Tom's Blog

Legal Writing - the Best Book Ever (IMHO)

2011-06-23T11:44:00.001-04:00

I read a recent online review by Keith Lee about a book; Point Made: How to Write like the Nation's Top Advocates, by Ross Guberman. (The review can be found here: http://associatesmind.com/2011/06/10/review-point-made-best-legal-writing-book-ever/ ) Mr. Lee's review has piqued my interest and I will probably purchase the book soon.

However, whenever I look at any book designed to instruct lawyers about legal writing, I measure that book against my own personal favorite Writing for Lawyers, by Hollis T. Hurd. My copy is small, about 5 x 7 inches, and less than 150 pages, with a bright yellow cover which is adorned only with the title and the author's name. The simplicity of the cover was probably deliberate; a hint to the reader that what the book holds will be all business and no waste.

Every time I have to write a brief, I pull this book off my shelf and force myself to reread at least chapters 1 and 2, a total of 15 short pages. This exercise always serves to focus my writing on the matter at hand. At the beginning of Chapter 2, entitled “Answer the Question”, Mr. Hurd states that “When you write a letter, here are the first questions which your reader will ask:

1. Who are you?

2. What is this all about?

3. What you want?

4. Why does it matter?

I strive to answer these questions in the space of the first paragraph. Usually, if I can accomplish that, I am well on my way to writing the rest of the brief. Inevitably, I will need to go back and rewrite that first paragraph, and sometimes it may even grow into two paragraphs, but answering the four questions always forces me to focus my writing in the most effective way, whether I am writing briefs or letters or memos to other lawyers.

My copy of the book shows a copyright date of 1982 with reprintings in 1984, 1986, 1987 and 1988. I haven't looked into whether there were any other printings, but I have urged every young lawyer I have ever worked with to see if they could track down their own personal copy. I consider this book to be the Strunk and White for lawyers. As an example, in chapter 4, Rules, Tips and Hints on Style, Mr. Hurd offers Rule 19, “Repeating a word is no crime. In freshman English it was. Using the same word repeatedly to refer to the same thing was unaccounted unimaginative. The opposite is true in legal writing: if you use a different word you will be presumed to refer to a different object.” Young lawyers who may be pretty good writers may not yet understand or appreciate that they are writing for other lawyers and that this is very different from writing for the general public. Mr. Hurd's instructions can speed them on the path to becoming very good legal writers, not just good writers.

I had never heard of this book before I picked it up at a yard sale. I think I might've paid $.25 for it. In my opinion, it should be required reading for every first-year law student. If you are lucky enough to stumble across a copy, I strongly urge you to do whatever it takes to purchase it, and then keep it within arm’s length whenever you have any legal writing to do. If you happen to know more about this book or just if you have seen it or used it, please contact me through my website

Just some amusement

2011-06-13T23:59:00.000-04:00

My son designs video and computer games. Most of my age group thinks this means he is a computer code whiz - yes, he can code, but the design guys are the storytellers - the are not about the code, or the art, but instead they are about the story. Anyway, as an independent, he winds up doing coding, and adding music, and doing the art-but his passion is the story.You can check him out http://deepaksave.us/ for his latest game (warning - psycho- whoa what is that -delic graphics) and here http://wherecouldtom.be/ , too.
Check it out and have some fun- play the free games, and then buy Deepak Fights Robots - enjoy!

Facebook, Twitter and Your Claim

2011-06-07T14:09:00.001-04:00

Why is Anthony Weiner on this post? Anthony was merely famous a few weeks ago, but he is infamous now - for a Tweet. He was famous for being smart - now he infamous for doing something dumb- sending a picture to someone using Twitter, and thinking that picture would remain private.
Social media is all around us, and many use it to post personal thoughts and observations, as casually as if they were having a cup of coffee with their closest friends.The problem with that casual use is that comments, pictures, videos or anything else on a Facebook page, a Twitter feed or any other electronic site, (like this blog) can be "discovered" (just like medical records) in litigation and used by your opponent. So an injured worker who innocently posts on her Facebook page that she just got back from shopping "all day" with her girlfriends will find that information used against her in her compensation claim- her employer will argue that she is not disabled if she was able to go shopping for four hours. She may try to explain in her testimony that she actually wasn't even picked up for the shopping trip until 10:30 am, that she then rode in a car for thirty minutes, spent an hour and a half for lunch, and was actually sitting down in shoe stores for much of the afternoon, and was home by 4:30 - the damage will be done by "shopping all day". Likewise, a series of posts about how she hated her job will be used to argue that she has a personal motivation to be out of work that has nothing to do with an injury, and will call into question her credibility when she says she can't work.
Remember, the posts don't go away, and you cannot afford to be careless with what you say. I heard one "expert" say that you should never post anything you wouldn't want your mother or an employer to read. I think that is sound advice.
You don't want to be in the position of Anthony Weiner - regretting that Tweet or Facebook post.
You can learn more about Tom Sennett here.

Return to Work Job Offers After an Injury

2011-06-06T17:42:00.000-04:00

There have been many cases decided on the issue of the sufficiency of the notice to the claimant of an available light-duty job. A recent case from the Commonwealth Court seems to stand for the proposition that an employer need only indicate that the job will accommodate the physical restrictions imposed on the injured worker, without any reference to the actual duties that will be requested to be performed. In that case, Vaughan v. WCAB No. 1790 C.D. 2010, there was some testimony elicited before the judge about some of the possible duties of the light-duty job, but there was nothing contained in the job offer letter regarding those duties. Interestingly, the opinion seems to charge the claimant with knowledge of the specific duties of the job by indicating that the claimant had worked at the job in the past. We do not seen in the opinion where there was any evidence that the claimant had actually worked that job previously. Perhaps if this portion of the opinion is not supported by the evidence, we will see further appeal to the Supreme Court.

Memorial Day-Injuries before the Weekend and the importance of telling your employer about your injury

2011-06-01T21:35:00.000-04:00

I talked to an injured worker recently whose claim was being denied. He got hurt on a Thursday before a holiday weekend. He finished his shift, and already was scheduled off on Friday, and the long weekend gave him Monday off also. He was in pain, but figured if he had a long weekend to rest up, he would be okay. After all, he had suffered back pains before, but they went away with a little rest and some aspirin.

By Sunday, he was in such pain that he called his doctor, who was off for the weekend, and was told to go to the emergency room. He told the admissions interviewer at the hospital that his back was bad when he went home on from work on Thursday, but over the weekend it really got worse. He was just concerned about his condition, and did not specifically tell the admission clerk about hurting his back while trying to move a delivery out of the back room at the office.

He was examined, x-rayed, given medicine and sent home, and told to follow up with his own doctor. When it came time to got to work on Tuesday, he was hurting too much to go. He called in and told the office he had been hurt at work the week before. When his employer reported the injury to the carrier, the carrier denied the claim on the basis that the worker "could have been hurt over the weekend" because the injury hadn't been reported promptly.

These are hard times for workers. Afraid to lose any standing with their employer, they hold off telling an employer about an injury thinking they are protecting their job. When they are unable to work, their failure to report the injury right away is used against them.

If you are hurt and aren't sure what we should do, call us and we will be happy to see if we can help.

Hearing Loss & Notice

2011-05-24T18:57:00.001-04:00

Crompton v. WCAB(King), which came down on August 5, 2008 from our Commonwealth Court, has affirmed some important principles regarding notice in the field of hearing loss. Essentially, the employee must be advised by a health care provider that he or she has work related hearing loss in order to trigger the employee’s obligation to give notice to the employer. It is not enough that the employee believes he or she has work related hearing loss. Also, if the employee continues to be exposed to harmful noise in the work place, this is a continuing injury, so the date of injury is the last date of exposure. See the case here

Traveling Employee

2011-05-24T18:56:00.000-04:00

In a recent case, L. Jamison v. WCAB (Gallagher Home Health Services) - 399 C.D. 2008, our Commonwealth Court looked at the issue of whether a home health care aide was in the course of her employment when she was injured in an auto accident while on the way to see a patient. The court was careful to say that these situations must be judged on a case-by-case basis, so I won’t review the facts here. The Court seemed to affirm however that if you do not have a fixed place of business, and you are injured while either going to or coming from an appointment for your employer, you may well be deemed to be in the course of employment and therefore be entitled to benefits. I think this case is essentially consistent with the way the law has been applied in the past in analyzing traveling employee claims.