Some little stylistic things, if you are looking for polish

Punctuation matters

Commas in lists and series: The BB is silent on this issue (at least BNL can't find the rule). According to The Chicago Manual of Style, in a series of three or more items, you should set the last item off with a comma before the conjunction. This is tricky when two items together form one item in a series. Where the elements in a series are long phrases, especially ones that have commas within them, it is better to set the elements off with semi-colons.

Good:    I read the complaint, the answer, and the motion.

    I brought the rope and the block and tackle.

Not:    I read the complaint, the answer and the motion.

OK:    Defendant offered plaintiff the car, which had previously been totaled, $1000 in cash, payable in $200 payments over five months, and a release of liability, which defendant had downloaded from the Internet.

Better:    Defendant offered plaintiff the car, which had previously been totaled; $1000 in cash, payable in $200 payments over five months; and a release of liability, which defendant had downloaded from the Internet.

Apostrophes: You should not use contractions in your memoranda, unless you are quoting evidence or an authority that did. "Cannot" is one word.

Good:    Defendant did not justify its fees to plaintiff as required by the Act.

Defendant cannot justify its fees.

Not:    Defendant did not justify its fees to plaintiff as required by the Act.

Defendant can not justify its fees.

Defendant can't justify its fees.

When indicating a possessive, you should add an apostrophe and a lower-case 's,' unless the possessive is pronounced without an additional syllable.

Good:    SDS's initial capitalization was $3,000,000.

The Snyders' ownership interests in Snyder Corp. exceed ninety percent.

Not:    SDS' initial capitalization was $3,000,000.

The Snyders's ownership interests in Snyder Corp. exceed ninety percent.

Colons. Generally, use a colon only to end a complete sentence that introduces a list or that describes the clause that follows it. Do not use it to introduce a list that is necessary for the completion of the sentence.

Good:    To invoice this equitable claim, the plaintiff must show two elements: (1) the sole or dominant shareholder had control . . .; and (2) . . . .

To invoke this equitable claim, a plaintiff must show that (1) the sole or dominant shareholder had control . . .; and (2) . . . .

Defendant incorporated SDS for one purpose: to avoid liability.

Not:    To invoke this equitable claim, a plaintiff must show that: (1) the sole or dominant shareholder had control . . .; and (2) . . . .

Stringing sentences and clauses together: If you have two adjacent complete sentences that are closely related in subject, you may string them together either with a comma and a conjunction or with a semi-colon. If you have two verb clauses with the same subject, you should join them with a conjunction and no comma. (But if you have three or more such clauses, then you have a series and should join them according to the "comma" rules above.) Stringing two complete sentences together with a comma only is an error, called a "comma splice" by some.

Good:    Defendant is a subsidiary of Snyder Corp., and Mr. Snyder owns sixty-five percent of the shares of Snyder Corp.

Not:    Defendant is a subsidiary of Snyder Corp. and Mr. Snyder owns sixty-five percent of the shares of Snyder Corp.

Defendant is a subsidiary of Snyder Corp. Mr. Snyder owns sixty-five percent of the shares of Snyder Corp. (Comma splice.)

Good:    Defendant is a subsidiary of Snyder Corp.; Snyder Corp. owns seventy-five percent of the shares of defendant.

Not:    Defendant is a subsidiary of Snyder Corp., Snyder Corp. owns seventy-five percent of the shares of defendant. (Comma splice again.)

Good:     Mr. Snyder is president of Snyder Corp. and owns sixty-five percent of its shares.

Not:     Mr. Snyder is president of Snyder Corp., and owns sixty-five percent of its shares.

Good:     Mr. Snyder is president of Snyder Corp., is a member of its board of directors, and owns 100% of its shares.

Not:     Mr. Snyder is president of Snyder Corp. is a member of its board of directors and owns 100% of its shares.

Other style matters

It is not necessary to announce an abbreviation of a common name or term in your memorandum if the abbreviation is obvious.

Good:    Snyder Corporation is the parent corporation of Snyder Distribution Systems ("SDS"). Chris Walker and Walker Company have sued SDS and Snyder Corp. Mr. Walker and Walker Co. allege that SDS and Snyder Corp. interfered with a contract.

Not:    Snyder Corporation ("Snyder Corp.") is the parent corporation of Snyder Distribution Systems ("SDS"). Chris Walker ("Mr. Walker") and Walker Company ("Walker Co.") have sued SDS. Mr. Walker and Walker Co. allege that SDS interfered with a contract.

Do not capitalize job titles unless they immediately precede a person's name.

Good:    Daniel Snyder is chief executive officer and president of SDS.

Not:    Daniel Snyder is Chief Executive Officer and President of SDS.

Avoid words that redundantly identify the present time in sentences using the present tense, except when contrasting the current time to another time.

Good:    Daniel Snyder is chief executive officer and president of SDS.

Not:    Daniel Snyder is currently chief executive officer and president of SDS.

    Daniel Snyder is president of SDS at this time.

    Daniel Snyder is president of SDS at this point in time.

    Daniel Snyder is now president of SDS.

OK:    Daniel Snyder is currently president of SDS; if SDS uses this suit, he may soon be unemployed.

Because your memorandum relates to an ongoing suit, your memo subject line should probably include the caption of the case. E.g., "Walker Co. v. Snyder Distribution Systems: piercing the corporate veil to hold Snyder Corp. or Steven Snyder liable." If I happen on this memo later, I'll have a better chance of understanding what it is about.

Watch out for initial dependent clauses where it is unclear what they modify. These phrases are often called "dangling modifiers."

Not:    To examine this issue more clearly, the factors are separable into three broad categories. (Are the factors going to examine the issue?)

Better:    Examining the issue clearly requires separation of the factors into three broad categories.

Not:    After reading the underlying data, the article remains unconvincing. (Did the article read the underlying data?)

Better:    After reading the underlying data, I remain unconvinced.

Dates and numerals

Two areas where Rebecca and I may have marked your paper drafts up somewhat inconsistently relate to dates and numbers/numerals. Here is some clarification that you should use when preparing your next SDS memo draft and for your spring assignments.

Dates

In the text of your memo (including the memo header lines – addressee, date, etc.), indicate dates by spelling out the month followed by the cardinal numeral, a comma, and the year. Military and international usage prefers day, month, year ordering, e.g., "12 November 2008." (The Chicago Manual of Style prefers this as well.) But those provisions of the BB that address exact dates prefer the month, day, year ordering, e.g., "November 12, 2008." Set the date off from succeeding text with a comma. You do not need a comma between a month and year when there is no date. You should abbreviate months in citation sentences/clauses according to BB T. 12, but not in textual sentences. (See BB Rule 6.1.)

    E.g.:    On October 21, 2008, the defendant resigned.
        In October 2008, the defendant resigned. (Some folks feel the comma is unnecessary.)
        On November 4, we will vote. (Again, some folks do not believe comma is necessary.)

    Not:    On October 21^st, 2008, the defendant resigned. (Don't use ordinal "st.")
        On October 21, 2008 the defendant resigned. (Missing comma after "2008.")
        On 21 October 20008, the defendant resigned. (Military/international order.)
        In October, 2008, the defendant resigned. (First comma unnecessary.)

Where you have choices or options, or can vary punctuation based on personal preferences, be sure you do it consistently.

Numbers vs. numerals

Note BB Rule 6.2(a). Under it, you must spell out all numbers zero to ninety-nine in your text. You must also spell out any number that begins a sentence. (The alternative to spelling out the numbers is using numerals; the numeral "6" is spelled out as "six.") Under 6.2(d), you must spell out "percent" where you have to spell out the number; if you can write numerals, you can use the % sign. The rule is pierced with exceptions: Rule 6.2(a)(i) permits the use of spelled out "round" numbers like "hundred" and "thousand." Rule 6.2(a)(v)permits you to use numerals and percent signs "[w]here material repeatedly refers to percentages." (I'd interpret that as multiple occurrences within a single sentence or four or five occurrences within a paragraph; others may differ.) In the silliness category, note under 6.2(a)(vii) that you should use a comma for five-digit numerals, but not for four-digit numerals. And for another classic example of BB silliness, read 6.2(b)(ii).

E.g.:    Steven Snyder owned sixty-five percent of SDS's stock.

Steven Snyder owned 65% of SDS's stock; Bill owned 5%; and Mary owned 3%.

Steven Snyder owned 100% of SDS's stock.

Snyder Corp. invested $3,300,000 in SDS. (Would "$3.3 million" be ok? BNL is not sure.)

SDS still owes Snyder Corp. $200,000. (The rule might permit "two hundred thousand dollars," but much easier to read $200,000.)

SDS owns 1456 trucks and ships 14,567 crates of product per month.

Not:    Steven Snyder owned 65% of SDS's stock.

SDS still owes Snyder Corp. two hundred thousand dollars.

SDS owns 1,456 trucks.

Again, consistency is the key where you have options.

Some tips about citing cases

Abbreviating case names

A case's name may take three different forms in your memo, and how you abbreviate it in each is different. (Thank you, Blue Book editors!) First, understand the difference between case names appearing in a textual sentence and in a citation sentence or clause. If you refer to the case by name when discussing it, you are using it in a textual sentence. If you are not discussing the case, but instead are citing it to support a claim, you are using it in a citation clause or sentence. For example:

Case name in textual sentence: In Nelson v. Carlson, 123 S.E.2d 456, 457 (N.C. 1980), the court held…

Case name in citation clause: Courts consider many factors: non-compliance with corporate formalities, Nelson v. Carlson, 123 S.E.2d 456, 457 (N.C. 1980); inadequate capitalization, Smith v. Jones, 234 S.E.2d 567, 568 (N.C. Ct. App. 1995); …

Case name in citation sentence: No one factor is determinative. Nelson v. Carlson, 123 S.E.2d 456, 457 (N.C. 1980).

The first time you refer to a case in a textual sentence (even if you have previously cited it in a citation sentence), you may abbreviate only eight words (BB rule B5.3), and you must immediately follow the case name with the remaining elements of a full cite (id.).

Eg. 1: In East Market Street Square, Inc. v. Tycorp Pizza IV, Inc., 625 S.E.2d 191, 196 (N.C. Ct. App. 2006), the court identified five elements.

E.g. 2: In Henderson v. Security Mortgage & Finance Co., 160 S.E.2d 39, 44 (N.C. 1968), the court identified five elements.

After you have referred to the case by name in a textual sentence once, you may refer to it thereafter in the text of the same general discussion using a short name, consisting only of the first party's name, shortened to save space. (BB rule B5.3.) There are special rules if several of your cases have the same first-party name or if you are citing multiple cases with the same name (as in appellate and supreme court versions of the same case).

Eg. 3: SDS is more like the defendant in Henderson than the defendant in East Market Street. (Note: see comment below about citing cases to support 'mixed assertions.')

The first time you cite a case to which you have not previously referred by name in a textual sentence, you must provide a full case name and cite according to BB Rule B5.1.1 in the citation sentence or clause, and you must abbreviate the case name according to BB Rule B5.1.1(v) and Table T.6.

Eg. 4: The Eighth Circuit analyzed this issue in a 1975 case. Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Mgmt., Inc., 519 F.2d 634 (8th Cir. 1975). (Note: I have not provided a pincite page number, because my textual sentence does not make any assertion about the content of the case. "Management" is abbreviated here, but it would not have been if we presented the case name in a textual sentence.)

Eg. 5: The court addressed this issue in a 1968 case. Henderson v. Sec. Mortgage & Fin. Co., 160 S.E.2d 39 (N.C. 1968). (Note: See note on Eg. 4. Compare the case name in Eg. 2 and note the differences in abbreviation.)

Eg. 6: The court addressed this issue in 2006. E. Mkt. St. Square, Inc. v. Tycorp Pizza IV, Inc., 625 S.E.2d 191 (N.C. Ct. App. 2006). (Note: See note on Eg. 4. Compare the case name in Eg. 1 and note the substantial differences in abbreviation.)

Once you have cited a case with a full cite, either by referring to it in a textual sentence or citing it in a citation sentence, you can use a short cite for it (provided you meet the requirements in BB Rule B5.2). In this case, you will come up with an unambiguous short name for the case. What is unambiguous depends on the other cases you cite. Here are citation sentences with acceptable short names for the cases in the examples above (assuming these short names thoroughly distinguish each of them from other cases cited in the memo).

Eg. 7: E. Mkt., 625 S.E.2d at 196.

E.g. 8:
Henderson, 160 S.E.2d at 44.

Eg. 9:
Lakota Girl Scout, 519 F.2d at 634.

Citations for 'mixed' assertions

Assume that you have presented a rule for an issue, and that you have discussed a case illustrating the rule, properly citing the assertions you made about the case. Now, you wish to make a comparison to your client's problem in a sentence referring to the case. Here is the example:

The defendant in East Market created several subsidiary corporations, all of which were engaged in the same line of business. 625 S.E.2d at 196. Unlike the defendant in East Market, Snyder Corp. has not created SDS to engage in the same business as Snyder Corp., its dominant shareholder.

The question is, what cite is required at the end of this sentence, if any? The BB provides no firm guidance. There are two prevailing views. (1) No cite is needed as you have already discussed the case and cited the relevant facts before making this statement. (2) You need a cite introduced with a "See" signal. It has to be a "See" cite, because the sentence makes a mixed assertion, partly about a case and partly about your client's situation. The cite supports your proposition, but does not directly state it. Here, your cite would be

See id.

Ready to puke? Sorry, we don't provide barf bags. Ready to protest? The BB editors invite your suggestions at Harvard Law Review, Gannett House, 1511 Massachusetts Ave., Cambridge, MA 02138.

Drafting issues - Part I

A business entity takes singular, neuter verbs and pronouns. The proper pronoun for a business organization like Acme, Inc., is always “it,” not “they.” It takes verbs in the singular. E.g., “Acme is likely to win; it satisfies all of the elements.”

Use new legal terms with care. Many students struggle with the use of terms that have legal significance. If you read a term in a case that sounds like a “term of art,” look it up immediately in Black’s. Under no circumstances should you use it in your assignment without being absolutely sure of its meaning.

Do not overuse “which” and “that.” Before finalizing your paper we recommend you run through it and do the following: Wherever you find a “which,” consider whether “that” sounds good; if so, change to “that.” Wherever you find a “that,” consider whether it can be deleted; if so, delete it.

“Whether or not.” It is usually not necessary to use the words “or not” with “whether.” “Whether” implies the alternative: “See whether Mr. Smith is coming.” The additional words would be superfluous. There are cases where “or not” is necessary; use it then.

Clearly, obviously, etc. The words, “clearly,” “obviously,” “without a doubt,” etc. are the refuge of those with weak arguments, and they should generally have no place in your writing. Just say what you are asserting and tell us why to believe it.

And/or. The expression “and/or” is an abomination. Say “and” if you mean “and” and “or” everywhere else. In some contexts you need to clarify whether “or” means “A or B, or both” or “A or B, but not both.” Nobody really knows what “and/or” means.

A good time was had by all

The title of this post is an example of the passive voice. Before you proceed, please read the University Writing Center’s post on active and passive voice.

You might want to read it again. Make sure you understand the difference between active and passive voice. Talk to Rebecca or me if you do not.

I will reiterate here the key advice of the Writing Center’s post: Do not use the passive voice unless you have a good reason.

Now for the good news: I kept track of the use of passive voice in the Doe assignments we are returning to you this week. The magenta highlighting in your paper tracks each instance of passive voice that I saw. (Your use of passive voice in no way affected your grade.) Every student but one used the passive voice between eight and twelve times in that assignment, which is not an excessive amount. (One particularly ‘active’ writer used it only five times.) You should not use it as much as you did, but many years we have students who use the passive voice in every other sentence.

As you proofread the closed office memos you will turn in tomorrow night or early Wednesday, try to identify instances of the passive voice, and remove them unless you have a good reason for keeping them. Note that Microsoft Word provides a grammar-checking tool that will identify most instances of the passive voice for you. Microsoft has published instructions and frequently asked questions for use of the function.

-Brian

Privacy Torts and young Master Doe

This week’s assignment poses two challenges for new law students: figuring out which privacy tort is which and figuring out how to compare and contrast facts from cases with different resolution statuses. First, note that an invasion of privacy under the common law can take the form of any of four different causes of action: (1) intrusion (or invasion) upon seclusion; (2) appropriation; (3) tortious publication of private facts; and (4) false light. The Minnesota Supreme Court provides the elements of all four torts in Lake, but note that we are interested only in the elements (and application) of “publication of private facts.” Discussing the elements of the other privacy torts will not help you here.

The bigger challenge is figuring out how to compare and contrast facts from these cases with those in your client’s situation. Let’s look briefly at each:

Hendry: Interestingly, the court affirms the lower court’s dismissal of plaintiff’s claim by determining that the plaintiff did not plead facts sufficient to satisfy the elements of the tort… after the court said the tort does not exist in Minnesota! (How you determine that a plaintiff has not satisfied the elements of a non-existent tort, I don’t know.) Should you read the analysis of the facts as dictum? (One court in our case materials says just the opposite – why?) Is the analysis of the facts in Hendry useful in the Doe situation?

Stubbs: Here, the Court of Appeals affirms the trial court’s grant of summary judgment to the defendant. As it finds there is no Minnesota cause of action for tortious publication of private facts, it does not articulate the elements of toritous publication, nor does it attempt to analyze the facts in its case against any rule for tortious publication. Will it be useful to compare/contrast the Doe facts with the Stubbs facts?

Lake v. Wal-Mart Stores: Here the Supreme Court reverses a grant of summary judgment, holding that Minnesota now has a cause of action for tortious publication. But does it actually determine whether any of the facts in the case satisfy the rule for tortious publication. (The answer is on page 9 of the case materials.)

CLD v. Wall-Mart Stores: (Did you wonder what is the correct spelling for “Wal Mart”?) This is a trial court’s grant of summary judgment for the defendant. This opinion actually disposes of a case by applying our rule to some facts. You will probably want to compare/contrast facts from this case to the Doe facts. But is this opinion binding on your client?

Bodah: Finally, the state Supreme Court is at it again; the opinion’s first paragraph gives two important clues to the utility of the case: (a) the adoption of the Restatement standard; and (b) an examination of the “publicity” element. It finds that the plaintiffs’ allegations are insufficient to state a claim for tortious interference. It seems that comparing/contrasting facts from this case with the Doe case might be a good idea.

Rules, rules, and more rules

As you prepare to turn in the assignment due tomorrow morning, you may have parsed the promissory estoppel rules from Filippi into a 'deductive' form. I often break rules down this way:

1. Is there any prerequisite for the rule's application? Some rules apply only in certain contexts. For example, promissory estoppel does not apply when there is actually a contract between the parties - right?
2. If/Then statement: E.g., If A and B, then C. Note that each part of the If statement may have sub-parts. If the promise is "clear and unambiguous" - is that one condition, or two?
3. Exceptions: E.g., If A and B, then C, except where D. Exceptions can sometimes, but not always, be stated as part of the if/then statement. E.g., If A and B and not D, then C. If you decide to paraphrase the rule that way, think through what Clary/Lysaght says about care in placing 'not's.
4. Special conditions: E.g., the Filippi court's statement that where an agreement to make a will rests on parol evidence, "it must be established by clear, satisfactory and convincing evidence." Barbara Johnson's case does not involve a promise to make a will.

Part of the IF statement for PE in Filippi includes a requirement that the promisee rely reasonably on the promise (you may have characterized it in different terms - that's fine). But to apply the Filippi rule to Barbara Johnson's case, you will need to decide what reasonable reliance looks like. In other words, you need to know what the "rule" is for reasonable reliance. The only help you have is the court's application of its rule to Paula Consagra - the court found that was NOT reasonable reliance. When advising Ms. Johnson, you will need to compare and contrast the facts in her case with those in the Filippi opinion to determine whether her reliance is reasonable.

By the way, Ballard's appears to be prospering on the Rhode Island coast. Looks like a nice place!
-Brian

Introduction - Reading Assignment for Week 2

In past years, my student teaching partners and I have prepared written materials to help students in our sections through the year. They tended to make up a lot of reading, and we gave them to students all at once. The result: students did not read them. I understand, you already have much reading to do.

This little blog is an experiment to deliver stuff in more digestible chunks. Here's how it will work: I will post on this blog between two and four times per week. Each post will be three paragraphs or so and relate to a topic or project on which you are currently working. I'll alert you to the posts (you can also set up an RSS feed). You will read them as they come out... six to twelve paragraphs per week in small batches does not sound too bad. The previous posts will remain here on the blog, too, so you can search for material I've previously published. (Another problem in previous years was that students misplaced the materials we provided them.) Not sure whether this will work better than our old approach, but the only way to tell is to try it.

Readings for Class Two: Clary/Lysaght, Ch. 2 (pp. 11-18); Ch. 3 (pp. 19-30); Ch. 4 (pp. 31-48); and Berring, Ch. 10 (pp. 307-326). My advice: I think the following passages in Clary/Lysaght are most important for this week's exercise. Focus some attention on them.

1. Page 12, first two paragraphs on the page, emphasizing the importance of facts.
2. Page 16, providing some tips for gathering facts.
3. Page 29, bottom box "Working with Cases," giving some thoughts about how to use cases in general.
4. Bottom of 38 through 47: Please work through the Professional Real Estate Investors example, as it models much of what you need to do with this week's assignment.

-Brian