Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

As an occasional teacher of writing, I am always interested in cases where grammatical irregularities lie at the heart of the dispute. Robert C. Cumbow offers some examples in “News from the Trenches in the War of the Words,” published in the Washington State Bar News.  

Cumbow also points out that U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas do disagree on some things, as Thomas forms a possessive of a singular noun ending in “s” with a lone apostrophe, while Scalia uses the Strunk & White approved addition of another “s” after the apostrophe. See Kansas v. Marsh.  Justice David Souter sides with Scalia on this one.

Thanks to Tabitha Keetch for the heads up on this article!

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A page turner of an opinion

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.   Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

Thanks to Abstract Appeal for the heads up on this opinion.

Engaging once again in shameless self-promotion, I’ll remind readers that I’ll be teaching some of those fiction writing techniques in the three part CLE for CCBA, Practical Writing for Lawyers on June 2, July 6 and August 3. Click here for more info. However, I can’t promise advice on making your legal writing sound like a Broadway musical.

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Texas Appellate Law Blog recently questioned whether the 5^th Circuit should have cited to Wikipedia for the definition of the word “accrue” (although the term defined in the wiki is actually “accrual”). With Exxon Mobil Corp. v. Commissioner, the 5^th Circuit joins a number of other federal circuits who have similarly cited to the collaborative encyclopedia as an authority.

The Volokh Conspiracy first reported a federal court citation to Wikipedia way back in 2004, noting the potential risk to citing to an authority that is “so easily compromised.” Fast forward a few years, and in January 2007, the New York Times reported that more than one hundred judicial opinions, including 13 from circuit courts of appeal, contained references to the wiki resource. The Times article discusses the advantages and disadvantages of such usage, with the various legal authorities cited therein generally coming down in favor of citation if limited to tangential, background matters.

I began writing this post with the idea that protests against citing wikis were but another example of Luddite-like obstinacy against progress. Why shouldn’t collective intelligence be considered reliable, especially when used for matters such as popular definitions? As James Surowiecki told us in The Wisdom of Crowds,  “Ask the Audience” was the most reliable lifeline in Who Wants to be A Millionaire?

But then I stumbled upon Wikipedia’s own article on the topic, Wikipedia as a court source. In contrast to the New York Time’s count of more than one hundred references (confirmed by a quick review of the results of a Westlaw search), Wikipedia reports itself appearing in fewer than forty citations – and more than a few of those were not even court opinions, but instead, references in briefs and foreign legal documents.   The most recent example, Exxon Mobil Corp. does not appear. 

Therein lies a substantial risk of citing collaborative resources.  None of the collectively intelligent have yet taken sufficient interest in this topic to insure the litany is complete.

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In the fiction writing world I inhabit while not lawyering, any email or Internet posts about one's public writing-related appearances are referred to as "shameless self promotion."  Bear with me then while I shamelessly promote my writing-related public appearances. ( I will NOT be signing at books  at these events, however.)

Yours truly  will present a three part CLE series on "Practical Writing for Lawyers" for the Clark County Bar Association.  Register here.  Each seminar will take plaice at the Clark County Bar Center,  725 S. 8th Street, Las Vegas. The three seminars are:

Part 1 - The Seven Plagues of Ineffective Writing - Friday,  May 4, 2007 1:00-3:15 pm

Think grammar, punctuation and other writing rules are just for kids? Think again.  Rules exist to prevent ambiguities and misunderstandings; language rules are no exception.  Avoiding these seven common writing pitfalls will help you avoid ambiguities and misunderstandings in all of your legal writing - contracts, letters, reports, briefs, etc.   Clarity is the soul of communication – learn to write clearly.

Part 2 - Briefs on Briefs -- Short, Sweet, and Persuasive - Friday,  June 1, 2007 1:00-3:15 pm

At both the trial and appellate levels, written advocacy provides your best opportunity to present the facts and the legal authority supporting your client's position.  Learn how to incorporate the key components of clear, articulate, and persuasive briefs into your writing to help the judge understand why your client should win.

Part 3 - Win Clients and Impress Partners with Professional Article Writing - Friday,  July 6, 2007 1:00-3:15 pm

Articles on legal topics need not be dry discourses filled with obscure footnotes.  Learn to pitch, plan and present clearly written articles to showcase your expertise, market your practice, and inform your clients and colleagues.

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