BriefCatch Blog

Writing Tips & Legal Writing Articles

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Microsoft Word’s New Editor: Lawyer Beware?

By Ross Guberman / January 16, 2021 /

You’ve probably seen a spell checker turn “tortious interference” to “tortuous interference.” Ouch! But how does MS Word’s new Editor handle more-sophisticated editing suggestions in legal documents? We report below; you decide.

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The Drafter’s Dilemma: “The Greatest of Me, Myself, AND I”? “The Greatest of Me, Myself, OR I”?

By Ross Guberman / December 29, 2020 /

Would you put “and” or “or” in the blank here? How much do you care? And how much would you bet that you’re right? DoorDash’s S-1 statement: “We would cease to be an emerging growth company UPON THE EARLIEST to occur OF: (i) the last day . . . (ii) the date we . .…

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Slasher Fiction? The Federal Circuit Breathes New Life Into the Slash

By Ross Guberman / December 28, 2020 /

To paraphrase Bill Clinton, can an ingredient in a patented drug depend on what the meaning of a slash is? The Problem Bracco Diagnostics patented a formulation for sincalide, a drug used to diagnose disorders of the gall bladder and pancreas. It later sued Maia Pharmaceuticals for infringing the patent. Bracco prevailed at the district…

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If the Judges of Yesteryear Were As Hip As Judges Today . . . .

By Ross Guberman / December 10, 2020 /

Today’s judges pepper their opinions with nods to Marie Kondo, Breaking Bad, Bob Dylan, and Dr. Seuss. Were the old-timers missing a populist touch? You be the judge. I did some pop-culture research to predict how three great opinions might have read differently. Marbury v. Madison (1803) Just as Johnny Appleseed has the last word…

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The Court of Chancery “Edits” a Material Adverse Effect Definition That’s “Obviously Wordy and Full of Synonyms”

By Ross Guberman / December 5, 2020 /

In the holiday spirt, the Vice Chancellor Laster just sent contract drafters a gift: His new blockbuster COVID-related decision “edits” the Material Adverse Effect definition driving the M&A dispute. Here’s the original, the court’s discussion, a redline, and a revised version. Do you agree that the language the Court of Chancery suggests cutting is “obviously…

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50 Advocacy Writing Exercises

By Ross Guberman / November 19, 2020 /

Here are 50 writing challenges based on the 50 techniques in my Point Made: How to Write Like the Nation’s Top Advocates. Enjoy! Introductions Brass Tacks. In one sentence each, answer these five questions about a dispute: Who are the parties and what is their relationship? What question does the dispute seek to answer? When…

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Kagan’s Power of Examples

By Ross Guberman / July 10, 2020 /

“Kagan May Be Dangerous,” wrote the Wall Street Journal’s “Best of the Web” early on in her tenure. More politics as usual? Not at all. The popular right-leaning blog meant “dangerous” as a grudging compliment to our new left-leaning Justice, who had just issued her first dissent, attacking the majority for failing to find standing…

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Don’t Cheat on Me: The Healthy Way to Meet Word and Page Limits

By Ross Guberman / June 27, 2020 /

A court recently sanctioned counsel for Amazon for fiddling with formatting rules to squeeze in more words. The new filing is excellent, but even the revision could have been tighter. Thirteen examples from BriefCatch’s five-second review: “And cases are legion where courts . . . “ = “Many courts have . . . “ “motion…

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Writing to Clients and the Public in the COVID-19 Era: Some Clarity Tips

By Ross Guberman / April 7, 2020 /

So many are clamoring for guidance from lawyers right now. And so many lawyers are clamoring to be trusted advisors. Time pressure, high stakes, and ever-evolving rules make clear writing invaluable these days. But are we doing all we can? Let’s apply some clarity tips to a typical BigLaw client alert I found randomly. The…

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Force Majeure and Coronavirus: A Checklist

By Ross Guberman / April 1, 2020 /

I skimmed hundreds of pages of client alerts and other publications. Here’s a distillation. What is force majeure? A contract defense allowing you to (1) delay performance, (2) excuse performance, or (3) limit liability from nonperformance. You invoke force majeure over an event (or the effect of an event) that you couldn’t control or reasonably anticipate…

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