Want to improve your legal writing? Check out Bryan Garner’s Blog

Want to improve your legal writing? Check out Bryan Garner’s Blog - Usage Tip of the Day

Writing skills are one of the most important tools of the legal profession. The written word is used to advocate, inform, persuade and instruct. Although mastering legal writing skills takes time and practice, superior writing skills are essential to success.

An excellent way to continue to improve your writing skills is to subscribe to Bryan Garner's blog at LawProse.org. According to the LawProse philosophy, legal writing should be simple and direct. What distinguishes effective from ineffective legal writers is empathy for the reader.

I have been reading Bryan Garner’s “Usage Tip of the Day” for a few months now, and have seen many posts addressing language problems I see frequently. What is most helpful is that Garner provides an engaging and clear explanation of the problems, along with identified sources -- all the better to remember the “rules.”

Here is one example:

LawProse Lesson #126:“That” vs. “which”

Posted on July 16, 2013 by Bryan A. Garner:

We now come to an issue that has provoked swearing matches in recent months: how to choose between that and which as relative pronouns. Consider:

Republicans oppose new taxes that are unnecessary. (Some taxes might be necessary.)

Republicans oppose new taxes, which are unnecessary. (None, in their view, would ever be necessary.)

Republicans oppose new taxes which are unnecessary. (Ambiguous.)

Most American editors don’t like the third version because of its palpable ambiguity. They insist on choosing between a commaless-that and a comma-plus-which. A commaless-that clause narrows (restricts) the meaning; a comma-plus-which doesn’t narrow (it’s called nonrestrictive). The choice of the relative pronoun reinforces the semantic difference conveyed by the presence or absence of a comma.

So that’s that.

Except it’s not. Though it was born in Britain, this useful distinction has really taken hold only in American English. Hence many British authorities (e.g., Gooden, Greenbaum, Trask) say that it is permissible to use a commaless-which to introduce a restrictive clause, as here: I saw the speeding car which ran over your cat. In that sentence, most American editors would either change which to that or put a comma before which — after discerning the true meaning.

Some American commentators (e.g., Lynch) minimize the importance of the American rule while still reciting it: “It boils down to this: if you can tell which thing is being discussed without the which or that clause, use which; if you can’t, use that” (Lynch, p. 218).

Other commentators cite what they consider exceptional cases: We want to assign only that book which will be most helpful. But such sentences can always be improved by other means: We want to assign only the book that will be most helpful.

The only real exception occurs with by which, for which, in which, etc.: We’ve consulted all the cases in which Justice Kagan has recused herself.

My advice: heed the that/which distinction. Use many more thats than whiches. Try not to be distracted too much when reading current British writing (in which commaless-whiches are rampant). And know that many British sources (Ayto, Times Guide) do hew to this nuance, which Americans have elevated to the status of a rule.

Which stalwart American sources champion the rule? The Chicago Manual of Style, Bernstein, Follett, Garner (ahem), and Words into Type, among others.

This is the house that (not which) Fowler built.

If you don’t already know who Bryan A. Garner is – his extensive writing on the language of the law led The Green Bag to call him “the leading authority on good legal writing.” A chorus of other publications — including The New York Times, Trial magazine, and Harvard Law Review — have echoed that sentiment.

Garner is editor-in-chief of Black’s Law Dictionary and the author of many leading works on legal style, including A Dictionary of Modern Legal Usage, The Elements of Legal Style, The Redbook: A Manual on Legal Style, The Winning Brief, and The Winning Oral Argument. His latest books are Making Your Case: The Art of Persuading Judges, co-written with Justice Antonin Scalia, and Garner on Language and Writing, an anthology published by the American Bar Association. His magnum opus is the 897-page Garner’s Modern American Usage, published by Oxford University Press. It is widely considered the preeminent authority on questions of English usage.

Read Garner’s daily blog and amass a wealth of legal writing tips to improve your skills!

Mobile Apps for Legal Research #7: Fastcase

Fastcase is an online platform for searching U.S. case law and statutes. The Fastcase app (iOS, Android) brings a pared-down version of Fastcase to mobile devices. The standout characteristic of the Fastcase app is that it is free to use--no Fastcase subscription required. Anyone can download the app and search an impressive collection of primary U.S. law.

The app contains a comprehensive collection of state and federal appellate level opinions, as well as a large collection of federal district court orders. It also has statute sets for the U.S., all fifty states, and the District of Columbia. The Fastcase app provides the most recent statute set for each jurisdiction and one or more superseded sets. You can search or browse the statutes. The browsable superseded statute sets make checking on the law in effect at a particular time in the past as simple as looking up the current statutes.

The Fastcase app offers basic search capabilities. It supports Boolean searching, wildcards, and proximity operators (though initially the proximity operators did not seem to work for me). But it  does not offer any of the advanced data visualization options present in Fastcase itself.

The app defaults to a relevancy ranking for its search results. The relevancy ranking looks primarily at the occurrences of the search terms in each document, and ranks the documents based on the frequency and location of the terms. The app is aware of how each document is cited in the database, but it does not use the information in its relevancy algorithm.

The app integrates citation analysis into its results by displaying two numbers beside each result--the number of times the document is cited in the entire database, and the number of times it is cited by the other documents returned by the current search. Tap the numbers, and the app gives you a list of the citing documents.

The app also lets you sort your search results based on the citation analysis. You can sort the results so that the documents cited the most in the database are at the top of the list, or so that the documents cited the most by other documents in your search results are at the top.

The app's document display delivers documents with few bells and whistles. Within the text of the document, your search terms are highlighted. In the document view, you can scroll through the document, go back to your search results, access the list of citing documents, and save the document. The save option saves the document to your Fastcase account. If you subscribe to Fastcase, you can access the document by logging into your account; if you don't subscribe, the saved documents are inaccessible.

While in document display, you can jump to the "most relevant" section of the document. The app identifies a single paragraph that seems to relate most to your search terms. In a long case dealing with multiple issues, the "most relevant" button can save time scrolling through the case looking for the highlighted terms.

Another option while viewing a document is to search within it. This search is not a "search within results" such as other legal research platforms offer, allowing you to narrow your search with additional terms. It is a find tool similar to the find function in a browser or word processor. It searches the current document for the terms you provide and has no connection to your original search.

In my testing, I had two issues with the app. The first is that some of the hyperlinks within the documents did not work. Citations to cases and statutes contained within the Fastcase database are hyperlinked so that you can jump quickly to the cited document. I tested twenty links at random, and four of them did not work. While twenty is a small sample size, I find a 20% failure rate unacceptable, particularly since I expect internal hyperlinks to work close to 100% of the time.

My second problem with the app is its relevancy ranking for search results. Fastcase claims that its "powerful sorting algorithms bring the best results to the top of the list every time." That statement is not true for the app's relevancy ranking. The algorithm places too much emphasis on the search terms themselves and ignores important measures such as the court issuing the opinion and the context of the term. For example, I ran a search for copyright AND "fair use." This is a broad search that returns many results. To get to useful results, I would generally have to narrow it with additional information. But with the search as is, the best results are Sony, Campbell, and Harper Row, three of only four United States Supreme Court cases to address fair use under the 1976 Copyright Act. I would expect my search to return those three cases at the top. In Lexis and Google Scholar, those three cases are the top three results. In the Fastcase app, Sony and Harper Row are results 4 and 5. Campbell is buried at 21, two screens away from the top of the list. Even though Campbell is a hugely significant fair use case, the Fastcase app puts federal district court cases ahead of it in the results because they use the phrase "fair use" more often.

Another example of the relevancy ranking's less than stellar performance is a search for Miranda. Again, this is not a search that I would use in actual research, but it is a search that should return a predictable set of results. It should return Miranda v. Arizona, but it should also return near the top other significant Miranda rights cases, such as Edwards v. Arizona, Rhode Island v. Innis, and Oregon v. Elstad. A search for Miranda in Lexis, Westlaw, and Google Scholar all return these or similar cases in the top 10 results. But the Miranda search in the Fastcase App returns cases with a party named Miranda. Of the first 50 search results, only two were Miranda rights cases rather than cases with a party named Miranda. I should find cases with Miranda as a party if I search cases by party name, but the best search alogrithms understand that Miranda used as a keyword more likely refers to a legal doctrine than a person.

I was able to avoid some of the problems created by the relevancy ranking by sorting my search results in the app by times cited. A general times cited sort had its own issues; a case that was cited for a proposition unrelated to my search could end up at the top of the search results, messing up the rankings. The times cited within the search results sort solved this issue by bringing up only documents cited by cases that contained my search terms, and were therefore were likely citing the documents on my issue. While this search approximated the results that I expected and got from other legal research platforms, I think it is an imperfect solution because it shifts from a focus on search terms to the exclusion of everything else to a focus on citation analysis to the exclusion of everything else.

Overall, the Fastcase app is a decent free option for legal research. The ability to view superseded statutes is a strong selling point, as are the innovative citation analysis and clean interface. Unfortunately, the issues with internal hyperlinks prevent the app from being one you could depend on in a situation where reliable access is a priority, such as quick searches in the midst of a court hearing.

The relevancy ranking serves as both a plus and a minus. The minus is that you can never be sure that you're not missing a highly relevant case a pager or two deeper in the results. Because of this, I would not use the app as a replacement for other legal research platforms. The plus is that the ranking may reveal cases that you would have overlooked in a more standard list of results. This makes the Fastcase app a good place to turn to get a new perspective on your research.

Happy Thanksgiving

(image "Thanksgiving Cornucopia" by Lawrence OP)

The library staff is taking a break from the blog to celebrate Thanksgiving. We will resume posting next week.

Have a wonderful Thanksgiving holiday. 

Westlaw and Lexis in Contrast: One Example

Despite their differences in design, Westlaw and Lexis often seem like two ways to get to the same content. They both have vast databases, which results in significant overlap, particularly in primary law like cases and statutes. The temptation is to evaluate them based on their appearance and usability, pick the one you like best, and ignore the other. But Westlaw and Lexis do have different content, and you can miss valuable information if you limit yourself to only one when both are available. Consider the following example, shared by Scott Burgh, Chief Law Librarian at the City of Chicago Department of Law Library, via the Law-Lib Listserv:

In the course of helping a patron, we needed to check the court file for the trial court in the case of Phillies v.  Byrne, 732 F2d 87.  To pull the file at the National Archives, one needs the docket number, but the trial case from ND Illinois is unreported.  The reporter volume and Westlaw list nothing of the lower court's docket, so that was of no help.  However, Lexis came through because a [search for] 732 F2d 87 gave us the trial level docket number [in the prior history field].  This Lexis result with the docket number allowed us to proceed to the National Archives . . . .

The point of the example is not that Lexis is the go-to source for federal district court docket numbers--Lexis does not always include the lower court docket number in the prior history it provides for an opinion. The point is that for any given research task, Lexis may have information that Westlaw does not, and vice versa. When conducting legal research, you should consider all the resources you have available.  If you focus on a single information platform, you may lose sight of the information you need.

Mobile Apps for Legal Research #6: Bloomberg Law Reports

Bloomberg Law is new to the legal research arena, and it does not yet have a mobile app version of its search platform. What Bloomberg Law does have is a current awareness app--Bloomberg Law Reports.

Bloomberg Law Reports acts as a reader for Bloomberg's BNA Law Reports on iOS mobile devices (Bloomberg Law has not released a version of the app for other platforms such as Android). To use the app, you must first log into Bloomberg Law and access your Bloomberg BNA email notifications. The app provides a link to the email notifications page, but you cannot manage the notifications from within the app.

The email notifications page provides a list of the law reports available through your Bloomberg Law subscription. To make a report available in the app, you must add it to your current notifications using the blue "Set Notification" button next to the report. Once you set the notification for a report, the report will appear in the app. The report will also be listed under "Current Notifications" on the email notifications page. To remove a report from the app, access the email notifications page and click on the red X next to the report under "Current Notifications."

Once you have loaded some reports, the Bloomberg Law Reports app works like an RSS reader. Each report is listed as a separate feed, and the app indicates how many unread articles are in each report. When you access a report, an article displays in the reading pane, and you can move between articles by swiping left and right or by choosing from a list of article headlines. Once you view an article in the reading pane, the app marks it as read.

You can choose to browse all the articles in a report, or you can search the articles by keyword. The search can be useful if you are interested in a subset of a report's topic. For instance, I receive the Patent, Trademark, & Copyright Law Daily Report, but I am only interested in copyright news. The search function saves me the time of browsing through all of the headlines for just copyright articles, and it finds me articles I would have overlooked in browsing because the headlines don't mention a copyright issue.

The Bloomberg Law Reports app has several drawbacks. The first is specific to Western New England School of Law. The app cannot access Bloomberg's servers through the law school's wireless network. If you are on our campus, you will not be able to update the content in the app via WiFi. You can still use the app to read articles that you have already downloaded, since the app is designed to automatically store between 20 and 200 articles for offline reading. The connectivity issue is probably related to law school's network configuration, so I don't put the blame on Bloomberg. But the issue does affect my willingness to use the app because it limits the currentness of the articles I see.

A bigger issue with the app is the way it is integrated into Bloomberg Law's notification system. Bloomberg Law primary supplies notifications is through email. The app sits on top of the email notification system almost as an afterthought. When you set the notification for a report, you automatically subscribe to the report's email list. Bloomberg Law does not provide a way to receive notifications via the app without also receiving the same notifications via email. Since my main reason to use such an app is to replace email notifications, the required duel delivery makes the app redundant. 

The app as an individual program is great--simple, visually clean, and effective. But the concept of the app falls flat. Why do I need a dedicated Bloomberg Law app to mimic an RSS reader when I already have an RSS reader? Bloomberg Law should have put its effort into providing RSS feeds of its BNA Law Reports. An RSS feed would allow me to use my own reader on any platform and free me from the email notifications. The app is great, but Bloomberg Law had better options available for delivering its content.