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Bench and BarThe newsletter of the ISBA’s Bench & Bar Section Council

April 2010, vol. 40, no. 6

Save the adverb

ORDER PREPARATION GUIDELINES FOR JUDGE KRESSEL

My goal in preparing orders, as it is for all of my legal writing, is to use regular grammatical English as much as possible. A secondary goal is to use actual statutory language as much as possible, rather than changing or paraphrasing it, which runs the risk of changing its meaning. When you prepare proposed orders, please keep these principles in mind.

Guideline No. 1 – Electronic Format

All proposed orders must be submitted in electronic form. It should be converted directly from Word or WordPerfect to PDF. It should not be created by scanning it from its original Word or WordPerfect form. If it is scanned, I cannot make additions or changes. As an aside, although scanning documents is acceptable under our local rules and orders, it is highly discouraged since it takes up a much greater amount of space than a document that is created and then converted directly into a PDF document.

Guideline No. 2 – Case Title

In the title of the case or in the body of the order, use “debtor” or “debtors” as appropriate, but never “debtor(s).”

Guideline No. 3 – The Date

Please put a place for the date on the left side below the text. Do not put a month or year, simply put the word “Dated:” I use an electronic stamp to insert the date, so putting any part of the date is simply an inconvenience and an interference. The traditional line used to put the date is also unnecessary.

Guideline No. 4 – Signature

Put a line for a signature below the text on the right side of the page, slightly lower than the date. Do not include anything above the line. For example, do not include the phrase “by the court” or “entered.” Putting my name below the signature line is optional, but if you do, do not include anything other than my name. “Honorable,” “The Honorable,” or “Hon.” are forms of address and not part of my name. However, whether you include my name or not, the proper title to be included either directly below the line or directly beneath my name is “United States Bankruptcy Judge.”

Guideline No. 5 – Quotation Marks and Parentheses

Do not include quotation marks or parentheses to indicate a shortened version of a name. For example, the common reference in the first sentence to First National Bank of Minneapolis (“Movant”) is wordy, somewhat ungrammatical, unnecessary, and certainly clutters up the order. Please don’t do it.

Guideline No. 6 – Capitalization

Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.

Guideline No. 7 – Use of articles

Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”

Guideline No. 8 – And/Or

Never use “and/or.”

Guideline No. 9 – Superfluous Words and Phrases

Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: “hereby,” “herein,” “in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,” “immediately,” “heretofore entered in this case,” “be, and hereby is”–the list goes on and on. Compare the meaning of “Now, therefore, it may be and is hereby ordered that:” with “It is ordered:”

A good opening line for an order would read something like: This case came before the court on the motion of First National Bank seeking relief from the automatic stay. Referring to it as “this case” is the most accurate and succinct description. It is unnecessary to refer to it as “matter,” “proceeding,” “proceedings,” “that certain,” “subject,” or “above titled.” If the order is for an adversary proceeding, then refer to it as “this adversary proceeding.”

Refer to the automatic stay, simply as the automatic stay, not the automatic stay of actions. Do not refer to an order granting relief from the automatic stay as an order for relief. An order for relief is something entirely different. In addition to superfluous words, watch for superfluous and wordy phrases. Examples include referring to a motion as “filed with the court” or an “order heretofore entered in this case.” How about “order?”

Guideline No. 10 – Multiple Page Orders

As a matter of form, if your order runs to more than one page, make sure that the last page contains more than just the court’s signature and date.

Guideline No. 11 – Inappropriate Relief

Do not include in the actual order, things that the court is not ordering. Frequently, lawyers will include things that are factual determinations or are things the parties have agreed to. Those things really belong in a separate part before the words “It is ordered:.”

Guideline No. 12 – Undersigned.

Never use the word “undersigned.”

Guideline No. 13 – Hearing

In a proposed order filed with a motion, do not include any reference to a hearing having been held, since there rarely is. If you are submitting an order after a hearing, then it would obviously be okay to refer to one.

Guideline No. 14 – Attachments

I dislike having attachments to orders. For one thing, attorneys frequently forget to include the attachment. In addition, they can easily be separated from the order or even replaced.

Guideline No. 15 – Waiver of the Stay of the Order

If you want to include a waiver of the stay of your order, include that as a separate and last paragraph. I prefer the language: “Notwithstanding Fed. R. Bankr. P. 4001(a)(3), this order is effective immediately.” Substitute Rule 6004(h), 3020(e), or 6006(d) as appropriate.

Guideline No. 16 – Plurals and Possessives

Keep plurals and possessives straight and consistent. Know when to use debtors (plural), debtor’s (singular possessive), and debtors’ (plural possessive). Make sure the verb matches the subject of the sentence.

Guideline No. 17 – Its and It’s

Please use the possessive noun “its” and the contraction “it’s” correctly.

Guideline No. 18 – Disposition

Make sure the relief granted is actually stated in the dispositive part of the order. Do not simply say “the motion is granted” or “the trustee’s objection is overruled.” Say “The debtor’s sale of 10,000 widgets is approved” or “The debtor’s 1999 Dodge is not exempt.” If real property is involved, include the legal description, at least if you ever intend to file the order. Make sure the legal description is correct. (Double and triple check it.) Lastly, do not include as part of your relief anything which you did not request in the motion. ■

This article is one of those unintended consequences that we are always being warned about. Recently, I disseminated my “Order Preparation Guidelines” to members of the local bankruptcy bar. Almost immediately, a local blog picked it up, published a copy, and commented on it. Readers of that blog then contributed their own comments. Once it was on one blog, it spread to others, where it was republished and commented on by both the bloggers and readers of those blogs. Eventually, the editors of the Bench & Bar discovered it and asked me to write this article. I accepted with a great deal of trepidation. Some of the commentators on some of the blogs mistook my dissemination of the guidelines as an indication that I consider myself an expert on legal writing and was dictating to others how they should write. This article will simply give my critics another example of my writing, which they can tear apart and let me know about all of the ways that it can be improved. I am willing to accept their criticism, so here goes.

Background

I am sure that our court is not unique in requiring lawyers to submit proposed orders with their motions. This requirement serves many functions. It requires the lawyer to focus on the exact relief that he or she wants. It further gives the lawyer the opportunity to iterate that relief in the way the lawyer prefers. It also relieves the judges from having to prepare an order for every single motion, which would take up an inordinate amount of time. The first 20 years or so of my judicial career, those proposed orders, like the motions they related to, were filed in paper form. After the hearing, I was then in the position of either signing the order as it was proposed, having my secretary retype it, or asking the lawyer to redo it. In virtually all situations, I would sign the order as submitted. I signed them, even though frequently I was not necessarily happy with the language or the grammar. As we got into the electronic age and all motions were filed in electronic form along with the proposed order, it became possible for me to more easily make changes to proposed orders. I started doing so.

It was my hope that, over time, lawyers would see the changes that I made and they would make those same changes in future proposed orders. My hopes were met in only a limited way. While a handful of lawyers did exactly as I had hoped, the majority of lawyers did not and continued to submit their orders using the same language over and over and over again. I am not sure why more lawyers did not make the changes. Perhaps lawyers do not read the signed orders that they receive from the court to see if the order that the judge signed was the same order that they submitted or maybe it was a contest of wills. I am not sure.

I continued to make these changes over the course of about three or four years and eventually started keeping track of the most common things that I changed. Finally, I took my notes and put them into a single document, which eventually became the 18 guidelines. I showed them to my colleagues first, to make sure that I was not asking lawyers to do something in my orders that any of the other judges absolutely did not want. I certainly did not want to put lawyers in the position of having to create different forms of orders for different judges. I even added a few things that were suggested by some of my colleagues.

The Reaction

To say I was surprised at the reaction to the guidelines would be an understatement. The clerk electronically sent copies of the guidelines to members of our bar. The guidelines got picked up by a local legal blog and from there were picked up by quite a few other blogs. Many blogs allow readers to submit their own comments. The first surprise was the wording of the headlines. For example, Law.com Legal Blog Watch wrote: “Judge Cresses Puts An End to Legalese in His Court.” Umbricks used the headline: “Too bad Kressel lacks criminal contempt power.” The U.S. Law Blog wrote: “Federal judge orders lawyers to stop using legalese.” In federalappeals.net, Peter Smythe wrote: “Judge Orders Lawyers to Write Well.” LexisNexis in its Lawyers Weekly wrote: “Judge berates lawyers for bad grammar.” Lawyerist.com, which I think was the first blog to pick up my guidelines, wrote in its headline: “Judge Orders You to Stop Writing Stupidly.” My favorite is the ABA Journal’s blog, which started its story with the headline: “Judge Orders Lawyers to Stop Using Capitalization ‘With Abandon’.” There are quite a few others, but I think that you get the picture.

In my defense, I would say that I didn’t order lawyers to do anything, I did not berate them, and I did not accuse them of writing stupidly. Let me make something else clear; I have never held myself out as an expert on issues of grammar or syntax. While I like to think of myself as a student of the English language, studying it to improve my own writing, I have never lectured other judges or lawyers on proper grammar (my children and grandchildren yes, but lawyers, no). One of the commenters on Lawyerist.com’s blogged “. . . the memo comes across as a list of his personal idiosyncrasies.” I think the comment was meant as a criticism, but frankly, while I may quibble with the word “idiosyncrasies,” the guidelines certainly were intended to reflect my personal preferences and no more.

The Guidelines

Because they were my personal preferences, the guidelines explicitly only apply to proposed orders submitted to me. I was not attempting to mandate any of this usage in briefs or motions or any other document. Just as I would not expect lawyers to agree with everything that I suggest in my guidelines, I would not expect other judges to agree with my preferences either. For example, as a matter of style, I know some judges prefer to always capitalize the word “Court.” But it is my preference not to do so, except obviously as part of a proper name like “United States Bankruptcy Court for the District of Minnesota.” When I first became a judge, I faced the issue of whether to write opinions in the first or third person. I chose to write all of my opinions in the first person, not because I felt that objectively it was superior in some way to the use of the third person, but because it was comfortable to me and suited my style of writing. It would never occur to me to tell another judge that he or she should write opinions the same way that I do. (Well, to be honest, it might occur to me, but I would never actually do it).

Most of the guidelines are pretty prosaic and deal strictly with the formatting of the proposed order. Others are intended to be simple reminders about spelling and obvious grammar, which lawyers sometimes overlook in their writing. Guidelines 16 and 17, for example, remind lawyers to pay attention to apostrophes when dealing with plurals, possessives, and contractions. I hope no one would quarrel with those guidelines. I feel the same about the use of “and/or.” Although one commentator did post an impassioned defense of its use, I think that it is bad grammar in every context.

Guideline 14 expresses my aversion to attachments to orders for the reasons stated in the guidelines. Lawyers frequently forget to include attachments when they submit proposed orders and I always have this nagging concern that it would be too easy to take an actual order and add a different attachment, thereby granting completely different relief. While this is unlikely, it is not entirely unfounded. We actually had a case in our district of a lawyer doing exactly that.

The guidelines that seemed to attract the most comment were guidelines 5, 6, 7, 9, and 12. Guideline 5 deals with a common practice of lawyers: defining terms used in the order by the use of quotation marks, or parentheses or, sometimes, both. It was common practice when I started practicing law to use a phrase like “hereinafter referred to.” That has, mercifully, pretty much disappeared. In its place, however, is the practice identified in guideline 5. It is almost always unnecessary and I have noticed that the Supreme Court rarely does it and no one seems to have trouble following their opinions, at least for this reason. It seems to me that if the first sentence of an order is “This case is before the court on the motion of the First National Bank,” then I can start the next sentence with “The movant” or “The bank” and not a single person would have any doubt what I was talking about.

Guideline 8 on capitalization also drew a fair amount of attention. It is hard to add anything more to what I have said in the guideline itself. Lawyers like to capitalize words and it is almost always unnecessary.

Guideline 7 addressed itself to another common tendency of lawyers: dropping articles from their written speech, usually the definite article. I am convinced that most lawyers, if they were talking, would refer to “the debtor” or “the trustee” or “the creditor,” but for some reason when they write those same phrases they drop the word “the.” I simply feel that it sounds better to include the article and I ask lawyers to include it in proposed orders.

Guideline 9 deals with superfluous words and phrases. It is the longest guideline, which is pretty ironic, I guess. During the years that I was making the changes myself, I compiled a list of the various words and phrases that I frequently removed from proposed orders. Most of them appear in guideline 9. I am convinced that the use of any of the words or phrases in guideline 9 adds absolutely nothing to the meaning or the understanding of the order. One of my colleagues accuses me of being a minimalist when it comes to my writing. He is right. I feel that I am more precise and, hopefully, more accurate when I use only those words that are necessary to convey my meaning.

What’s Next?

When it comes to grammar, there is one thing I would like to advocate. I hear and see a lot of bad grammar by people who are supposedly professional users of the English language. I am thinking of television news broadcasters and newspaper reporters. There are too many issues to take on, but I would like to use this piece to make one plea: save the adverb. One of the unfortunate things I have observed over the years is the slow death of the use of adverbs. Over and over again, I see an adjective used when the sentence called for an adverb. I blame this on the airlines. Decades ago, they started advertising the fact that their flights flew “direct” to various destinations. From there, more and more people, including professional writers, started substituting the adjective for the adverb. Look no further than the sign on the side of the road that reads: “Drive Slow.” So, if you have managed to read this far, please join me in my campaign to save the adverb. ■


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