I've come to realize that AI can be an incredibly useful tool if you use it correctly.

If you're an AI skeptic, as I was, the key is taking baby steps with tasks that are failproof. You can take or leave the AI's suggestions and get used to the workflow of using it in your work.

Here are some easy ways you can start incorporating AI into your daily legal writing without approaching those scary doomsday scenarios we hear about with AI hallucinating case cites and the like:

🧠 Proofread a final draft. - There's nothing worse than finding typos after something's been filed. Use AI to curb that. Yesterday, I asked Harvey to proofread a motion before I filed it, and it found two typos.

🧠 Battle writer's block. - Sometimes, the hardest part is just getting words on paper. Give the AI your outline and ask it to make a first draft.

🧠 Beat a word limit. - We've all been there. Your draft is beautiful, but you're over the word limit. Enter AI. Ask AI to suggest ways to reduce the word count without losing substance. Then review the suggestions.

What are ways you’re using AI in your legal writing?

NOTE: You should always be aware of privilege and confidentiality concerns when working with client information and ensure that client information is adequately protected.

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One of the most notable changes in the new edition is the addition of “(citation modified)”—The Bluebook’s version of “(cleaned up).” Rule B5.3 says:

When a quotation includes material quoted from another source, the quotation may, for clarity, be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets. Indicate these changes parenthetically with “(citation modified).” Other than the changes specified, the text of the quotation after modification should match the text used in the source cited. If the quotation is altered further, indicate the changes or omissions according to rules 5.3 and 5.3.

It also includes a Tip to not use “(cleaned up)”:

A few notes about this Rule

This Rule is specific about what it allows to be included in the "citation modified" grouping. If you make changes outside of the enumerated changes, you should follow Rules 5.2 and 5.3, as directed.

This Rule is in the Bluepages, which means it does not apply to law review journal citations.

Jack's Take

Jack Metzler initial created “(cleaned up)” by suggesting it on Twitter. It then took off when Justice Thomas used it in an opinion. Jack weighed in on this change and suggested that "(cleaned up)" remains the better option:

I hope you will advise people to keep using (cleaned up) . . . because "citation modified" is inaccurate (you don't modify the citation itself) . . . .

What do you think about the change?

A question about this Rule

Rule 1.5 does not include "(citation modified)" in the order of parentheticals explanation. That makes sense because it is not Whitepages-approved. So where do you put "(citation modified)" if you have other parentheticals since Rule B5.3 specifically contemplates other parentheticals?

Do we treat it as an explanatory parenthetical for purposes of Rule 1.5?

Have you used "(citation modified)"?

BBW Library

You can view all of my Bluebook Wednesday tips on the BBW library, hosted by the LegalEase Citations blog here.

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A few thoughts on headings to start the week…

Headings are a useful tool if used properly. They can either be a placeholder that adds close to no value, or they can be a useful guide to the reader on how your document forms your argument.

Use headings in your documents to your advantage to guide the reader and outline your argument. See the two different examples below:

I. Count I

I. Plaintiffs are entitled to summary judgment on Count I because [explanation].

While the first option gets the job done by acting as a placeholder for breaking up the flow of the document, it doesn't tell the reader anything. (See more on formatting headings here.) The second option tells your reader where it's going in the next section and what your argument will be. This second option is much more useful and effective.

Next time you write a heading, use it to advance your argument.

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To start, I hated reading and writing growing up. If you know me now, that's almost unbelievable because it's all I do, for work and fun (other than lifting heavy things at the gym).

I say that I went "full nerd" in law school and fell in love with writing after joining law review. But, before that, I would call my Mom frustrated every day when I would walk out of my 1L legal writing course. Why was the TA not answering by Bluebook questions?* Why was I not understanding the formula?

*True story: I remember asking the TA (who ended up being my co-clerk) how to cite more than one case for a sentence. She told me not to worry about it. I now know that's a simple string-cite. If only Bluebook Wednesday (my LinkedIn series on Bluebook) was a thing back then!

I did well in my 1L legal writing course. I got an A. But when my classmate reviewed what I turned in, she said: "I don't get it. You didn't follow the formula she gave us. How did you get an A?" My answer: "You have my permission to take my paper and ask because I can't tell you. I never understood what she was explaining." So my friend took my paper to the professor and asked, "Why did Melanie do so well if she didn't follow the formula?" The professor then told my friend, "She didn't. But it was written so well, I had to give her an A."

That, of course, was great to hear but not very useful in terms of guidance.

I consider myself a strong writer now. Of course, I can always improve. There’s always room for improvement.

My writing *really* improved after law school during my clerkship with the mentorship of my Judge. And I've not stopped writing since my law review student note, from blog posts and magazine articles, to briefs and law review articles.

If your legal writing class is just not clicking, keep going.

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The way your document looks matters.

Taking time to get your documents dressed up (i.e., polishing the details) makes a difference. Here’s a list of ways to polish your document before finalizing:

• Clean up your cites. Are they accurate? Do they have pincites?

• Clean up your headings. Make sure your headings are consistently formatted and properly numbered.

• Clean up your formatting. Confirm your formatting (font, margins, capitalization, etc.) is consistent throughout.

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I think the answer depends on your audience. Knowing your audience is a big part of legal writing.

When you write for a law school exam or the Bar exam, your starting point is as basic as possible because you’re trying to pick up as many points as possible on your way to your conclusion. I think of it a bit like a video game—think Pac Man, where every little dot is a point.

When you write an academic piece, your starting point is a bit higher because you assume your audience knows some underlying principles. For example, if you were writing an article about contract, you wouldn’t necessarily need to explain the elements for forming a contract. But you would still need to explain the fundamentals for the argument you are building.

The same applies for practical legal documents. When you write a motion or a brief, think about your audience.

How long has the judge been on the case? If it’s a trial court document and the judge is new to the case for some reason, you might want to provide more background than you otherwise would. Similarly, in an appellate brief, your brief is the first time the judge(s) is hearing from you about the case. So you might provide more background than you would in a trial court document later on in a case that has been in front of the same judge for a while.

How far along is the case?

What is already in the record? If you can easily refer the judge(s) to other documents in the record, that’s also something to consider.

What is the goal of the document?

The answers to these questions will inform where you need to start.

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When I thought about it, there are quite a few taboos in legal writing. Some others that came to mind:

• Contractions. We learn from the start not to use contractions in legal writing. I’ve subscribed to this and even find myself going back and fixing contractions in emails. But every now and then I find myself throwing one in—and I don’t hate it.

• Questions. You generally don’t see questions in legal writing except the occasional rhetorical question in judicial opinions, which I’ve seen used very effectively. I find this to be a fact-specific determination but one that is effective in unique circumstances. It is definitely not to be overused.

• Exclamation points. You almost never see an exclamation point in legal writing. I think that’s for good reason. Arguments should not be too emotional but, instead, drawn from logic and facts.

How do you feel about these? What are the other taboos in legal writing?

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So when should you use footnotes in legal writing?

I don’t have a clear answer on this because, as any good lawyer would tell you, it depends.

Generally, I will say it’s a bad idea to put your citations in footnotes. Unless there’s a rule telling you to use that format, citations should be in-text in legal documents. That being said, it might make sense to put a very long string-cite in a footnote. For example, if you are trying to show that courts across the country have reached a certain holding, you may want to put the string-cite of cases in a footnote to avoid clogging up the document.

As to when you may want to use a footnote, they are generally useful for adding information that would break up the flow of the main conversation.

• Use a footnote to add additional detail to a thought. If you could make the point as is but want to add some additional detail or context, you might throw that extra information in the footnote. Query, though, whether you actually need the additional information.

• Use a footnote to add a side-note. If there’s a point you want to make that’s a bit tangential from the main discussion, it probably makes sense to put it in a footnote.

• Use a footnote to explain ancillary matters. Depending on the discussion, you might use a footnote to explain defined terms or the attachment of exhibits.

How do you use footnotes in legal writing?

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We’ve all been there. You’re close to a deadline and over the page limit and need to get the filing down to be within the Court’s rules.

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What Not to Do

Before we talk about how to effectively reduce your length, let’s talk about what not to do:

• Don’t play games with the formatting to toe the line of what’s appropriate.

• Don’t cut your cites too much that it’s difficult to find the source.

Tips for Fighting Page Limits

Here are a few tips:

• Look for short lines that would be easy to shorten and save space. For instance, if a paragraph has 2 or 3 words on the last line, focus on shortening that paragraph. That extra line will save space. If you work on shortening a paragraph that ends in a full line, you’re less likely to make headway overall.

• Change passive to active. Usually, changing passive voice to active will save a few words.

• Look for unnecessary phrases. A lot of times we include phrases in writing that, upon reflection, don’t add much. Go back and read critically to see if you can remove phrases without losing substance.

• Double check your cites. Make sure you that you haven’t repeated full cites. If you have, go ahead and change the later references to short cites. Likewise, use id. where possible.

What other tips do you have?

Here are a few tips for maximizing the utility of lists in legal writing.

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Match the intro to the list.

If you introduce a category of items, make sure the follow-up matches.

For example, if you say there are going to be three reasons, give three reasons and stick to that framework. If you say there are five changes to the law, make sure there are five.

Example: I like CrossFit for three reasons: (1) it is fun; (2) it is challenging; and (3) it is a good distraction from work.

The “three” is followed up by three reasons. Then, ideally, you would have have three paragraphs explaining each reasons. Or, you’d have three subparts with matching headings (as discussed below).

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Don’t drop off.

If you’re using “First,” “Second,” etc. in introducing ideas, make sure you finish the series. It is super confusing to a reader to see an introduction say there are three reasons and then scan the text only to see “First” and “Second.” Make sure your introductory phrases correspond to the list you presented.

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Use headings or numbers to help.

Using headings and numbers can help with implementing a list, but make sure you use them effectively. If you are writing the roadmap for Part I and say there are two subparts, then introduce them as Subpart A and Subpart B and then have the headings follow accordingly. It feels disjointed to the reader to read a list with 1, 2, and 3 and then see headings with A, B, and C.

Example 1: This Part discusses the background of changes to Florida’s capital sentencing scheme since 2016: (1) the Florida Legislature’s 2016 statute that was overturned in Perry; (2) the 2017 statute that was implemented after Hurst II, and (3) pending legislation that lowers the standard for imposing a sentence of death in Florida.

• A. 2016 Statute

• B. 2017 Statute

• C. Pending Legislation

Example 2: This Part discusses the background of changes to Florida’s capital sentencing scheme since 2016. Subpart A discusses the Florida Legislature’s 2016 statute that was overturned in Perry. Subpart B discusses the 2017 statute that was implemented after Hurst II, and Subpart C discusses pending legislation that lowers the standard for imposing a sentence of death in Florida.

• A. 2016 Statute

• B. 2017 Statute

• C. Pending Legislation

Which one felt more cohesive? My guess is you answered Example 2.

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Editing Checklist

• Review headings. (More on headings here.)

  • Are they consistent?

  • Do they help build your argument?

• Streamline sentences to be more concise. (More on being concise here.)

  • Remove unnecessary phrases.

  • Remove “that” where it’s unnecessary.

• Check for passive voice. (More on passive voice here.)

• Confirm defined terms are used uniformly throughout.

• Fix citations.

  • Make sure pincites are included where needed.

  • Make sure “id.” is used properly.

  • Change full cites to short cites where appropriate.

• Adjust any hanging headings.

• Update the date.1

What else would you add?

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A good writer forms an argument in a way that leads the reader to the conclusion. By the time the reader gets to your main point, or the thrust of your argument, you want them to have already formed the same conclusion in their mind.

That means you have to give sufficient background and proof to sustain your argument and organize the argument in a way that logically leads to your intended conclusion.

This is more of an art than science. Every argument is different.

A few thoughts on how to do this effectively…

Tell the facts in a way that lends to your argument.

I often spend the most time on the facts of legal document. If you skip over the facts, you’re missing a huge opportunity. The facts tell the story that is going to back up your argument and (ideally) get the reader to where you want him/her to go. If the facts are a mess, the reader will be confused how to apply them later.

Don’t throw a bunch of new information at the reader.

I learned the “old to new” trick at a legal writing seminar when I was a new attorney, and it forever changed how I think about forming an argument. I believe the seminar was taught by Timothy Terrell, author of Thinking Like a Writer. I do not take credit for this but am simply sharing the wisdom.

The idea is to start each sentence with “old” information—or information that you’ve already given the reader—before introducing new information. Here’s an illustration.

Old information is italicized. New information is bolded.

Version 1

The Sixth Amendment to the U.S. Constitution provides criminal defendants with the right to a trial by jury. The U.S. Supreme Court has discussed this right in various decisions. In Ring v. Arizona in 2002, the U.S. Supreme Court explained that this right applies to capital defendants. During the sentencing phase of a capital trial, the Sixth Amendment entitles capital defendants to a jury finding of each fact that increases the possible punishment, the Court held in Ring.

This is difficult to read. Each sentence throws new information at you from the beginning, and it’s difficult to figure out the connection until the end.

Version 2

The Sixth Amendment to the U.S. Constitution provides criminal defendants with the right to a trial by jury. This right has been explained and clarified in various U.S. Supreme Court decisions. For example, the U.S. Supreme Court held in 2002 in Ring v. Arizona that this right applies to capital defendants. Specifically, the Court held in Ring that the Sixth Amendment guarantees capital defendants a jury finding of each fact that increases the possible punishment.

This version is much easier to follow with each sentence logically flowing from the prior sentence because there’s a connection with “old” information.

This idea transfers to forming an argument. You don’t want to bombard the reader with a bunch of new information but, instead, should build the infrastructure for your argument in the facts and your analysis to lead the reader to your conclusion.

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Almost everything in life is broken into logical parts. When it’s not, it’s usually chaos.

The same should be true for a legal document like a brief or law review article.

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Headings are a useful tool for organizing a legal document. They add structure to your document and, therefore, your argument and give your reader sort of road signs on how to contextualize what they’re reading.

Here are a few tips for headings in legal documents:

Make the formatting and context of your headings consistent. Your headings should flow when you look at the Table of Contents and should be uniform in a sense. If you state your argument headings in a sentence, make sure all of them are that way. For instance, in a Motion to Dismiss, you wouldn’t put “Unsupported and Invalid Claim I” and then “Claim II fails as a matter of law.” These are two completely different formats for headings. Not only would it look wonky, but it would be really confusing for the reader and undermine cohesiveness.

Do not create a new level of headings unless you have at least two for that level. For example, I use roman numerals for my first level of headings and then A, B, C for the next level. I wouldn’t go to I.A unless I will also have a I.B. If you don’t have at least two subparts, you probably don’t need to add another level of headings.

Use your judgment to avoid too many headings. While headings are a very useful tool, they—like anything—have their limits. It is possible to have too many headings, which feels a bit like this:

I sometimes catch myself overusing headings when I’m drafting. I think writing headings somehow helps me organize my thoughts. When I feel myself doing this, I pause, back up, and then determine whether I really need to go another level. That rule of thumb (above) really helps me.

What tips do you have for using headings in legal documents?

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For what it’s worth, here’s my defense of proper citations.

Yes, I'm a #bluebooknerd (an official term we use on LinkedIn), and Bluebook-compliant citations make my Type A brain happy. But that's not the only (or even the main) reason why I care so much about citations.

As an aside, although it hurts my heart a bit, I am determined to keep this blog free from the technicalities of Bluebook. If you want more on that, go check out my monthly Bluebook newsletter on LinkedIn. Citations are a major part of legal writing, though, and addressing their purpose seems within the scope of this blog.

So why does it matter if your citations are correct?

The Rules (sometimes) require it.

Some states actually have rules requiring compliance with Bluebook or another citation format. For example, Florida Rule of Appellate Procedure 9.800(p) provides:

All other citations shall be in the form prescribed by the latest edition of The Bluebook: A Uniform System of Citation, The Harvard Law Review Association, Gannett House, Cambridge, MA 02138. Citations not covered in this rule or in The Bluebook shall be in the form prescribed by the Florida Style Manual . . . .

Uniform cites avoid confusion.

The purpose of Bluebook and other uniform citation forms is to avoid confusion. The last thing you want is for the judge or opposing counsel to not be able to locate your slam-dunk case.

Following a uniform set of rules for citations ensures everyone is on the same page. (No pun intended.)

Proper cites signal a polished paper.

For Bluebook naysayers, following the Rules may be insufficient reason to agree. The next reason: Proper cites send a (good) signal to everyone who reads the filing. It’s the same reason you want to proofread and take care of any orphaned headings in your brief before you file—a polished filing matters.

Clerks notice.

The next reason: Clerks notice.

Law clerks are often the first people who read your filings and pull the authorities you cited.

If your cites are a mess or non-compliant, they notice. I’m not saying it affects the merits of the case, but it’s noticed.

The court notices.

Similarly, the court notices. You don't have to just take my word for it. A friend on LinkedIn (who tragically passed recently) noted this great example of Judge James K. Bredar from the U.S. District Court for the District of Maryland taking time--before addressing the merits of the Defendant's motion to dismiss in North Valley GI Medical Group v. Prudential Investments LLC, No. JKB-15-3268, 2016 WL 4447037 (D. Md. Aug. 23, 2016)--to address the parties' citations.

First, the Court recognized that the parties' filings were "incompatible with the rules." Then, more importantly, Judge Bredar explained that the noncompliant citations were "a hindrance to the Court's consideration of the parties' respective arguments." Judge Bredar continued:

[T]he Court cautions both parties to observe certain rules as to the format of motion papers. First, the parties’ motion papers employed a method of citation of authorities that is not only incompatible with the rules but also a hindrance to the Court’s consideration of the parties’ respective arguments.

Admittedly, the Court's issue in North Valley GI Medical Group was the parties' use of footnotes for citations rather than the form of the parties’ cites. Id. ("For documents filed in this Court, the Local Rules neither permit nor require the citation of authorities in footnotes, as opposed to incorporating them into the text of documents."). However, in directing the parties to the proper form for citations, Judge Bredar cited the Bluebook.

The point is that the court notices when cites are non-conforming.

What do you think?

Have I convinced you? If you’re a fellow #bluebooknerd and care deeply about citations being correct, as do I, why?

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Writing is a journey, and everyone’s is different.

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My Writing Journey

Growing up, I hated writing. No offense to any of my old teachers who may see this one day! When my Mom took me around the state looking at colleges, I specifically said I did not want to go to a school that would require me to write an upper-level paper. (It’s probably a good thing I didn’t realize what law school had in store for me at that time.)

Once I was in college, despite my prior boundary, I set out to complete an honors certificate that required completing an essay on a topic related to my major (Finance). I remember thinking it was the most miserable experience. I couldn’t wait until it was over.

It wasn’t until law school, writing my student Note for law review, that I fell in love with writing. But my Note wasn’t easy. I cried after my first meeting with my supervising professor. I thought it was my life’s work. She said the whole thing needed to be reorganized. After crying the entire walk home and making a few calls, I literally went through the entire draft sentence-by-sentence with colored highlighters to reorganize. While difficult and disheartening at the time, I learned so much writing that Note.

Fast forward; today, I’ve published over a dozen law review articles.

Then I clerked. I learned so much in such a short period of time. But, like the Note, the beginning was tough. After reviewing one of my first drafts, my judge’s feedback was to remember that I was writing for a judge, not a law review article. (I’m sure my co-clerks have vivid memories of that day.) I had to, again, learn a new way of writing and adjust to my new audience. By the end of my clerkship, I wasn’t sure my brain would remember how to write a law review article. My clerkship is where I really honed the skills of writing clearer and more concise. When you’re writing for a court, every. word. matters.

Then I went into private practice. Again, I had to adjust to the new audience and position. The beginning was, again, challenging. I heard several times: “You’re not writing for the court anymore.” Also, working for several different partners requires adjusting to different styles and expectations on a daily basis.

I’m still working on my writing in some areas. We can all always improve; that’s why we’re here, right?

What’s your writing journey?

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Finally, it clicked.

As law students or baby lawyers, passive voice can sound like we “think” a lawyer should talk. But that’s a myth. The key to legal writing is to be clear and eliminate as much confusion as possible, even when conveying complex ideas. Using complex and confusing sentence structure is counterproductive.

Stay active.

It’s good life advice, but it’s also good writing advice.

When a sentence is written in the passive voice, it confuses the subject of the sentence. This makes the writing less clear and, usually, less concise.

Identifying Passive Voice

The first thing to look for in identifying passive voice is the word “is.” Oftentimes, the word “is” indicates that the sentence is passive.

Changing Passive to Active

The way to fix a passive sentence is to rewrite it so that the subject is directly acting.

For example, look at the sentence above:

When a sentence is written in the passive voice, it confuses the subject of the sentence.

Here, “is” indicates passive voice. The sentence didn’t write itself. The author did. Here are the stats:

• Reading Ease: 68.9

• Flesch-Kincaid Grade Level: 7.6

• Passive Sentences: 100%

Here’s the same idea rewritten:

When an author writes in the passive voice, he/she confuses the subject of the sentence.

Again, the stats show that the changes work:

• Reading Ease: 74.2

• Flesch-Kincaid Grade Level: 6.8

• Passive Sentences: 0%

Here’s another example using a random quote from an Arizona case:

An arbitration provision is waived by conduct inconsistent with the use of the arbitration remedy . . . .

Here are the stats:

• Reading Ease: 28

• Flesch-Kincaid Grade Level: 13

• Passive Sentences: 100%

Here’s how you’d change it to active:

Conduct inconsistent with the use of the arbitration remedy waives the arbitration provision . . . .

• Reading Ease: 17.9

• Flesch-Kincaid Grade Level: 13.9

• Passive Sentences: 0%

Use your judgment

Again, good life advice and solid writing advice. Writing requires a lot of judgment calls.

Some folks will defend passive voice and say that it has a useful purpose in certain circumstances in legal writing. I try to avoid it, but there may be instances where it is useful.

Sometimes, using passive voice can help with the flow of the information to the reader.

For example: “The purpose of the contract was ______. That purpose was frustrated by ______.”

The second sentence is passive. To rewrite it to be active would require: “____ frustrated that purpose.” However, the rewritten version doesn’t flow as well: “The purpose of the contract was _____. ____ frustrated that purpose.”

This rewritten version doesn’t flow as well because you’re introducing new information to the reader in the second sentence without context. Here, it is useful to keep the passive version in the second sentence because putting “That purpose” in the beginning of the sentence connects it to the preceding sentence.

As a typical lawyer would say: “It depends.”

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Do you use them? Are they superfluous? Do they weaken your argument or strengthen it?

Forming a good argument requires informing the reader of the necessary background information but removing the fluff.

This is something that takes practice. (See how I originally wrote that sentence versus the edit? It means the same thing but is much more concise.)

The key to being concise is removing extra words and phrases that don’t add substance or value to the argument.

Get out the red pen.

Shorten phrases.

So many phrases, especially in legal writing, use extra, unnecessary words. One way to make your writing more concise is to go back through and remove extra words in the editing phase.

We’ve had this conversation on LinkedIn a couple times, and I’ve kept an ongoing list of ways to edit common phrases to be more concise:

• at the time - when

• in order to - to

• in order for - for

• prior to - before

• subsequent to - after

• in front of - before

• had a meeting with - met with

• it is plaintiff’s belief – plaintiff believes

• in regards to - regarding or about

• Plaintiff instituted an action - Plaintiff sued

• the Plaintiff's allegations are that - Plaintiff alleges

• the instant case – this case or here

• filed a motion – moved

• pursuant to – under

• for the reasons stated above – for those reasons or therefore

Streamline your sentences.

Making your writing more concise goes further than editing phrases. Look at your sentences and see if you can make them more streamlined.

Here’s the Abstract from my latest law review article:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in Ring and Hurst seemed clear at the time, courts have grappled with how to apply them for years—in part, whether the new rules apply retroactively to defendants whose capital sentences were final when the opinions were issued. As this article explains, courts have reached divergent conclusions on whether the new rules announced in Ring and Hurst apply retroactively. This article attempts to unravel the confusion surrounding the retroactivity of these landmark decisions.

Ultimately, this article explains that the case law regarding the retroactive application of Ring was mostly consistent. A close examination of the case law reveals that the confusion arose after the U.S. Supreme Court decided Hurst. This article identifies four points of confusion that arose surrounding the retroactivity of Ring and Hurst: (1) Was Hurst a direct result of Ring?; If so, should it apply retroactively?; (2) What role did the Eighth Amendment play in both Ring and Hurst?; (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?; (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense? By exploring and explaining these sources of confusion, this article aims to help clarify the broader landscape of modern capital sentencing jurisprudence. Further, this article explains that the resolution to such uncertainty likely lies in the U.S. Supreme Court clarifying the distinction between the roles of the Sixth and Eighth Amendments in capital sentencing.

That version (the published version) is 292 words. Here are the readability stats:1

• Flesch Reading Ease: 39.7

• Flesch-Kincaid Grade Level: 13.2

• Passive: 0%

Here are some edits to make it more concise:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in Ring and Hurst seemed clear at the time, courts have grappled with how to apply them for years—in part, whether the new rules apply retroactively to defendants whose capital sentences were final when the opinions were issued. As this article explains, courts have reached divergent conclusions on whether the new rules announced in Ring and Hurst apply retroactively. This article attempts to unravel that confusion surrounding the retroactivity of these landmark decisions.

Ultimately, this article explains that the case law regarding the retroactive application of Ring was mostly consistent. A close examination of the case law reveals that the confusion arose after the U.S. Supreme Court decided Hurst. Specifically, this article identifies four points of confusion that arose surrounding the retroactivity of Ring and Hurst: (1) Was Hurst a direct result of Ring?; If so, should it apply retroactively?; (2) What role did the Eighth Amendment play in both Ring and Hurst?; (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?; (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense? By Exploring and explaining these sources of confusion, this article aims to help clarify the broader landscape of modern capital sentencing jurisprudence. Further, this article explains that the resolution to such uncertainty likely lies in the U.S. Supreme Court clarifying the distinction between the roles of the Sixth and Eighth Amendments in capital sentencing.

Here it is rewritten:

The U.S. Supreme Court’s opinions in Ring v. Arizona (2002) and Hurst v. Florida (2016) are two critical parts of the jurisprudence related to capital defendants’ right to trial by jury under the Sixth Amendment to the U.S. Constitution. Each clarified capital defendants’ rights under the Sixth Amendment. While the new rules announced in Ring and Hurst seemed clear, courts have grappled with how to apply them for years—in part, whether the new rules apply retroactively to defendants whose capital sentences were final when the opinions were issued. As this article explains, courts have reached divergent conclusions on whether the rules announced in Ring and Hurst apply retroactively. This article attempts to unravel that confusion.

Ultimately, this article explains that the case law regarding the retroactive application of Ring was mostly consistent. A close examination of the case law reveals that the confusion arose after the U.S. Supreme Court decided Hurst. Specifically, this article identifies four points of confusion that arose: (1) Was Hurst a direct result of Ring?; If so, should it apply retroactively?; (2) What role did the Eighth Amendment play in both Ring and Hurst?; (3) Why did some courts reach divergent conclusions on Hurst retroactivity even in applying the same federal standard?; (4) Does the Florida Supreme Court’s invention of partial retroactivity for Hurst make sense? Exploring and explaining these sources of confusion, this article aims to clarify the broader landscape of capital sentencing jurisprudence. Further, this article explains that the resolution likely lies in the U.S. Supreme Court clarifying the distinction between the roles of the Sixth and Eighth Amendments in capital sentencing.

This revised version is 269 words but says the exact same thing. Here are the new readability stats:

• Flesch Reading Ease: 41.1

• Flesch-Kincaid Grade Level: 12.6

• Passive: 0%

It made a difference!

This kind of editing takes some judgment. I could’ve removed more, but I would’ve lost some value with the flow of the sentences and ideas (more on that later).

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How do you feel when you think about legal writing? Scary or excited? I get excited, but I recognize that may not be how everyone feels.

How can this page help you? What are your questions?

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You may have an idea of the arguments you want to make but no idea where to start with writing the Motion. Or, you’ve done a bunch of research and understand the concepts but aren’t sure how to boil them down into a summary and argument that gets your point across.

Here are a few tips.

Look for an example.

First, there’s no sense in recreating the wheel if you have resources that can get you started. It’s always a good idea to look for an example that you can use as a starting point. Sometimes it feels better to just have a framework of a document before you start on the substance.

Make an outline.

Outlines can be a very useful tool for organizing your thoughts before you actually start forming sentences.

I, personally, have never been a big fan of outlining for practical documents—motions, briefs, etc. But I will do them if I am asked and can understand how they’re useful. They can help organize the document and can help get the team on the same page about the arguments before spending a bunch of time drafting.

In academic writing, I use outlines often. When I start a new law review article, I always draft my Table of Contents first. That helps me conceptualize the argument and the flow of information I need to give to the reader to make my point.

Put words on paper.

When it comes to actually writing, my advice is always to just put pen to paper. No one is judging your first draft that you’re not turning in. (NOTE: There will be a theme here. Editing is key.) The point is to put pen to paper (figuratively—because who handwrites these days) and get ideas out of your head and onto the page.

If you didn’t outline, you can organize later. And, you can always edit the prose to make it more concise and persuasive. I promise it’ll feel better later to come back and know that your ideas have been recorded and you’re no longer at square one.

How do you fight writer’s block? Leave a comment below.

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