He Said, She Said

Posted on | by Linda Kruschke | 1 Comment on He Said, She Said

By Ian Pisarcik, Legal Publications Attorney Editor

One of my favorite cartoons depicts a young female student standing next to a tall male teacher. Both are staring at a chalkboard. The chalkboard reads: Stone Age Man, Bronze Age Man, and Iron Age Man. The speech bubble extending from the young girls mouth asks: “Did they have women in those days?”

“Gender-neutral language is achieved by avoiding the use of ‘gendered generics‘ (male or female nouns and pronouns used to refer to both men and women).” This is easier said than done. But so is carrying a tune, and that doesn’t stop nine out of ten I-5 drivers from pulling their lips back and pretending they’re Mick Jagger.

The Oregon Appellate Courts Style Manual states that “[g]ender-neutral terms are preferred, and gender-based pronouns are avoided except when referring to a specific person.” The style guide suggests using “he or she” only when all other constructions fail. The Oregon State Bar Legal Publications Department asks authors to avoid gender-based pronouns as well, but actually recommends the “he or she” construction.

In most cases, this is straightforward (albeit, a little clumsy). The defendant has the burden of raising his Confrontation Clause objection becomes the defendant has the burden of raising his or her Confrontation Clause objection, or the defendant has the burden of raising the defendant’s Confrontation Clause objection.

But things can get tricky when writers decide to alternate between masculine and feminine pronouns. Not only does this tend to confuse the reader, but a recent study conducted by researchers at New Mexico State University found that (1) readers perceive alternating pronouns to be just as gender-biased as masculine pronouns, and (2) readers consistently rate writing featuring alternating pronouns as lower in quality than text with generic masculine pronouns.

Further complicating things are the countless terms that feature the word man. Some are easy to spot and fix: policeman should become police officer, serviceman should become serviceperson. But, there are others that are not as easy to spot or fix: manpower, manhole, ombudsman, penmanship, freshman, and middleman among them.

Achieving gender-neutral writing takes some effort. But it is an effort that most states are making and that OSB Legal Publications wholeheartedly embraces. And the fact that the United States Supreme Court lags behind in this regard should serve only as further motivation for lawyers concerned with eliminating subtle sexism in the field.

And/Or

Posted on | by Linda Kruschke | 4 Comments on And/Or

By Ian Pisarcik, Legal Publications Attorney Editor

Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:

[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients.

Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).

It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.

Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).

The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.

So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.

Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.

Fiction for Attorneys

Posted on | by Linda Kruschke | 2 Comments on Fiction for Attorneys

By Ian Pisarcik, Legal Publications Attorney Editor

As an attorney, two things are reasonably certain to occur in your lifetime: Sallie Mae will deduct an astronomically high student loan payment from your checking account and someone, somewhere will ask you if you’ve read To Kill a Mockingbird and if you were aware that John Grisham used to be a real honest-to-God practicing attorney. It is at this point that you will calmly try to explain that you read more than just legal thrillers or you will begin shouting and waving your arms like a windmill with a broken turbine. Take solace in the fact that it could be worse. You could be a doctor. Doctors are asked similar questions (insert The House of God and Michael Crichton) followed by a request to diagnose the inquirer’s mysterious malady.

In the spirit of recognizing that your interests extend beyond the narrow scope of your profession, here are ten lesser-known books worth reading that have only a tangential connection to the practice of law.

  1. Fourth of July Creek by Smith Henderson: Released in hardcover last month, Fourth of July Creek is already receiving a lot of praise. The novel tells the story of a social worker who finds a nearly feral eleven-year-old boy living in the Montana wilderness. Dependency attorneys will relate all too well.
  2. Plainsong by Kent Haruf: This novel features a plot that will also strike a chord with dependency attorneys. The story, which would be intriguing in the hands of a lesser writer, is nearly flawless in the hands of Kent Haruf (for my money, one of the best writers alive).
  3. The Hermit’s Story by Rick Bass: Acclaimed writer and environmental activist Rick Bass will appeal to environmental attorneys, lovers of wild places, and fans of powerful writing.
  4. Train Dreams by Denis Johnson: Attorneys could learn a thing or two about being concise from this epic story about a day laborer in the American west told in a mere 128 pages.
  5. The Power of the Dog by Thomas Savage: Attorneys understand the complexities of human beings and perhaps no fictional character is more complex and fully-realized than Phil Burbank in this novel that inspired the better known novella, “Brokeback Mountain,” by Annie Proulx.
  6. Canada by Richard Ford: While most people think of John Grisham and Scott Turrow when asked to name lawyers who became writers, many forget the formidable Richard Ford.
  7. Birds of a Lesser Paradise by Megan Mayhew Bergman: Megan Mayhew Bergman lives on a farm in rural Vermont with her veterinarian husband, four dogs, three cats, two goats, chickens, and a handful of rescue animals. These animals are featured in many of her stories (my favorite is about a woman who drives hundreds of miles to visit a parrot so that she might hear the voice of her deceased mother one more time). Animal attorneys rejoice!
  8. Winter’s Bone by Daniel Woodrell: A dark, gritty novel about taking the law into your own hands.
  9. In the Lake of the Woods by Tim O’Brien: The lauded author of The Things They Carried crafts a complex story about a failed politician who may have murdered his wife in his sleep. A story fit for a bar exam hypothetical.
  10. Independent People by Halldór Laxness: An epic novel set in rural Iceland, Independent People tells the story of a sheep farmer determined to live independently on a nearly unmanageable patch of land. The novel doesn’t have a great deal to do with the law, but it’s beautifully written and most attorneys have at least considered quitting their jobs and moving to a sheep farm in the middle of nowhere.

Honorable Mentions: Meditations from a Moveable Chair by Andre Dubus; Crooked Letter, Crooked Letter by Tom Franklin; Fencing the Sky by James Galvin; Where Rivers Change Direction by Mark Spragg; Winter in the blood by James Welch; and Lives of Girls and Women by Alice Munro.

They say if you want to write well you must read good writing. Perhaps reading some of this great fiction will improve your writing for that next big brief in which you must somehow keep the attention of a judge while explaining your client’s complicated fact pattern.

Free Speech in Oregon

Posted on | by Linda Kruschke | 1 Comment on Free Speech in Oregon

In celebration of Oregon Constitutional Law receiving the ACLEA Award of Outstanding Achievement in Publications, we decided to share an excerpt from that award-winning book. This excerpt is from chapter 3, Article I, Section 8, Free Speech Writ Large, by Robert M. Atkinson.  For more on this topic you can purchase a copy of Oregon Constitutional Law from the OSB Online Bookstore or log in to BarBooks™.

§3.1 INTRODUCTION

The Oregon Supreme Court’s free-speech jurisprudence under Article I, section 8, of the Oregon Constitution is unique in its analysis. Consequently, federal law of free expression or the law of other jurisdictions on that subject is unlikely to be useful in attempting to apply the Oregon Constitution’s provision. For example, federal law distinguishes among differing kinds of expression based on their content. Thus, commercial speech gets less federal constitutional protection than political expression. Compare Boos v. Barry, 485 US 312, 321, 108 S Ct 1157, 99 L Ed2d 333 (1988) (political speech), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 US 557, 562–63, 100 S Ct 2343, 65 L Ed2d 341 (1980) (commercial speech). Under the Oregon Constitution, by contrast, all expression is equal and equally protected. Bank of Oregon v. Indep. News, Inc., 298 Or 434, 439–40, 693 P2d 35 (1985). In general, Oregon’s free speech jurisprudence is uniquely protective of expression of all kinds. Indeed, it is no exaggeration to state that—with very few and limited exceptions, which are discussed in §§ 3.4-1 to 3.4-3—all speech and expressive conduct are constitutionally protected.

The basic outline of the analysis is readily described, even if not always easily applied. But difficult questions—such as what conduct is sufficiently expressive to warrant protection—remain unresolved. This chapter is intended as a doorway into this important area. To avoid excessive length and paralyzing detail, it sticks, for the most part, to the well-traveled roads, leaving some interesting byways unexplored.

§3.2 TEXT

Article I, section 8, of the Oregon Constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

§ 3.3 BASIC ANALYSIS

The genesis of the modern construction of this provision is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. Vannatta v. Oregon Gov’t Ethics Comm’n, 347 Or 449, 455–56, 222 P3d 1077 (2009) (Vannatta II); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression.

§3.3-1 Laws Focusing on the Content of Expression

At the first level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), are laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication. City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Laws written in those terms violate Article I, section 8, “on their face” unless the scope of the restraint is confined within one of the few exceptions discussed in §§ 3.4-1 to 3.4-3. Miller, 318 Or at 495.

To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: “Do not discuss preservation of error in the Supreme Court.” That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute’s text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions. The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.

§.3-2 Laws Focusing on Harms or Effects, but Directed by Their Terms at Expression

The second level of analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden harms or effects but, by their terms, expressly prohibit expression used to achieve those effects. To return to the example in § 3.3-1, a second approach to preventing discussion of preservation might state: “Do not annoy the Oregon Supreme Court by discussing preservation of error.” That hypothetical law is addressed by its terms to a harm or effect—annoying the court. But those terms also specify expression—discussion of preservation—as a means of bringing about that forbidden effect.

Laws in this category are analyzed for overbreadth. In very general terms, a law is overbroad when and to the extent that it purports to prohibit or regulate constitutionally protected expression. For example, a statute that prohibited alarming a person by threatening adverse consequences if the person performs some act focuses on harm—causing alarm—and specifies speech as a means of achieving that harm. That statute is overbroad to the extent that it would prohibit, for example, a physician telling a patient that she will increase her chances of having a heart attack if she does not quit smoking. See State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982);State v. Garcias, 296 Or 688, 698–99, 699 n 10, 679 P2d 1354 (1984). The decisive question would be whether the speech specified in the statute—returning to the prior example, discussion of preservation—is constitutionally protected. If it is, then the statute is overbroad because, and to the extent that, it seeks to restrain constitutionally protected speech; speech that may not be restrained.

Although the question of whether a law is directed at a harm or effect is generally determined by the law’s text, that is not inevitably the case. Rather, the court will consider the statute’s context to determine whether “the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996) (emphasis by the court).

§3.3-3 Laws That, Although They Are Not Directed at Expression by Their Terms, May Be Applied to Expression

The third level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden effects without referring to expression at all. These “speech-neutral” laws cannot be challenged facially. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006). Rather, they are analyzed to determine whether the law was applied in the particular circumstances before the court so that it burdened protected expression. Because these challenges are generally based on the application of the law rather than its text, they tend to be addressed to actions of the executive rather than the legislative branch. Thus, the speaker challenging the law would be asserting that, although the law itself may be constitutional as written, the government exceeded the law’s proper scope by applying it to his or her speech. That may occur, for example, if the regulator simply misconstrues the scope of the law or applies it in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 43, 50 P3d 1253 (2002).

Here, our exemplary law (see §§ 3.3-1 to 3.3-2) would simply state: “Do not annoy the Oregon Supreme Court.” A person prosecuted criminally or subjected to civil sanctions for violating this law by addressing preservation of error would have to argue that the statute was unconstitutional as applied to his or her speech because, the person would claim, speech about preservation of error is constitutionally protected in the context of an appeal. If the person is right, the law is unconstitutional as applied to that particular expression. City of Eugene v. Miller, 318 Or 480, 488–90, 871 P2d 454 (1994), illustrates the application and analysis.

OSB Legal Pubs Wins Award!

Posted on | by Linda Kruschke | 2 Comments on OSB Legal Pubs Wins Award!

They say that winning isn’t everything, but it sure is nice to be recognized for hard work and a commitment to quality. OSB Legal Publications has received such recognition for a book we released in 2013.

The Association for Continuing Legal Education (ACLEA) has selected Oregon Constitutional Law as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. The physical award will be presented at ACLEA’s Annual Meeting in Boston, Massachusetts in August and put on display in the lobby of the OSB Center.

Of course, Legal Pubs couldn’t have created this highly informative and innovative book without the help of our many volunteer editorial board members (in bold) and authors: Hon. David Schuman • Justice Jack Landau • Chin See Ming • C. Robert Steringer • Alycia N. Sykora • Charles F. Hinkle • Robert M. Atkinson • Erin C. Lagesen • Maureen Leonard • Jonathan M. Hoffman • Jeffery J. Matthews • James N. Westwood • Jerry Lidz • Gregory A. Chaimov • Roy Pulvers • Jessica Osborne • Ed Trompke • Harvey Rogers • Harry Auerbach • Stephanie Striffler • Denise Fjordbeck • Patrick M. Ebbett • Jona J. Maukonen • Hon. Stephen K. Bushong • Erin Snyder • Les Swanson. Thanks to all of you for your hard work and dedication to this volunteer effort.

Oregon was a pioneer of the movement to interpret state constitutions independently of the U.S. Constitution. Not only does the Oregon Constitution address many of the rights protected by the federal Constitution, but it also defines many of the powers that the federal Constitution reserved for the states. Attorneys practicing in Oregon should be familiar with the provisions of the Oregon Constitution and the appellate courts’ interpretations of those provisions. This first edition of Oregon Constitutional Law is designed for exactly that purpose. It covers many of the rights protected by article I, Oregon’s Bill of Rights. It also discusses the initiative and referendum processes, financing of state government, taxation, and home rule. More importantly, it includes practical advice about how to litigate state constitutional issues. This book is an essential resource for every Oregon practitioner.

Oregon Constitutional Law is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

Appellate Oral Argument – the Judges’ Perspective

Posted on | by Linda Kruschke

Excerpted from Appeal and Review: Beyond the Basics (OSB Legal Pubs 2014), chapter 4 Effective Oral Advocacy.

By William F. Gary, Hon. Joel S. DeVore, Hon. Erica L. Hadlock, and Hon. Jack L. Landau

To learn more about advanced appellate advocacy tips and practices, go to BarBooks™ to view this completed book, or preorder your print copy of this handy reference from our online bookstore.

The Judges’ Goals for Oral Argument

On any court, judges hold a wide variety of views about the utility of oral argument. Some judges say it rarely influences how they vote to decide a case; others report that it affects their decisions in a significant minority of cases argued. Still other judges believe that argument rarely shifts their vote on the ultimate outcome, but acknowledge that how the parties frame the issues during oral argument often influences the way in which the judges write opinions. What happens during a court of appeals argument certainly can affect the court’s decision whether to affirm a lower court’s or agency’s decision without published opinion (AWOP) or to write an opinion in the case.

Some common themes do emerge in conversations with judges about what they hope to accomplish during oral argument. Judges view argument as their sole opportunity to question the advocates—to engage in a dialogue with the lawyers instead of merely being on the receiving end of the lawyers’ monologues. Because of that, and because 15 minutes go by so quickly, judges may not allow lawyers much time to deliver prepared arguments—which too frequently are only variations on the monologues already delivered in the briefs—before the judges start asking questions.

A primary goal that judges have in questioning lawyers is to clarify what the parties are arguing, in the most basic sense. Before the judges start evaluating the merits of the parties’ arguments, they need to understand what those arguments are. For example, the judges want to know exactly which trial-court rulings the appellant is challenging, and on precisely what grounds. If the appellant’s brief is vague, ambiguous, or internally inconsistent in that respect, judges are likely to ask clarifying questions before they address the substance of the appellant’s arguments.

Court of appeals judges also may not immediately dive into the merits of a case if the briefs have not made clear what issues are properly before the court, and by what standards the appellate judges will review the lower court’s rulings on those issues. If the briefs leave the court with questions about whether arguments were preserved for appeal, or what standards of review apply, judges are likely to use argument time to clarify those points.

In addition, court of appeals judges may ask questions related to their general desire to resolve cases in the most straightforward way possible, without addressing more issues than is necessary (a desire that is grounded both in jurisprudential principles and in workload concerns). Judges sometimes refer to this as looking for the “first principled door out” of a case. Accordingly, judges may ask questions aimed at clarifying how the various arguments presented in a party’s brief relate to each other. Essentially, the judges are trying to picture the flowchart that shows the relationships between all of those arguments, with the hope of discerning the simplest path from one end of the chart (the assignments of error) to the other (disposition of the appeal). If those analytic pathways are not clearly described in the brief, the judges probably will ask questions on that point.

Beyond clarifying the contours of the parties’ arguments and how they interrelate, judges view oral argument as a time to explore the strengths and weaknesses of those arguments. By asking probing questions, the judges intend to give each lawyer an opportunity to make the best case possible for his or her client. Judges may want to know how a party’s arguments can be reconciled with (or distinguished from) existing case law, or if the party can prevail only if some precedent is overruled. In a case that centers on statutory interpretation, judges might ask how a lawyer’s proposed construction of a particular provision makes sense in the context of the statutory scheme as a whole. Or a judge might ask a hypothetical question designed to reveal whether a lawyer’s argument remains sound when pushed to its logical conclusion. In all of those circumstances, the judge’s goal is to make sure that the lawyers have been confronted with any potential weaknesses in their arguments and have had a fair chance to respond.

Practice Tip: Because the judges will have read the briefs before argument, experienced oral advocates generally spend little time repeating the points they’ve already made in their briefs. Instead, they focus on responding to their opponent’s arguments. Indeed, some of the most compelling oral arguments are those in which the lawyers start by acknowledging their opponents’ strongest points and then making their best arguments in response.

Judges also use oral argument as an opportunity to explore the implications of the positions that the parties advocate. In resolving a case, judges must decide whether to publish an opinion (instead of AWOP a case in which the lower court’s judgment will be affirmed) and, if they do issue a written opinion, must consider how that published discussion of the law will affect future cases. Those concerns often prompt judges to ask big-picture questions of the lawyers that go beyond the details of the particular case at issue. Thus, if a lawyer’s argument is focused mostly on the pertinent facts and the outcome the lawyer advocates, a judge might ask the lawyer what legal principle would lead to that desired result. Indeed, some judges will ask lawyers to articulate the rules of law they think the court should announce in its opinions.

In addition to helping judges better understand the parties’ arguments and their implications, oral argument also gives appellate judges an opportunity to get the benefit of their colleagues’ thoughts. Because the court of appeals sits in three-judge panels, each judge is able to listen to exchanges that might not have occurred if that judge were the only one asking questions. Many judges go into argument with the goal of breaking out of any “tunnel vision” or “bubbled thinking” they may have developed around the issues in a case.

Searching for Clues in The Bluebook

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

I recently stumbled across Derrick Muller’s blog post, “Was Barack Obama’s Greatest Contribution to Legal Scholarship the Bluebook?” The post posits the following three facts: (1) Harvard Law Review members generally lead the effort to revise The Bluebook, (2) The fifteenth edition of The Bluebook was released in 1991, and (3) Barack Obama was the president of the Harvard Law Review from 1990 to 1991. The fifteenth edition includes massive revisions (the book expanded from 272 to 366 pages). While it is unclear whether the president’s contributions were negligible or significant, Muller’s blog post managed to spark my interest in the history of this often shuddersome book.

The first edition of The Bluebook was published in 1926 by Erwin Griswold, a second-year law student at Harvard, and consists of 26 pages. There is no index and the book devotes two pages to identifying symbols for hand editing manuscripts. The cover isn’t even blue; it is a dull grayish-brown color reminiscent of efflorescence-riddled concrete or perhaps the mouth of the Willamette River. The first line in the first edition states: “This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form.” The current nineteenth edition, coming in at 511 pages (36 of which make up the index), suggests The Bluebook may have strayed from this original intent.

As for those who wish to look for details in the pages of the fifteenth edition, like patterns in tea leaves, foreshadowing the future path of the president, you may want to start with the fact that South Texas College of Law Professor James Paulson called the fifteenth edition the first manual with a “social conscience.” Paulson noted that the fifteenth edition added a substantial number of citation examples written by women, including titles on topics such as feminism, sexual orientation, reproductive rights, and apartheid. You may want to turn to page 103 and note the newly added and apropos (in light of a recent executive order) citation example: Women’s Bureau, U.S. Dep’t of Labor, Leaflet No. 55, A Working Woman’s Guide to Her Job Rights. Given The Bluebook’s current pace, curious minds will have to employ a team of researchers to find such details if another Harvard law review member is ever elected president of the United States.

* Those who may be interested can find full PDF copies of the first 15 edition of The Bluebook here.

Appellate Practice on the Web

Posted on | by Linda Kruschke

In preparation for the upcoming release of the 2014 edition of Appeal and Review: Beyond the Basics, we decided to share a couple of blogs and websites related to appellate practice. We do not endorse any of the blogs or guarantee the accuracy of the information contained in them; the court websites we think are fairly reliable.

OSB Appellate Practice Section —
http://osbaps.blogspot.com/
— This blog, published by the OSB Appellate Practice Section, is periodically updated with posts on a variety of topics of interest to appellate practitioners. Recent articles include a review of significant 2013 appellate decisions, a story about the Oregon Supreme Court building’s 100th birthday, and a notice about new appellate filing fees that took effect in October 2013. It also includes a digital version of the Appellate Almanac that the section previously published in hard copy.

Oregon Courts / Oregon Judicial Department —http://courts.oregon.gov/OJD/Pages/index.aspx
— This is the official website of the Oregon Courts, with links to the Oregon Court of Appeals and Oregon Supreme Court websites. This site is an essential resource for appellate practitioners. On this website you will find a plethora of information, including Oregon eCourt information, rules and fees for appellate courts, forms, the Oregon Appellate Courts Style Manual (http://www.publications.ojd.state.or.us/docs/Style%20Manual%202002.pdf), and more.

United States Courts for the Ninth Circuit —
http://www.ca9.uscourts.gov/
— This is the official website of the Ninth Circuit Court of Appeals, with a plethora of information about this court, including calendars, news (including judicial appointments), cases of interest, and more.

SCOTUSblog —
http://www.scotusblog.com/
— This frequently-updated blog is sponsored by Bloomberg Law and includes news articles on the status of cases before the U.S. Supreme Court, as well as status posts regarding cases up for oral argument, pending petitions, recent decisions, and more. You can even sign up for their Twitter feeds from the blog.

Notice of Appeal: Stoel Rives’ Appellate Practice Blog —
http://www.noticeofappeallawblog.com/
— This blog is published by the law firm of Stoel Rives LLP and focuses on reviews of case decisions. Although it deal primarily with Washington state appellate cases, it does include some articles on Oregon cases.

Is Your Writing Verbose and Redundant?

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

If you were to assemble together people from the general public, most would agree that lawyers are not very concise. Further, they would likely agree that the verbosity found in most legal texts should be completely eliminated. If the problems with the italicized words in this paragraph are obvious to you, you may possibly defy this stereotype. If you haven’t yet discovered the issue with the italicized words, you may want to review the following list of redundant phrases. Of course, there are hundreds more, but this should get you started in your quest to totally annihilate redundancies from your writing.

  • Advance planning: All planning must be done in advance.
  • By and between: Between alone suffices.
  • Free and clear: As Judge Mark Painter notes, “Free and clear mean the same thing. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.”
  • Increasingly inevitable: A war may be certain or uncertain, but not increasingly certain.
  • Null and void or null and of no effect: Another example of what lawyer and author Bryan Garner calls “amplification by synonym.”
  • Off of: Don’t bother taking something off of the table. Just take it off the table and be done with it.
  • Revert back: Nothing reverts forward, except maybe Michael J. Fox in a DeLorean.
  • Temporary respite: As opposed to permanent respite?
  • Very unique: As the late writer David Foster Wallace notes, this phrase is “at best redundant and at worst stupid.”
  • Will and testament: Yet another common mixed language doublet.

Totally eEliminating doublets from your writing will make your writing it less verbose and redundant, and maybe keep your readers from falling asleep.

NEW! Appeal and Review: Beyond the Basics

Posted on | by Candace McLean

Visit our online bookstore at http://www.osbar.org/store/pub/pubcat.asp to preorder your copy of Appeal and Review:  Beyond the Basics today and save 20% off the regular retail price.

In 2010, the Bar published the first volume of a new edition of Appeal and Review. As the preface to that first volume explained, the new edition represents a major departure from previous editions, as it is divided into two volumes. The first volume—Appeal and Review: The Basics—covers the basic procedural and substantive areas with which every appellate practitioner should be familiar. Accordingly, the first volume serves to educate lawyers who have limited experience in the Oregon appellate courts. For more experienced lawyers, it is a reference tool.

This second volume explores several areas of appellate practice—of appellate jurisprudence—in greater depth. Editorial board member Jim Westwood’s suggested title for this second volume gives you an idea of what it is about:

Appeal and Review:  Beyond the Basics, being a disquisition on the art of Appellate Advocacy in divers chapters and with practice tips and comments, by an illustrious Panel of Experts, enlarging and illuminating the Prior Volume of the same Title and addressed to the most discerning Appellate Practitioners of the Bench and Bar of the State of Oregon.

But because that title wouldn’t fit on the front cover in a normal font, we decided to simply call it Appeal and Review: Beyond the Basics. The first introductory chapter provides thoughts on the convergence of theory and practice. In chapter 2, the authors discuss the principles that serve as the basis for familiar rules of appellate practice, including rules related to preservation, standards of review, and harmless error.  The authors then explain how those principles should influence a lawyer’s analysis of whether to appeal or seek judicial review, balancing client considerations like the expense of appeal, the likelihood of prevailing, delay, and the possibility of having to pay the respondent’s attorney fees. The chapter 3 authors discuss the art of drafting appellate briefs, covering everything from appropriate structure to techniques for making briefs helpful and persuasive to appellate judges. Chapter 4 addresses oral argument from both sides of the bench, focusing on goals that all participants often do—and should—have for oral arguments. Both chapters 3 and 4 touch on the differences between practicing in the Oregon Court of Appeals and practicing in the Oregon Supreme Court. Finally, chapter 5 provides a comprehensive explanation of motion practice in both courts. All chapters reflect contemporary practices built on longstanding Oregon tradition.

This new book covers topics like:

  • Chances of obtaining a stay
  • Choosing winning issues
  • Whether to cross-appeal
  • When to seek amicus support
  • Briefing legislative history
  • Making the most of limited oral argument time
  • Responding to judges’ questions
  • And much more….

For a limited time, also order Appeal and Review: The Basics and take advantage of a 10% discount.

Also, check out this post with links to helpful appellate practice blogs and websites.