Practice Blawg » Drafting

Try Removing the Plank from Your Eye First

Gregory Luce — Wed, 03 Nov 2010 20:09:03 +0000

We’ve posted a number of writing tips on the blog. We’ve also highlighted U.S. Bankruptcy Judge Robert Kressel’s writing guide for lawyers, a post we titled “Write Like You Learned Something in High School.” Here’s another fine piece of advice: Don’t criticize a magistrate judge’s argument or characterize it as “nonsensical” unless you have thoroughly proofread your own brief or memorandum. Or, as U.S. District Court Judge Paul Magnuson advised in a recent opinion, you should first “remove the proverbial plank from [your] own eye before inserting such careless rhetoric into [your] briefs.” We’ll stop there and present you with Exhibit B in the continuing attempts by attorneys to make their best arguments but falling a bit flat:

“Plaintiff has not established that the R&R’s conclusions are incorrect. Additionally, the Court notes that Plaintiff’s counsel’s characterizations of the Magistrate Judge’s R&R as “nonsensical,” and “an exception to the general rule” that such R&Rs are typically “wellthought [sic] out, unbiased, and well-drafted,” are wholly unfounded. (Pl.’s Objection at 1.) On the contrary, Magistrate Judge Keyes’s 43-page R&R presents a detailed assessment of the facts of this case and a cogent analysis of the legal issues. Indeed, perhaps counsel should remove the proverbial plank from his own eye before inserting such careless rhetoric into his briefs. A cursory investigation by this Court yielded no fewer than 15 spelling, grammatical, or citation mistakes in counsel’s six-plus page brief—including two occasions on which counsel misspelled his own client’s name— which made for an onerous examination of Plaintiff’s objections. Counsel would do well to refrain from propagating such baseless characterizations in the future.”

–U.S. District Court Judge Paul A. Magnuson, writing in Bartlett v. Astrue

© Gregory Luce for Practice Blawg, 2010. | Permalink | One comment | Add to del.icio.us
Post tags: Drafting, Proofreading

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Write Like You Learned Something in High School

Nancy Hupp — Thu, 18 Mar 2010 21:09:43 +0000

Judge Kressel has an article in this month’s Illinois Bar Journal explaining why and how he developed “Order Preparation Guidelines” for the local bankruptcy bar. I had read them when he first issued them and upon rereading, I was once again struck with the reasonableness of what he is asking – in short, he is asking us to write as well as a high school senior.

I speak with authority because my youngest child is now a senior. I’ve listened to all three of my kids moan and groan about the cruel expectations of their high school English teachers. My oldest, who is a very talented writer, was indignant when her high school English teacher told the class he would not accept papers with spelling errors. WHAT! And my youngest groaned that the very same teacher, “makes a big deal about every stupid comma.” To date, their complaints have failed to raise my ire, in fact, I applaud him and Judge Kressel.

I don’t mean to suggest I don’t make mistakes. Before the days of spellcheck, I misspelled “environmental” (forgot the “n” in the middle) in every one of my law school applications. As I handed out a class syllabus on the first day of class at Hamline, I noticed my helpful advice, “If you want to give me a massage, call my voicemail …” This was the only class I ever taught where I decided not to distribute the syllabus on the first day!

And I am all for forgetting things I’ve learned. I used to know something about calculus, could diagram the entire Krebs cycle, and could tell you in detail about the escapades of Vasco da Gama. I’d be hard pressed to deliver up any of that knowledge today. But knowing the English language is a different matter – ideally one’s writing should improve with age and experience, not gather dust. To my mother’s horror, I never learned to diagram a sentence, but I have a passable sense of grammar and style and that is all Judge Kressel is asking.

When I was a new associate in a St. Paul law firm, one of the partners, in an act of desperation, visited a nearby bookstore, purchased 30 copies of Elements of Style and left one on everyone’s desk. Interestingly, today, he is also on the bench. And my son, the senior in high school? Well, his first reading assignment was none other than Elements of Style. He grumped and groaned all the way through it. I hope it doesn’t go the way of the Krebs cycle.

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Post tags: Drafting, Legalese, Orders

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Reviewing My $69.00 Will

Gregory Luce — Wed, 10 Mar 2010 08:46:13 +0000

My LegalZoom Will has arrived, along with a very professional-looking packet of information. I have to admit that I’m initially and surprisingly impressed. The Will obviously captured what I had answered during my earlier online session with LegalZoom. Along with the Will were separate informational documents, to wit:

A thirteen-page booklet entitled “Guide to Your Last Will and Testament,” with information about self-executing Wills, debts, probate, changing a Will, Living Trusts, amending and revoking a Will, estate taxes, credit shelter trusts, and a toll-free phone number to call if I have additional questions;
A nine-page “Property Worksheet” that allows me to list all of my property in one place and also list information about my family and beneficiaries;
One-page instructional sheets entitled “Notarizing Your Documents,” “Executor’s Guide” and “Guardian’s Guide”;
A brochure with a listing of additional services LegalZoom can provide (what some folks would call the “upsell” or “suggestive sale” of its products).

The issues that online legal document services raise are more complicated than at first glance, with issues concerning the unauthorized practice of law, the unmet legal needs of the public, overall perceptions of the legal profession, and efficiencies required to compete with so-called non-legal specialists such as LegalZoom.I’m not an estate planning attorney nor do I play one on the web. From my limited point of view, however, the Will does what it should and does what I think I need: 1) it provides for an orderly process of distributing my assets upon my death; and 2) it designates a guardian for my children. It also provides a “guardian” for my pet, which I joked about in my prior post, but in retrospect the simple clause really just provides direction to my wife to take care of Smokey (or any other pet I have) after I die. As you will also see, it creates both a testamentary trust for my kids if my wife predeceases me and also provides for a credit shelter trust if Nancy (my wife) wishes to “disclaim” any estate property and place it into trust. I don’t much about testamentary or credit shelter trusts, so if you see an issue here with those, I’d like to hear from you.

Here’s my Will for your review. Update: LegalZoom’s counsel has requested that I remove the link to the full copy of my will, citing LegalZoom’s online terms of use. I have removed the link temporarily as I review and consider the request.

One change I need to make is simply adding my younger son to a testamentary trust, as the online session was confusing as to who should be the beneficiary under that trust. Right now, if my wife predeceased me, my older son’s portion of any inheritance would be held in trust until he reaches age 25, but my younger son’s portion would not. That’s obviously a mistake that I made, but a mistake that was allowed by a limited online question and answer process. Under the package I purchased from LegalZoom, however, I can make changes in the Will for up to three months.

What’s next? A few things:

I’ll make the change to the LegalZoom Will to include my other son as part of a testamentary trust, and report back how easy or hard it was to do and how quickly I then get a revised draft;
I’m asking for feedback from you on the Will I’ve posted here. Tear into it, take it apart, point out what may be problematic;
If I can drag my wife into this even further, I’m going to ask her (a non-lawyer) to find a lawyer for us to hire and complete a Will. I think that’s only fair for this experiment, as one of the major issues potential clients face is who to choose for an attorney and how to determine what an attorney-drafted Will or estate plan would cost. I’m not a good choice to find the attorney, as I know lots of talented estate planning attorneys out there, including practicelaw’s own Andrea Hable. I’ve already received offers to do my Will for free, which is nice, but is not the focus of this experiment. Rather, I’m hoping to explore with my wife how easy or hard it is to find an attorney and whether the service and product we ultimately receive is markedly different than that of online legal document services, such as LegalZoom.

A quick note on this post and the overall series. So far, I’ve refrained from making final conclusions about the process, as I remain skeptical, curious, and initially impressed. As Carolyn Elefant outlined recently on MyShingle, the issues that online legal document services raise are more complicated than at first glance, with issues concerning the unauthorized practice of law, unmet legal needs of the public, overall perceptions of the legal profession, and efficiencies required to compete with these non-legal specialists. I’m not forgetting those issues and will return to them once this experiment is further down the road. In other words, my honest initial impression of LegalZoom may be misplaced. Or perhaps even lawyers have a thing or two to learn about delivering services along the lines of LegalZoom. We’ll see.

older son’s portion of any inheritance would be held in trust until age 25, but not my younger son).

© Gregory Luce for Practice Blawg, 2010. | Permalink | 12 comments | Add to del.icio.us
Post tags: Drafting, LegalZoom, Unauthorized Practice of Law

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Purchasing A $69.00 Will

Gregory Luce — Wed, 03 Mar 2010 16:07:42 +0000

I’ve posted the video of my journey through LegalZoom in my quest to draft and purchase an online Will, for a total price of $71.95 (price includes $2.95 for printing and shipping). The journey is part of an experiment to determine how an online forms business works and then to compare that process with obtaining a will more “traditionally”: that is, sitting down with an attorney to draft a Will for me [See prior post in this series here]

The video is somewhat lengthy (18 minutes), but I find it interesting and at times fascinating, not so much for what it does but for what it does not do – advise me on my choices (other than to highlight, for example, that 85% of respondents on other LegalZoom Wills answered a question a certain way).

(...)
Read the rest of Purchasing A $69.00 Will (341 words)

© Gregory Luce for Practice Blawg, 2010. | Permalink | One comment | Add to del.icio.us
Post tags: Do It Yourself, Drafting, LegalZoom, Pro Se

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Short but Comprehensive

Nancy Hupp — Mon, 15 Feb 2010 20:08:52 +0000

Recently I was in a meeting with a group of attorneys reviewing two proposed addenda to a contract. One was very detailed – contained definitions, covered all possible contingencies and outcomes. Its sheer length and complexity made it more difficult to follow. The second was much shorter thus easier to understand and addressed only the most likely complications. A spirited discussion ensued.

Boiled down, at issue was which document better served its purpose, which, in a transactional setting is presumably to accomplish the contractual goals or to provide a smooth exit if achieving the ultimate goal is not possible.(...)
Read the rest of Short but Comprehensive (364 words)

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