business in New York (Dunn v. Southern Charters, Inc., 506 F. Supp. 564, 567 (E.D.N.Y. 1981);

• having a New York bank account (Masonite Corp. v. Hellenic Lines, Ltd., 412 F. Supp. 434, 438 (S.D.N.Y. 1976); and

• making use of New York Courts (Kazlow & Kazlow v. A. Goodman & Co., 92 Misc. 2d 1084, 1086 (1st Dep’t 1977).

#5Simplify to strengthen

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#5: Simplify to Strengthen

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Putting it together from beginning to end

Next up Kurt: Connecting ideas

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Core Writing Skill 3Connecting Ideas

Core Writing Skills: 3


2. Liz — Concise writing

3. Kurt — Connect ideas 4. Liz — Edit, edit, edit …

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Making reader’s task easy

• Clean story line

• Smooth flow of ideas

• Sentence after sentence

• Paragraph after paragraph

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Macro/Micro Transitions

• Table of Contents headings & subheadings

• Paragraphs topic sentences

• Connecting sentences

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Use TOC even in relatively short motions (e.g., @10+ pages)

https://abovethelaw.com/2017/03/to‐win‐in‐your‐writing‐assume‐your‐audience‐will‐give‐you‐next‐to‐no‐time‐or‐attention/

Table of Contents

Should tell a story

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CA Felony MurderGetaway Driver ExampleTable of Contents tells the story

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Table of Contents (TOC)

• For getaway‐driver‐shouldn’t‐get‐LWOP case

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TOC 1. In Banks, our Supreme Court held that acting as a getaway driver is not sufficient to make a defendant a “major participant” under §190.2(d) for a sentence of life without parole (LWOP).

TOC 2. Williams was a getaway driverand her LWOP sentence cannot survive Banks since she is even less culpable than Enmund, and no substantial evidence shows Williams was a major participant or that sheacted with reckless indifference to human life.

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TOC 2.1 Williams’s role in the armed robbery that led to Mr. Kim’s death was not major since she followed Taylor’s instructions and cannot be deemed amastermind

TOC 2.2 Williams played no role in supplying or using thefirearms

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TOC 2.3 Williams was not present at the scene of the killing; she was not in a position to facilitate or prevent the actual murder.

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TOC 2.4 Williams’s awareness of particular dangers posed by an armed robbery, and her past experience with Taylor do not support finding that she was subjectively awareher participation as the getaway driver involved a graverisk of death and her own actions or inaction did not playa particular role in the death.

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TOC 2.5 Although Williams fled after lethal force was used, no evidence shows she was subjectively aware that Kim (or anyone else) had been shot.

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Minor role (drug courier)TOC tells story

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1326 official restraint TOC tells story

• Winning brief

• involving a legal fiction• i.e., one has not “entered” the U.S. if she is under “official restraint” or surveillance

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deep issue

Attempted illegal reentry requires specific intent to enter free from official restraint. Here, Castillo-Mendez’s defense was that he didn’t want to climb the U.S./Mexico border fence whenhe saw Border Patrol surveillance, but climbed over to escape scurrilous smugglers. Responding to the jury’s request for the meaning of “official restraint,” the court replied that “official restraint” requires “constant surveillance … at all times.” Did the district court err in focusing on constant surveillance rather than specific intent?

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Issue in TOC reflects deep issue

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Legal Background:

“Official restraint” is a legal fiction long used in the

immigration context to deny entering aliens protections,

and conversely to burden prosecutors who criminally

prosecute entering aliens under 8 U.S.C. § 1326

TOC Issue

The district court prejudicially erred by instructing the jury —in response to a pinpoint jury note — that “official restraint” requires “constant surveillance … at all times,” where official restraint only pertained to Castillo-Mendez’s intent and the government had to prove he intended to enter without being apprehended when he scaled the border fence.

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TOC Tells a Story

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TOC 2

Attempted reentry requires specific intent to enter illegally (i.e., the conscious desire to enterwithout apprehension).

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TOC 3

The trial court’s instruction eviscerated Castillo-Mendez’s defense by giving the jurors a completed-reentry (or found-in) jury instruction rather than an attempted-reentryjury instruction.

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TOC 4

Because the district court refused to give the defense-requested instruction regarding specific intent tied to official restraint —which went to the heart of the defense theory of the case — per se reversal is warranted.

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Deep Issue

Rule: Attempted illegal reentry requires specific intent to enter free from

official restraint. Key facts: Here, Castillo-Mendez’s defense was that he

didn’t want to climb the U.S./Mexico border fence when he saw Border

Patrol surveillance, but climbed over to escape scurrilous smugglers.

Responding to the jury’s request for the meaning of “official restraint,” the

court replied that “official restraint” requires “constant surveillance … at

all times.” Q: Did the district court err in focusing on constant

surveillance rather than specific intent?[78 words. (3 too many)]

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Statement of Facts

• Supports deep issue

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Statement of Facts and Procedural Posture

Statement of facts

Castillo-Mendez testified and admitted all the elements of the offense, but fought the specific

intent element with a necessity defense. Regarding specific intent, he testified that he had to

climb over the border fence to escape scurrilous smugglers even though he saw Border Patrol

and knew they would arrest him. Thus, there was only one issue at trial: Did Castillo-Mendez

have the specific intent to enter the United States free from official restraint at the moment he

scaled the U.S./Mexico border fence?

Official-restraint jury note and response

During deliberations, the jury sent out a note asking two questions:

[1] “What does free from official restraint mean?”

How to laser focus your motionsbyLiz

Edit, Edit,Edit …

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Core Writing Skill #4Edit, Edit, Edit

Poll Question

How often do you have someone else edit or proofread your work before filing?

A. Almost always

B. Most of the time

C. 50‐50

D. Occasionally, if it’s important

E. Rarely

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2. Liz — Cultivate concision

3. Kurt — Connect ideas


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Four C’s of editing

Content Cohesion Conciseness Correctness

Content

Step away from your brief, put on your judge hat (robe), and ask yourself what the judge needs to know to rule on the case.

Deep Issue

Facts

Law

Conclusion & Requested Relief

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Content

Create an after‐the‐fact outline of what you’ve already written, including each section and subsection.

Content


Then check ….

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Content


Then check ….

And take out what you don’t need!

Cohesion

Now that you have an outline, check your structure:

Introduction

• Deep issue immediately clear

• No legalese “comes now”

• Don’t repeat the title

Sections

• Background/context provided first

• Headings logically flow

• Too long? (aim for 4 pages)

Subsections

• Does each subheading logically support the heading?

• Are there too many (3‐4 max)

Conclusion & Relief Requested

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Cohesion

Paragraphs

• One point per paragraph

• Succinct and strong topic sentence

• Topic sentences flow from one paragraph to the next

Sentences

• Old info to new info

• One thought per sentence

Cohesion

Concept/Relationship Words & Phrases

Additive—adding one idea to another within a paragraph.

and, moreover, as well as, too, in addition to, furthermore, also, and additionally.

Narrative, chronological, temporal—showing how an idea follows, precedes, or occurs simultaneously with another.

then, next, after, before, since, subsequently, following, later, as soon as, as, when, while, during, until, and once.

Contrastive, comparative—comparing ideas to show differences or similarities.

but, on the other hand, conversely, in contrast, unlike, as opposed to, rather, although, though, instead, and similarly.

Alternative—showing how two ideas can act as alternatives or substitutes for each other.

either, or, nor, on the other hand, however, neither, and otherwise.

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Cohesion

Concept/Relationship Words & Phrases

Causal—showing how an idea can be the cause or the result (effect, consequence, etc.) of another.

thus, then, unless, subsequently, therefore, because, consequently, nonetheless, as a result, if, in order to/that, for, and so.

Illustrative—showing how an idea can be an example or an illustration of another.

for example, for instance, to illustrate, and as an example.

Repetitive, reiterative—to ensure clarity, an idea can be restated or repeated using other, perhaps more familiar, words.

in other words, in short, that is, stated simply, and to put it another way.

Spatial, physical—showing how one thing can have a spatial relationship to another.

for example, under, beside, on top of, next to, behind, and so on.

Conciseness

Follow the rules in Core Writing

Skill #2

• Do your verbs have life?

• Look for unnecessary prepositional phrases, legalese, and redundancies

• Could something be shown in visual form?

• Do you need each quote?

• Have you over‐cited?

• Does each word serve a purpose?

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Conciseness

Consider style (and readability)

• Visually uncluttered

• Simple subject/verb grammar

• Varied sentence length

• Emphasis at the ends of sentences

• Varied word choices

• Don’t hedge or exaggerate

• Omit clichés

• If it is awkward, rewrite it

Correctness

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Correctness

https://www.wired.com/2014/08/wuwt‐typos/

Correctness

“But, Liz, it’s due today; I don’t have time!”

“But, Liz, everyone else has stuff due today; they don’t have time!”

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Correctness

https://www.wired.com/2014/08/wuwt‐typos/

Correctness

#1

Take a break

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Correctness

#2

Change its appearance

Correctness

#3

You are not above spell check

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1

Tip Sheet #1

Moral Foundations

Harm Description Evolved from a maternal sensitivity to suffering in offspring.

Conservatives believe cruelty and aggression may be virtuous when obeying authority or acting out of loyalty to the group.

Traits Caring, kindness, compassion. Sample Themes Arguing an outcome is overly harsh; arguing an outcome impacts

family; arguing an outcome impacts the community (e.g., taking a working member of society off the streets and locking them up).

Fairness Description Evolved from idea that cooperation among groups is superior.

Traits Trustworthiness, justice, guilt, anger, gratitude. Sample Themes Arguing an outcome is unjust or unfair; discussing or raising the theme

of trust; expressing appreciation for opposing counsel’s position or the Court’s willingness to hear you out on a position; arguing someone acted over feelings of guilt.

Authority Description Elevates virtues that facilitate a hierarchical social structure. By valuing

authority and respect, social life functions fluidly. Traits Obedience, structure, dissent against authority may be seen as immoral

and anti-social. Sample Themes Arguing that someone was obedient with the laws; arguing that law

enforcement or leadership made mistakes; arguing that the Government (not the prosecutor, but some agency) made poor decisions.

2

Ingroup Description Resistance to diversity is understandable under this foundation, as it is

a weakening of the group. Traits Loyalty, patriotism, self-sacrifice, tradition. Group criticism is

disfavored. Sample Themes Arguing themes about family or tradition (e.g., a person acted to

protect family); arguing themes about loyalty (to family, to friends, etc.); arguing themes about betrayal (e.g., betrayal of duty), which is very powerful.

Purity Description An evolutionarily by-product of the emotion of disgust. Those who are

ruled by carnal passions (lust, gluttony, greed, and anger) are seen as impure. Those who deny bodily impulses are elevated.

Traits Virtuous behavior. Sample Themes Arguing that someone was driven by a moral compass; bringing up care

for family or children; bringing up protectionist qualities in someone.

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Tip Sheet #2 Editing checklist

Round 1 – Basic Aesthetics

# √ Edits 1 Font is consistent throughout (footnotes, body, etc.). 2 Ensure all indentations (i.e., tabs) are consistent. 3 No full-justification. 4 Be conscious about emphasis. 5 No funky spacing before or after headers. 6 No funky spacing before or after block quotes. 7 Use a single space between sentences. 8 Proper spacing for footnotes. 9 Footnote font is smaller than body font.

10 No initial-caps in headers. 11 No underlining anywhere. 12 No ALL CAPS anywhere. 13 No orphaned headers (i.e., a header at the end of the page). 14 Print your brief and read it. You will notice formatting issues you might have

otherwise missed. 15 Font is serif-based 16 Clean first page 17 Unimportant procedural citations (i.e., the record) are dropped into footers

to improve readability. 18 Important citations (i.e., cases and whatnot) remain in the body of the brief.

Round 2 – Argument Overview # √ Edits 1 Ensure each header is a complete sentence. 2 Ensure each header argues. 3 Ensure there is global cohesion across headers.

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Round 3 – Introductions # √ Edits 1 Ensure the first few sentences stand out and grab the reader’s attention. 2 Before launching into the Playbook (i.e., why you win), make sure the reader

has enough context on the issues at hand. 3 Ensure your Playbook articulates why you win. 4 Ensure your Playbook cites authority showing why you win. 5 Ensure your Playbook citations contain explanatory parentheticals so the

readers understands why those cases support your argument.

Round 4 – Background # √ Edits 1 Chronology. Do you introduce your facts in chronological order? 2 Headers. Do you use enough headers to guide your reader through the

background (assuming they are necessary at all)? 3 Footnotes. If citing to the record, are your citations in footnotes so as not to

distract the reader? 4 Coherence. Are your paragraphs coherent (i.e., 1 point per paragraph)? 5 Sequencing. Does the order of your paragraphs make sense? 6 Cohesion. Are your sentences cohesive (i.e., old info to the left, new to the

right)? 7 Voice. Do you need to switch from active to passive voice in select

sentences in order to create cohesion?

Round 5 – Discussion # √ Edits 1 Roadmap. Do you lay out a roadmap for your reader before the discussion

begins? Does your roadmap track your Playbook? 2 Topic sentences. Does the first sentence in each section build upon the

header? 3 Coherence. Are your paragraphs coherent (i.e., 1 point per paragraph)? 4 Sequencing. Does the order of your paragraphs make sense? 5 Cohesion. Are your sentences cohesive (i.e., old info to the left, new to the

right)? 6 Voice. Do you need to switch from active to passive voice in select

sentences in order to create cohesion?

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Round 6 – Micro-Level Edits # √ Edits 1 Advance argument. Read each sentence. Does each sentence truly advance

your through-line? 2 Sentence variation. Read each paragraph. Do you mix up sentence lengths? 3 Emphasis. Are you ending your sentences emphatically? (Tip: exaggerate

the last word(s) in your sentence to see if the emphasis sounds strange.) 4 Ofs. Scan for “ofs.” Re-write and tighten. Volitional “of” choices are OK. 5 Lawyerisms. Did you banish all lawyerisms (e.g., pursuant to, in the instant

case, prior to, due to the fact that, subsequent to, etc.)? 6 Nominalizations. Did you banish all nominalizations? 7 Tee-ups. Do your substantive case discussions have tee-ups? Do your block

quotes have tee-ups? 8 Citations. Are your citations correct? Do you follow Bluebook? If you

deviate, are the deviations intentional, logical, and consistent? Are your signals proper? Are your cases still good law? Are any direct quotes double-checked for accuracy?

9 Punctuation. Are you using semicolons properly? Are you sure? What about colons? Commas?

10 Conjunctions. Do you have sentences that start with conjunctions (e.g., and, but, etc.)? Conjunctions are a good thing.

11 Correlative conjunctions. Does each correlative conjunction you use have its mate?

- Both…and - Either…or - Neither…nor - Not only…but also

12 Multiple negatives. There’s never been a time I can’t remember where I didn’t come across a brief with a sentence containing multiple negatives. Avoid it.

13 Parenthetical shorthand names. Only use these when you really need to. 14 Rule of 3s. Sentences that introduce information in 3s are dynamic,

compelling, and memorable. 15 Omit needless words. The single most important rule is last: Have you

struck every paragraph, sentence, and word that cannot justify its existence?

16 Spellcheck. You are not too good for spellcheck.

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Tip Sheet #3

Cohesion & coherence.1

Cohesion overview. Sentences are cohesive when the last few words of one set up information that appears in the first few words of the next. Simply put: begin sentences with information familiar to your reader, and end sentences with information that is new to your reader. Then repeat. Visually, cohesion looks like this:

Familiar information

New information

Cohesion example Police approached Mr. Jackson, removed him from his car, and arrested him on an active warrant. After police arrested Mr. Jackson, they needed to move his car, which was blocking the alley. Analysis The first sentence ends with new information: police arresting Mr. Jackson. The

second sentence begins with familiar information (i.e., Mr. Jackson’s arrest), and ends with new information: his car was blocking the alley.

Cohesion need not be explicit Explicit cohesion

Explicit cohesion occurs when the new information at the end of one sentence is explicitly referred to in the next sentence. Example: I like apples. Apples are grown in Eastern Washington. These two sentences are explicitly cohesive because the first ends with apples, and the second begins with apples. This is fine, but it’s not required. And too much explicit cohesion becomes wearisome.

Implicit cohesion

Implicit cohesion occurs when the new information at the end of one sentence is impliedly referred to in the next sentence. Example: The Court directed the United States to turn over its expert materials two months ago. We are now three weeks from trial, and the United States just disclosed new experts with new opinions.

1 It is important to give credit where credit is due. These ideas flow from Joseph Williams and Benjamin Dreyer.

2

These two sentences are impliedly cohesive because the first ends with a concept (i.e., time), and the second begins with the same concept (i.e., time).

Global cohesion Cohesion is more than the connective glue between sentences. It can also connect ideas in one section of your brief to ideas in the following section of your brief using globally-cohesive headers. Example Below are four headers from a suppression motion’s background section. And

while each section covers different facts, the headers—when inserted into a table of contents—link together to create cohesion across sections.

A. Police pull Mr. Jackson from his vehicle and arrest him. B. Because Mr. Jackson’s vehicle is blocking an alley, police call a tow. C. While waiting for the tow, police look for suspicious items. D. Finding no suspicious items, police release the car.

A trick to create cohesion Passive voice

At some point in your life, a writing teacher told you to “always write in the active.” Ignore this advice. Passive voice explained. In a sentence written in the passive voice, the thing that is acted upon is frontloaded, and the thing doing the acting comes at the end.

- Active voice: The clown terrified the children. - Passive voice: The children were terrified by the clown.

There are many reasons why the passive voice exists. One is because it allows the writer to re-arrange sentences to create cohesion. Consider the following sentence:

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A trick to create cohesion Some astonishing questions about the nature of the universe have been raised by scientists studying black holes in space. Of the two sentence options below, which creates better cohesion with the sentence above?

A. The collapse of a dead star into a point perhaps no larger than a marble creates a black hole.

B. A black hole is created by the collapse of a dead star into a point perhaps no larger than a marble.

Option A uses the active voice, but using it eliminates cohesion because the first sentence ended with new information (i.e., black holes), and the next sentence began by talking about collapsing stars. That is confusing. Option B uses the passive voice, which creates cohesion because the first sentence ended with new information (i.e., black holes), and the next sentence picked up where the first left off (i.e., black holes). Another reason the passive voice exists is because it allows the writer to choose where she places her sentence’s emphasis. Example: The room was meticulous. The floors were vacuumed, the beds were tidy, and the furniture was dusted. Who cares who did the cleaning? The point is the room was in meticulous condition. A trick to help identify passive voice: If you can append “by zombies” to the end of a sentence, you’ve indeed written a sentence in the passive voice. Example: The children were terrified by zombies.

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A trick to create cohesion Example: The floors were vacuumed, the beds were tidy, and the furniture was dusted by zombies.

Coherence overview. While cohesion serves as the connective glue between sentences, coherence occurs when a paragraph sticks to one point—and one point alone. Paragraphs that contain multiple points become muddled. Simply put: one point per paragraph. Period.2

A trick to monitor paragraphs for coherence When reading through a paragraph, review the first sentence, think about the sentence’s primary point, and then insert a superscript. This is a superscript. Then read the next sentence. Does it follow or build on the prior sentence’s point? If so, then good. But if the point switches, then insert a new superscript. The moment you need a new superscript, you need a new paragraph. An example helps: Example: I like apples.⁴ Apples are grown in Eastern Washington.⁴ Eastern Washington catches fire every summer, which creates smoke, which hurts my eyes.⁵ This paragraph started out talking about apples, but then switched to fires. Two points in the same paragraph = problem. But note: this paragraph is perfectly cohesive. Apples to apples; Eastern Washington to Eastern Washington. That is why cohesion and coherence go hand-in-hand. Together, they create flow.

2 At some point in your life, a writing teacher told you “a paragraph should contain at least three sentences.” Also ignore this advice. One-sentence paragraphs are just fine. Paragraphs serve to differentiate between ideas. They also serve to call attention to ideas. There is no minimum-sentence requirement.

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Tip Sheet #4

Nominalizations1

What are nominalizations? A nominalization is a noun derived from a verb or adjective.

Examples

Verb Noun Adjective Noun to discover becomes discovery careless becomes carelessness to suggest becomes suggestion different becomes difference

to react becomes reaction proficient becomes proficiency

How does this work in practice?

Working with Nominalizations 1. The officer made an arrest of the perpetrator. [8 words] 1a. The officer arrested the perpetrator. [5 words] 2. Once upon a time, as a walk through the woods was taking place on the part of Little Red Riding Hood, the Wolf’s jump out from behind a tree occurred, causing her fright. [33 words] 2a. Once upon a time, Little Red Riding Hood was walking through the woods, when the Wolf jumped from behind a tree and frightened her. [24 words] 3. The court is to “consider whether the delay was reasonable under the totality of the circumstances.” This analysis is conducted on a “case-by-case basis” and the Supreme Court has adopted a balancing test to determine whether a seizure is reasonable. [40 words] 3a. Courts “consider whether the delay was reasonable under the totality of the circumstances.” Under Supreme Court precedent, courts apply a balancing test on a case-by-case basis to determine reasonability. [29 words]

1 It is important to give credit where credit is due. These ideas flow from Joseph Williams’s Style: Lessons in Clarity & Grace.

2

How to avoid nominalizations:

(1) Identify. What is the real action in a sentence? What are the actors doing? Are the actions expressed as actual verbs? If not, you’re likely hiding the actions in nominalizations. Tip: If you see empty verbs—be, has, seems, etc.—be on the lookout. If you see words ending in –ion (e.g., intention, suggestion, recommendation, etc.), be on the lookout.

(2) Analyze. Decide who your main characters are, particularly flesh-and-blood ones, then look for the actions those characters perform—and express those actions as verbs.

(3) Destroy (i.e., revise). If the real actions are nominalizations, make them into verbs. Make the characters the subjects of those verbs. Rewrite the sentence (using conjunctions—because, if, when, although, why, how, whether, that—if necessary).

Tip Sheet #5

Emphasis.

Overview. Emphasis matters, and the best place to emphasize is at the sentence’s end. A good test for emphasis: read your sentence aloud, and give the ending a dramatic reading. If the ending sounds silly, then you’re likely emphasizing the wrong point. Re-write and re-read.

Examples Oliver Smith died three weeks later in Columbus, Ohio.

A good sentence if you want to emphasize where Mr. Smith died (e.g., a jurisdictional dispute).

Oliver Smith died in Columbus, Ohio, three weeks later.

A good sentence if you want to emphasize when Mr. Smith died (e.g., a statute of limitations dispute).

Three weeks later, while in Columbus, Ohio, Oliver Smith died.

A good sentence if you want to emphasize that Mr. Smith died.

Tip Sheet #6

Headers

Draft headers that inform. Not this A. “Ex parte application.” But this A. An ex-parte subpoena is necessary because Mr. Webster disclosed defense

strategy.

For the background, draft headers that argue facts, not legal conclusions. Not this A. Officer Collier’s overly-zealous Terry stop. But this A. Officer Collier pulled Mr. McBriar from his truck at gunpoint, handcuffed

him, and then searched the truck—all without asking a single question.

Respect Goldilocks headers (i.e. be wary of headers that are three lines or longer). Not this A. The Prosecution Failed to Establish that a Facially Prejudicial Extraneous

News Report Witnessed by a Juror the Night Before Deliberations Did Not Compromise the Impartiality of that Juror.

But this A. The jury foreman read an inflammatory, extraneous news article, which contaminated jury deliberations.

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Tip Sheet #7

Colons: a user’s guide.1

Overview. Benjamin Dreyer said it best: colons are not merely introductory but presentational. They say: Here comes something! With that in mind, here are a few use tips.

Rule #1 Use a colon to link two separate clauses or phrases when you need to

indicate a step forward from the first to the second—as when the second part explains the first part or provides an example.

Example After two hours, they reconciled: The chef apologized, and the owner re-hired him with a $10 raise.

Rule #2 Use a colon to introduce a list—especially one that is broken down into

sub-paragraphs. Example Each conspirator is liable for the other conspirators’ crimes if two

conditions are satisfied: 1) the crimes were committed to further the conspiracy’s objectives; and 2) the crimes were a natural and probable consequence of the conspiracy.

Rule #3 Use a colon after the salutation in correspondence.

Note: It is okay to use a comma in informal letters.

Example Dear Judge Shea:

1 It is important to give credit where credit is due. These examples flow from Bryan Garner and Benjamin Dreyer.

2

Rule #4 Don’t use a colon to introduce a quotation or list that blends into your

sentence. Example Bad: The real issue is what has been called: “the most

difficult problem in criminal procedure today.” Good: The real issue is what has been called “the most difficult problem in criminal procedure today.”

Rule #5 If what follows a colon is a full sentence (i.e., subject, verb, etc.), then

begin that full sentence with a capital letter; if what follows a colon is a list of things or fragmentary phrases, then begin the list with a lowercase letter.

Example Uppercase: Colons are presentational. They say: Here comes something! Lowercase: My grocery list contains several items: bananas, pears, avocados, and ice cream.

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Tip Sheet #8

Tee-ups.

Overview. Tee-ups are vital, as they preview for the reader what you are about to discuss (or show). And when your reader knows where you are going, she is better able to follow.

Tee-ups for block quotes1

Unhelpful The August 11, 1994 Indictment states: “On or about June 25, 1992, in Spokane County, Defendant Keith Studhorse committed attempted First-Degree Murder, as set out in RCW 9A.32.030 . . . .”

Helpful

The 1994 Indictment charged Keith Studhorse with attempted first-degree murder:

Tee-ups for case introductions

Unhelpful In Jacobs, Iowa City Police Officer Michael Brotherton was investigation Ron Jacobs for alleged drug distribution. See U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). Note: this sentence is most unhelpful, as it tells the reader nothing about why this case matters. Never begin a case discussion with “In [insert case name]” again. Ever.

Helpful

Courts do not appreciate it when officers omit K-9 “non-alerts” from warrant applications. See, e.g., U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). In Jacobs, … Note: this re-write tells the reader what Jacobs is about—and why it matters.

1 In no way, shape, or form should this tee-up example be viewed as permission to use block quotes. They are—and remain—a poor way to convey information.

2

Tee-ups for pictures (yes, do tee-ups for pictures)

Unhelpful The body camera showed this:

Helpful The body camera captures Officer Stevens open his trunk and pull out an inventory form that officers complete before a vehicle is towed:

Tip Sheet #9

Sentence Modifiers1

Good writers control sentence sprawl—i.e., sentences that risk carrying on too long with multiple thoughts. One way they do this is through modifiers. Resumptive, summative, and free modifiers give writers an eloquent way to combine two (or more!) sentences or thoughts into one.

Resumptive Modifier Example: Within ten years, we could meet our energy needs with solar power, needs that will soar as our population grows. Explanation: The writer uses the word “needs” to resume the subordinate clause (i.e., what is after the comma), combine two thoughts, and create cohesion.

Summative Modifier Example: Within ten years, we could meet our energy needs with solar power, a possibility that few anticipated ten years ago. Explanation: The writer uses “a possibility” to summarize all that came before the subordinate clause, again tying what is after the comma to what came before.

Free Modifier Example: Within ten years, we could meet our energy needs with solar power, freeing ourselves of dependence on foreign oil. Explanation: The writer uses a gerund (i.e., a verb form ending in –ing) as a free modifier, tying the subordinate clause to the dominant clause (just as the word tying does in this sentence).

1 It is important to give credit where credit is due. These examples flow from Joseph Williams in Style: Lessons on Clarity & Grace.

Tip Sheet #10

Semicolons: a user’s guide.1

Use a semicolon to unite two short, closely connected sentences. Example #1 In three-tier systems, the top court has tremendous discretion; it can

usually decide which cases to hear and which to reject. Example #2 One side must make an offer; the other side must accept it.

Use a semicolon to separate items in a list or series when 1) any single element contains an internal comma, 2) the enumeration follows a colon, or 3) the items are broken into subparagraphs. Example #1 The individual defendants live in four cities: Austin, Texas; Bellingham,

Washington; Dallas, Texas; and Denver, Colorado. Example #2 The rationale is two-fold: 1) since the declarant knows her own state of

mind, there is no need to check her perception; and 2) since the statement is of present state of mind, there is no need to check her memory.

Example #3 To establish causation and intent in emotional-distress cases, the plaintiff is generally required to show that:

1) the plaintiff was present when the injury occurred;2) the plaintiff was a close relative of the person injured; and3) the defendant knew plaintiff was present.

Don’t use a semicolon when a colon is needed—especially after a salutation. Example #1 Bad: Dear Sarah;

Good: Dear Sarah: Example #2 Bad: Two major reforms took place; the overhaul of no-fault

insurance and the enhanced oversight of insurance companies.

Good: Two major reforms took place: the overhaul of no-fault insurance and the enhanced oversight of insurance companies.

1 It is important to give credit where credit is due. These examples flow from Bryan Garner and Benjamin Dreyer.

Tip Sheet #11

Uncover buried verbs and verb phrases

Examples

Buried verb Un-buried verb arbitration arbitrate

compulsion compel conformity conform

enforcement enforce knowledge know litigation litigate

mediation mediate negotiation negotiate obligation obligate opposition oppose preference prefer reduction reduce utilization utilize violation violate

Examples Buried verb phrase Un-buried verb phrase

provide responses respond offer testimony testify

make inquiry inquire provide assistance assist reach a resolution resolves

reveals the identify of identifies makes mention of mentions

are in compliance with comply make allegations alleges

conduct a cross examination of examine take into consideration consider provide a description of describe

violation violate

Tip Sheet #12

Explicit connectives: a user’s guide.1

Overview. Good writers need explicit connectives. But use them wisely (i.e., do not overuse them). They help form the backbone for cohesion, as they clarify and connect sentences.

Examples When adding a point also, and, in addition, besides, what is more, similarly, nor,

along with, likewise, too, moreover, further When giving an example for instance, for example, as one example, to cite but one

example, for one thing, for another thing, likewise, another When restating in other words, that is, this means, in simpler terms, in

short, put differently, again, in sum When introducing a cause because, since, when When introducing a result so, as a result, thus, therefore, accordingly, then, hence When contrasting but, instead, yet, however, on the one hand, on the other

hand, still, nevertheless, nonetheless, conversely, on the contrary, whereas, in contrast to, unfortunately

When conceding or qualifying

granted, of course, to be sure, admittedly, though, even though, even if, only if, true, while, naturally, in some cases, occasionally, if, while it might be argued that, despite

When pressing a point in fact, as a matter of fact, indeed, of course, without exception, still, even so, anyway, the fact remains, assuredly

When explaining a sentence that is, then, earlier, previously, meanwhile, simultaneously, now, immediately, at once, until now, soon, no sooner, that being so, afterward, later, eventually, in the future, at last, finally, in the end

When summing up to summarize, to sum up, to conclude, in conclusion, in short, in brief, so, and so, consequently, therefore, accordingly, all in all

When sequencing ideas First, second, third, fourth . . . .

1 It is important to give credit where credit is due. These ideas flow from Bryan Garner.

Tip Sheet #13

Punctuation—periods, commas, and parentheses.1

Periods Rule #1 Example

Use a period at the end of a complete sentence that is a statement. I know him well.

Rule #2 Examples

If the last item in the sentence is an abbreviation that ends in a period, do not follow it with another period. Incorrect: This is Alice Smith, M.D.. Correct: This is Alice Smith, M.D. Correct: Please shop, cook, etc. We will take care of the rest.

Commas Overview Commas customarily indicate a brief pause; they’re not as final as

periods. Rule #1 Example

Use commas to separate words and word groups into a simple series of three or more items. My estate goes to my wife, son, daughter, and nephew.

Rule #2 Examples

Use a comma to separate two adjectives when the adjectives are interchangeable. He is a strong, healthy man. (Easy to switch “strong, healthy” to “healthy, strong,” so comma.) We stayed at an expensive winter chalet (You would not say “winter expensive chalet,” so no comma.)

Rule #3

Use commas to set off expressions that interrupt the sentence flow (e.g., nevertheless, after all, by the way, however, etc.)

1 It is important to give credit where credit is due. These examples flow from Bryan Garner.

Commas Example

I am, however, nervous about proceeding with this exam.

Rule #4 Example Rule #4.5 Example

Use a comma to separate the day of the month from the year, and—what most people forget—always put one after the year as well. It was in in the Spokesman’s April 5, 2017, edition. No comma is necessary for just the month and year. It was in a April 2017 article.

Rule #5 Example

Use a comma to separate a city from its state, and remember to put one after the state as well. I am from the Baton Rouge, Louisiana, area.

Parentheses Rule #1 Example

Use parentheses to enclose information that clarifies or is used as an aside. If material in parentheses ends a sentence, then the period goes after the parentheses. He finally answered (after taking several minutes to think) that he did not understand the question. He gave me a nice bonus ($500).

Rule #2 Example

Periods go inside parentheses only if an entire sentence is inside the parentheses. Please read the analysis. (You’ll be amazed.)

Rule #3 Example

Parentheses, despite appearances, are not part of the subject Joe (and his trusty mutt) was always welcome.

Tip Sheet #14

Some use tips

who vs. whom Rule Who should be used to refer to the subject of a sentence.

Whom should be used to refer to the object of a verb or preposition.

Tip If you can replace the word with “he or she,” then use “who”; if you can replace the word with “him or her,” then use “whom.”

Example Correct: Who at my sandwich? Correct: Whom should I talk to about labeling food in the fridge?

each vs. every Rule Each refers to an individual object or person (or when there are only 2

objects in question). Every refers to a group of objects or people lumped together as one.

Negatives Rule Avoid sticking multiple negatives together. Examples Not this: But this:

did not have support lacked support did not recall forgot not apposite inapposite not current outdated not important unimportant not on purpose accidental of no use useless

persuasive writing by liz daily kurt hermansen

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