Rewriting Paragraphs

In a post a while back, I rewrote the opening paragraphs of a motion to demonstrate the decisions that are made in revising and editing legal writing. And because I come across lots of paragraphs (in motions, briefs, and opinions) that would benefit from revising or editing, I’ve decided to make this a regular thing: every once in a while, I’ll rewrite a paragraph here, to show how legal writing can be improved.

So here’s an opening paragraph as it appears in a reply brief that was filed in an appellate court (with party names changed):

Company presents two arguments in response to Strummer’s challenge that there is no direct causal link between Strummer and Company’s alleged lost profits. First, Company does not dispute that the jury was instructed to only consider damages from “lost profits” “and none other.” Second, Company also does not dispute that it’s expert witness presented only a lump-sum lost profits damages calculation. Third, Company does not dispute that the contract at issue with Strummer is an employment contract between Strummer and Company. Instead, Company presents two theories, arguing that Strummer is responsible for stolen inventory and for the departure of distributor Johnny Rotten, and suggests that the jury may have identified damages connecting Strummer to these events.

Now, here’s the rewrite:

Strummer has demonstrated there is no evidence of any causal link between his actions and Company’s alleged lost profits, so the district court erred in awarding damages . To defend the damages award, Company now contends that Strummer was responsible for stolen inventory and for Johnny Rotten’s departure, and claims the jury could’ve identified and awarded damages based on these two events. But Company does not dispute that the jury was instructed to consider only “lost profits” as a basis for damages, “and none other.” And Company likewise does not dispute that its damages expert presented evidence of only a lump-sum amount of lost-profits damages. Thus, the jury was instructed not to consider any evidence of damages based on stolen inventory or Johnny Rotten’s departure—and none was presented to consider. So even if Company’s new theories about Strummer being responsible for stolen inventory or for Johnny Rotten’s departure were correct, they still wouldn’t support the district court’s judgment.

I think the second version is much better. But, as in my previous post, I’ll let the rewrite speak for itself, rather than trying to explain each change and the reasons behind it. The key for improving our writing is to read carefully and to think about how good writing is good—i.e., what is being done, exactly, line by line, to make it good—so that we can replicate those moves in our own writing and editing.

Circuit Splits

There’s a split over whether federal courts exercising bankruptcy jurisdiction should apply federal choice-of-law principles or the choice-of-law principles of the forum state. See here at 5-6.

Circuits disagree over whether the Prison Litigation Reform Act’s fee cap and hourly-rate cap apply when the claim does not involve “prison conditions.” See here at 22-23.

There’s disagreement over whether a First Amendment free-exercise claim proceeds under a different framework than claims brought under RLUIPA or RFRA. See here at 15 & n.7.

There’s a split over whether multiemployer ERISA plans are “conflicted” under Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). See here at 4-5.

Courts disagree about whether pro-hac-appearance fees are recoverable as costs. See here at 2.

Courts disagree about whether a criminal defendant’s previous term is “undischarged” if he is on parole—and also about whether courts may apply § 5G1.3(b) after accepting a conditional plea agreement. See here at 13.

And there’s a split over the interaction between Title II of the ADA and § 504 of the RA, and the types of injuries cognizable under § 504. See here at 30-34.

Two Recent Articles

I’ve really slacked on blog posts lately. But I do have two articles that were published recently. In November, I wrote an article on “Current Class-Action Issues.” And today my article on “Cleaning Up Quotations in Legal Writing” appeared in the ABA’s Appellate Practice newsletter. Hope they’re helpful!