October 16, 2021

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Tell Me A Story--PLEASE

In case you missed it, we here at the Appellate Record continue to span the globe of legal writing and criticism--

The thrill of the elegant sentence

The agony of legalese . . .

(**musical interlude**) "DUH DUH DUH DUH"

Specifically, the latest Texas Lawyer includes an article of mine about the importance of storytelling and how our bad habits as legal writers are a huge buzz kill for a good story.

After the jump, I'll show just how widespread our bad habits are while we take Supreme Court of Texas to the woodshed.

We lawyers have lots of bad habits and tics in our writing, mostly picked up in law school or academia whilst trying to look smart. The article picks on two of the habits that make for horrible storytelling:

  • Excessive chronological dates (e.g., "On January 9, 2009 an event happened that you don't care about . . . .") and
  • Killing all the characters (hereinafter "KATC"), either through excessive definitions or by naming the parties with the Mystifyingly Obtuse Acronymic Definition (hereinafter "MOAD").

How widespread are these problems? They're everywhere.

To illustrate, I bet myself that if I picked a Supreme Court case at random, I would find excessive chronological dating and MOADs, notwithstanding the involvement of good lawyers and good judges. 

I was right.

I picked the first opinion on the Supreme Court's list last Friday, which just happened to be Texas Mutual Insurance Company v. Ruttiger. Here's what you'll find if you look through this randomly selected case, one that got a lot of attention because it has important issues put forward by really good lawyers.

  • The Petition for Review and the Petitioners' merits brief does a pretty good job, only a few dates involved, generally deemphasized. And the characters have names--even "Texas Mutual" for the insurance company.
  • The response defines Timothy Ruttiger ("Ruttiger") even though he's the only Ruttiger in the case. Texas Mutual has become "TMIC." And the first two substantive paragraphs in the fact section begin with precise dating.
  • Even though the petitioner ultimately won, the Opinion adopts the MOADs and dating style of the respondent and then amplifies them.
  • Many (maybe even most) of the paragraphs in the fact section of the opinion begin with a date that does not matter. There are many more dates throughout.
  • We are treated to MOADs like "TMIC" and "WCD" and "BRC."

Read it. Is it elegant and easy and persuasive?

As I said, these are not bad lawyers or bad judges. On the contrary, they are among the best. But that's the point. This is how infected we lawyers really are.

To quote one really eminent (and quite dashing) authority:

Most lawyers could do with an intensive remedial course in "Once upon a time." The longer they have practiced law, the more they probably need it.

 Now, please don't go pulling my own briefs or you're likely to find some of the same stuff. And that would ruin our little illusion. Nothing good could come from that.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume II, Number 185
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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