Writing

ABA Young Lawyers Division
TYL In Focus: Writing

Table of Contents
Features
Introduction to this Issue ................................................................................................. 2
Legal Writing.......................................................................................................................... 3
Writing to the Court ........................................................................................................... 3
By Sheena R. Hamilton
Effective Appellate Brief Writing................................................................................. 5
By Hon. Richard A. Posner
How to Write an Effective Reply Brief..................................................................... 10
By Damon Thayer
Has Your Legal Writing Plateaued? ......................................................................... 14
By Wayne Schiess
Controlling the Readers Perception of Your Clients Story ........................ 17
By George D. Gopen
The Importance of Attentive Reading ..................................................................... 21
By Bryan A. Garner
Communications and Marketing............................................................................... 27
How to Write Better.......................................................................................................... 27
By Michael Bess
Why Should You Have a Legal Blog? ...................................................................... 30
By Ernest Svenson
Published in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or
disseminated in any form or by any means or stored in an electronic database or retrieval system
without the express written consent of the American Bar Association.
Building a Better Blog ....................................................................................................... 32
By Ernest Svenson
The Rules for Using Email in the Workplace ...................................................... 37
By Kevin Bailey
10 Tips for Avoiding Ethical Lapses When Using Social Media ................ 39
By Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath
Writing Opportunities for Lawyers ..........................................................................47
Introduction to this Issue
Writing is a requirement of many tradesone that is, in many fields, inescapable. For
some professionals, written communication is a skill from which they draw a tremendous amount of strength. For others, it is a treacherous, mechanical hindrance. But
even the most talented writer (whether he or she knows it or not) is routinely in need
of fresh perspective and development. The troubled writer, on the other hand, can
find solace in knowing that considerable improvement is achievable through training
and practice.
A cornerstone of lawyering since the birth of the profession, writings pervasiveness
has only expanded in recent years. Lawyers still have to craft effective contracts, persuade through their briefs, and create concise legal memoranda. They also have to
send engaging, polished communications through snail mail, email, and even social
media. Never before have lawyers needed to put pen to paper (hands to keyboard?)
more often and in more diverse ways to aid their clients and advance their own
careers.
In this issue of TYL In Focus, we take a broad look at the writing skills todays practitioner needs and draw rare insight from some of the sharpest minds in the professionincluding Bryan Garner, who reveals the ways in which the writing of others
improves our own compositions; Duke Professor George Gopen, who provides insight
into how to control, through writing, the perceptions others have of our clients stories; and Judge Richard Posner, who instructs us in the drafting effective appellate
briefs.
Legal Writing
The quantity and variety of writing lawyers are expected to handle in the course of
business is staggeringcontract drafting and review, crafting briefs and memoranda,
and communications to the courts, just to name a few. The ABA publishes comprehensive books that serve as excellent references for the many kinds of legal writing
encountered by lawyers of all kinds. More information is available at
shop.americanbar.org/ebus/default.aspx.
Writing to the Court

By Sheena R. Hamilton
Sheena R. Hamilton is an associate in the employment and labor department at
Armstrong Teasdale, LLP in St. Louis, MO, and an adjunct professor at Saint Louis
University School of Law.
Each judge operates his or her chambers differently. For example, judges operate like
producers on film sets, giving their preliminary thoughts and making all final decisions. Judges staffs do the leg work that judges would never have the time to do. Judicial assistants may handle scheduling, screen calls, or draft scheduling orders. Law
clerks, however, might be analogous to film directors. Law clerks are generally
responsible for research and writing. Judges may give instructions on how to decide
some motions or appeals in advance, but occasionally law clerks draft bench briefs or
opinions before judges read the briefs. Consequently, attorneys should consider the
law clerk when writing to the court. Here are five tips to consider when writing to the
clerks.
Understand the varying levels of experience among law clerks. Most material
about writing to the court focuses on judges, but law clerks typically review cases first.
While some judges have permanent clerks, many have term clerks who serve for one
or two years. Permanent clerks know the ropes. They have seen all types of cases
before and, in some instances, identical motions. Term clerks, in contrast, might be as
little as three months removed from law school, having come to chambers just after a
bar exam. Do not assume everyone in chambers has the same amount of experience.
Include a clear and concise statement of the law. Many legal writing courses
encourage writers to include a statement of the conclusion, legal rule, issue presented, application of the law to the facts, and restatement of the conclusion. After a
few years attorneys inevitably do away with this formula, thereby omitting pertinent
parts of legal analysis. Although a strict formula is unnecessary, do not allow an
opponents statement of the legal rule to go uncontested. Even if the judge was once
familiar with an area of the law, do not assume anyone in chambers is familiar at a
later date. Dockets are high volume, memories fade, and law clerks often change.
Always include a clear and concise statement of the law.
Expedite the process by keeping it simple. Every morning a law clerk must decide
whose case will receive attention. The simplest tasks will inevitably jump out from
any to-do list. Attorneys should think twice before deciding that the perfect strategy
is to immerse their opponent in paperwork. When parties file serial motions, overly
detailed motions, or excessive exhibits, they do not just inundate each otherthey
inundate the court. In doing so, attorneys may run the risk of moving their case to the
bottom of the list.
Do not delay the ruling. Duplicative motions torturing a single subject delay the
process to getting a ruling. For example, once a motion to compel is fully briefed, it
may be unnecessary to file a motion for a protective order regarding the same evidence. It is unhealthy practice for parties to file multiple motions containing the same
arguments. Granting one motion may have the effect of denying the other. It makes
sense for law clerks to wait until the second motion is fully briefed to begin drafting
the order.
Balance the argument by addressing the law and the policy implications. In civil
cases, plaintiffs attorneys must focus on the law even if the facts favor their side, and
defense attorneys must give policy reasons that support their position. Plaintiffs
attorneys tend to focus on their clients unfortunate circumstances. For example,
attorneys who state for the foregoing reasons, citing to only two appellate court
decisions, one from another jurisdiction and one from the 1930s, should consider getting research assistance. To be fair, defense attorneys tend to believe the law is on
their side, and so they merely cite the holdings of cases for pages without referencing
the facts of the case at hand. Attorneys who start the WHEREFORE clause only having
mentioned their clients name in the caption should consider articulating the broader
policy rationale associated with ruling for what might be the less-sympathetic
party.
Law clerks are an essential part of the court system. Although judges make the final
decisions, law clerks are a part of the process. Always consider the law clerks perspective.
This article original appeared in The Young Lawyer, February 2013 (Volume 17, Number
4). Reprinted with permission. 2013 by the American Bar Association. All rights
reserved. This information or any or portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without
the express written consent of the American Bar Association.
Effective Appellate Brief Writing

By Hon. Richard A. Posner
Hon. Richard A. Posner is a judge serving on the U.S. Court of Appeals for the Seventh
Circuit.
Successful communication requires the communicator to understand how much the

person or persons to whom he is communicating understands. If the communication
takes the form of an appellate brief, the writer must understand the limits of understanding of the appellate judges, along with the concerns of the judges.
Communication is usually straightforward among peers; they understand each other;
they know where each other is coming from. The problem that the appellate brief
writer faces is that his or her intended audience does not consist of other appellate
brief writers, or indeed of other practicing lawyers. Many appellate judges were practitioners once, but many were not; and even those who were are unlikely to have been
experts in the particular area of law in which a case arises, unlike (in all likelihood)
the appellate brief writer. Moreover, modern people are good at playing different
roles; and the role of the judge is very different from that of the practitioner. It is as a
judge that a judge reads a brief, not as a former practitioner.
The judge is a decision maker. Everyone knows that distinction between an advocate
and a judge. But its just the beginning of the differences in perspective between the
two roles.
So, my essential advice to the appellate brief writer is to put yourself in the judges
shoes all the way, as it were. That will help you grasp the relevant differences between
judge and advocate and so will enable you to write a brief that will communicate your
position effectively.
You will, if your imagination is working properly, understand the following things
about appellate judges: that we wont spend nearly as much time on the case as you
will; that we are likely to know far less about the parties and about the commercial
field in which the cases arises, or other real-world context of the case, than you; and
that unless you are arguing a criminal appeal, were unlikely (because of the vastness
of the jurisdiction of the federal courts, which via the diversity jurisdiction encompasses most state law as well) to have a deep or comprehensive knowledge of the law
applicable to your case, although this will vary from judge to judge depending on the
judges background and interests. But in the Seventh Circuit, the appellate panel that
will decide your case is not announced in advance. It is drawn randomly from the
courts judges, so you cannot count on the panels containing a judge who knows a lot
about the particular field of law in which the case arises, even if there is such a judge
on the court.
It will also help you as an advocate if you understandthough this is probably the
most difficult thing for a practicing lawyer to understand about the judiciarythat we
judges are for the most part practical people (even the former academics among us).
We are conscious that our decisions make a difference in peoples lives, which is a different feeling or sensation or awareness from being handed a case and told to make as
persuasive an argument for it as you can within legal and ethical limits. We judges
want to reach a sensible and reasonable result in those casesand they are surprisingly commonthat are not governed by clear statutory text or precedent. A result is
sensible and reasonable if it could be explained and justified to a layperson. We therefore are interested not merely in the rule on which you rely, but in the rules purpose
as well, and not merely in the facts as developed in an evidentiary hearing, but also in
nonadjudicative facts that illuminate the background and context of a casethat
make the case come alive to a person not immersed in the field of law, or the commercial or personal situation, out of which it arises. Dont just state a rule and argue a
semantic correspondence between it and the facts of the case.
So now that you know what you need to know about the bench, the specific advice
that follows should be easy to understand and to follow. Do some online background
researchexplore Google, Wikipedia, Google Earth, and the other riches of the Web
for information that will help you to help us to a realistic understanding of your
casejust as real people do, and as judges and their law clerks (and even jurors!)
increasingly are doing.
I have been doing this in some of my cases of late and have been criticized that in
doing so I have been going outside the record. It would be a just criticism if I was
looking for adjudicative facts on the Web, the kind of facts that benefit from being
tested in an adversary proceeding governed by the rules of evidence. But I am not. It
should be obvious (if you imagine yourself an appellate judge) that much that goes
into a judicial decision was never a part of any evidentiary record. The judicial mind is
not a tabula rasa. It is informed and enriched by a judges experiences, impressions,
temperament, and outside reading, which increasingly is the reading of online materials. The Web is an open source; it is as great a resource for lawyers as for
judgesand is underutilized by both.
Another way to think about Web research: When youre writing your brief, think of
the questions that a layperson would ask about the case; a judge is likely to have the
same or similar questions.
Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs.
Some lawyers seem to think a word is worth a thousand pictures. The reverse, of
course, is true. Seeing a case makes it come alive to judges.
Many years ago I was on the panel that heard an appeal in a trademark dispute
between the Indianapolis Colts and the Baltimore CFL Colts. The briefs described the
trademarked products (such as hats and T-shirts) but did not include pictures. At the
oral argument, one of the judges (OK, I confessit was I) asked the lawyer for the
Indianapolis Colts whether he had any of the products with him. He was a little startled but went to his briefcase and pulled a pair of hats, one an Indianapolis Colt hat
and the other a Baltimore CFL Colt hat. The hats looked identical. He won his case at
that moment. He was lucky that he was asked that question. He would not have
needed luck had he included a photograph in his brief.
Avoid jargon: business jargon, industry jargon, computerese and other technical jargon (and yes, economic jargon, too), and legal jargon. Avoid legal clichs, such as
plain meaning (typically, and futilely, argued by both sides in the same case!). At an
oral argument last year, baffled by the briefs in a case involving the Telecommunications Act of 1994briefs bristling with esoteric legal and technical jargonand we do
not hear cases under that act often enough to become experts in itI said to one of
the lawyers that my law clerks and I had read the briefs and had no idea what the case
was about, and would he please explain it to us in words of one syllable. Like the Indianapolis Colts lawyer, he was a little taken aback, but complied, and, being in fact an
excellent lawyer, he gave a perfectly lucid, totally jargon-free explanation of the case,
and the judges were very happy (and he won). But again, he was lucky that he was
asked to explain his case, and he would not have needed luck had he realized in writing his brief that generalist federal judges do not have the level of understanding of
members of the Federal Communications Commission.
Do not beat us over the head with statutory language and precedent. Your case, unless
it is a federal criminal case, probably would not have reached the court of appeals if it
had been clearly governed by a statute or a case. I am not saying that you should
ignore relevant statutory text and precedents, but they are more likely to narrow the
area of contestable disagreement than to resolve the case. You will have to extract the
purpose of the statute and excavate the policies underlying the precedents to make a
cogent argument that the statute and the precedents support (and if you are lucky,
compel) the outcome that you are urging.
Anda closely related pointdo not exaggerate the cogency of reasoning by analogy
by trying to persuade us to base our decision on a previous case, especially a case
from another field of law. The value of analogous cases lies in the reasoning or policies that the opinions disclose that may bear on your case, and it is the reasoning and
policies that you should emphasize.
Speaking of precedent, go light on district-court citations, remembering that they are
not precedents. This is not said in disrespect of district judges, but in recognition of
the fact that if district-court decisions were given precedential effect, there would be
no uniformity of federal law within a district or circuit.
Be brief. Judges do a lot of reading. (Holmes once said that he was paid to readthat
was his job.) We get tired or bored, and some of us tend to start skimming when we
encounter a tedious, repetitious brief.
Two last points. One, do not omit from your brief, especially if you are the appellant,
mention of the strongest points that you know your opponent will make in his or her
brief. Often I read the appellants brief and think, how could the district judge (or
administrative agency) have made such a mistake, committed such an injustice! And
then I read the appellees brief and realized that the appellants brief had omitted the
points that showed that the lower-court opinion, whether ultimately persuasive or
not, was at least reasonable. And when that happens, one loses confidence in the
appellants position.
When a lawyer plans to put his or her client, a criminal defendant with a criminal
record that can be used to impeach his or her testimony, on the stand, the lawyer typically will bring out his or her clients record on direct examination to pull the sting by
showing to the jury that he or she isnt afraid of the fact that the client has a record.
And then the prosecutors effort to use the record against the defendant on crossexamination is likely to fall flat (and indeed may be blocked by the judge as improper
harping on the defendants record). Similarly, when the appellants brief fronts the
weaknesses in his or her case, and deals with them as best he or she can, that prevents
the appellee from making a seemingly devastating riposte.
Two, do not forgo the opportunity to file a reply brief. The appellee is bound to make
some halfway decent points in rebuttal of your appeal. Dont let him or her have the
last word.
And that is my last word on this important and challenging subject.
Reprinted with permission from Appellate Practice. 2014 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or
disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association.
How to Write an Effective Reply Brief

By Damon Thayer
Damon Thayer is an associate at Jenner & Block LLP in Los Angeles, California.
Having the last word on an issue is valuable. This is especially true in a close case. So
why do lawyers often treat reply briefs like an afterthought? Lawyers may paint a
masterpiece in their opening briefwhether it is in support of summary judgment, an
appeal, or a simple discovery issuebut when it comes time to compose a reply brief,
they use broken paintbrushes and leftover paint. By following 10 simple commandments you can master the art of writing an effective reply brief and in the process
increase your chances of prevailing in any given case.
1. File a reply brief unless there are strategic reasons not to. Given that reply
briefs are optional, the threshold consideration is always whether to file one at all.
Most judges and lawyers agree that the opportunity to have the last word on an issue
should not be squandered absent extraordinary circumstances. So, unless the answering brief suffers from serious deficiencies or is simply incomprehensiblemeaning
that responding to it might give opposing counsels arguments more credit than they
deserveyou should almost always file a reply brief.
2. Focus on responding to opposing counsels arguments. Believe it or not,
lawyers sometimes forget the basic purpose of a reply brief. A reply brief is not a condensed version or executive summary of the opening brief. The focus of any reply
brief should be to respond to opposing counsels arguments. You should get to the
heart of the matter as quickly as possible. The overarching goal of an effective reply
10
brief is to boil the factual and legal issues down to their bare essentials, fairly present
both sides positions, andin an ideal worldleave the court wondering why opposing counsel is fighting you over such an obvious issue.
If opposing counsel conceded any significant issues in the answering brief, point that
out for the court. If opposing counsel did not address an issue raised in the opening
brief, highlight that fact and consider arguing waiver. If the circumstances warrant
such a discussion, unmask the misguided policy underlying opposing counsels arguments and explain to the court why your position is sounder.
But always remember the difference between attacking opposing counsels arguments
and attacking opposing counsel. Having the last word on an issue does not give you
free rein to take a cheap shot at opposing counsel. In most instances, this will hurt
your cause more than it will help it.
3. Leave out weak arguments. Your reply brief should highlight the strength of your
case. Focus on the important, winnable issues. Recite only the crucial facts and leading authority supporting your position. Weak arguments undermine your credibility.
In the immortal words of U.S. Supreme Court Justice Oliver Wendell Holmes, Strike
for the jugular, and let the rest go. Oliver Wendell Holmes, Speeches 77 (1934).
Sometimes a misguided lawyer will throw every conceivable issue and argument into
an opening brief and hope that something sticks. That is bad enough, but do not make
matters worse by revisiting one of your flimsy arguments in the reply brief. Some
judges, such as Judge W. Eugene Davis of the U.S. Court of Appeals for the Fifth Circuit, may interpret this as a signal that your entire case is weak. Bryan A. Garner,
Judges on Briefing: A National Survey, 8 Scribes J. Legal Writing 1, 7 (20012002) (interview with Judge W. Eugene Davis). Or, as cautioned by U.S. Supreme Court Justice
Ruth Bader Ginsburg, because busy judges work under the pressure of a relentless
clock, a kitchen-sink presentation may confound and annoy the reader more than it
enlightens her. Id. at 10 (interview with Justice Ruth Bader Ginsburg).
4. Maintain credibility. Having the last word on an issue imposes a heightened duty
of candor. While you should always strive to maintain credibility with the court by
being fair with the facts and the law, this is a particularly momentous duty in reply
briefs. Expect close scrutiny of what you say, as courts are usually extra-cautious
11
about believing what is asserted in a reply brief. Simply put, aggressively represent
your clients interests, but if one of your contentions does not pass the straight-face
test, leave it out of your reply brief.
5. Embrace a theme. Although this is important in all legal writing, it is critical for a
reply brief to have a theme, otherwise known as a theory of the case. The theme
should take center stage in the beginning of the reply brief and should be woven
throughout the brief in your presentation of arguments and facts. The theme should
present the court with your clients fundamental view of the motion or appeal. It
should be a simple, commonsense, and, if possible, emotive message that radiates the
righteousness of your position. At the end of the day, a busy court might not remember anything else about your case except your theme. Make it count.
6. Do not be afraid to give your reply brief some flavor. If adding a touch of personal flavor to your case is a must, as it is for many lawyers and clients, then the reply
brief presents a perfect vehicle for it. The opening brief is the time to gain credibility
with the court through rock-solid reasoning and careful analysis. Make no mistake,
the reply brief still needs to show lucid analysis of opposing counsels arguments. But
with your credibility already established, you can use your reply brief as an opportunity to inject a punchy phrase, colloquialism, or metaphor into the case that supports
your view. To get the most bang for your buck, the best place to add this flavor is generally in the reply briefs introduction or conclusion.
Of course, you should always take heed of your audience and determine whether the
risk of using such a tactic is worth the possible reward. Sometimes rhetoric will drive
a point home, but other times it may do more harm than good.
7. Make the reply brief a stand-alone document. An effective reply brief will make
your case comprehensible to the court as a stand-alone document. A little-known fact
about the judicial process is that a number of judges and law clerks read reply briefs
before reading any other brief to get a sense of what the case is about and what issues
are paramount. Even when the briefs are read sequentially, your reply brief may be
read days or weeks after the other briefs have been read, meaning that the court may
not remember much about your case.
Always keep in mind that judges are generalists who deal with a diverse array of legal
issues. Law clerks may have no experience whatsoever in your cases subject area.
With that audience in mind, your reply brief needs to convey the legal principles necPublished in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
12
essary to adjudicate the dispute. However, your reply brief should discard any superfluous legal principles. Knowing exactly what information to put into the reply brief
and what to keep out can be a delicate balancing act.
As an example of what not to do, Ninth Circuit Chief Judge Alex Kozinski has cautioned practitioners to avoid using acronyms and abbreviations in a reply brief without first reintroducing what those space savers stand for. Alex Kozinski, The Wrong
Stuff, 1992 BYU L. Rev. 325, 328 (1992). A judge should not have to jump back to your
opening brief to figure out what you are talking about.
Almost as bad as inundating the court with acronyms and abbreviations is using
unnecessarily complicated jargon. The court should not have to refer to your opening
brief or look up the words you use to understand your case. As astutely noted by Seventh Circuit Judge Richard Posner, Lawyers should understand the judges limited
knowledge of specialized fields and choose their vocabulary accordingly. Ind. Lumbermens Mut. Ins. Co. v. Reinsurance Results, Inc., 513 F. 3d 652, 658 (7th Cir. 2008).
8. Write a reply brief that is no longer than necessary. Just like knowing that the
sky is blue and the grass is green, many lawyers seem to believe that every reply brief
needs to fill the maximum number of pages allowed. Do not accept this as your
mantra. A reply brief should be only as long as it needs to be to persuade the court
that your side should prevail.
Court rules generally prescribe a maximum length of 1020 pages for reply briefs. In
addition, a judges local local rules may impose even stricter page limits, so be sure
to read them. Sometimes the maximum number of pages is necessary. Other times
four pages will suffice. On rare occasions, such as with a very complex case, you may
correctly decide to request to file an oversized brief. And, once in a blue moon, a pithy
one-paragraph reply brief will strike a nail into the coffin of opposing counsels case.
Do not shy away from filing a short reply brief if it will get the job done. A short reply
brief tells the court that you are confident about your position, and the points that
you do make will likely receive greater attention than these arguments would receive
if they were contained in a brief overloaded with unnecessary text.
9. Pay attention to details. When drafting a reply brief, it is common for lawyers to
paraphrase arguments or facts from their opening brief. There is nothing wrong with
this practice, assuming that you reexamine the cited authorities and record before fil-
13
ing. By paraphrasing, you may have subtly changed the meaning of your previous
arguments or factual statements, thereby leaving your assertions unsupported, lacking in precision, too aggressive, or not aggressive enough.
Do not underestimate the harm that can befall your credibility and ultimately your
case if you mess up a case or record citation or otherwise engage in sloppy cite checking. As an obvious example, the cases that you relied on in your opening brief may no
longer be good law.
10. Tell the court exactly what you want. A surprising number of litigants conclude
briefs without stating specifically what they want the court to do. Do not expect the
court to read your mind. Should summary judgment be granted on all claims and as to
all parties, or just some? Should the complaint be dismissed with or without prejudice? Is a straight reversal in order? Is a remand, perhaps with instructions to the
lower court, necessary? Is any alternative relief requested?
If you have a decent case and follow these 10 guidelines when drafting your reply
brief, the court should be prepared to give you what you want by the time it reads your
conclusion. Do not forget to be specific about what exactly that is.
Reprinted with permission from Pretrial Practice & Discovery. 2012 by the American
Bar Association. All rights reserved. This information or any or portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or
retrieval system without the express written consent of the American Bar Association.
Has Your Legal Writing Plateaued?

By Wayne Schiess
Wayne Schiess is the director of Legal Writing at The University of Texas School of Law in
Austin, Texas.
14
Are the legal writing classes you had in law school the last writing training youll need
for your career?
If you practice bankruptcy law, was a law-school course the last bankruptcy training
youll need? I know the answer to that because I was a bankruptcy lawyer before I
became a legal writing teacher. The answer is no. Youll need to stay current on bankruptcy law; youll need to read the recent cases and keep up with changes in the Bankruptcy Code; youll need to keep your knowledge and skills sharp.
The same holds true for legal writing.
Dont rest on the plateau you reached in law school. Legal writing is like any skill or
any substantive topic: theres always more to learn, and theres always room for
improvement.
But youre busy. Do you have time to work on your writing? I say you do, and I propose three steps for improving your writing throughout your career: you should study,
practice, and accept critique.
Study. You must study the principles of good writing, and of good legal writing, and
you must keep studying consistently. But how, when youre busy?
Set a goal to read one book on writing every year. One per year. You can do that, right?
There are lots of good books on legal writing out there, but here are three I like:
Lifting the Fog of Legalese by Joseph Kimble
The Lawyers Guide to Writing Well by Tom Goldstein & Jethro K. Lieberman
Legal Writing: Sense and Nonsense by David Mellinkoff
Then get a style manual and keep it by your computer. You can use a comprehensive
one intended for writing generally, like The Chicago Manual of Style, or one intended
specifically for legal writing, like The Redbook by Bryan A. Garner or Just Writing by
Anne Enquist and Laurel Currie Oates. If moneys tight, try the Texas Law Review
Manual on Usage & Style. Its not comprehensive, but its cheap and good.
15
The idea is to have a reliable reference handy to answer questions: Do I need to capitalize this word? How do I use the dash? Am I using this word correctly? Plus, you
inevitably increase your writing IQ whenever you serendipitously stumble upon an
interesting entry. Youre getting off your plateau.
Now put some legal writing into your CLE. We all need refreshers, and theres a good
chance youll learn something new, something that will make you a better writer.
Practice. Youre reading about writing, youre consulting writing references, and
youre taking some legal writing CLE. Youre becoming an informed legal writer. Now
practice what youre learning.
Of course, for any working lawyer, writing practice is part of the job: youre writing all
the time. Yet we all tend to rest on plateauswe write in the same way we always
have, with the same habits and the same mistakes. Thats why studying writing is so
important. Practice without study is usually just repetition. So experiment with
things youre learning. Try new techniques. Master new approaches to writing.
With study and practice, youll become a better editor of your own work. And we all
know that bad writing becomes good writing only through editing. Most of us (and
dont assume youre the exception) cant produce high-quality legal writing in one
draft (or two).
Accept critique. Now heres the hardest part: Seek and welcome critiques and candid
suggestions for improving your writing. This ones tough because its natural to be
defensive about your writingmaybe even insecure. I know I am. But when I avoid
critiques, I dont improve much. I rest on a plateau.
So open yourself up to honest critique. Find a trusted colleague, friend, or supervisor,
someone whose judgment and writing you respect. Then ask for suggestions, and take
them to heart.
For more on this topic, I recommend Kathleen Elliott Vinson, Improving Legal Writing:
A Life-Long Learning Process and Continuing Professional Challenge, 21 Touro L. Rev.
507 (2005).
16
This article original appeared in The Young Lawyer, December 2013 (Volume 16, Number
3). Reprinted with permission. 2013 by the American Bar Association. All rights
reserved. This information or any or portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without
the express written consent of the American Bar Association.
Controlling the Readers Perception of Your

Clients Story
By George D. Gopen
George D. Gopen is Professor Emeritus of the Practice of Rhetoric at Duke University.
During my first week of law school, we were shown a highly effective teaching film. It
pictured a car accident taking place at an intersection. The cameras perspective was
from the southeast corner. It was clear to us that X was at fault, and Y was the hapless
victim. After a brief disquisition on liability, we were shown the scene again, this time
shot from the northwest corner. It became apparent to us that we had it all wrong: Y
was at fault, and X was the hapless victim. Now we were privy to the truth. Then we
saw the scene a third timefrom the northeast corner, from where it was clear that
nothing was clear. From that angle, liability was impossible to assign. Where stories
are concerned, perspective makes all the difference.
This is equally the case for presenting stories in prose. Context controls meaning, and
perspective creates context. Clarence Darrow used to boast to his opponents, If you
let me state the facts, I will let you argue the lawand I will win. He did not mean
that he would suppress facts necessary to his opponents case, but rather that he
could so control the readers perspective on the facts that it would be clear his client
was in the right. How is that possible?
17
In the last issue of Litigation, I argued that most readers of English perceive a clause
as being the story of whoever or whatever is its grammatical subject. Jack loves Jill
is the story of Jack; and Jill is loved by Jack is the story of Jill. If you want to tell Jills
story, the latter sentence is far superior to the formerdespite its greater length and
its passive voice. A multi-clause sentence is the story of whoever or whatever shows
up as the grammatical subject of the sentences main clause.
While this is an important reader expectation to understand for any given sentence, it
is yet far more important when considering how to construct a continuing story. As a
writer, you can control which corner of the intersection will be the home of the camera.
Here is a story you might remember.
Version A: A passenger, carrying a package he had wrapped in newspaper, ran onto
the platform at the train station, fearing he might miss his train. When he saw the
train begin to move forward, he increased his speed to a dead run. He attempted to
leap from the platform onto the moving train. He was aided both by a guard on the
train who pulled him up and by a guard on the platform who pushed him forward. Jostled as he was from two opposite directions, he lost control of his package, which contained fireworks. It fell on the tracks and violently exploded. The shock of his
packages explosion overturned a large scale at the other end of the platform, which
hit and injured the plaintiff.
If the plaintiff had been suing the passenger, this narration might support her case
well. Each sentence until the last one has the passenger (or a reference to him) as its
grammatical subject. Even the last sentence is the story of his package. It is relatively clear from this narrative that the passengers actionsreckless and intentionalcaused her injuries.
But the plaintiff was suing the railroad. How should we change this narration if we
wanted this story to be substantially the railroads fault? We should make as much of
the narrative as possible the story of the railroadby keeping the railroads personnel
up front as the grammatical subjects.
Version B: Guard A, on a train that was beginning to move out of the station, perceived a would-be passenger looking like he was going to try to jump into the moving
car. Instead of warning the man not to make this effort, he offered his help to pull him
18
aboard. At the same time, Guard B, on the platform, instead of prohibiting the passenger from making the leap, forcefully tried to support him in his risky effort. By
jostling the passenger from two different directions, the guards helped dislodge from
his arms a package he was carrying, wrapped in newspaper. Their actions caused the
package, which contained fireworks, to fall several feet to the tracks, where it
exploded. The resulting shock overturned a large scale at the other end of the platform, which hit and injured the plaintiff.
From this continued perspective of the railroad employees, we get a strikingly different story. The guardsas subjects of those verbsare doing all the problematic
actions. In English, we read from left to right and through time. Whatever we
encounter on the left contextualizes whatever we discover to its right. This story is
slanted against the railroad, in the same way Version A was slanted against the passenger.
We could slant the story in favor of the plaintiff if we were to present each of the
details from her perspectiveby making her the grammatical subject as continuously
as possible.
Version C: The plaintiff was waiting for her train to arrive, standing on the platform
next to a large weighing scale. She noted a commotion developing at the other end of
the platform as a train began its exit from the station. She saw a would-be passenger
trying to leap aboard the moving train, with the guards on the platform and on the
train attempting to help him. She noticed the passengers package drop to the
tracksand then was overwhelmed by the sounds and sights of a huge explosion.
Suddenly she felt a great weight crack against her head and shoulders as she crumpled
to the ground under the overturned scale. She remained there in great pain, pinned by
the heavy scale, until rescued.
You may remember Miss Grundy, your middle school English teacher, admonishing
you to vary the way you begin your sentences to keep your reader interested. Perhaps
that was good advice back then; it is very bad advice for you now. Back then, your
reader was primarily (and maybe exclusively) Miss Grundy. As wonderful as she might
have been, there was no way she could possibly be interested in 42 essays on Why I
Like the Spring, with their topic sentences, their conclusions, and their compulsory
list of three examples:
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I like the spring because of the pretty flowers. I like the spring because of the tulips. I
like the spring because of the roses. I like the spring because of the daffodils. I like the
spring because of the pretty flowers.
She didnt mean interested; she meant sane. Daffodils are another reason I like
the spring. Vary the way you begin your sentences to keep me from going insane!
You do not have to keep your reader interested. Your reader is being paid to read you.
You need to keep your reader controlled. Keep the grammatical subjects of your sentences the same for as long as you are telling that particular story. Then, by changing
whose story the next sentence is, you will (silently) convey to your reader, . . . and
now we are changing the focus of our attention to this next story.
When Judge Cardozo wrote the facts into his opinion in Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), he did not try to slant the readers perception in an adversarial manner. Instead, he presented the actions as having a number
of different agentsspreading whose story it was appropriately over everybody. That
left open the question of responsibility, which he would then discuss. Here is his narration, with the grammatical subjects italicized:
Version D: Plaintiff was standing on a platform of defendants railroad after buying a
ticket to go to Rockaway Beach. A train stopped at the station, bound for another
place. Two men ran forward to catch it. One of the men reached the platform of the car
without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the
car, who had held the door open, reached forward to help him in, and another guard
on the platform pushed him from behind. In this act, the package was dislodged, and
fell upon the rails. It was a package of small size, about fifteen inches long, and was
covered by a newspaper. In fact it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell exploded. The
shock of the explosion threw down some scales at the other end of the platform, many
feet away. The scales struck the plaintiff, causing injuries for which she sues.
Palsgraf, 248 N.Y. at 34041.
20
It is the judges job to consider everybodys and everythings story, knit together in
the logical and chronological way that makes the best sense. It is an advocates job to
tell the story as fetchingly from the clients perspective as possible. Control whose
story it is at all times, and you control the perspective from which the reader perceives that story.
Reprinted with permission from Litigation, Summer/Fall 2012 (Volume 38, Number 4).
2014 by the American Bar Association. All rights reserved. This information or any or
portion thereof may not be copied or disseminated in any form or by any means or stored
in an electronic database or retrieval system without the express written consent of the
American Bar Association.
The Importance of Attentive Reading

By Bryan A. Garner
Bryan A. Garner (@bryanagarner), President of LawProse Inc., is the author of The
Elements of Legal Style, Legal Writing in Plain English, The Winning Brief, The Winning
Oral Argument, The Redbook: A Manual on Legal Style, and many other books. Since
1994, he has been editor in chief of all editions of Blacks Law Dictionary.
The company we keep is crucial to who we arein all sorts of ways. For example,
imagine that you aspire to be a first-class figure skater, but you dont ever see one perform, much less skate with one. If you aspire to master any challenging skill at all,
your progress will suffer if you dont learn from others whove already become proficient. Left to your own devices, you could stay mired in mediocrity.
When it comes to writing, theres a community of writers that you neednt know personally. You must simply observe what they do to make their writing so readable and
effective. Some people actually teach themselves by resorting to good models. For
example, when Robert Louis Stevenson decided that he wanted to learn to
21
writereally writehe invented an exercise. Hed take a passage from a writer of

acknowledged standing, hed read it twice, and then hed turn it over and try to replicate what hed just seenword for word, punctuation mark for punctuation mark.
Hed fail to come very close at first, and so hed repeat the exercise. Over time, he got
better and better. And he seems to have been motivated enough to have continued
that exercise for many years.
So what would that exercise have taught him? Undoubtedly he (1) cultivated a keen
ability to remember and imitate, (2) found that he often fell short by using more
words than necessary, (3) learned a good deal about word choice, (4) developed a
pleasing variability in syntax, (5) acquired a better understanding of building paragraphs, and (6) internalized the tools that writers use to link their paragraphs for better flow. With time, he must have found more and more instances in which his own
work outshone the passage that he was trying to replicate. That is, there were times
when his rewritten passage was shorter, bolder, more striking, and altogether more
pleasing.
Part of what Stevenson can teach usand most people have already figured this
outis that learning a skill begins by imitation. Hand a young girl some golf clubs, let
her watch good golfers on a practice range, and soon shell be making a pretty good
swing. Do it again and again, day after day, and people will marvel at the move she
makes when striking the ball. Much learning occurs by osmosis.
And although you begin by imitating, by the time you master a skill you develop your
own distinctive techniquebased in part on what youve admired in your predecessors. Thats true of writing, painting, playing a musical instrument, or whatever the
endeavor might be.
I was reminded of this truth recently while interviewing three federal judges at each
level of our judicial systemChief Justice John G. Roberts of the U.S. Supreme Court,
Chief Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals in Chicago,
and Chief Judge James M. Rosenbaum of the District of Minnesota. I asked, as I usually do in my judicial interviews, How does a law student or lawyer who wants to
improve actually do it? In their separate interviews, all three emphasized the importance of reading more attentively.
22
Chief Justice Roberts responded: You develop a lot as a writer the more you read. . . .
People lose a lot of writing ability when they get to law school because they tend to
read a lot of stuff that isnt well written, and they tend to stop reading other stuff that
is well written because they dont have the time. Theyre focused on some badly written cases, from whenever, or some badly written statute. And theyre not reading anything good.
The phrase badly written cases, from whenever stuck with me. Even today, the most
heavily represented period in our casebooks is 1880 to 1920, which was the nadir of
judicial writing in this country. That was the period in which opinions were most
abstruse, diffuse, and verbose. The students forced to read those cases have their style
polluted.
Chief Judge Easterbrook suggested remedies. He was discussing what second-year
lawyers, as opposed to law students, could do to improve. His diagnosis was similar to
the Chief Justices, and he followed it with a prescription: Spend more time reading.
And stop reading what lawyers are writing, because mostly lawyers read what other
lawyers are writing . . . and thats mostly bad. Start reading Hemingway and Faulkner.
Their styles are different, but theyre both wonderful writers. Read the Saul Bellows of
the world. Theres a lot of good and interesting writing out there.
But Judge Easterbrook went further, perhaps for those who dont have a literary bent
and would prefer not to make the leap of adapting a novelists style to what legal writers do. He touted good modern journalism: Start reading good magazines. Pick up a
copy of The Atlantic or Commentary, where people write intelligently about important
issues in short compass, using real English sentences. The magazines have good editors who edit down the pieces, but generally they choose good writing.
Then came his most pointed observation: The best way to become a good legal writer
is to spend more time reading good prose. And legal prose aint that! So read good
prose. And then when you come back and start writing legal documents, see if you can
write your document like a good article in The Atlantic, addressing a generalist audience. Thats how you do it: get your nose out of the lawbooks and go read some
more.
And what does an eminent trial judge say? In his off-the-cuff response, Chief Judge
Rosenbaum evoked shades of Robert Louis Stevenson: One of the ways you learn to
be a painter is to study paintings. Its not for nothing that when you go to the Louvre
23
or the Metropolitan Museum of Art there will be art students sitting there copying.
Nobody is going to mistake what theyre doing for Matisse or Picasso or Delacroix.
What theyre doing is learning the techniques that the artists used.
How does that relate to legal writers? Language, he said, is the tool that we use.
And learning to write takes work. When you read really well-written, beautiful prose,
it leaves an impression. And that impression can matter.
A good writing style is rewarded so automatically that you hardly notice whats going
on. You think that its the merits of the case or the soundness of the thought that
matters, and thats true as far as it goes. But its the style, the technique, that makes
the thought so transparently powerful. The same thought, in shabby dress, appears
much less compelling.
So read widely and attentively. My own highest recommendations for newsweeklies go
to The New Yorker and The Economist. Reading through them will be a tonic for your
style. And if youve been researching legal points and youre preparing to write something, take a few minutes first to read a short piece in one of those magazines. Over
time, your writing will benefit enormously.
Finding Good Models of Writing
To learn any skill, you need good models. For example, you cant learn to paint well
without studying the work of good painters. You cant learn to play the piano well
without watching and listening to good pianists. You cant learn to hit a golf ball well
without seeing good golfers. And you cant learn to write well without closely observing the work of good writers. Mere observation isnt enough, of coursecopious practice is also necessarybut its surely a prerequisite.
In legal writing, there are special hurdles not faced by artisans in other endeavors. Its
no trouble to find out where to find good paintings, good pianists, and good golfers.
No one is likely to be misled. And its not hard to find good writers. But in legal writing, things get tricky. If youre looking for a model research memo, motion, brief, or
contract, where do you go? If you go to just any senior lawyer, even in a major firm,
and ask for an example of the last such document the lawyer prepared, odds are slim
that youd get a model worth following. More likely, youd see a document with many
blunders that expert legal writers would disapprove.
24
Why? Because weve had bad models for a long time, and in our precedent-bound field
they tend to be perpetuated. Even our very method of legal educationusing the
casebook method of teaching mostly from old, badly written judicial opinionstends
to send lots of bad signals to each new generation of law students about what a legal
document should look like. Thats a pervasive problem.
And then finding particular models of excellence can also be a problem. Some years
ago, one of my professorial colleagues at a law school where I was teaching audited
my upper-division course and saw that I showed my students examples of first-rate
research memos. He also noted that I was critical of the sample memos in most firstyear legal writing texts. He took me aside and said that in the first-year program at
that particular law school, the legal-writing professors were carefully avoiding showing the students examples of good memos for fear that theyd slavish copy the format.
The advice to first years was: research well, think clearly, and write it up clearly. Now
go do a research memo!
Thats hardly useful advice. Law students need models. They need to see what a good
executive summary looks like, with a question presented and a brief answernot the
typical question presented but one that can actually be read and understood by any
intelligent reader in one reading. They need to see a statement of facts that is neither
too sparse nor too detailed. They need to see how the body of the memo states the
law, develops the analysis, and applies the law to the facts at hand to prove the conclusion that was stated clearly on page one. And they need to see several strategies for
closing well. Summer associates need the same thing.
And newly minted lawyers need to see samples of good motions and briefs. But as I
say, looking in files in a law office is likely to turn up nothing but mediocritiesdocuments with a fair amount of credibility destroying legalese, slow windups,
slow deliveries, confusing factual statements, weak analyses, and rote conclusions. I
know this because I see these documents week in and week out in law firms and legal
departments all across the nation.
On the transactional side, the problem is even worse. Most forms are riddled with elementary mistakes that can have serious consequences down the line: poor organization, inconsistently stated duties, insufficient headings, prodigious amounts of vague
and ambiguous legalese, improper punctuation, confusing design, and so on. All these
things detract from the substance of contracts and other types of legal instruments.
25
The problem, then, is finding good models. Ive been aware of the problem for a long
time, and Ive tried to remedy it in my own books, especially in Legal Writing in Plain
English and in The Redbook: A Manual on Legal Style, both of which contain plentiful
examples that it has taken a career to collect from some of the best legal writers
around the country. But lets assume you want more examples than can be found in
those two books. Where should you look? Here are my recommendations.
Lets begin with legal scholarship. The answer here is pretty easy: get a subscription
to the Green Bag (www.greenbag.org). Here youll find some of the best, most interesting legal scholarship to be found anywhere. Its a law review that defies most lawreview conventions. Your subscription will get you not just a quarterly journal at a
reasonable cost, but also a yearly almanac of good writing.
For several other types of legal writing, the Green Bag Almanac is your best choice.
Published since 2006, it gives awards for excellent legal writing of various kinds,
including short pieces in law reviews, long pieces in law reviews, op-ed pieces, judicial
opinions, briefs, motions, and books. Most of the award-winners are reproduced in
full. Its an extraordinarily useful compendium of good legal writingand it comes
free with your subscription to the Green Bag.
For briefs, there are outlets many legal writers hardly ever think of, such as the Solicitor Generals website (www.usdoj.gov/osg/briefs/search.html), which contains every
brief that the SG has filed in the federal appellate courts since July 1998 and selected
briefs going back to 1982. Mostly, the briefs are astoundingly goodon the whole,
markedly superior to what other lawyers are filing in those courts. Also worth reading
are any Supreme Court briefs you can find by Walter Dellinger, Clifton Elgarten,
Miguel Estrada, Theodore B. Olson, Evan M.Tager, or Charles Alan Wright.
The documents for which finding standout exemplars is especially difficult are
research memos, motions, and contractsand I mean actual examples prepared by
practicing lawyers, as opposed to law-school exercises. And remember that these are
the types of documents that new lawyers are most likely to need to prepare.
For these types of documents, books are the best resources.
26
Excerpt reprinted with permission from Garner on Language and Writing by Bryan A.
Garner. 2014 by the American Bar Association. All rights reserved. This information or
any or portion thereof may not be copied or disseminated in any form or by any means or
stored in an electronic database or retrieval system without the express written consent of
the American Bar Association.
Communications and Marketing
As with many professions, the practice of law comes with a host of writing opportunities that help the practitioner communicate with colleagues, coworkers, clients and
potential clients, and the public. From email messaging to blogging and tweeting,
theres no shortage of written communication requirements for the modern lawyer.
How to Write Better

By Michael Bess
Michael Bess is of counsel in Winston & Strawns appellate and critical motions practice
group.
Lets get one thing out of the way: I am not the best writer at my firm. Im a good
writer who is always looking to improve. My efforts to grow as a writer and to build a
career allow me to offer a little advice for new lawyers who wish to do the same. Follow these tips, and you will become a go-to lawyer for writing assignments.
27
Read good writing and adopt it. The quickest path to becoming a good writer is to
read good writing and adopt styles that work. I have worked with incredibly gifted
writersjudges and lawyers alikeand have tried to incorporate their strengths into
my own writing. Imitation is not only the sincerest form of flattery, but is also the
most effective tool for improvement.
Nail the introduction. Stating your case strongly and clearly at the beginning of a
piece is critical. A strong introduction will ensure that the reader understands from
the outset what outcome is warranted and why. The introduction should not have formal case citations, excessive details, or unnecessary distractions (such as unwieldy
definitions or acronyms). When drafting the introduction, think about what you want
the reader to do and why and condense it in one or two pages.
Drop unnecessary and case-specific details. Too often, central points in briefs get
lost amid unnecessary details. For example, there is typically no need to supply dates,
party names, or other case-specific details when describing case authority. For every
fact or detail that is included, the writer should ask: Is this necessary for the reader
to understand the point?
Dont use inflammatory language. There is no greater turn-off to judges than abusive, inflammatory, or foul language. The writer loses credibility when advancing ad
hominem attacks or incendiary and exaggerated arguments.
Make your brief user-friendly. Use record citations that are easy to understand so
that the judge can check the record easily. If referring to the adversarys argument,
always insert a citation for the pages where the argument appears.
Avoid excessive quotations and block quotes. Lengthy block quotes are not persuasive and disrupt an argument. Make quotations count to bolster their persuasive
impact. Paraphrasing should be the norm.
Dont recap legal standards unnecessarily. Including three pages on the summary
judgment standard is unnecessary. Judges know it well. Lengthy, boilerplate recitations of law are a waste especially when you are working against page limits.
Be discriminating in advancing arguments. Writers should be selective in what
arguments to advance. Unless preservation is an issue, a writer should advance only
good arguments, not every argument under the sun.
28
Check topic sentences. Paragraphs must flow logically from their first sentence.
Otherwise, your argument will not make sense.
Be organized. A brief can follow all of the rules listed above but will fail if the points
are not organized logically and clearly.
Promote your writing. Effective writing is important to clients. It can save them a
lot of money (there is no better news for a client than prevailing on a motion to dismiss) or save the day on appeal. If you are at a firm, send samples of your writing to
partners to show them how you can help their clients.
Work on trials and appeals. Try to diversify your workload. I have worked on dispositive motions, on trial teams as a motion writer, and also on appeals. These require
different skills, but acquiring a greater range of skills will make you more marketable.
Solicit outside opinions. Solicit critical analysis of your writing. The best writers Ive
worked with shared a common trait: They all know they can get better. Good writers
throw out their egos and seek feedback and opinions from others, because the effectiveness of a brief is determined solely by the reader.
Print this article and carry it with you everywhere you go. Or at least keep these
tips handy and review them often. Soon colleagues will be asking for your opinion
and editing prowess.
If you are looking for more writing advice via an expert approach, Marie Buckleys The
Lawyers Essential Guide to Writing is a readable, concrete guide to contemporary legal
writing. This book is available at www.ShopABA.org.
This article originally appeared in TYL, Winter 2014 (volume 18, number 2).Reprinted
with permission. 2014 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.
29
Why Should You Have a Legal Blog?

By Ernest Svenson
Ernest Svenson is the author of the book Blogging in One Hour for Lawyers. His blog
ernietheattorney.net was chosen by the ABA Journal as one of the top 100 law blawgs two
years in a row.
Google yourself. If you have a common name add lawyer to the search. Or add your
home town or your law firm name. Keep revising your search results until you have a
sense of how findable you are and once found, what the results show. If youre not
findable at all thats not good, and if you dont like what you find thats not good
either.
Heres the thing: you want to have as much influence over what people learn about
you on the web as you can. Having that control is not hard; it just takes consistent
effort and the right tool. Weblogs are the best tool for this job. Weblogs are better
than websites because you can make a weblog work like a website, but you cant make
a website work like a blog.
Weblogs can be located more easily than a website. Google and other search engines
tend to favor blogs in their results because blogs are updated more frequently. So set
up a weblog and learn how to update it often; its not that hard, and the payoff is
tremendous. Every business, large or small, needs a web presence, but smaller businesses are the ones that need it most. And thats especially true for solo lawyers and
small firms.
If you dont have a web presence, then youve forsaken any chance to get business
from people who are trying to find a lawyer online. Also, folks looking for someone to
write a short article on a legal topic, or deliver a speech to their trade group, wont
know you exist. Reporters looking for a legal expert wont call you. They cant easily
find you. So if the phone doesnt ring youll know its them.
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Will having a blog result in new business? Probably. But you must be sincere and
thoughtful in your posts. If you put out useful information on a regular basis, people
will find you more often, and trust you more when they find you. It works: read what
these lawyers say blogging did for them.
The initial set up of a blog can take time and be challenging if you do it yourself, so
consider hiring someone to set up a Wordpress blog with a domain name that you
select. In most cases you can get a weblog set up for under $500. The annual cost of
keeping a blog running is generally around $200 (thats the cost of hosting your
online content and having your own domain name).
Once you have the blog set up with a design you like, you just have to learn how to
create posts and find topics you can easily blog about. To get topic ideas, look at what
others are writing. Whats missing? What you can add specific to your area of practice
or region? If there are no law blogs on your topic, then you should definitely jump in
and start a blog.
You should be keeping up with your practice area already, and using email, social
media, and an RSS reader are the most efficient ways to do that. So the hardest part of
blogging (besides the actual writing) is just learning to use a tool that will save you
time and help you gather legal information most efficiently. You should learn to do
this regardless of whether you have a blog.
Once you have a blog, its just a matter of writing the posts. This is easier than youd
imagine because youre not expected to write anything lengthy or laden with footnotes. Most blog posts are no more than two paragraphs. The first paragraph should
tantalize the reader and set up the main point; the second can expand slightly, making extensive use of hyperlinks.
Hyperlinks to other blog posts are a great way to help other bloggers, who will then be
inclined to want to help you.
This article original appeared in The Young Lawyer, April 2013 (Volume 17, Number 6).
Reprinted with permission. 2013 by the American Bar Association. All rights reserved.
This information or any or portion thereof may not be copied or disseminated in any form
or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.
31
Building a Better Blog

By Ernest Svenson
Ernest Svenson is known for his Ernie the Attorneysite, which was twice chosen by the
ABA Journal as a top 100 blog. He believes that the practice of law is increasingly an
information processing business. He frequently speaks to lawyers about how to use
technology better, and has a blog focused on that message:
http://www.paperlesschase.com/.
I started my first two law blogs in 2002 and 2003 respectively. Ive started a couple of
other blogs since then, and watched constellations of law blogs forming in the blogosphere. If you are interested in starting a law-related blog (sometimes call a blawg),
here are some thoughts based on my experience as a creator and observer of law
blogs.
Blogging is really hard if you dont like to write. If you like to write its still hard, but
you wont notice the difficulty as much. Relative to the other social media tools covered in this article, it is more work to create and run a blog, but the potential returns
are greater.
If blogging is new to you or you are struggling to see how it might work for your practice, take a look at what others are doing. Be careful to look at them from a readers
perspective. You should also take notes on things you want to try to emulate (like
design, writing style, topic choices or hyperlinking methods). You can find good lists
of active blogs on the ABA Journal Blawg Directory (www.abajournal.com/blawgs) and
the Canadian Law Blogs List (lawblogs.ca).
Creating a blog
There are three basic questions you need to address when creating a blog: 1. Where
will you host your blog? 2. What blogging software/platform will you use? and 3. Will
you have your own d/omain? Lets focus on the first two for the moment.
32
If you use a service like TypePad (typepad.com), which is where I host my PDF for
Lawyers blog (pdfforlawyers.com), you have the benefit of getting the blogging software/platform and the hosting all in one place. You can host your blog at WordPress.com, but most people who use WordPress choose to host it elsewhere.
These days, most people seem to use WordPress, probably because there are many
customization options. WordPress will not paint you into a corner if you find you want
to do more with your blog (e.g. ability to notify Twitter or Facebook of blog post
updates). You can use Googles free Blogger software (blogger.com), and many people
do. But, youll probably regret that decision if your blog gets popular and you start
wanting to do more with it.
If you have any kind of technology or Web experience, setting up a WordPress blog
should be fairly easy for you. However, my recommendation is to find someone to set
it up for you. Dont spend your valuable time when you can spend a little money
(probably no more than $200) to get the basic set up. If you want help figuring out
how to make the design of the blog more sophisticated, then youll spend a few hundred dollars more. The cheapest way to get a decent looking WordPress blog is to use
a site like oDesk.com to find a Web designer. On this site, people from all over the
world compete for design work. The end result will be something far more professional than you could likely create.
Now, back to question #3: Do you want your blog to have its own domain name? Well,
if youre going to go through all the trouble involved with setting up a WordPress
blog, then Id say youd want a domain name. You can get a domain name with a Web
address for $30/year or less. I get my domains at Hover.com, but I have used
GoDaddy.com in the past. Hover is a little more expensive, but its site is easier to navigate and it has actual human beings answer their phones and help you with whatever
problems you might have. On the other hand, GoDaddy will provide you with a
domain name and hosting. So, in summary, I recommend:
Get a domain name.
Find a hosting site such as 1and1.com or GoDaddy.com.
Hire a Web designer for no more than $500 to set up your blog. If you use oDesk,
Id try not to pay more than $300, which shouldnt be a problem if you have the
domain and the hosting site established.
33
Blogging for fun and profit

The blogosphere abounds with advice on how to blog, and I encourage you to seek out
and exploit the diversity of opinions. That said, here are my quick suggestions:
Decide on a niche topic, if possible.
Plan to post regularly (e.g., once a week, once a day, three times a day, whatever
makes sense for you).
Link to other bloggers, even if (or especially if) they write about areas similar to yours.
I cant say this emphatically enough. If you want people to link to your blogand,
trust me, you dothen you need to link to other sites. Google assigns page rank to
your blog based on how many inbound links you have and the ranking of the sites that
link to you.
How to gather ideas for your blog
Writing regular blog posts takes time, but after awhile you get quick at cranking out
the posts. The trick is to keep coming up with new ideas for posts. Over the years I
have developed certain tricks that make this part of the process ridiculously easy. Id
patent my technique, but Ive noticed that almost every other prolific blogger has
been using this technique since day one.
Have you heard of RSS, or RSS Readers? If not, search Google for these terms to find
out how these tools can make relevant information come to you. All prolific bloggers
use RSS feeds.
Another thing that most prolific bloggers use is Twitter. They use it in two ways:
To gather ideas quickly.
To announce when they have posted something on their blog. Twitter is by far my
best source of news and blog post ideas. Why? Well, because the ideas are neatly
compacted into 140 characters, and the good ones are easy to spot. You should
follow as many people as you can on Twitter, and build up a following of people
who are interested in your niche topic.
What about using LinkedIn? I dont use LinkedIn for my blogs. I do use it for my law
firms website, where I have a link to my online resume. This is a link to my profile
page on LinkedIn. Its more than an online resume because it also has recommendaPublished in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
34
tions of my legal work and my speaking engagements from people who have hired me
or who have worked with me. Some lawyers do find it is useful to feed some or all of
their blog posts to LinkedIn.
Another place you can spread your blog posts to, that will seem reflexively undesirable to many lawyers, is Facebook. I was disdainful of Facebook initially, but a social
media coach that I hired convinced me to use Facebook for my various blogs. What
you want to do is set up a page that has the same name (if its available on Facebook)
as your blog, or at least close.
Air traffic control for social media
Ill bet youre probably wondering how I manage to stream content to three different
blogs, three different Twitter accounts, and four different Facebook pages? Frankly, it
wasnt until my social media coach showed me some tools that let you blast out content from one place and have it appear wherever you want, whenever you choose.
Before I explain how to do this, lets focus on why I want to have lots of content flowing through several parallel sites. Basically, the more places your content appears, the
more people will view it. I might not like Facebook, but lots of peopleapproximately
800 million as of now do. Same with Twitter or LinkedIn. So if I can blast my content once and have it appear in several places, thats a huge benefit.
Another benefit is to be able to sprinkle a bevy of short Twitter posts into a queue
that releases them, say, once an hour during peak viewing times. The tool I use to
accomplish this is called SocialOomph.com, and it allows me to manage my blogs
(most of them), Twitter feeds and Facebook pages. SocialOomph doesnt work with
LinkedIn. If you want to manage a LinkedIn account then you should check out HootSuite.com, but as of now it doesnt work with blogs.
The easiest thing is to only have one blog, and set it up to auto notify Twitter and
Facebook. You can use a tool like TweetDeck to auto-update Twitter on a scheduled
basis.
Google has been trying to get a piece of the social media pie for quite a while. Google+
is the latest attempt, and I was skeptical at first. But now it appears that its at least
worth paying attention to. But for now, I dont think it is one of the top three things
to worry about if youre starting a blog.
35
Dangers of blogging
There is an old saying, Its better to keep ones mouth closed and be thought a fool,
than to open it and remove all doubt. That proverb applies to blogging. If you tend to
say foolish things, or you dont think carefully before you speak, then youve probably
gotten into trouble before. Whatever trouble you got into before will pale in comparison to the kind of trouble you can get into with a blog.
Plus, trouble comes at you much faster when youre speaking through a microphone
thats connected to the Internet. What about ethical issues for lawyers who blog?
The world is changing quickly and its hard to predict how ethics rules might change
or evolve, but my rules of thumb for avoiding trouble ARE:
I dont use my blog to advertise a law practice.
I dont talk about any aspect of any of my cases at all. Some lawyers use their
blogs as an advertising tool, and thats fine, as long as they comply with whatever
rules their state may have regarding lawyer advertising.
I dont believe that advertising, or shameless promoting, works very well on the Internet. It doesnt work as well as steadily acquiring readers by writing about interesting
topics in an interesting way. Ive gotten a lot of business as a result of my blog, even
though I dont use it to advertise or overtly promote my law practice.
Sometimes a lawyer in another state who reads my blog will have a case in New
Orleans, and usually I get called because the lawyer tends to feel like they know a bit
about me from my blog. Or sometimes its a potential client who has a legal problem
and searches for a lawyer using Google and one of my blog posts shows up. They do
some research and find my law firms blog, and then they call me or email me.
People use the Internet to search for things. They dont sit and stare at their computer
screen to see if it changes into something interesting like they do when they watch
TV. Hence, people are more savvy (at least while theyre searching) about evaluating
claims. Hokey lawyer advertising only works when peoples minds are functioning at a
low level. A blog will attract people who can reason well and who know what they
want. Those kinds of clients have been my favorite kind to work for, so I plan to never
advertise and continue blogging about general topics.
36
My best tip
If you want to stand out on the Internet, you have to do something that few people
are doing. Heres my recommendation: Be radically honest and down-to-earth about
who you are and what you hope to see happen in the world. Dont preach, and dont
be dogmatic. Just let your curiosity guide you, and then report on what you find in
your explorations. Thats a formula thats easy to apply. Its also easy to copy,
buttrust mefor some weird reason, not many people will. Jump in and have some
fun.
Reprinted with permission from Law Practice Management. 2014 by the American Bar
Association. All rights reserved. This information or any or portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or
retrieval system without the express written consent of the American Bar Association.
The Rules for Using Email in the Workplace

By Kevin Bailey
Kevin Bailey, a digital communications specialist at the American Bar Association, is the
manager of digital periodicals development for ABA Publishing.
Email is dangerous business. Unfortunately, we have to use it for professional means.

Its unreasonable to think people dont form opinions of us based on our messages.
They miss our subtle senses of humor, call us jerks, or, if were lucky, understand us
better from our email. We all have sent an errant message to the wrong person and,
perhaps without knowing, insulted colleagues. But what to do?
The following rules will help you write messages that are straightforward and efficient. While they might not land you a fat bonus, they just might help you lay the
groundworkor, at the very least, keep you out of hot water.
37
Call an in-person meeting or make a phone call instead. Insider whether you
want your points etched in stone and easy to share with unintended audiences.
Think about tone. Consider a liberal use of please and thanks, though there is a
fine line between being pleasant and sounding obnoxious. I recently heard about an
email with a deadline of no later than COB Wednesday. Seems innocuous, but no
later than can also sound like an ultimatum.
Dont forget your audience. That ultimatum above was sent by a lower-level
employee to the company CFO, who was not pleased. The inverse holds, by the way;
some supervisors use email to intimidate subordinates. Bad idea. Also, be judicious in
whom you cc; it sends a signal to other recipients.
Organize the information for quick digestion. Include action items for specific
recipients. Bulleted or numbered lists and a hierarchy of importance aid consumption.
Edit it down to the bare essentials. Avoid excessive description and editorializing.
Commanding vocabulary can come across as patronizing in business messages. Email
isnt the place to write a novel.
Dont dodge problems or create confrontations. Accept responsibility for mistakes. Its refreshing to see someone own their mistakes.
Include a salutation and valediction. Omitting either suggests youre short on time
and/or rude, neither of which is helpful. But avoid the unorthodox (for example, skip
ahoy, gday, ciao, and cheers).
Review before sending. Add recipients when you are done to avoid accidently sending before a message is final. If youre in a dicey situation, have someone else review
before you hit send.
This article originally appeared in TYL, Winter 2014 (volume 18, number 2).Reprinted
with permission. 2014 by the American Bar Association. All rights reserved. This
information or any or portion thereof may not be copied or disseminated in any form
or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.
38
10 Tips for Avoiding Ethical Lapses When

Using Social Media
By Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath
Christina Vassiliou Harvey is an associate at Lomurro Davison Eastman & Muoz PA in
Freehold, New Jersey. Mac R. McCoy is a shareholder at Carlton Fields Jorden Burt, P.A. in
Tampa, Florida. Brook Sneath is a business development and marketing coordinator at
Phelps Dunbar LLP in Tampa, Florida.
You may be among the thousands of legal professionals flocking to social media sites
like LinkedIn, Facebook, Twitter, or Google+ to expand your professional presence in
the emerging digital frontier. If so, have you paused to consider how the ethics rules
apply to your online activities? You should. Some of the ethical constraints that apply
to your social media usage as a legal professional may surprise you. Moreover, legal
ethics regulators across the country are beginning to pay close attention to what legal
professionals are doing with social media, how they are doing it, and why they are
doing it. The result is a patchwork quilt of ethics opinions and rule changes intended
to clarify how the rules of professional conduct apply to social media activities.
This article provides 10 tips for avoiding ethical lapses while using social media as a
legal professional. The authors cite primarily to the ABA Model Rules of Professional
Conduct (RPC) and select ethics opinions from various states. In addition to considering the general information in this article, you should carefully review the ethics rules
and ethics opinions adopted by the specific jurisdiction(s) in which you are licensed
and in which your law firm maintains an office.
1. Social Media Profiles and Posts May Constitute Legal Advertising
Many lawyersincluding judges and in-house counselmay not think of their social
media profiles and posts as constituting legal advertisements. After all, legal advertising is limited to glossy brochures, highway billboards, bus benches, late-night televiPublished in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
39
sion commercials, and the back of the phonebook, right? Wrong. In many jurisdictions, lawyer and law firm websites are deemed to be advertisements. Because social
media profiles (including blogs, Facebook pages, and LinkedIn profiles) are by their
nature websites, they too may constitute advertisements.
For example, the Florida Supreme Court recently overhauled that states advertising
rules to make clear that lawyer and law firm websites (including social networking and
video sharing sites) are subject to many of the restrictions applicable to other traditional forms of lawyer advertising. Similarly, California Ethics Opinion 2012-186 concluded that the lawyer advertising rules in that state applied to social media posts,
depending on the nature of the posted statement or content.
2. Avoid Making False or Misleading Statements
The ethical prohibition against making false or misleading statements pervades many
of the ABA Model Rules, including RPC 4.1 (Truthfulness in Statements to Others),
4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 7.1
(Communication Concerning a Lawyers Services), 7.4 (Communication of Fields of
Practice and Specialization), and 8.4 (Misconduct), as well as the analogous state
ethics rules. ABA Formal Opinion 10-457 concluded that lawyer websites must comply with the ABA Model Rules that prohibit false or misleading statements. The same
obligation extends to social media websites.
South Carolina Ethics Opinion 12-03, for example, concluded that lawyers may not
participate in websites designed to allow non-lawyer users to post legal questions
where the website describes the attorneys answering those questions as experts.
Similarly, New York State Ethics Opinion 972 concluded that a lawyer may not list his
or her practice areas under the heading specialties on a social media site unless the
lawyer is appropriately certified as a specialistand law firms may not do so at all.
Although most legal professionals are already appropriately sensitive to these restrictions, some social media activities may nevertheless give rise to unanticipated ethical
lapses. A common example occurs when a lawyer creates a social media account and
completes a profile without realizing that the social media platform will brand the
lawyer to the public as an expert or a specialist or as having legal expertise or
specialties. Under RPC 7.4 and equivalent state ethics rules, lawyers are generally
prohibited from claiming to be a specialist in the law. The ethics rules in many
states extend this restriction to use of terms like expert or expertise. NeverthePublished in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
40
less, many professional social networking platforms (e.g., LinkedIn) may invite
lawyers to identify specialties or expertise in their profiles, or the sites may by
default identify and actively promote a lawyer to other users as an expert or specialist in the law. This is problematic because the lawyer completing his or her profile cannot always remove or avoid these labels.
3. Avoid Making Prohibited Solicitations
Solicitations by a lawyer or a law firm offering to provide legal services and motivated
by pecuniary gain are restricted under RPC 7.3 and equivalent state ethics rules.
Some, but not all, state analogues recognize limited exceptions for communications
to other lawyers, family members, close personal friends, persons with whom the
lawyer has a prior professional relationship, and/or persons who have specifically
requested information from the lawyer.
By its very design, social media allows users to communicate with each other or the
public at-large through one or more means. The rules prohibiting solicitations force
legal professionals to evaluatebefore sending any public or private social media
communication to any other userwhom the intended recipient is and why the lawyer
or law firm is communicating with that particular person. For example, a Facebook
friend request or LinkedIn invitation that offers to provide legal services to a nonlawyer with whom the sending lawyer does not have an existing relationship may very
well rise to the level of a prohibited solicitation.
Legal professionals may also unintentionally send prohibited solicitations merely by
using certain automatic features of some social media sites that are designed to facilitate convenient connections between users. For instance, LinkedIn provides an option
to import e-mail address books to LinkedIn for purposes of sending automatic or
batch invitations. This may seem like an efficient option to minimize the time
required to locate and connect with everyone you know on LinkedIn. However, sending automatic or batch invitations to everyone identified in your e-mail address book
could result in networking invitations being sent to persons who are not lawyers,
family members, close personal friends, current or former clients, or others with
whom a lawyer may ethically communicate. Moreover, if these recipients do not
accept the initial networking invitation, LinkedIn will automatically send two follow
up reminders unless the initial invitation is affirmatively withdrawn. Each such
reminder would conceivably constitute a separate violation of the rules prohibiting
solicitations.
41
4. Do Not Disclose Privileged or Confidential Information

Social media also creates a potential risk of disclosing (inadvertently or otherwise)
privileged or confidential information, including the identities of current or former
clients. The duty to protect privileged and confidential client information extends to
current clients (RPC 1.6), former clients (RPC 1.9), and prospective clients (RPC 1.18).
Consistent with these rules, ABA Formal Opinion 10-457 provides that lawyers must
obtain client consent before posting information about clients on websites. In a
content-driven environment like social media where users are accustomed to casually
commenting on day-to-day activities, including work-related activities, lawyers must
be especially careful to avoid posting any information that could conceivably violate
confidentiality obligations. This includes the casual use of geo-tagging in social
media posts or photos that may inadvertently reveal your geographic location when
traveling on confidential client business.
There are a few examples of lawyers who found themselves in ethical crosshairs after
posting client information online. For example, in In re Skinner, 740 S.E.2d 171 (Ga.
2013), the Georgia Supreme Court rejected a petition for voluntary reprimand (the
mildest form of public discipline permitted under that states rules) where a lawyer
admitted to disclosing information online about a former client in response to negative reviews on consumer websites. In a more extreme example, the Illinois Supreme
Court in In re Peshek, M.R. 23794 (Ill. May 18, 2010) suspended an assistant public
defender from practice for 60 days for, among other things, blogging about clients and
implying in at least one such post that a client may have committed perjury. The Wisconsin Supreme Court imposed reciprocal discipline on the same attorney for the
same misconduct. In re Disciplinary Proceedings Against Peshek, 798 N.W.2d 879 (Wis.
2011).
Interestingly, the Virginia Supreme Court held in Hunter v. Virginia State Bar, 744
S.E.2d 611 (Va. 2013), that confidentiality obligations have limits when weighed
against a lawyers First Amendment protections. Specifically, the court held that
although a lawyers blog posts were commercial speech, the Virginia State Bar could
not prohibit the lawyer from posting non-privileged information about clients and
former clients without the clients consent where (1) the information related to closed
cases and (2) the information was publicly available from court records and, therefore,
the lawyer was free, like any other citizen, to disclose what actually transpired in the
courtroom.
5. Do Not Assume You Can Friend Judges
42
In the offline world, it is inevitable that lawyers and judges will meet, network, and
sometimes even become personal friends. These real-world professional and personal
relationships are, of course, subject to ethical constraints. So, too, are online interactions between lawyers and judges through social media (e.g., becoming Facebook
friends or LinkedIn connections) subject to ethical constraints.
Different jurisdictions have adopted different standards for judges to follow. ABA Formal Opinion 462 recently concluded that a judge may participate in online social networking, but in doing so must comply with the Code of Judicial Conduct and consider
his or her ethical obligations on a case-by-case (and connection-by-connection) basis.
Several states have adopted similar views, including Connecticut (Op. 2013-06), Kentucky (Op. JE-119), Maryland (Op. 2012-07), New York (Op. 13-39, 08-176), Ohio (Op.
2010-7), South Carolina (Op. 17-2009), and Tennessee (Op. 12-01).
In contrast, states like California (Op. 66), Florida, Massachusetts (Op. 2011-6), and
Oklahoma (Op. 2011-3) have adopted a more restrictive view. Florida Ethics Opinion
2009-20, for example, concluded that a judge cannot friend lawyers on Facebook who
may appear before the judge because doing so suggests that the lawyer is in a special
position to influence the judge. Florida Ethics Opinion 2012-12 subsequently
extended the same rationale to judges using LinkedIn and the more recent Opinion
2013-14 further cautioned judges about the risks of using Twitter. Consistent with
these ethics opinions, a Florida court held that a trial judge presiding over a criminal
case was required to recuse himself because the judge was Facebook friends with the
prosecutor. See Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).
6. Avoid Communications with Represented Parties
Under RPC 4.2 and equivalent state ethics rules, a lawyer is forbidden from communicating with a person whom the lawyer knows to be represented by counsel without
first obtaining consent from the represented persons lawyer. Under RPC 8.4(a) and
similar state rules, this prohibition extends to any agents (secretaries, paralegals, private investigators, etc.) who may act on the lawyers behalf.
These bright-line restrictions effectively prohibit lawyers and their agents from
engaging in social media communications with persons whom the lawyer knows to be
represented by counsel. This means that a lawyer may not send Facebook friend
requests or LinkedIn invitations to opposing parties known to be represented by
counsel in order to gain access to those parties private social media content. In the
43
corporate context, San Diego County Bar Association Opinion 2011-2 concluded that
high-ranking employees of a corporation should be treated as represented parties
and, therefore, a lawyer could not send a Facebook friend request to those employees
to gain access to their Facebook content.
On the other hand, viewing publicly accessible social media content that does not
precipitate communication with a represented party (e.g., viewing public blog posts
or Tweets) is generally considered fair game. That was the conclusion reached by Oregon Ethics Opinions 2013-189 and 2005-164, which analogized viewing public social
media content to reading a magazine article or a published book.
7. Be Cautious When Communicating with Unrepresented Third Parties
Underlying RPC 3.4 (Fairness to Opposing Party and Counsel), 4.1 (Truthfulness in
Statements to Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for
Rights of Third Persons), and 8.4 (Misconduct), and similar state ethics rules is concern for protecting third parties against abusive lawyer conduct. In a social media
context, these rules require lawyers to be cautious in online interactions with unrepresented third parties. Issues commonly arise when lawyers use social media to obtain
information from third-party witnesses that may be useful in a litigation matter. As
with represented parties, publicly viewable social media content is generally fair
game. If, however, the information sought is safely nestled behind the third partys
privacy settings, ethical constraints may limit the lawyers options for obtaining it.
Of the jurisdictions that have addressed this issue, the consensus appears to be that a
lawyer may not attempt to gain access to non-public social media content by using
subterfuge, trickery, dishonesty, deception, pretext, false pretenses, or an alias. For
example, ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New
York State (Op. 843), and New York City (Op. 2010-2) concluded that lawyers are not
permitted (either themselves or through agents) to engage in false or deceptive tactics
to circumvent social media users privacy settings to reach non-public information.
Ethics opinions by other bar associations, including the Philadelphia Bar Association
(Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), have gone one
step further and concluded that lawyers must affirmatively disclose their reasons for
communicating with the third party.
8. Beware of Inadvertently Creating Attorney-Client Relationships
44
An attorney-client relationship may be formed through electronic communications,

including social media communications. ABA Formal Opinion 10-457 recognized that
by enabling communications between prospective clients and lawyers, websites may
give rise to inadvertent lawyer-client relationships and trigger ethical obligations to
prospective clients under RPC 1.18. The interactive nature of social media (e.g., inviting and responding to comments to a blog post, engaging in Twitter conversations, or
responding to legal questions posted by users on a message board or a law firms
Facebook page) creates a real risk of inadvertently forming attorney-client relationships with non-lawyers, especially when the objective purpose of the communication
from the consumers perspective is to consult with the lawyer about the possibility of
forming a lawyer-client relationship regarding a specific matter or legal need. Of
course, if an attorney-client relationship attaches, so, too, do the attendant obligations to maintain the confidentiality of client information and to avoid conflicts of
interest.
Depending upon the ethics rules in the jurisdiction(s) where the communication takes
place, use of appropriate disclaimers in a lawyers or a law firms social media profile
or in connection with specific posts may help avoid inadvertently creating attorneyclient relationships, so long as the lawyers or law firms online conduct is consistent
with the disclaimer. In that respect, South Carolina Ethics Opinion 12-03 concluded
that [a]ttempting to disclaim (through buried language) an attorney-client relationship in advance of providing specific legal advice in a specific matter, and using similarly buried language to advise against reliance on the advice is patently unfair and
misleading to laypersons.
9. Beware of Potential Unauthorized Practice Violations
A public social media post (like a public Tweet) knows no geographic boundaries.
Public social media content is accessible to everyone on the planet who has an Internet connection. If legal professionals elect to interact with non-lawyer social media
users, then they must be mindful that their activities may be subject not only to the
ethics rules of the jurisdictions in which they are licensed, but also potentially the
ethics rules in any jurisdiction where the recipient(s) of any communication is(are)
located. Under RPC 5.5 and similar state ethics rules, lawyers are not permitted to
practice law in jurisdictions where they are not admitted to practice. Moreover, under
RPC 8.5 and analogous state rules, a lawyer may be disciplined in any jurisdiction
where he or she is admitted to practice (irrespective of where the conduct at issue
takes place) or in any jurisdiction where he or she provides or offers to provide legal
45
services. It is prudent, therefore, for lawyers to avoid online activities that could be
construed as the unauthorized practice of law in any jurisdiction(s) where the lawyer
is not admitted to practice.
10. Tread Cautiously with Testimonials, Endorsements, and Ratings
Many social media platforms like LinkedIn and Avvo heavily promote the use of testimonials, endorsements, and ratings (either by peers or consumers). These features are
typically designed by social media companies with one-size-fits-all functionality and
little or no attention given to variations in state ethics rules. Some jurisdictions prohibit or severely restrict lawyers use of testimonials and endorsements. They may
also require testimonials and endorsements to be accompanied by specific disclaimers. South Carolina Ethics Opinion 09-10, for example, provides that (1) lawyers
cannot solicit or allow publication of testimonials on websites and (2) lawyers cannot
solicit or allow publication of endorsements unless presented in a way that would not
be misleading or likely to create unjustified expectations. The opinion also concluded
that lawyers who claim their profiles on social media sites like LinkedIn and Avvo
(which include functions for endorsements, testimonials, and ratings) are responsible
for conforming all of the information on their profiles to the ethics rules.
Lawyers must, therefore, pay careful attention to whether their use of any endorsement, testimonial, or rating features of a social networking site is capable of complying with the ethics rules that apply in the state(s) where they are licensed. If not, then
the lawyer may have no choice but to remove that content from his or her profile.
Conclusion
Despite the risks associated with using social media as a legal professional, the
unprecedented opportunities this revolutionary technology brings to the legal profession to, among other things, promote greater competency, foster community, and
educate the public about the law and the availability of legal services justify the effort
necessary to learn how to use the technology in an ethical manner. E-mail technology
likely had its early detractors and, yet, virtually all lawyers are now highly dependent
on e-mail in their daily law practice. Ten years from now, we may similarly view social
media as an essential tool for the practice of law.
46
Reprinted with permission from Business Law Today. 2014 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar
Association.
Writing Opportunities for Lawyers
In many professions, those wishing to make a name for themselves rely on a variety of
opportunities to promote their expertise and their businesses, and the legal field is no
exception. Fortunately, being a lawyer equips a person with the kinds of skills needed
to excel in one of the most prevalent and visible of these outlets: writing. Writing
opportunities for lawyers run the gamut: from shorter analytical or essay compositions to long-form, journalistic pieces on substantive law, there are outlets for many
kinds of writing. Here are a few possibilities:
Print: Opportunities abound for lawyers to write for print magazines, newsletters,
and journals. From city and state bar periodicals to national and international lawrelated journals, print is still a primary source many of todays top lawyers. The ABA
prints dozens of magazines, journals, and newsletters that are in need of contributions from practitioners in the field. Print publications include TYL, The Brief, GPSolo,
Human Rights, International Law News, Landslide (intellectual property law), Litigation,
Natural Resources & Environment, Perspectives, Probate & Property, The SciTech
Lawyer, and more. Additional information can be found at www.americanbar.org.
Web sites, Email Newsletters, and Blogs: The web is awash in written content, but
the path to success lies in writing succinct, engaging articles and blog posts that allow
readers to quickly consume key points and relevant information. Whether you are
contributing to a web magazine, writing for your own blog, or guest-posting to
another site, you will excel in this medium by authoring compelling stories that are
well-edited and told with style and good nature. Keep it substantive and be sure to
carefully craft and edit your work. The ABA publishes a variety of web-based publicaPublished in TYL In Focus:, Volume 1, Number 6, 2014 by the American Bar Association. Reproduced
47
tions, including, but not limited to, TYLGPSolo eReport, Litigation News, Trends (natural resources and environment), and Bar Leader. Also, the ABA Journal Blawg Directory is great starting point for information on legal blawgs.
Social Media: By now, most of us have our own social media accounts, and social
media is a great way to test the water with your writing and see what kind of traction
you can get. It allows you to display your personality easier than many other writing
outlets. Just be considerate in your approach; finding the line between the personal
and the professional can be challengingbut the rewards can be significant.
Listserv: Contributing to a listserve discussion is a great way to get your name in
front of other lawyers; just be sure to retain your professional demeanor and do your
due diligence when contributing. You will be speaking to your peers, after all. The
ABA GPSolo Divisions SoloSez is an example of a high-functioning, well managed
group discussion forum.
The Young Lawyers Division and the American Bar Association offer many writing
opportunities for new and experienced attorneys. Visit the YLD or ABA sites for more
information.
48

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ABA Young Lawyers Division

TYL In Focus: Writing

TYL In Focus: Writing

Writing to the Court ........................................................................................................... 3

Effective Appellate Brief Writing................................................................................. 5

By Hon. Richard A. Posner

How to Write an Effective Reply Brief..................................................................... 10

Has Your Legal Writing Plateaued? ......................................................................... 14

Controlling the Readers Perception of Your Clients Story ........................ 17

The Importance of Attentive Reading ..................................................................... 21

Communications and Marketing............................................................................... 27

How to Write Better.......................................................................................................... 27

Why Should You Have a Legal Blog? ...................................................................... 30

ABA Young Lawyers Division

TYL In Focus: Writing

Building a Better Blog ....................................................................................................... 32

The Rules for Using Email in the Workplace ...................................................... 37

By Christina Vassiliou Harvey, Mac R. McCoy, and Brook Sneath

Writing Opportunities for Lawyers ..........................................................................47

Introduction to this Issue

ABA Young Lawyers Division

TYL In Focus: Writing

Writing to the Court

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

Effective Appellate Brief Writing

ABA Young Lawyers Division

TYL In Focus: Writing

Successful communication requires the communicator to understand how much the

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

How to Write an Effective Reply Brief

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

Has Your Legal Writing Plateaued?

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

Controlling the Readers Perception of Your

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing

ABA Young Lawyers Division

TYL In Focus: Writing