Can you figure out which one of these is not like the others?

As explained in ABA Formal Op. 08-451, if a firm bills the cost of a contract lawyer to the client as a disbursement, the firm may not add a markup to the fees that the contract lawyer has charged the hiring attorney. However, if the firm bills the contract lawyer’s services to the client as a professional fee, the firm can add a surcharge to the cost paid by the hiring attorney, provided the total charge to the client represents a reasonable fee for the services provided to the client. As the ABA explained,

[t]his is not substantively different from the manner in which a conventional firm bills for the services of its lawyers. The firm pays a lawyer a salary, provides him with employment benefits, incurs office space and other overhead costs to support him, and also earns a profit from his services; the client generally is not informed of the details of the financial relationship between the law firm and the lawyer.

In light of this language, it’s clear that the ABA believes that contract lawyers have more in common with associates in a firm than with photocopies. Therefore, in my view, the services provided by a contract lawyer should always be billed out as a fee, rather than a disbursement. After all, just because you can include a markup when you’re billing a contract lawyer’s fees out as a professional fee rather than as a disbursement doesn’t mean you have to. Moreover, I doubt that the mid-sized and large firms that responded to the Mattern survey bill their contract lawyers out at cost. If those firms are charging a markup, the Mattern survey shouldn’t have included contract lawyers as a type of “cost” to be recovered.

Judge Lebovits isn’t your run-of-the mill housing court judge: he’s a legal writing expert who’s published over 100 articles on the subject (as well as numerous articles on other topics). He’s also a popular legal writing professor and CLE presenter.

Now you can download his Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts (as well as all of his other articles) from the Social Science Research Network.

The first half (roughly) of the Handbook focuses on judicial opinion writing, while the second half addresses legal writing in general. Nevertheless, I strongly urge you to read the entire manual for two reasons. First, much of the material in the first half is just as applicable to brief writing as to opinion writing (for example, “briefs” could easily be substituted for “judicial opinions” in the section entitled “What Readers of Judicial Opinions Hate: the Top 30 Vices”). Second, understanding how and why judges write opinions, as well as the different types of opinions, will add a whole new level of meaning to the opinions you read.

I’m sharing this information with you for two reasons. First, I’ve long believed that studying judicial writing manuals can make lawyers better writers. Second, I’m honored to call Judge Lebovits a colleague and friend: among other things, we co-authored (along with Alifya Curtin) a law review article entitled Ethical Judicial Opinion Writing, and we’ll be presenting Powerful Writing Techniques to Help You Persuade Judges and Win Clients at the ABA’s National Solo & Small Firm Conference in October.

Finally, I can’t pass up this opportunity to respectfully urge all members of New York’s Appellate Division, Third Department (or at least Justices Yesawich, Mikoll, Crew, Spain and Mugglin) to review the Handbook. I make this suggestion after reading that court’s opinion in Krouner v. Krouner, 267 A.D.2d 575, 699 N.Y.S.2d 220 (3d Dep’t 1999), which, although brief, is rife with errors (noted in red in the following quotation from the opinion):

By this proceeding, petitioner Leonard W. Krouner [footnote omitted] (hereinafter Krouner) seeks, inter alia, to have respondent deposit funds in a segregated account to repay a college student loan obtained by their son Kenneth Krouner (hereinafter Kenneth). Krouner and respondent (hereinafter collectively referred to as the parties) [As if we couldn't have figured that one out ourselves . . . .] were divorced in 1986. A stipulation defining their child support obligations was incorporated but not merged into the divorce decree and, despite modifications since its inception, the stipulation is silent with respect to the parties’ responsibilities to pay for Kenneth’s college education. Petitioners appeal Supreme Court’s dismissal of the petition.

In dismissing the petition, Supreme Court concluded that because Kenneth was over the age of 21 it could not compel respondent to contribute to his college education. Notwithstanding the absence of language in the stipulation as to the parties’ obligation to provide for Kenneth’s college education expenses and the fact that he has attained the age of 21 and payment for such expenses is not required by statute (see, Domestic Relations Law § 240[1-b][b][2] ), such payment may be enjoined if special circumstances exist (see, Domestic Relations Law § 240[1-b][c][7]; see also, Hapeman v. Hapeman, 229 A.D.2d 807, 810, 646 N.Y.S.2d 583; Smith v. Smith, 174 A.D.2d 818, 819, 571 N.Y.S.2d 127; Haimowitz v. Gerber, 153 A.D.2d 879, 880, 545 N.Y.S.2d 599). Inasmuch as each parent has a postgraduate degree and Kenneth has demonstrated academic ability (see, Hutter v. Hutter, 112 A.D.2d 543, 544, 491 N.Y.S.2d 480), whether special circumstances obtain turns on respondent’s ability to provide the necessary funds (see, id., at 544, 491 N.Y.S.2d 480). And, as to that, although petitioner has proffered various documents purportedly indicating that respondent has the wherewithal to help defray Kenneth’s education expenses-a premise vigorously disputed by respondent-[these should be em-dashes, not hyphens] the parties’ submissions on this issue are not sufficiently developed in the record to enable us to pass on this aspect of the petition. Accordingly, a hearing must be held at which testimony and evidence is [subject/verb disagreement] to be produced as to respondent’s financial ability.

(The commas after the introductory signals and id. are not required by the Tanbook, which dictates citation format in New York State Court documents.)

In Plain Language Principles for Better Briefs, you’ll learn:

• What it means to really know your audience
• What your intro should include
• When and how to use precedent
• Ways to reword legal terms so they’re understandable in plain English
• Methods for reducing wordiness
• When ambiguity is useful, and when it’s a hindrance
• Traps that make your writing cumbersome
• How to structure a sentence for clarity
• How to design paragraphs that work
• What passive voice is good for

. . . and more!

Join us for this teleconference on Thursday, January 22 at 3 p.m. Eastern (noon Pacific).

Presenter Cheryl Stephens is the author of several articles and books, including Plain Language Legal Writing. Her plain language blog, Rapport, is a popular resource online. For nearly twenty years, she has been writing, speaking, and teaching about plain language, helping legal professionals to become more successful communicators using plain language principles.

Your registration includes participation in the live teleseminar and a copy of the program recording (mp3). To register, visit our Products page and add a Silver Membership to your cart.

So, download the chapter now, and don’t forget to buy the book!

P.S. Check out the cool Grammar Girl Challenge widget in the sidebar of this page (you may have to scroll down).

Grammar Girl’s new book, appropriately entitled Grammar Girl’s Quick and Dirty Tips for Better Writing, will be available July 8. In honor of the release, GG has released a 40-page chapter called “Dirty Words.”

Get your minds out of the gutter! “Dirty Words” tackles a host of words that GG considers particularly difficult to use correctly. Of particular interest to legal writers, the chapter contains sections on the proper use of assure versus ensure versus insure; i.e. versus e.g.; pled versus pleaded; and (gulp!) hanged versus hung.

So, why are you still hanging around here? Download your free chapter now!

In the midst of a crisis that may have reached a breaking, point Tuesday afternoon, linguists, and grammarians, everywhere say they are baffled, by the sudden and seemingly random, appearance of commas, in our nation’s sentences. The epidemic of errant punctuation has spread, like wildfire, since signs of the epidemic first, appeared in a Washington Post article, on Federal Reserve Chairman, Ben, Bernanke. “This, is an unsettling trend,” columnist William Sa,fire, told reporters. “We’re seeing a collapse of the grammatical rules that have, held, the English language, together for, centuries.” Experts warn, that if this same, phenomenon, should occur with ellipses…

I get the feeling that it was a slow news day over at The Onion.

Grammar Girl (a/k/a Mignon Forgarty) is a freelance technical writer and editor who writes a blog and produces a podcast about—you guessed it—the fine points of English grammar.

According to her About page, “Grammar Girl believes that learning is fun, and the vast rules of grammar are wonderful fodder for lifelong study. She strives to be a friendly guide in the writing world. Her arch enemy is the evil Grammar Maven who inspires terror in the untrained and is neither friendly nor helpful.”

Here’s a video of an interview with GG herself:

Yagoda’s book—which contains a “surprisingly entertaining” chapter on conjunctions—sounds like the more interesting of the two. After all, how can I resist a book by an author who, according to O’Conner, can get “lexically aroused by the likes of ‘a’ and ‘the’”?

The subtitle of Crystal’s book is “How Language Pundits Ate, Shot and Left,” an allusion to one of my favorite grammar books, Eats, Shoots & Leaves: a Zero Tolerance Approach to Punctuation, by Lynne Truss. According to the review, Crystal takes issue with “self-appointed language watchdogs” like Truss. I must admit, I’m in the same zero tolerance camp as Truss, which explains why I enjoyed her book so much. Nevertheless, since O’Conner calls The Fight For English “fascinating and insightful, often funny,” it might be worth a read.

What’s your position in the prescriptivist versus descriptivist debate? Are you prepared to go with the language flow, or are you a stickler like me? Leave a comment below.

The policy provided that the store would “refund the purchase price of any previewed, defective or mislabeled products returned within 30 days, provided you have the original receipt.”   The store claimed that “since the serial comma is not employed, ‘previewed’ becomes a stipulation of both ‘defective’ and ‘mislabeled.’”  For that reason, the purchaser’s new (not previewed) product was not covered by the policy.  This is how the Chicago Manual of Style responded:

A. Chalk one up for Chicago’s promotion of the serial comma! Although you must consult an attorney in order to learn the legal import of the phrasing in question, one can’t help but ask: if the retailers think that “any previewed, defective or mislabeled products” is equivalent to “any previewed defective or previewed mislabeled products,” would they also agree that “any mushroom, pepperoni or sausage pizza” is equivalent to “any mushroom sausage pizza or pepperoni sausage pizza”? The retailers’ omission of commas in their interpretation (“previewed defective or previewed mislabeled”) is tantamount to admitting that the sentence was unclear as written. Finally, even if the retailers’ punctuation logic were technically correct (which it isn’t), they would be using the letter of the law to evade its spirit.

I generally do not like the serial comma, but this example shows that it certainly can be significant.