Fordham University School of Law
From the SelectedWorks of Hon. Gerald Lebovits
May, 2017
Free at Last from Obscurity: Achieving Clarity Gerald Lebovits
Available at: https://works.bepress.com/gerald_lebovits/308/ May 2017 In This Issue:
22 Stronger Commercial Noncompete Agreements 26 The Joint Employer Doctrine and the Franchise Business Model 30 The NLRB’s Redefined Joint Employer Standard is Justified May 2017 Michigan Bar Journal 3
May 2017 volume 96 number 5
THEME ISSUE EDITORS: Brian C. Draper and Richard C. Kraus
22 Antitrust and Franchising Law 21 New Environments and New Controversies Theme Introduction — Howard Yale Lederman 22 Innovation Ventures Paves the Way for Stronger Commercial Noncompete Agreements — Howard B. Iwrey, Cale A. Johnson, and Cody D. Rockey 26 Uncertainty Abounds 26 The Joint Employer Doctrine and the Franchise Business Model — David L. Steinberg, Derek D. McLeod, and Emily M. Mayer 30 The National Labor Relations Board’s Redefined Joint Employer Standard is Justified and Necessary — Howard Yale Lederman
30 Of Interest 18 The Importance of Law Day and the Fourteenth Amendment Lawyers, Let’s Share Our Passion for Constitutional Democracy — Linda A. Klein 34 Michigan Lawyers in History: Fred Magnus Butzel Special Feature — Steve Savickas 67 Proposed Section Bylaw Amendments ‘‘No organization of lawyers can long survive which has 68 Michigan State Bar Foundation not for its primary object the Report on Financial Statements protection of the public.’’ Roberts P. Hudson, First State Bar of Michigan President Michigan Bar Journal May 2017 4
May 2017 volume 96 number 5
Official Journal of the State Bar of Michigan Executive Director: Janet K. Welch Departments Editor Advertising 16 President’s Page Linda M. Novak Stacy Marciniak May Day—Law Day: Faith, Force, and the Rule of Law Copy Editor/Writer Communications Manager Michael Eidelbes Samantha Meinke — Lawrence P. Nolan Editorial Assistant Graphic Design Joyce Nordeen Ciesa Design 38 Plain Language Citation Support Contributing Free at Last from Obscurity: Achieving Clarity Chelsea Huber Graphic Designer — Hon. Gerald Lebovits Sarah Nussbaumer Publications and Website Advisory Committee 40 Trial Practice John R. Runyan Jr., Chairperson Tell Me Where It Hurts: Early Assessment of the Strengths Brendan H. Frey, Vice Chairperson Christopher R. Trudeau, Vice Chairperson and Weaknesses of Your Case Linda M. Watson, Vice Chairperson — Karen Libertiny Ludden William J. Ard Joseph Kimble David M. Cohen Richard C. Kraus Margaret A. Costello Gerard V. Mantese 42 Libraries and Legal Research Brian C. Draper John P. Mayer Franchising in an Entrepreneurial Age David R. Dyki Neal Nusholtz Jessica S. Fox Rebecca A. Schnelz — George Ward Vani C. Gujuluva Tyra L. Wright John O. Juroszek 44 Law Practice Solutions Editorial and Advertising Offices The Business of Practicing Law: Targeting Millennials Michael Franck Building 306 Townsend Street — Ashley E. Heidemann Lansing, MI 48933-2012 (517) 346-6300 (800) 968-1442 FAX: (517) 482-6248 46 Section Briefs www.michbar.org
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Free at Last from Obscurity: Achieving Clarity
By Hon. Gerald Lebovits
scar Wilde was kidding when 4. Give the rule first; then give the excep- 10. Keep related matters together. Then say he wrote, “‘[R]emain, as I do, tion in a separate sentence. Explain any it once, all in one place. incomprehensible: to be great exception you give. Don’t simply write 11. Begin with an effective introduction, or O is to be misunderstood.’”1 Pres- that exceptions exist. If you don’t want road map, that summarizes your case ident and later Chief Justice Taft got it right, to devote space to explaining excep- and the legal principles. Use small-scale though in the negative: “‘Don’t write so that tions, state your rules so precisely that transitions—concepts and words—to you can be understood; write so that you they admit no exceptions. link sentences, paragraphs, and sec- can’t be misunderstood.’”2 The hallmark of 5. Introduce before you explain. Novices tions. Use topic sentences to bridge be- good legal writing is that an intelligent lay- often discuss something before they lay tween paragraphs. person will understand it on the first read. a foundation for it. The reader won’t Some writers use complicated language, understand if you discuss the terms of 12. Minimize acronyms. intentionally or not, to mask their lack of a contract before you establish that the understanding of the subject. Others write 13. Avoid, as if your writing depended on it parties have a contract. turgidly because they want to impress, be- (and often it does), intrusive phrases or cause they believe that people are supposed 6. Dovetail (a type of segue) to connect clauses—like the two in this sentence. to write that way, or because they don’t one sentence or paragraph to the next. 14. Untangle complex conditionals and neg- know better. They err. As Webster stated in Move from old to new, from short to ative statements by writing in the affirm 1849, “‘The power of a clear statement is long, and from simple to complex. ative. A sign next to the judges’ elevator the great power at the bar.’”3 bank at the Criminal Courts Building In short, above all else, the legal writer 7. State the point before you give the de- in Manhattan reads: “NOTICE: USE OF must be understood. This article offers some tails, raise the issue before you answer THIS ELEVATOR IS RESTRICTED TO suggestions for achieving that goal. it, and answer before you justify. JUDGES ONLY.” The sign means that 1. Write only if you have something to 8. Stress issues, not legal authority. Novices anyone but a judge may use the judges’ say. Simplify your writing by omitting devote one paragraph after another to elevator; no restrictions have been placed unnecessary law, facts, and procedure. cases. Good writers organize by issues, on anyone else. Cut clutter, redundancies, and extrane- not caselaw. Authority should be used ous words, thoughts, and points. to support conclusions within issues, 15. Make comparisons complete and logical. 2. Put essential things first in sections not as an end in itself. Thus, cite au- 16. State whose position is being asserted. and paragraphs. thority as a separate sentence (or in a “Plaintiff moves for summary judgment footnote), after the stated proposition, 3. Assume that your reader knows little or because the facts are not in dispute” to de-emphasize authority and to em- nothing about your case. becomes: “Plaintiff moves for summary phasize issues. judgment because, he argues, the facts 9. Familiarize the reader with the person are not in dispute.” ‘‘Plain Language’’ is a regular feature of or entity before you discuss what that the Michigan Bar Journal, edited by Joseph 17. Shun overspecificity, which prevents person or entity did or didn’t do. Give Kimble for the Plain English Subcommittee the reader from distinguishing between the full names of people and entities of the Publications and Website Advisory the important, the less important, and the the first time you mention them. Use a Committee. To contribute an article, contact unimportant. Overspecificity also bores shorthand version thereafter. Similarly, Prof. Kimble at Western Michigan Univer- the reader. sity Cooley Law School, P.O. Box 13038, Lan- familiarize the reader with the concept sing, MI 48901, or at [email protected]. For before you discuss it, familiarize the 18. Write directly, not indirectly. Whatever an index of past columns, visit http://www. reader with the case before you draw the merits of indirect speech among michbar.org/generalinfo/plainenglish/. an analogy or distinguish it, and define thoughtful, attentive people, legal writ- technical terms as you use them. ers must prefer directness and clarity to May 2017 Michigan Bar Journal Plain Language 39
politesse. Readers should debate as lit- or exit? Note the power of earthiness, Serial commas: “The court clerk must tle as possible the meaning of a judicial without foreign or polysyllabic words, file the stipulation, the court papers opinion or a statute. Example: “Defen- from Justice Marshall: “A sign that says and the decision and order” becomes: dant is entitled to a fair trial” becomes: ‘men only’ looks very different on a bath- “The court clerk must file the stipula- “The People must turn over all exculpa- room door than a courthouse door.”6 For tion, the court papers, and the decision tory material by 3:00 p.m. today.” the power of plain English in opinion- and order.” writing, read anything by Judge Richard 19. Use headings and subheadings to break Good legal writing is clear, simple writ- Posner of the Seventh Circuit and Judge up the text of an argument that exceeds ing. Judge Albert M. Rosenblatt noted one Alex Kozinski of the Ninth Circuit. Com- a few pages. Divide sections by proce- result from a lack of clarity: “[W]hen a dis- pare their work with this impenetrable, dure or issue or both. Make your head- pute breaks out and the contract is sus- pathological legaldegook from an ap- ings descriptive. Prefer boldface. Do not ceptible of two interpretations, it will be pellate court: “Parens patriae cannot be use all capitals, initial capitals, or under- construed against the author’s side. This is ad fundandam jurisdictionem. The zon lining. One caveat: Headings and sub- an apt legal punishment designed to fit the ing question is res inter alios acta.”7 headings should relate to the text and crime of Writing with Lack of Clarity in the not be invented to amuse. In Young v 22. Punctuate for clarity. Periods, commas, First Degree.”8 n Lynaugh,4 the court opined that “the colons, semicolons, and hyphens have state has played procedural football” in many uses. They divide text for read- Gerald Lebovits is a New a case in which the defendant sought to ability and provide elegance and vari- York State Supreme Court set aside his guilty plea. On that prem- ety. They also promote clarity. justice in Manhattan and ise, the court’s headings included “The Hyphens: Ten inch thick briefs be- an adjunct professor at Players and the Background,” “Jurisdic- comes, depending on what you mean, Columbia, Fordham, and tion on the § 2254(a) Playing Field,” “Il- Ten-inch-thick briefs or Ten inch-thick New York University legal Motion,” and “The Final Score.” briefs. Consider the song about “purple law schools. And in City of Marshall v Bryant Air people eaters.” Without the hyphen be- Conditioning Co,5 the court created a tween purple and people, the song is reason to compose musical headings ENDNOTES about purple creatures that eat people. like John Sebastian’s Summer in the 1. Quoted in Belt, Concerned Readers v. Judicial Opinion With the hyphen between purple and Writers, 23 U Mich J L Reform 463, 463 (1990). City, the Beatles’ We Can Work It Out, people, the song is about creatures that 2. Quoted in Steinberg, Be a Better Lawyer by Being a and Burt Bacharach’s Promises, Prom- Better Writer, NY L J (October 13, 2000), p 1. eat purple people. ises. But devices like these can come 3. Quoted in Quote It! Memorable Legal Quotations (New York: William S. Hein & Co, 1987), p 18. across as too clever or self-satisfied, and Commas: Judge: “I want to see Ms. X and her client and I will be in court all 4. Young v Lynaugh, 821 F2d 1133, 1134 (CA 5, 1987). even as disrespectful. 5. City of Marshall v Bryant Air Conditioning Co, morning.” Without a comma between 20. Use concrete nouns to be clear, concise, 650 F2d 724 (CA 5, 1981). Ms. X and and or between client and 6. City of Cleburne v Cleburne Living Ctr, 473 US 432, and subtle. Avoid abstract nouns unless, and, the reader does not know whether 468–469; 105 S Ct 3249; 87 L Ed 2d 313 (1985). as a persuasive-writing device, you wish the judge wants to see Ms. X and her cli- 7. Miss Bluff Motel, Inc v Co of Rock Island, 96 Ill App to de-emphasize a point. Abstract nouns 3d 31, 34; 420 NE2d 748 (1981). ent or whether the client and the judge 8. Rosenblatt, Lawyers as Wordsmiths, 69 NY St B J 12 convey intangibles: ideas and concepts will be in court all morning. (November 1997). (justice, transportation, contact). Con- crete nouns describe tangibles (automo- bile, not transportation; wrote a letter, not contacted). The more concrete the writing, the better (souped-up 1966 Cor- The Contest Returns! vette, not automobile). Phrases should Oh, happy day. We haven’t had a contest in a while, so let’s try one. I’ll send a copy of also be concrete: “After the accident, Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, plaintiffs sought justice” becomes: “Johnny and Law to the first two people who send me an A revision of the sentence below. Notice Smith’s parents sued Jones after Jones’s the blast of unnecessary prepositional phrases—the worst small-scale fault in legal writing. souped-up 1966 Corvette struck five- Evidence of a conviction is not admissible if a period of more than ten years has year-old Johnny, who was riding his tri- elapsed since the date of the conviction or of the release of the witness for the con- cycle on a sidewalk in Central Park.” finement imposed for that conviction. 21. Take the plain-English movement seri- Send an e-mail to [email protected]. Put “Contest” in the subject line. The deadline is May 25. ously. Why write a means of egress and I have to be the sole judge of the winners. then define the phrase as a way to get —JK out when you can write a way to get out