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Elegant Legal Writing, with author Ryan McCarl

Tim Kowal     November 7, 2023

Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips:

🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committed to your first draft. Just get into a flow state—keep the cursor moving!

🧠 Your reader allots you a very limited attention span or “working memory.” Budget wisely by cutting “research dumps,” and by using direct, familiar language.

📗 Don’t cite every authority. “The quality of your citations matters more than their quantity.”

👨‍💻 Make tech support your writing. Use keyboard shortcuts. Use text expansion. Get efficient. What would you think of a tradesperson who doesn’t understand the tools of the trade?

What is Ryan’s stance on the “cleaned up” parenthetical? You will have to listen to find out!

 

Ryan McCarl’s bio, Elegant Legal Writing product page, Elegant Legal Writing blog, Twitter, and LinkedIn.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

 

Transcript:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:17 
I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast helpful, please refer it to a colleague.

Jeff Lewis  0:33 
And before we jump into this week's discussion, we want to again thank casetext for sponsoring our podcast casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext launched co counsel, the world's first AI legal assistant co counsel produces results lawyer can rely on for professional use, all while maintaining security and privacy listeners of our podcast enjoy a special discount on casetext basic research at casetext.com/calp. That's casetext.com/CALP.

Tim Kowal  1:14 
All right, Jeff. Today we're pleased to bring on a former guest of the podcast I was trying to look at when we had Brian McCarl on the podcast last time I think it was back in it was last year, February 2022. We were talking about his blog called elegant legal writing and it was a hit. We got a ton of downloads a lot of interest among our audience of legal nerds about how to write better so there was a lot of interest in Ryan McCarthy's blog, elegant legal writing. Well, lo and behold Ryan McCarl has turned it into a book. He is the author now of the forthcoming elegant legal writing. Ryan McCarl is a founding partner of rushing McCarl and an adjunct professor at Loyola law school. And now the author of the forthcoming book, elegant legal writing from the University of California Press forthcoming early next year 2024 available for pre order now a link will be in the show notes. Ryan gives talks about legal writing appellate advocacy litigation strategy to audiences in California and nationally, including the ABA litigation section and the Texas Office of the Attorney General Ryan designed and taught in advanced legal writing course at UCLA School of Law and research the use of artificial intelligence in the legal profession topic that both Jeff and I talk about frequently on this podcast. So Ryan, welcome back to the podcast, it's great to be back does it feel to be a newly published author,

Ryan McCarl  2:35 
it feels it feels wonderful. I mean, it in some ways the the joy of writing and developing a long form project like this is in the work and no and I and that was kind of reaffirmed for me when I got the book, but it is still very neat to get the book. And so much of the writing that I've done before virtually all of it, I mean, there's been lots of your articles, there's been other you know, this has been a book chapter but but this is the first time that I've kind of encapsulated Donna complete project A to Z and encapsulated in the physical object of a book. So it's kind of a just a physical, almost like a physical symbol of the 1000s of hours of care that went into it. And it's something that you end up polishing a lot more and then and getting a lot more feedback on as you go than any other type of writing. So I'm really proud of it. It's a beautiful, it's a beautifully designed book, The Press did a great job with it. And I think it'll be very useful to a lot of people.

Tim Kowal  3:23 
Well, no. So now that you're, you're a published author, and we're going to be talking about the book, The elegant legal writing. But we also want to talk about how you're, you're also like us a practicing attorney. And so like us, you sometimes you have your meritorious arguments ignored by judges just like us and you have legally sound objections ignored by the judges just like us. But so tell us about writing a book while also being a practicing attorney and being a managing partner of a growing law firm. Well,

Ryan McCarl  3:51 
I'm grateful to my colleagues for letting me when I had the final had to bring out across the final final final manuscript across the finish line I was they let me step aside and, you know, reduce my workload for about a month, which was incredibly helpful and essential, but but by and large, whether for this project or other projects, I'm trying to kind of build a life where I can do both, well, three things really teach right and practice and make them all create a synergy where they all mutually reinforce and support each other. I find that the the discipline of having to teach something or explain it in writing or teach it to a group of law students, clarifies my own thinking and requires me to, to not kind of coast along on previous knowledge, but to constantly get dig in deep to whatever I'm trying to teach or explain. And then I'm also I also find that that almost like another source of, of motivation for my practice, is that I can watch the argumentative moves that that I make that my team comes up with that the the way, John argues, John, my partner, John rushing argues when he's talking to juries, or doing oral arguments, and I can make notes of those and I can learn from them and basis If we store them aside for future work, because and there's a certain fun thing about that, because you're kind of celebrating a win, but you're also deriving from it a lesson, you know, you're sort of thinking and you're thinking about it retroactively, like what exactly was it? We did here that worked? It was that okay, great. And conversely, if we make mistakes, then we can note those two for future future work. So it's been it's actually worked out very well. And I think that the fact that I am in kind of on the frontlines of of litigating cases every day adds an important perspective to the work.

Tim Kowal  5:30 
Yeah, something about what you said reminded me of a lot of authors refer to themselves, maybe maybe somewhat deaf self deprecating Lee as scribblers, becoming deriving from the word scribe. And because what some of what you said, refers to your being a scribe, you're being a scribe of your thought process, in your cases, you're being a scribe of what's happening in the cases, you know, the arguments that are happening at trial, developing your arguments, developing, you know, when you're growing a firm, and you want associates and staff to emulate a certain, a certain type of writing or certain patterns that you have to write it all down to, when did you decide that? Or when did you realize that you wanted to be a scribbler of all of these, these things and document them into processes? And how that And how'd you decide that that was going to help you create an excellent legal practice?

Ryan McCarl  6:21 
Well, sure, well, as you grow, you can't do it all yourself anymore. And that's part of the idea of growing as a firm. And, you know, success breeds more more success and more work. And it requires you to have to have help from other people, and to be able to make sure that we have a consistent brand as far as the written work product, and everything else we do it. As soon as we started growing, it became clear to me that you do need to document these things. You need to create systems, we have a lot of internal, you know, live live, or living documents where we were keep track of firm style choices, you know, keep track of workflows, that kind of thing. But as far as where the book the book came from, and the idea of, you know, trying to distill what what are the most important lessons I know about legal writing really started back when I when I was working as a as a AI and law research fellow at UCLA law, and I was able to get approval to teach a course on advanced legal writing, and, and design it from scratch. So the summer before I taught, I dug into read as many books as I could on not only legal writing, but prose composition, generally, it kind of searched far and wide, and was able to kind of think through what are the most important lessons here? What are the most important takeaways that I think I can I can convey to my students over the course of this 14 week course. And that was a very, that's kind of the where, by the time it was over, I thought to myself, Okay, I think I have enough here too, as the seeds of a book.

Tim Kowal  7:50 
Well, yeah, let's get right into elegant legal writing. So you talked about, you know, the the seeds of the idea for writing that book. What more do attorneys need to know about legal writing? There are several books about legal writing out there. And you have mentioned that your background in artificial intelligence and the nexus between AI and the law, you know, so we're in a world now, where we're writing is starting to, we're seeing a meld between human writing and AI writing. What more do attorneys need to know about legal writing and 2023? And soon to be 20? For?

Ryan McCarl  8:25 

Sure. Well, first of all, I have enormous respect for what's been achieved with generative AI. And I think it's amazing technology. And it's going to get better and better. But I don't I think that the just inherently the way it works, in terms of predicting what text should come based on what text has been said so far. Well, considering other variables such as context, what has been what it's done is amazing in that it creates an opportunity to write cohesively and an error free way and to write plausibly and informatively about a topic. But in my view, it can't really substitute for for deep work or deep expertise brought brought to the work by whether a creative writer who's doing literature and he's struggling with the language and struggling with how to convey bring to bear all their past experiences and insights into and put it into a work of literature. I don't think it's ever going to be able to do that in a way that's more than superficial or equivalent, what a great writer can do. And I think the same is true for really any field, I think, where you have a deep mastery of a subject, there's a process of struggling through the ideas and bringing it to bear your own judgment about what to include and not to include and your own sense of what's important. And the insights that get generated during the writing process itself. All these things in my mind are going to keep writing the task of writing highly relevant for the foreseeable future for non trivial tasks. And what got me what what made me want to write the book is that I love language and I love to teach. So I as a practicing lawyer, I read a lot of legal prose, and I often experience a bit of pain in that process, you know, and I see a lot of easily fixable differences are between what I think would be a good, what I think is a good pro style and the typical style of a legal of a legal brief, I see a lot of unnecessary complexity, where instead of the lawyer sort of charting a path through complexity, they are adding complexity in the form of, of language, or, you know, they're taking something that's already substantively difficult to understand. And then they're also adding sort of visual barriers by, you know, paragraphs that are too long or, you know, cluttered with record citations. It's there's a lot of, and then there's just a lot of kind of, it traditionally included you formulations and language, that, you know, that result in my mind from path dependence and tradition, rather than from a reader focused view of what's the what is likely to make the judge want to read my writing, and want to finish the brief and want to consider my argument. And so I think, you know, there's ways to make all the same points that you would make in a good legal brief, but make but convey them in a way that the judge immediately sees that it's going to be helpful, and then, and then quickly grasps your argument, and then that creates the opportunity for, for persuasion.

Tim Kowal  11:08 
Yeah, I think I think one of the things that came through in reading your book is that and through what you just what you just said, there are some aspects of legal writing that I think could be, you know, it could be within reach to be a very effective persuasive writer for for most types of the legal writing that that are listed that we and our listeners do, or, you know, just basic law in motion, for example, if it doesn't involve, you know, very heavy, you know, policy, written issues, values, related issues, constitutional issues, you know, put those things aside, but just kind of get a trial continuance, or is there a tribal issue of fact, here, being able to persuade on those things, if you're in the right anyway, should be well, within reach? And you could get easily get in your own way, if you do some of the things you just mentioned, you know, overly long paragraphs or, you know, lack of focus in your briefs. Poor organization? Absolutely.

Ryan McCarl  11:58 

Yeah, absolutely. And what motivated me, one thing that motivated me and selected in designing the writing curriculum for two L's and three L's at UCLA, and, and and selecting what to include in the book is, is the fact that there are so many small insights and small tweaks that people can make, that can make an it really immediate difference. So I think that everybody who comes who gets a JD and passes the bar, through self selection and experience, they probably have a pretty reasonable background and language. And there's just so many small tweaks that many of which are well known to people who study legal writing, but you know, not still not universally practiced that I think if you bring to people's attention, they can just make an instant change and or change their mentality about the way they're writing and the way they're expressing things. And it can make a really powerful difference with without needing to try to become an expert on every aspect of it.

Tim Kowal  12:50 
Well, let's get right into some of the tips from Elegant legal writing by Ryan McCarl. So let's start with the approach to writing. So Ryan, you noted that attorneys, of course, are writers, sometimes we don't think of ourselves as writers, we think of attorneys being a completely different class. But most of what we do is writing and and then beyond that, persuading, but our biggest opportunity to persuade is through our writing. So we are writers. So we often but because we don't think of ourselves as writers off, we don't we tend not to create an optimal environment for doing our best writing. So you talked about in the book, you know about sometimes at that moment of epiphany, you know, we we reach for the ringing phone, or we, we check our email, and it disrupts the process, tell our listeners about how attorneys can take more seriously our core job as writers.

Ryan McCarl  13:38 

Yeah, I really addressed it into two parts of the book at the very beginning, the core principles, and then again, I have an entire chapter called the mental game of writing, which is about process productivity mindset. In terms of mindset, I think the first thing to understand is that moat for most lawyers, the primary way that we advocate is the written advocacy. There's there's always the the famous trial lawyers who are so good at trial advocacy, that doesn't matter whether they can write or not. But I think that for the vast majority of us what most of what we do day to day is we read, we read and we write if you're a litigator, and I think that if you understand that as being the core skill of lawyering, that is, that should provide motivation to both enjoy your job more and be better at it and be and help your clients more if you just if you if you were able to devote a little bit of time to to the craft of it. And I think that another thing that can get in the way is that people have a mentality that they're already. They're already really good at it. You know, I can tell you that was my mentality when I was 18 year old freshman at the University of Chicago, I thought, well, I know I'm a good writer, because I won all these awards in high school, you know, so I don't have much more to learn and it took me it wasn't it wasn't until I you know, when you get older and it's all cringe worthy, right? So it wasn't till much later in life that I was that I came to the realization that writing is a craft and no matter it's Like playing an instrument, you know, you maybe you can strum a guitar on the campfire and there's value to that. But if you if this is your core craft of what you do that you should be continually trying to get better at it. And there are always opportunities to get better no matter how good you already are.

Jeff Lewis  15:15 
Hey, let me ask you, you know what we're talking about the optimal environment for doing your best writing or your first draft. I want to veer off to tech for a second. Sure. Piece of paper obsidian notion, text editor word. Where do you do? Where does Ryan do his first draft of a big brief? Oh,

Ryan McCarl  15:32 
for a brief i, we I we would often work in Google Docs. Sometimes I would take notes on paper or on a remarkable tablet. But for most of my writing, whether it for most, for most other forms of writing, I would write it in obsidian or another text editor somewhere where I can avoid my my liking set aside perfectionism and attention to detail that I bring to like formatting tasks, and, and, you know, citations and all that sort of thing. Because none of that has a place when you're first trying to gather ideas and get a draft on paper.

Jeff Lewis  16:02 
I see Ryan, you know, if, if line numbers are not aligned, I know you're not a line numbers guy. But if you're in a brief of line numbers, and they're not aligned, throw off my pretty

Ryan McCarl  16:13 
Yeah, hard, it's really hard to focus on anything else. That's exactly right. I will say one more thing about this, I'm a big proponent of the idea of deep work, or at least a personal fan of it. You know, the Cal Newport has this idea of deep work. I recently had my first child, my daughter Eliana, and I've been devoted a great deal of time this year to thinking about how to give her the gift of enjoying reading and enjoying language, which requires postponing the sort of dopamine addiction and notification cycle and need for instant, instantly talking and instantly hearing response that is characteristic of most exchanges on the Internet, whether whether they're more productive, like LinkedIn discussions are less productive, like other social media, no matter what it is, I see a difference in terms of depth between that sort of communication, and the sort of communication that occurs when somebody has written a book savate those ideas for years, put it through many rounds of editing, and on their best to sit with a topic and write something useful and interesting. It's so I'm a big believer in, in, in keeping in touch with that part of deep focus and deep work. So Cal Newport writes, the idea of deep work comes from Cal Newport. And I think, when you're talking about when you need to sit down and write a draft of a brief, unimportant brief or any brief, really, the most important thing for me to do is to is to tell my colleagues that I'm turning off notifications for two hours, because I don't currently have anything scheduled. And I'm going to do a focused writing session, and then make sure you use that time the way you intend to. But you know, that that carves out the space for holding thoughts long enough to be able to get them on paper, and then keeping your mental space free to be able to then organize them into us into a sensible, sensible outline and get and get a draft done. Yeah,

Jeff Lewis  18:05 
interesting. You know, my office has a visual cue, when I'm wearing the big oversized over the year, noise canceling air pod Max, headphones, that's a clear signal to write not enter danger.

Ryan McCarl  18:18 
Hi, we have a lot in common, I have a similar setup.

Tim Kowal  18:23 

All right, good. That's important concept of deep work, I fall into the trap of not getting any of the deep work done until the end of the day when the phones just stop ringing. And so I think it's important to be intentional and deliberate about creating your own time for deep work. Right. All right, well, let's let's move to the next topic of the process of writing relating to related to the approach to the writing, but process of writing, once we have the right environment. And we're in the right headspace for writing. Now it's time to actually put pen to paper. So you would you'd blogged about this recently, Ryan and brought this term to my attention, which is the concept of just write a shitty first draft? Don't worry about it being perfect. Just write a shitty first, first draft. Can you elaborate on that?

Ryan McCarl  19:11 
Sure. I that the that phrase comes from Anne Lamott book, Bird by Bird, which is a very popular book about prose writing. That's not that's general prose. And it's but the concept is, has been has been expressed by many different people. Brian Garner's talked about it in a different in different context, using different terminology. But the core idea is to is to separate the different different mental tasks associated with the writing process, because they're all they do involve different mental functions and different mindsets. And so the main idea there is to defer editing so and turn off the second guesser that you have in your brain that says, maybe that word isn't the right word choice. Maybe that, you know, that doesn't quite convey my argument. appropriately, maybe I can find a better citation for that point, all that stuff is, you know has a role, but can be deferred to a later stage in the writing process so that you are more likely to fall into a flow state where writing is pleasant. And you're more likely to get that draft done in a painless way. And so the core idea of it is really to continue writing and keep your cursor moving forward, as though there is no Backspace or Delete button. And, and there's no formatting tasks involved. There's, you know, there's even even plugging in citations, any any citations more than those that you already have at hand, just defer all that and just keep your cursor moving. And if you if you if you think you ran into a false start in terms of a section, just stop mid sentence, hit enter a few times, and get back on track, because later on, you're going to have plenty of time to polish, you're gonna have time to edit, you're going to restructure, but line editing as you go is extremely inefficient for because not only is it a separate mental process, and your self doubting as you go, but also because the first round of editing, you don't want to be too committed to your first draft, the first round of editing should really be high level audience focused edits and structure related edits. And if you're sitting there wordsmithing lines or checking citation format as you go, then you may feel invested in what you've written, and you really shouldn't feel invested in what you've written at that stage.

Tim Kowal  21:15 
Okay, that'll make sense. And last thing you said, answered my, my objection, but I'll voice it anyway. Well, as you were talking, it made me I wanted to ask, Are you writing this shitty first draft, as we'll call it, on your, in your Google Doc and on your unlined paper? Okay, yeah,

Ryan McCarl  21:32 
yeah, no, I would write it either in a Google Doc, or what I really prefer text editors. So I'll use an iPad or an old computer that and you know, ideally, someone that doesn't have too much internet access, or, you know, something or distraction. But something where it's a, there's no separate windows, there's one window, you can also do focus Word in Microsoft Word, however you want to do it. But the idea is, you know, since formatting doesn't matter, sense, at this stage, use a text editor involves, you know, which, which had been around since the 1960s, involves words on the page. And that's it, it's kind of like a typewriter. And there's no opportunity to make footnotes, none of the well actually, you can make footnotes these days and text editors, but there's no opportunity to tweak formatting or tweak margin, side margin sizes, that kind of thing. All that stuff is a distraction, when the task at hand is to actually finish the draft, because you have to really finish it, you have to outline the draft, and then finish it and then write the draft before you can even go into the revision process and and come up with something polished, or at least if you do it in order, and you separate those mental processes. It'll be more pleasant and more efficient. Yeah,

Tim Kowal  22:37 
I think yeah, there's some good takeaways there. So the so the writing process of a document should involve two documents, really, the first document should be probably some, you know, ideally, something that reduces distractions. So if it's just a plain text editor, you don't want to be be just be tempted into formatting or adding citations and footnotes and things. You just want to get your ideas on paper, get into that flow state, I have fallen into that trap of writing, writing, writing, and then oh, yeah, that's pretty good. And then I start to get committed to it. As you said, don't get committed to that first draft. And then later on, I go back and edit. And I see oh, there's all this flash and all this junk and Oh, but But it's got this good bit in it. And how do I, you know, so then you're stuck endlessly editing and tweaking, because you never, there was never supposed to be the final draft, it was only supposed to be getting words down on paper.

Ryan McCarl  23:24 
Right? Right. And there's, there's often it's very rare that after a first draft, that you may have good twists of language, you may have good, you know, bursts of inspiration that that turned out well. And for a low stakes task, a first draft may be sufficient. But for higher stakes, tasks, or things that you want to be more polished, it's unlikely that the your initial structure and your initial allocation of space and your initial lines of argument were the best were the first choice on the were the best choice at the first time you took a stab at it. So I think it's particularly important to to overcome that effect. The and the I think of it as related to the endowment effect, where you value something more once you have it, or maybe sunk costs is another concept from behavioral economics. There's all sorts of reasons that we feel attached to writing we did it just like somebody among somebody gives us for free, you know, maybe you didn't actually ever go for it and yourself, but you have it. So you want to keep it. And I think that you know that that is a big problem when you're trying to make a reader oriented document that is that it's not about the work. It's never about the work you put in, it's never about the amount of work work you did or your own genius. It's about what is helpful to the audience and whether you're conveying that in a way that's persuasive, and efficient. And I think that to do that you have to be able to think you have to be able to make big cuts and big rearrangements. Yeah,

Tim Kowal  24:45 

I think that's a good point. So that you're picking you have the you have all your arguments, all your turns of phrase, all your clever locations in one document and and then you just pick the ones that you want on your team for the final draft. You don't and then you don't have to bother About the harder call of making cuts, you're not gonna be cut, you're just picking your dream team,

Ryan McCarl  25:05 
I call them dump files. So I talked about that in the book, you know, dump dump files and version control any cloud based writing software, you should be, it should be automatically saving different drafts at different stages. So that reduces some of the friction of one of being afraid of deletion. But I also just, I always have a dump file open, I call it so I have another blank document, usually a text file. And if I if I, you know, really on the fence about a paragraph, or I think I didn't quite get it, right. You know, I just take the whole thing and I move it out and take another shot. It's always there to go back to go back to if you if you find you miss it. Yeah,

Tim Kowal  25:39 
I find the process of editing. Very difficult. It seems like you're you're right, you want to get in that flow state you want to get, you don't want to deal with a blank page. There's that terrible fear of dealing with a blank page. But you know, people sometimes I think writers sometimes underestimate. The editing process can be really unwieldy if you're trying to edit your first draft.

Ryan McCarl  25:58 
Yeah, absolutely. Just it this is more it's faster this way. And also getting in the flow state of writing. That's that's, that's the most that's when writing can become fun, is when you when you are able to really turn off the turn off the distractions and turn off the self censorship and self criticism. And just and just write in, it's just you and your ideas and getting them on the page. That's the only time in my mind when writing is really fun rather than hard just to so hard that it's not that fun, is when you're able to really just do that one thing and not try to split your brain across different tasks.

Tim Kowal  26:32 
Okay, let's get to the advice in elegant legal writing, concerning writing style. So an elegant legal writing. Ryan, you mentioned three touchstones for good legal writing, being clarity, readability and efficiency. I wonder if you can elaborate on that. The first two I thought, you know, it seems somewhat self explanatory. But I was a little puzzled until I read further about what you mean by efficiency. So can you talk about those?

Ryan McCarl  26:57 
Yeah, so So what I mean by efficiency is, is the is the ratio of the sort of cognitive and time investment into the document that the reader must bring to the document, and the information they get out of it. So an efficient document is one that in proportion to its length, and difficulty, it conveys a lot of information.

Tim Kowal  27:17 
Yeah, I love that topic about, you know, trying to get to, we're dealing with finite, you know, human cognition here, and you have to get, you have to, you know, get maximum effect, with the limited attention span that you get on the working memory that your reader is going to have, you know, authors, you know, fiction authors, for example, they they write, you know, they're writing for people who want to read for pleasure. So they don't have to worry about making things concise, they can write 1000 page novel, and people love, you know, they just sit on the beach and read it through because they've not got nothing better to do. But writers have legal briefs, you know, those readers don't pick up those things for pleasure. They have to, they're picking it up for as use as a tool. How can legal writers keep their readers attention, and not overwhelm them, I mean, they've got a job to do. So they're motivated to pick up your brief for that reason, because they got to make a decision. But you still want to get maximum value out of the limited cog, you know, cognition abilities that your reader has.

Ryan McCarl  28:14 
Yeah, that's really the overarching theme of the book that I settled on, when after I'd got the manuscript accepted. And I did a complete rewrite of it after that time, and, and I settled on the theme of readability and readability and as part of that, concision, and efficiency, and the idea is really to be fully audience oriented, in the sense that your your respect, you realize, like you just said, a Tim, that the audience is probably reading your brief out of obligation and not a pleasure and not for not for their own fun. And especially when you when you learn about the size of trial judges, dockets. And the fact of them not the number of cases they in their clerks have to deal with at any one time, they want to be when they pick up your your brief, they're probably unhappy about it, or they are there, they're probably not super invested the moment to pick it up, they may be trying to think about what's the quickest way to get this next task off of my list. So that's probably the mindset and then the realities of cognitive constraints, the realities of time and energy constraints that every reader has. And so if you if you begin with that in mind, and then you think about how do I how do I achieve my goal of telling my client story and writing a persuasive brief in light of those, those limitations that every reader brings to their task, it has a lot, a lot of consequences. And ideas can flow from from from trying to bridge that gap. And so it's kind of the way I think about it is that I would like when I an ideal brief to me, the reader may pick it up out of a sense of obligation, but when they open it, they're pleasantly surprised to find that it's very helpful. It's very obvious what it's going to say. It provides a clear roadmap of where it's going and tells me the main points on page one, so in case they need to skim it they can but then if they do start reading it, their attention is engrossed, they keep reading, there's a sense of pace, there's a sense of informativeness, there's a sense that all irrelevant or unnecessary details have been removed. And so it just shows respect for the readers time. And it motivates them to read as they go and really getting their briefs read is really the first hurdle to to making a good argument.

Tim Kowal  30:18 

Yeah, there was and there was something in this section of the book, Ryan that reminded that that kind of dovetails with what we were talking about before the importance of a first draft in your final draft, because if you are writing your first draft, intended as your final draft, you're probably going to have a lot of research dumps in there your Yes, as well go my great stuff, you know, I don't want to cut this out. So I'm just gonna leave it in there. And those research dumps, you know, suck up a lot of the energy of your reader, and it's not going to be effective and effective use of their time and energy reading your brief if you have a whole bunch of research dumps in there on points, especially if they're on points that are collateral to your main point. That's,

Ryan McCarl  30:53 
yeah, that's exactly right. And I think, you know, every, every, everyone who's ever given writing advice has often talked about the importance of thinking of audience but you know, you can do that at a high level, or you can really, you know, dive into what what does that mean that what would this audience find most helpful? How can I put in their hands, the best tool for achieving my goal and to help them achieve their goal and a research dump is the what you're talking about there is, for example, when you have, you turned up an interesting case in your research, so you plug it in, you know, you read two cases. And so you talk about their facts, and you found three cases that support your position. So you include all three, those are research dumps, that it's analogous to what what some law students do on their exams, which is they don't take an outline dump where you just take your outline your notes from the class, and, and you pour it all onto the page. But that's not how you get the good grade. And that's not how you help a judge. Those are all examples of really focused on the wrong half of the writing transaction is focused on input your own time input as a writer, your own energy input, your own discoveries, your own insights, all that if you're trying to if your goal is to create a helpful piece of writing for the reader that the reader will actually read, it might be persuaded by all that has to be set aside, because it's all irrelevant to that purpose. So you have to really motivate the reader to start reading by showing that you're going to be helpful, and you're going to get to the point quickly. And then you need to carry out that promise by by actually writing informative brief and doing so in an efficient way.

Tim Kowal  32:16 
Some other tips that you give in, in your book, Ryan, involve moving to actual style of writing, you talk about how it's important to use, you know, refer to concrete things rather than abstractions. Now, we're talking about legal writing. So legal, you know, the law involves a lot of abstractions, but wherever possible, you talk about, it's easier for readers to visualize something concrete. And you also talked about using familiar language, can you talk about some of the some of the other ways that we can make maximum value of the cognitive ability of your reader in the short time that they have allotted to reading your brief? Absolutely,

Ryan McCarl  32:53 
yeah. So the book begins with with discussions of concision and discussions of sentence structure and ways to to basically convey the most information possible in the most efficient way possible. And i with respect to those examples you gave the core underlying idea is, is that is that of working memory, and that if you have, for example, a long, a very long, you know, dragging sentence like that it used to be written routinely in the 17th century. But you know, that you have to carry a lot in mind, before you get to the, the writer completes a thought. And the idea is, is there the Lockean flows from the idea of trying to try to be as informative as you can in an economical ways you can. And so one way is what you talked about, which is, which is specifics versus abstractions. So the law is an abstraction, it's a network of rules that govern human interactions. So writing about them is is inevitable, but there are often opportunities to avoid unnecessary ones. Because since you have to write about some try not to add ones that are not necessary. And, and then when you do have to write about them, there's often ways to talk about the human actors involved. Or rather than talking about the rules in the abstract, or you can sometimes even personify, you know, statutes or provisions. Talk about them using using metaphors to make them more like objects. And that's because humans find it easier to think in terms of visual visual substitutes for ideas. So when when somebody says facility, they might mean, you know, they might visualize Windows that's a little bit broad, right? So it could be somebody might visualize a warehouse, somebody might visualize an office building, and if you narrow the scope of uncertainty, you've saved the reader infinitesimal cognitive cost of having to decide based on context, which one you might be talking about. So just picking the right level of abstraction is essential both for writing style and for argument. On the other hand, there's also a vise of over specification. So you know, I use in the book The example of if you say four door, Volvo sedan, then you those are details embedded in that in that noun phrase. And whenever you introduce a detail into the brief, it raises a question in the readers mind of why that matters. So they must hold those in mind long enough to figure out, is that going to be relevant? And you know, maybe subconsciously millions to learn that no, that wasn't and the word cart was the right choice. So you want to basically pick the the lowest level of abstraction that serves your purpose, and try to create opportunities for the reader to visualize rather than having to keep strings of words in mind. Yeah, those

Tim Kowal  35:30 
are good points. What about you also talk about the importance of using familiar language for the same for the same purpose? Because it instantly conjures the desired image in the readers mind? Rather than forcing them to? To interpret it through Okay, yeah. What does this mean in, in, in legal jargon? Or in technical jargon? Do you have any advice on how to avoid pitfalls? By going too far down this road? Making your writing too familiar? Is it such Is there such a thing as making your writing too clever or too cute, too? Or too Baroque? Too many details trying to get under too much detail. Or and on the other side? Is it? Is it possible to make it too concise, to the point where it's so concise, that it's abrupt, and you kind of you've concluded, and the reader doesn't really have the full picture in mind yet of what you're asking?

Ryan McCarl  36:16 
Yeah, absolutely. You mean I all writing advice is general and tentative. And all else equal is the is the universal qualifier. And I would say that, you know, I just gave an example of over specification as being as being its own vice. And I would say that, you know, the, the general principle of keeping only necessary or helpful details can take you a lot, it can really get solve a lot of these problems for you. Because every brief that I've almost ever read, has details that turned out to not matter, and really having a very disciplined understanding of what story you're trying to tell, and how it dovetails with law and legal rules, can really help you omit some of those, those unnecessary details. And in terms of other other aspects of your question. I think that you know, the most legal writers don't have the problem of writing in too exciting MLA or anything like that, I do have a section about cautioning against, you know, most uses of humor attempts to be literary, any attempt to kind of use flowery language like you were writing a poem in high school is probably going to backfire. Anytime any attempt to use literary illusions or cultural illusions is probably going to backfire. Just you know, same. Same is true when you're dealing with theories, because not everybody shares the same contact context, or worldview, or life experience or reading experience. So all those things turn out to be again, it goes back to input versus output, what side of the reading transaction, and a lot of those tend to tend to be the lawyer showing themselves to be clever, rather than thinking about what would be helpful to the reader and what would be helpful to the client. And so if you're really, really honest with yourself, you can find that that really, really great turn of phrase you've included, is actually unhelpful to the to the reader and to the client, then that can help discipline you to keep it out. Yeah,

Tim Kowal  38:07 

related to this to the same talk topic about using concrete language using familiar language. Ryan, in your in your book, elegant legal writing, you also urge legal writers to use direct language. What does it mean to use direct language,

Ryan McCarl  38:24 
it means to say what you mean and then stop and think a little bit more in terms of when you're making an argument. Just think about premises conclusions, when you're telling a story, think about events that matter and details that matter and then how to sequence them and then are carving out sort of the the lard and the stuff that turns out to to be kind of roundabout ways of phrasing something that you're making an argument or describing it. That a lot of times roundabout ways of writing are vague ways of writing, are used as a sort of cover up for the lack of totally rigorous thinking and thinking through an argument and it doesn't work. It just comes across as as vague or kind of mealy mouthed or maybe you don't fully believe what you're saying. And I think having a very clear idea of the conclusion that you'd like the court to accept and then simply stating it and then backing it up with appropriate reasons. Is is the task and I think there's a general for whatever reason, lawyers seem to be have a very hard time doing that. And it has it's a constant, it should be a constant rigorous discipline to look for, for example, most commonly lined up phrases as they're called or, you know, just lengthy wind UPS before you before you start get to the point of a sentence or a paragraph. Lengthy introductory texts, unnecessary procedural history. There's there's a lot of different examples of formulations within sentences within paragraphs within entire documents that are saying something other than what you need to connect.

Tim Kowal  39:52

Well on the topic of of using direct language. One of the other examples you give of ways that lawyers fail to use direct link Your language is by hedging using hedging language. So, for example, you know, you mentioned the lawyers love to hedge. And this is where I was convicted when reading this, this passage in the book. So, for example, you know, and I might say that that most of our listeners would tend to be come better legal writers, after listening to and applying the lessons in this podcast, direct language would just be our listeners will be better legal riders.

Ryan McCarl  40:26 
Yeah, I'd like to think that's true. But yeah, so I would say, you know, there's obviously social context that matters that can often require bluntness to not be the appropriate way to phrase something, you know, what if you're talking to a judge directly in a courtroom, or if you're addressing the judge in a brief, just as you know, when you're sending a message to somebody who's going through a hard time, that would, you may end up using language that, you know, would might not be appropriate in a legal brief because the whole idea is to soften the human interaction. So it's, and you know, as somebody who is a co founder of the law firm, and handles intakes every day, and advises clients every day, I also understand the need for for risk management and to avoid miscommunication. Because every lawyer knows that it's not entirely about being right. It's not entirely about being right in the law, the facts in general morally, it doesn't it the judicial process is a system of a lot of human beings making a lot of decisions and things can go wrong. Or, you know, the sometimes the correct side loses the motion anyway. And at the end of the day, there are no guarantees in the law. And that's really baked into the knowledge of every lawyer that really when you give legal advice, you're kind of making predictions. So when you're dealing with intakes, as a firm, you, you want to find the appropriate way to qualify what you're saying so that the client understands that yes, although they you know, Russian McCarl thinks you have a slam dunk case, that doesn't mean that you're, you're sure to win. And that's why it's a prop plays a prominent role in ethics rules. But for writing purposes, you're talking usually in the sort of writing we're talking about, you're talking to a judge who understands these things. And so I would say that, you know, habitually using the word likely or probably, whereas, where that might make sense, you know, for a high stakes risk management letter to a client, that context is probably not as helpful in thinking about how to write to a court. So I would say that think about the stakes, the statement, and think about whether a charity, you know, how charitable or uncharitable a reader will be and think about whether what is the what are the actual odds? Can you narrow it in any way? Can you rather than saying likely really means more than 50%? Maybe? Or maybe it's someone else's means more than two thirds? Is there some way to narrow down and maybe you can get that that uncertainty to such a low level that you can say, Just Just say what you mean, and then and then the reader will know that maybe there's exceptions, but you know, but so, but so be it right? The reader will understand that, and they'll take what you say, and they'll qualify it accordingly. In their mind.

Tim Kowal  42:59 
I don't know another one of the lessons in elegant legal writing under the, under the heading or the section regarding writing style. You mentioned that lawyers, when they write they should quote, think like a teacher. And I love that. And I wonder if you could elaborate on what you mean by that, that legal writers should should think like a teacher when they're doing the writing.

Ryan McCarl  43:20 
Uh, yeah. And I, you know, the process of writing this book made me realize that, you know, my first one of the first things I did after after undergraduate was to teach high school, I taught ninth graders and 10th graders, world history and geography. And I turned, it turns out that that turned out to be very useful in preparation for what came later. And since then, I've taught law students and what you do when you're, when you're writing a letter to a brief or a judge it one thing you're doing is you're kind of helping them brush up on the specific legal rules that apply within a particular domain of law, where they may have encountered many cases in this area before, but maybe they're a little bit rusty on the particular cases that that that compel the legal inclusion you you want. You know, I know, I know, Jeff is an anti slap expert, for example. And you know, but every judge, every trial judge in California handles a lot of anti slap cases. But you can't just say, Look, you as you know, we win, you know, so you have to think about start with the readers background knowledge in mind. And then think about given that background knowledge that you can count on as being sure that the reader has as a member of the bar, what might they be fuzzy on? And what are the specific things that you need to teach them convey to them, to conclude, to get them to realize that the law as it exists today, as applied to the facts at hand, compels the conclusion that you want? And so if you think about that in mind, again, it's just another way of thinking about the readers task and what the reader needs and bridging the gap between their background knowledge and assumptions and what conclusion you need them to leave the brief with.

Tim Kowal  44:52
Alright, let's talk now about organizing your legal brief. Ryan, what are lawyers doing wrong in when they Oregon as their briefs, one of the things that you talk about the topics you mentioned, will take a lot of our listeners back to law school because you talked about the Iraq method. You also talked about the Cree AK Method C, R, E, AC, conclusion, rule, explanation, analysis conclusion, you mentioned a different approach from both of these. But it does start with beginning with your conclusion. Can you explain more about what organization format you suggest for for briefing your legal briefs?

Ryan McCarl  45:27 
Yeah, so there's a couple of different so I guess the start started at the broad level thinking document the whole document the whole brief, there's really a large set of arguments, you can usually make procedural argument substantive arguments, and you have to really start with the with the goal in mind of what's the how do I want the judge to rule and then really work backwards from that, to thinking about what are the necessary rules of law that lead to the favorable ruling, and that fit with the facts of the case, and then pick among those possible 10 arguments, the best, you know, maybe one to five. And, you know, this, this, Tim knows, from handling so many appeals, you really revolted, you know, I guess you really don't want to bring up every mistake, the trial court made, maybe they made too many to count, but that that's not going to be persuasive to a busy appellate court judge. And it's easier for them to just deny all relief, rather than think through 15 issues on appeal. So I think that, you know, working backward from the outcome, and then thinking of the rules of law that are at issue, and that must be applied, and the core reasons for the legal inclusion you're advancing. that's those are the building blocks, the large scale building blocks of the whole argument. And then and that same is true within each section. So I would think about within each section is kind of where we start talking about this issue of how do you make an argument, you know, that a certain rule compels the conclusion you want as applied to the facts. And that's where, you know, you mentioned the Iraq or crack formulas, I find those that those oversimplify reasoning and sometimes teach bad habits to, to law students that don't, and they don't actually necessarily reflect how good legal reasoning is done. Because I do believe you start with your conclusion that it's not a thriller, or a detective novel, you always start with a conclusion you want the court to reach. And the moment you say, a conclusion, as a lawyer, it immediately raises the question and a skeptical audience, like all your audience are going to be why. And so you leave with a conclusion, then you back it with the reasoning necessary to help them reach that conclusion. That's

Tim Kowal  47:23 
probably why right writers don't like leading with the conclusion, right? Because they don't want to dare their reader into defying them. Yeah,

Ryan McCarl  47:29
yeah, exactly. Right. But but you know, again, if you can't make a good argument, then the argument is not going to be not gonna get made. But you want to you want to be confidently state that conclusion. And then you need to think about what's the essential reasoning here to get there. And every argument consists of a conclusion and premises and in law, the premises are rules of law, and and the facts. But the problem with mentalities are structures like Iraq and react in my mind is that is that it's almost as though the idea that you juxtapose the rule with the fact and then it speaks for itself. But that's not usually how it works, it's usually you have to argue first for a particular interpretation of the rule that fits the facts and fits your your legal theory. And so there's more to more to it than just quoting a high level rule statement that the opponent is going to explain why that rule doesn't isn't actually the one that applies. So you have to make that argument. And then, you know, all the hard work that gets done in legal reasoning tends to be not stating the rules or but really discussing what rule applies, and then why that rule applies, given these facts, and then actually making that application of the, you know, weaving the facts and law together to reach your conclusion. So I would think in terms of a section wide structure is usually going to be conclusion followed by, you know, if you have a cause of action, for example, discussing the contested elements, or the you know, the main reasons you win in order, usually from strongest to weakest, or, you know, unless logic compels a different way.

Tim Kowal  48:53 
Okay, so it's, the organization is going to basically depend on what your conclusion is. So you always start with a conclusion and just kind of intelligently pick it apart and figure out the elements are going to have to be approved, and work it through organically. Yeah.

Ryan McCarl  49:08
And I think it's sometimes easier to think about from the defense side, you know, when a plaintiff is bringing the cause of action, you find out what the elements are, from the treatise or the jury instructions, or wherever you're going to look. And then you think about what are the easiest targets here, which are the ones that I think they can't prove, or they can't show in the Current Procedural posture. And you start with in less logic, you know, convey requires you to choose a different sequence like handling a procedural issue before substantive, then when you have freedom to sequence the way you want, then you would pick the one the weakest element, you know, they can't show causation period, so none of the other is gonna matter. So leave with causation discussion, and then next, you know, the next weakest element and so on. And that's, that's, that's how you structure a section of a brief. Okay,

Tim Kowal  49:53
in I'm just I'm just checking the time we have left and I want to make sure that we cover some of the good stuff Have some of the other good stuff like implementation of legal tech. And I also want to take a victory lap on cleaned up, because I know you're on my side on a cleaned up debate, Ryan, let's but I did want to want to touch on citing you say in elegant legal writing, don't cite every authority tell attorneys that while every legal proposition in your briefs needs to be supported by at least one citation. attorneys need to be, quote, strategic about how many authorities you cite, this does seem to be hard for a lot of attorneys, when you find that there are a lot of authorities that support your proposition. Hey, I want the judge to know that. So look at all these authorities that that agree with me. So can you talk a little bit about how to decide how much authority you need to cite for your propositions? Right?

Ryan McCarl  50:45 
And well, so the underlying idea is to is to build your brief around those propositions. So those conclusions in those sub conclusions. And that's the first, the first the first problem that I see, especially in law student writing is that they are so case centric, they talk about cases first, instead of talking about the cases are the only cases the only reason to use a case is to support a proposition to support a conclusion or a solution. Otherwise, the case is an irrelevant piece of legal history. And so what you have to do is start with the conclusion you're advancing, for example, a rule statement. And if it's a simple rule statement, like the 12 B six standard, or summary judgment standard, nobody is going to there's no room to argue about that. Right? There's no There's no dispute about it. Everybody knows that it's binding law, and therefore you pick one authority, and then you move forward. And as your rule statements become more debatable, or because you're synthesizing current case law, in light of a story or interpreting a statute, as you think about the fact what the opposing counsel is going to challenge, then the need to provide additional reasons additional backing arises. And for the most for the most difficult propositions which which may be, which are usually first establishing a rule that you can't self evidently find in the treatise because the student novel, or it's never arisen in this particular context, or explaining why your facts fit such a rule. In those cases, you you there, there's a there's justification for citing, you know, maybe up to three cases, I find it really, it's unusual that you would need more. And when you do cite them, you can't just stick them on there, like you would for the self evidence sites, you have to there then show how the facts and procedural posture of those cases were such that that they are applicable precedent for the situation. And the judge should select this rule of law as opposed to whatever other rule the the other, the other side is advocating?

Tim Kowal  52:32 
Yeah, I always think if I'm considering that I need to have more than just one authority, then I always think, well, maybe I should just have a really good parenthetical so that or a short discussion of the case. So the judge knows that I'm not just trying to put a whole bunch of extra put a string citation together to cover up the fact that none of these authorities really say what the proposition in my brief says, Absolutely.

Ryan McCarl  52:55 
So what courts like they like easy answers, they're not always available in the law. But if you can provide a clear case that's clearly on point and compels your conclusion, and you can convey that to the court in a way that they notice it and see it and can't think of a way to write an opinion around it, then you're probably going to win that issue. So you know, I agree with you parents articles can be very, very, it's actually the exception rather than the rule that that there's justification for discussing the facts of a case in the main text. When that happens, you know, you always think about can I put it in a parenthetical can I put it in a bullet point, like a bullet point of the three best cases on a tricky point, and, you know, and then crafting parenthetical as well as its own art, which I talked about in the book as well. And you know, what you can do, what you want to do is say, for example, holding and then the what the holding was that is the same analogous to the one you're seeing here, that this outcome resulted because of these analogies, facts, right. That's the basic formula. And sometimes you can do it efficiently in a parenthetical. Sometimes it would get unwieldy, and you need to make it in the main text. But that's the core idea and the time when you would need to discuss the facts of cases.

Tim Kowal  54:03
I'm glad you said that. It's the exception, you know that briefing a case is the exception to the rule rather than the rule, because every time I see someone discussing the facts of a case that they're citing and a brief I think, now I have to learn about this case. And what is it a debate? Is it really a debatable point, if it's not really a debatable point that you're that the case stands for your proposition, then just put it in a parenthetical? You don't have to brief every case?

Ryan McCarl  54:27 
That's right. It's not a law review article. It's not a legal history treatise. It's, it's not an overview of the area of law, you are expressing reasons for the conclusions you're advocating.

Tim Kowal  54:37 
And I like how you put it in the book, you say, quote, the quality of your citations matters more than their quantity. So don't bother, you know, putting, you know, strings of citations together. If they're all crummy citations, the courts gonna find you out and just be annoyed. But if you have one really good citation, especially if it's binding precedent, then just leave it at that.

Ryan McCarl  54:57 

Yes. And in fact, if you put a bunch in it will arouse suspicion, potentially that maybe this is a controversial point. So if it is, if it was uncontroversial, then can't you just say it and add one site and move forward? You know, and sometimes it is controversial. And so you do need to do do several. Okay.

Tim Kowal  55:12 

All right, well, now let's move on to you talk about key using keyboard shortcuts and other legal tech in your book elegant legal writing. Whenever I observe someone else working at their computers, Ryan, I always cringe when I watch them, click through several menu options when a simple keyboard shortcut would have done the trick. Tell us about some good shortcuts and why good writers should use keyboard shortcuts.

Ryan McCarl  55:36 
I mean, well, laziness is the mother of invention, you know, and I've spent a lot of time thinking about ways to automate tasks and make them faster. And once you learn how to use keyboard shortcuts efficiently, it is painful to see the clicking around that most people do. And the same is true for another thing I discussed in the book in the technology chapter, which is text expansion, I never ever want to have to write out my address or my firm's address ever again, right? Even Even, even when you know, when we send an email on behalf of that I'm seeing for people in the firm, like, you know, I'll use a I'll type rm t, which is for Russian McCarl team, and then I'll wait a second and it will expand into all four email addresses. And I didn't have to write them out. And whenever I fill out an address form, I type ADR and there's the firm's address I when somebody asked me my cell phone, I say, Z pH and there's my phone number. That's text expansion. And then keyboard shortcuts are a related idea. Everybody should know and habitually use your basic ones, your copy your cut your paste. And I would say what should also be part of people's core repertoire is pasting unformatted text so that you're not importing foreign styles and ruining the formatting of your document. And usually, that's that can sometimes be built in as shift as like a Shift Ctrl V on a PC. Otherwise, you can make your own. The other. Other ones I use that other people often find less familiar, are ones like to run an entire macro, and in Microsoft Word, you can, you can attach that to a keyboard shortcut. So when I put you know, all six, for example, it will say it will take my word document, and it will save it as a it will run a macro to change make sure all the quotes are smart quotes and apostrophes, not straightforward. And then it will save it as a PDF all in one go. So not even have to touch your mouse to accomplish those items. And the other thing other ideas, there's a whole any command in Word, you can attach a keyboard shortcut to. And the first one to consider is I use f4 for the customized keyboard command in the menu. And what that means is that I can go easily set one up. So even if I'm doing kind of a one off repetitive task, like attracts like reviewing to a document through under track changes, I still don't want to click except Except Next, you can set up a shortcut so that you just press it on your keyboard, your hands never have to leave the keyboard. And that is that's easier on your hands and your mind and your time. So I highly recommend it. Another one I mentioned in a recent blog post and in the book is paragraph styles, you know, rather than going some formatting in word should be done using styles, which are kind of programmatic ways to describe the formatting of a paragraph. And you know, you if you have a style for your body paragraph and a style for lists, you can just attach a keyboard shortcut to it. For me for the body style of a text, I'll do CTRL SHIFT y. If I want to do a first level heading, it'll be Ctrl Shift one, you know, Ctrl, Shift two for second level headings. And so that way, I can just keep my hands moving. And I don't need to think about going flicking around the menu to find what I need.

Tim Kowal  58:37 
Yeah, you don't have to keep taking your hands off the keyboard and reach for the mouse and going back and forth. Yeah, I thought I had a lot of good efficiencies, you probably see me as a barbarian.

Ryan McCarl  58:48 
And hardly.

Tim Kowal  58:50 
Let's see what uh, yeah. And definitely cosign on the recommendation for TextExpander. I think we had already spent it on the podcast once and he talks about text expander I think he recently on one of his podcast episodes, he talked about certain kinds of legal tech that until they're installed and up and working on the computer, that computer is not not not usable yet. Yeah, yeah, it's just, and that's a text expander has become that for me. Sometimes I forget about it. It's become invisible to the way I work. And when people ask me about legal Tech, I forget to mention it because it's just become like, oh, it's it has to be there.

Ryan McCarl  59:23 
Right? Well, and I'll note too, that a lot of terms of art in law are long. And a lot of parties names are long. And so you can make ad hoc ones for citations. For example, if I if I read the declaration in support of a summary judgment motion, I will set up a I have a text expansion shored up. That's set up for McCarl declaration paragraph sign space, and therefore I just type in three letters and I've got that hole there in my footnote, and I can plug in plug in the citation. Yeah, yep.

Tim Kowal  59:51 
Nice. Great stuff. Ryan. We're out of time. For for today's episodes, well, we'll just have to leave it at don't use cleaned up And there's really no debate on it. And it's two to one today. So Jeff and Jack Metzler will just have to eat their heart out on. We had a we had a good discussion about that on our podcast with Jack Metzler. But no, I think Ryan's advice on that is, is the same as it is I have leaned toward, which was to probably lean against it as the practitioner unless you're really confident that the judge is going to be okay with it.

Ryan McCarl  1:00:22 

Right. But yeah, absolutely. I mean, I lawyers, for good reason don't don't always trust opposing counsel to accurately represent a quotation. And the and judges see Miss quotations all the time. So that's really what it comes down to is, if everybody were angels in the profession, and everybody were scrupulously accurate with no mistakes, then you could have there are a lot of things you can do, you know, to save to save on citation space. But I find that indicating that the quote has been altered and how it's been altered, is if you don't do it, it raises the question of, in what way was it altered? And was it fairly altered? So and I learned when I was researching for the book that Jack melters description of it is a more limited applications. And it's typically described as he's only talking about it. When it's one core, you're citing a court or recording case that itself cites another case. So it's a more limited application, but I think it's kind of taken a bit of taken flight and departed from that, that limitation into alterations more generally. And you don't know what the person who said cleaned up means by it, because it's not entirely it's not certain that they that they they observed that limitation in Jack's initial law review article. So I think it's, you know, fully, it's been used by Supreme Court justices. It's advocated by people I highly admire, like Brian Garner, and that said, and Jeff Lewis Lewis, and and, and I that said, I would err on the side of caution and avoid it.

Tim Kowal  1:01:44 
Okay, listeners who want more elegant legal writing tips need to pick up Ryan McCarl's book elegant legal writing, we'll put a link to this in the show notes where they can order elegant legal writing. Ryan, thanks so much again for joining us today, we will have to have you back on to discuss more legal tech, legal writing tech, because I think the three of us are very legal tech forward love talking about those ways that attorneys can get more efficiencies in their work, but for today, you know, Jeff has a hard stop. So so the fun is gonna have to end today. So we're gonna wrap up today's episode, we're going to take casetext once again for sponsoring the podcast and each week when we include links to the cases we discuss, we use casetext daily update a database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on casetext basic legal research when they go to casetext.com/calp. That's casetext.com/C A LP. Yeah,

Jeff Lewis  1:02:40 

and if you have suggestions for future episodes, if you want to send Tim hate mail about cleaned up, email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. All

Tim Kowal  1:02:53 

right, thanks and see you next time.

Ryan McCarl  1:02:54
Thank you both for your time.

Announcer  1:02:55 

You just listened to the California appellate podcast, a discussion a timely trial tips and the latest cases news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Other items discussed in the episode:

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"A judge is a law student who grades his own papers."

— H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

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