to a PDF file of the course materials.

Prepared in connection with a Continuing Legal Education course presented
at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
scheduled for March 24, 2011.
N Y C L A - C L E
I
n s t i t u t e
T he A rt of
Written Persuasion
F ac u l t y :
Herald Price Fahringer, Fahringer and Dubno
Erica Dubno, Fahringer and Dubno
Theodore Blumberg, Esq.
3 TRANSITIONAL and Non-transitional MCLE CREDITS:
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
Board for a maximum of 3 Transitional and Non-Transitional credit hours; 3 Skills.
This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for
3 hours of total CLE credit. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit
toward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law
Information Regarding CLE Credits and Certification
The Art of Written Persuasion
Thursday, March 24, 2011, 6:00PM – 9:00 PM
The New York State CLE Board Regulations require all accredited CLE
providers to provide documentation that CLE course attendees are, in fact,
present during the course. Please review the following NYCLA rules for
MCLE credit allocation and certificate distribution.
i.
You must sign-in and note the time of arrival to receive your
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ii.
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iv.
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Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
The Art of Written Persuasion
Thursday, March 24, 2011, 6:00PM – 9:00 PM
AGENDA
Faculty:
Erica T. Dubno, Fahringer & Dubno
Herald Price Fahringer, Fahringer & Dubno
Ted Blumberg, Esq.
6:00 PM – 7:00 PM
The Art of Legal Writing, Herald Price Fahringer
7:10 PM – 7:50 PM
No Clarity, No Persuasion, Ted Blumberg
8:00 PM – 8:40PM
Tricks of the Trade, Erica Dubno
8:50PM – 9:00PM
Questions and Answers
NEW YORK COUNTY LAWYERS’ ASSOCIATION
The Art of Written Persuasion
Herald Price Fahringer, Esq.
Erica T. Dubno, Esq.
Fahringer & Dubno
120 East 56th Street, Suite 1150
New York, New York 10022
(212) 319-5351
March 2011
© 2011 Herald Price Fahringer/ Erica T. Dubno
Table of Contents
Introduction ..................................................................................................................... 1
The Silence of Space is Persuasive .............................................................................. 2
“A Clear Statement is the Power of the Bar” ............................................................. 4
Newspaper Short............................................................................................................. 6
“These Ornaments are Useful, Because They Obtain
an Easier Reception for Truth”..................................................................................... 8
The Question Presented............................................................................................... 11
Summarize the Case in Two Pages............................................................................ 12
Putting Your Faith in the Facts ................................................................................... 15
That “Miraculous Thing” -- the Opening Sentence ............................................... 16
The Use of Road Signs to Point the Way for the
Court ................................................................................................................................ 19
“You’re a Woman. That’s a Man.”.................................................................. 19
“Even Victors are by Victories Undone” ...................................................... 20
The Lure of a Quotation............................................................................................... 22
Metaphors and Analogies ........................................................................................... 23
A Picture is Worth a Thousand Words -- the Use of
Charts, Diagrams and Visual Aids ............................................................................ 24
Exploit Key Exhibits ..................................................................................................... 27
The Ever-Continuing Debate Over Footnotes......................................................... 27
The Twang of Exclamation Marks............................................................................. 30
The Style of the Brief ................................................................................................... 31
Babe Ruth Struck Out More Times than Anyone .................................................. 33
Conclusion...................................................................................................................... 35
ii
Introduction
A legal brief can be judged in at least two ways. Its
competency involves such things as the issues raised, the
cogency of the research, as well as the brief’s overall
logic,
to
mention
capabilities.
The
just
a
second
few
of
criterion
its
more
concerns
prominent
the
brief’s
artistry, which includes the use of engaging language, a
good
narrative
effective
strategy
visual
and,
devices
perhaps,
--
all
the
of
employment
which
can
of
add
considerable force to the writing.
The methods discussed here concern the art of legal
writing. These strategies can be as simple as inserting
provocative
topic
headings
in
the
text
to
excite
the
reader’s interest, or they may involve using a one-page
introduction that tells the court what the case is about,
or the employment of charts and diagrams to help the reader
understand complicated factual situations. Of course, other
factors that contribute to the power of the brief are the
choice
of
structure.
words,
organization
of
thoughts,
and
sentence
The
techniques
suggested
in
this
article
can
be
utilized in any form of brief writing -- including trial
courts,
appellate
courts
and
other
legal
proceedings.
However, you must always confer with the specific court’s
rules to make certain the approach is permissible.
The
theatrical
visual
and
methods
advocated
controversial.
But,
may
new
seem
to
some
techniques
often
appear extreme to those whose tastes have been dulled by
habit. Remember, a major premise of this article is to
encourage
the
use
of
our
imaginations
in
finding
methods of making our views clearer to the court.
2
new
The Silence of Space is Persuasive
Studies in the publishing industry have shown a high
correlation
between
page
design
and
readability.
Design
includes type styles, the arrangement of text on the page,
and even the paper on which the words appear. Overcrowded
pages, crammed full of words, are eye punishing and cause
claustrophobia.
On
the
other
hand,
ample
white
space
created by clean, bright pages, with broad borders, beckons
to the reader. The silence of space is soothing.
They say that Dashiell Hammett’s publisher insisted on
extensive white space on his pages that almost equaled the
quantity of print. This stark, naked space gave added power
to Hammett’s tough, bare-knuckled prose.
Moreover,
openness
can
add
to
persuasiveness
by
evoking a sense of clarity. Thus, the way words sit on a
page is important. For example, justified margins are more
pleasing and appear neater than those that are uneven and
ragged. Also, consider leaving three single spaces between
paragraphs, as well as between point headings and the text
of the argument. Try not to have any paragraph exceed ten
lines.
And,
when
possible,
start
heading on a fresh page.
3
a
new
topic
or
point
The font used in this article, called “Courier New,”
is clear and easy to read. Thus, by utilizing technology,
the brief’s appeal can be enriched and its reading made
more pleasant.1
Jean Paul Sartre said, “Art thrives on appearances.”
Psychologists tell us that a pleasing appearance improves
our chances of persuading others. Therefore, we dress well
and neatly when we go before a judge or jury. We all know
the importance of first impressions. A beautifully typed
and handsomely mounted brief has a distinct advantage over
a shoddy one.2
1
We are reminded of the comment, made by an appellate
judge, that reading the average brief was like making a
two-hour forced march in one’s own living room.
2
William S. Pfeiffer, Ph.D., author of Proposal Writing:
The Art of Friendly Persuasion, Merrill Publishing Company,
lists “neatness” as number one in silent persuasion.
4
“A Clear Statement is the Power of the Bar”
“A
power
clear
of
statement,”
the
bar.”
Daniel
How
true
Webster
that
said,
is.
The
“is
the
sovereign
ingredient in any form of legal writing is clarity. It is
obtained
by
writing
that
is
simple
and
straightforward.
Your eloquence should be an elegance of simplicity.
This
can
be
achieved
by
using
short
words,
short
sentences and short paragraphs. Long words often require
translation
and
slow
the
reading
down.
The
shorter
the
word, the harder it hits. Lengthening words weakens them.
For
instance,
“violate”
is
stronger
than
“violation”;
“calamity” is better than “calamitous”; and “devastate” is
more powerful than “devastation.”
5
Similarly, cars collide, plaintiffs complain, lawyers
argue
and
judges
decide.
When
verbs
are
converted
into
nouns -- such as “collide” to “collision”; “complain” to
“complaint”; “argue” to “argument”; and “decide” to “decision” -- they lose a great deal of their strength. Active
words grip the reader and enliven the narrative.
Lengthy sentences are more difficult to understand and
tire the reader. The aim is to move the narrative along in
quick, simple steps, from one idea to the next. Tight,
concise sentences that follow in rapid succession quicken
the
pace.
Short
sentences
also
grammatical or syntactical errors.
6
reduce
the
risk
of
Newspaper Short
“Newspaper short” paragraphs are easier to read than
solid
gray
blocks
of
prose.
Also,
a
new
paragraph
can
provide a resting place for the reader -- a spot to take a
breath. And, to get through what we have to write about,
the
more
thought
resting
should
places
start
the
a
better!
new
Although
paragraph,
each
on
new
occasion
paragraphs can be improvised to improve readability.
Another
effective
literary
tactic
is
to
isolate
an
important statement in a single paragraph. In Herman Wouk’s
best selling novel, The Caine Mutiny, the trial of Stephen
Maryk
for
mutiny
formed
the
book’s
central
event.
As
suspense mounts over the outcome of the trial, suddenly,
without warning, Wouk stuns the reader with:
The court debated for an hour and
ten minutes. Maryk was acquitted.
Although we do not have at our disposal all of the
figurative powers of fiction, there is no reason why some
of the novelist’s skills cannot be adapted to the writing
of
a
powerful
brief.
To
summarize,
short
words,
sentences, and short paragraphs should be the rule.
7
short
“These Ornaments are Useful, Because They
Obtain an Easier Reception for Truth”
Language
is
still
the
most
powerful
of
all
human
forces. It has been said that English contains more words
than any other language in the world -- over 600,000! In
addition,
more
language
every
than
a
year.
thousand
Thus,
it
words
is
are
the
added
to
our
richest
of
all
languages. As a consequence, there is no excuse for verbal
ineptitude. We must learn to harness this great language
and exploit its most powerful aspects.
Asked
bright
to
justify
images
and
his
elegant
employment
of
phrases,
Dr.
fine
allusions,
Samuel
Johnson
replied: “Why, Sir, all these ornaments are useful, because
they
obtain
an
easier
reception
for
truth.”
So
too,
a
superbly written brief, rich in colorful, strong language,
can create a greater reception for the truth.
8
Of
come
course,
from
the
the
recruitment
vast
assemblage
of
of
strong
words
language
stored
competent dictionary and comprehensive thesaurus.3
resourcefulness
is
developed
from
these
two
must
in
a
Verbal
essential
books.
John Steinbeck’s favorite book was the Oxford English
Dictionary. And, they say that Truman Capote, as a child,
carried around a dictionary and told his aunt that he was
going to memorize it.
When finalizing a brief, replace anemic or overworked
words with synonyms that are stronger or more apt. Learn to
write with a thesaurus and dictionary at your side. Take
the time to find the right words to strengthen and animate
your arguments.
3
Webster’s New World College Dictionary (4th ed. 2000), is
portable and authoritative. J.I. Rodale, The Synonym
Finder, Warner Books (1986), is organized like a dictionary
and easy to use.
9
Verbal prowess is an act of faith, not a trick of
grammar. The weariness that comes from gaining command of a
large vocabulary must be borne if success is to be gained.
Developing a hardy vocabulary is like keeping your body
strong. It has to be exercised every day.
A lawyer must learn how to bring the court face-toface with the brutal aspects of a criminal conviction or
the horror of the loss of life. Also, episodes that are
attended
by
alarm
or
dread
should
be
dramatically
described. Through the use of words, make the court see,
hear
and
client.
feel
There
the
is
pain
no
and
place
suffering
in
our
endured
work
for
by
your
verbal
squeamishness. Sometimes the nature of your client’s cause
requires you to drive language past the point of endurance.
10
The Question Presented
The “Question Presented,” strategically located at the
very tip of the brief, is normally the first thing read. It
enjoys that priority because it embodies the issue to be
decided. As a consequence, shaping the question presented
achieves paramount importance. The question should fairly
capture the essence of the issues raised by the brief.
Counsel should design it to emphasize its significance and,
at the same time, invite a favorable response. Here is an
example:
Whether
P.L.
§ 245.01
is
unconstitutional
because
it
violates
the
equal
protection
clauses of the federal and state
constitutions by forbidding women,
but not men, from exposing their
breasts in public.4
4
People v. Santorelli, 80 N.Y.2d 875, 587 N.Y.S.2d 601
(1992). We recognize that this example comes from a
criminal case. However, the art of crafting forceful
questions is equally essential in criminal and civil cases.
11
Try to pare the question down to its core elements so
that it is easily understood.5 Questions that are complex,
comma-ridden and bogged down with subordinate clauses are
ineffectual.
The
question
presented
is
usually
prepared
last, after a full understanding of the issues and relevant
facts has been mastered.
Summarize the Case in Two Pages
A good brief announces itself on its opening pages.
Whatever
distinctiveness
of
vision
and
discipline
of
language the author can muster should be displayed in the
front of the brief. Today, when our courts are confronted
with
staggering
caseloads
that
have
pushed
our
judicial
system to the edge of collapse, we must find ways to get
our
points
across
as
quickly
as
possible.
A
short
“Preliminary Statement” or “Introduction” can distill the
whole case in one or two pages.
5
The First Department’s rules require a concise statement
of the “questions involved without names, dates, amounts or
particulars.” 22 NYCRR § 600.10(d)(2)(ii).
12
Achieving this objective requires enormous discipline.
The writing must be clean and spare, sacrificing much of
the historical data. To be successful, it must be kept to
the bare bones. Too many summaries found in briefs tell, in
paralyzing detail, the complex process of how the case got
from the trial court to the appellate court. More often
than not, they are burdened with backward-moving details
that merely recite the sad litany of the judgment and the
deadly procedural history.6
6
If relevant, counsel must provide “a statement that
proceedings on the judgment or order appealed from have
been stayed pending a determination of the appeal.” 22
NYCRR § 600.10(d)(2)(iii).
13
Notice
the
extraordinary
achievement
of
Thomas
Buckley’s opening lines in his review of Life for Death, by
Michael Mewshaw, which told of a homicide that occurred in
a small town in Maryland:
One
morning
in
January
1961,
fifteen-year-old
Wayne
Dreshback
shot his adoptive parents dead in
their large and pleasant home on
the shores of Chesapeake Bay in
Frankline Manor, Maryland, and fled
in his mother’s car. His younger
brother, Lee, ran sobbing to tell
the neighbors. They notified the
police, who arrested the boy as he
talked with friends about other
matters at a nearby gas station.
Wayne Dreshback readily confessed
to the murders, without apparent
emotion. There had been trouble the
night
before,
he
told
his
questioners, when he returned home
late from a basketball game.
In just 96 words Mr. Buckley has summarized a highly
dramatic
episode
by
using
declaratory
sentences.
themselves
--
The
generating
everyday
language
events
literally
drama
and
and
simple,
speak
suspense.
for
This
introductory paragraph provides an excellent model for a
preliminary statement.
14
Putting Your Faith in the Facts
The first canon of good legal writing is accuracy. In
other
virtues
words,
being
persuasive
of
precision
and
requires
mastering
the
Although
our
documentation.
writing is partisan, it is imperative that we maintain an
almost
religious
zeal
for
faithfulness
to
the
record.
Ideally, every factual statement should be punctuated with
a record reference or exhibit number.
Only through this form of exactitude can we earn the
court’s
trust.
One
cannot
blame
judges
for
harboring
a
healthy skepticism when a lawyer never bothers to cite to
the record. A careful documentation of the facts gives the
brief
its
credibility.
Legal
prose
can
be
scrupulously
accurate while, at the same time, absorbing and dramatic.
Therefore,
devotion
to
detail
and
a
passion
for
documentation must be cultivated.
In writing briefs, more often than not, we must put
our faith in the facts. Thus, the skillful deployment of
the facts may have more to do with your eventual success
than the law. The facts form the foundation for everything
that follows. As a consequence, capitalize on the power of
the concrete and particular to convince the court that the
15
result you seek is reasonable. Remember, the truth is in
the details.
Most
factual
chronologically,
statements
in
an
recount
economical,
the
trial
events
straightforward
way.
However, it may not be to your advantage to organize them
chronologically.
defendant
may
For
have
instance,
been
the
in
last
a
criminal
witness
case,
to
the
testify.
Starting with his version of what happened may prove far
more beneficial.
There is nothing wrong with pulling from the trial
record
those
facts
that
play
to
the
strength
of
your
position -- as long as the statement of facts is balanced
and fairly stated. No effort should be spared in stating
the facts as accurately as possible. Strive to establish a
high
index
carries
the
of
integrity
reader
with
the
successfully
belief in their authenticity.
16
court
through
early
the
on.
facts
What
is
a
That “Miraculous Thing” -- the Opening Sentence
“Grab the reader by the lapels and shake him! That’s
what a good opening line must do,” an editor of a major
publishing
authors
it
company
is
once
told
generally
me.
Among
recognized
journalists
that
the
and
opening
sentence is one of the most important statements in the
composition. Eudora Welty called it a “miraculous thing.”
A harrowing opening sentence is found in P.D. James’
novel Devices and Desires, which is about a serial killer:
The Whistler’s fourth victim was
his youngest, Valerie Mitchell, age
fifteen years, eight months, and
four days, and she died because she
missed the 9:40 bus from East Haven
to Cobb’s Marsh.
How could anyone put that book down after sensing the
hidden terror that echoes through that opening line? What
lures the reader in is the appalling randomness of death in
today’s urban world.
17
Even though we rarely have such dramatic events to
excite the reader, there is no reason why a tantalizing
opening line cannot be used in a brief. Consider this:
It all happened at 10:08 a.m. on
November
15,
2006,
when
the
prosecutor rose to deliver his
final argument to the jury. During
the next 27 minutes he unleashed a
blistering
attack
on
the
Defendants. And, by the time the
prosecutor was finished, any chance
John Smith and Mary Martin had of
obtaining a fair trial was utterly
destroyed.
Another
tactic
is
to
tempt
the
court
with
a
provocative aspect of the question presented. For instance:
Why would a trial judge refuse a
jury’s request to read back the
testimony of a critical witness?
Here is another example:
At
the
outset,
there
are
two
questions this brief will tackle:
Is it illegal for two agents to be
in the grand jury while each is
testifying?
And,
does
that
illegality require a dismissal of
the indictment?
The opening line should not be merely an attentiongetting device. It must have a purpose. Therefore, a great
deal of thought must go into choosing the words that open
the brief.
18
The Use of Road Signs to Point the Way for the Court
Psychologists say that the mind absorbs better that
which appears in small parts. Thus, breaking the brief into
smaller sections, in the same way newspapers and magazines
subdivide their stories, makes it easier to read. This can
be
accomplished
by
using
subheads.
Moreover,
historical
reconstruction is improved by signs that tell the reader
what is to come.
A good subhead should attract interest and, at the
same
time,
should
be
informative.
Like
“Post-it”
notes,
they can be displayed with considerable force. A quotation
from the record can catch the court’s attention and convey
the essence of what is to follow.
19
“You’re a Woman. That’s a Man.”
In People v. Santorelli, 80 N.Y.2d 875, 587 N.Y.S.2d
601 (1992), nine women bared their breasts in a park in
Rochester, New York, to publicize their grievances against
Penal Law § 245.01. That law prohibited women, but not men,
from exposing their chests in a public place. The women
were arrested, tried and convicted in the Rochester City
Court.
In the trial, one of the women testified about how she
took her top off while sunbathing. A park policeman ordered
her to put her shirt back on. She complained that a man
close
by
had
his
shirt
off,
and
the
officer
replied:
“You’re a woman. That’s a man.” When the case reached the
New York Court of Appeals, that quotation from the record
was used as a striking subhead.
20
“Even Victors are by Victories Undone”
On occasion, quotations from literature can be used as
apt
subheads.
adversary’s
Dryden’s
For
gross
“Even
quotations
instance,
misconduct
victors
are
might
prove
that
in
or
by
a
case
involving
overkill,
victories
appropriate
consider
undone.”
are
“All
an
John
Other
looks
yellow to the jaundiced eye,”7 in a case of bias; “The
explanation is often worse than the blunder,”8 regarding a
cover-up;
or
“An
open
foe
may
prove
a
curse,
but
a
pretended friend is even worse,”9 to denounce an informant.
Benign subheads, such as “Procedural Events,” “History
of
the
Case,”
“Analysis
of
the
Indictment,”
and
“The
Testimony of Officer Brown,” are less helpful because of
their vagueness than those that are more specific. Also,
well-crafted subheads can transform your Table of Contents
into a compelling summary of the arguments.
7
Alexander Pope, Essay on Criticism, part ii.
8
Turkish proverb.
9
John Gay.
21
The Lure of a Quotation
Biblical and literary allusions are an authentic part
of
our
craft.
lecture,
recall
speaker
says,
When
how
“It
listening
your
was
to
interest
Franklin
a
is
speech,
sermon,
elevated
Delano
when
Roosevelt
or
the
who
said....” Our attention is heightened by the recognition of
the great historical figure. A quotation, if apt, gives the
argument a special force because of the stature of the
author.
If your case depends on a crucial document, consider
Carl Sandburg’s statement, “The best witness is a written
paper.” For a defendant who relied on character witnesses
and wants to emphasize the importance of a good reputation,
quote Shakespeare:
He that filches from me my good
name robs me of that which not
enriches him, and makes me poor
indeed.10
10
William Shakespeare, Othello, act iii, sc. 3.
22
The
over-aggressive
act
of
entrapment
by
a
law
enforcement officer may warrant reference to, “The serpent
beguiled me, and I did eat.”11 For a case in which there was
a
dying
breathe
declaration,
truth
that
consider
breathe
Shakespeare’s
their
words
in
“For
they
pain.”12
And,
relating to an attorney’s conflict of interest, you may use
“No
man
can
serve
two
masters.”13
By
simply
consulting
Bartlett’s Familiar Quotations, you can find an appropriate
quotation for almost any circumstance.
11
Genesis 3:13.
12
The Tragedy of King Richard II, act 2, sc. 1.
13
Matthew 6:24.
23
Metaphors and Analogies
A single metaphor allows the brief writer to introduce
a point rapidly and, at the same time, make it memorable.
The metaphor is a way of thinking that is available to
everyone. As one writer put it, “metaphors nudge the brain
along well worn paths.”
All
Lincoln,
used
great
perhaps
them
speakers
more
extensively:
have
than
“A
used
any
house
other
metaphors.
historical
divided
against
Abraham
figure,
itself
cannot stand.” And, Shakespeare wrote almost exclusively in
metaphors: “Now is the winter of our discontent.”14 Where
appropriate, try to find a suitable metaphor to enliven
your brief.
14
King Richard III, act 1, sc. 1.
24
A Picture is Worth a Thousand Words -- the
Use of Charts, Diagrams and Visual Aids
Today,
we
live
in
a
visual
society.
The
image
is
slowly, but surely, replacing the word. As a consequence,
the visual strategy of your brief warrants attention. There
are
occasions
when
you
simply
cannot
tell
the
judges
everything. Sometimes you have to show them. Studies have
established that over a 72-hour period, an audience will
remember
roughly
10
percent
of
what
it
hears
but
will
retain 65 percent of what it sees. Therefore, finding ways
of illustrating what you want to convey is important.
A chart is an efficient way to deliver a large amount
of information quickly and effectively. It can illustrate
what cannot be easily explained. Moreover, in addition to
elevating the level of comprehension, a chart or picture
can dramatize as well. Most judges cheer any device that
will help them better understand the facts or issues.
Subjects
include
time
that
are
difficult
to
describe
sequences
involving
significant
in
words
historical
events. Their importance is better understood if presented
in
a
simple
outline.
The
complexity
of
multiple
conspiracies charged in modern day indictments may be best
25
illustrated
by
a
drawing
that
shows
the
separate
and
unconnected circles of criminal activity.
An
outline.
intricate
The
statute
following
can
be
three-part
explained
sentence
through
conveys
an
the
heart of the complex 500-word federal gambling statute:
18 U.S.C. § 1955, in essence, provides:
(1) If five or more persons conduct
an illegal gambling business
(2) that has remained in continuous
operation for more than 30 days or
has grossed $2,000 in a single day
and
(3) it violates the state law,
the persons are guilty of syndicated gambling.
A graphic presentation, to be successful, must often
go through several renditions before serving its ultimate
purpose. Simplicity is the guiding principle of any chart
or diagram. Care must be taken that such devices do not
become visual stunts or contrivances. As always, good taste
and sound judgment must preside. And, as with everything
else, a chart or diagram must be accurate.
26
Exploit Key Exhibits
If
an
important
exhibit
exists,
such
as
a
letter,
police report, statement or contract, that is helpful to
your case, seek permission to reproduce it in the body of
your
brief
reproductions
however
or
as
can
detailed
an
be
and
attachment.
particularly
refined,
Color
photographs
influential.
has
the
No
ability
or
text,
of
a
photograph to transform what cannot be explained in words
into distinctive images. A copy of an important statute or
rule that is central to the debate may also be included in
the brief, if the court rules permit it.15
15
Under the rules of the First Department, permission must
be obtained to attach any document or chart to the brief.
22 NYCRR § 600.10(d)(1)(iii).
27
The Ever-Continuing Debate Over Footnotes
It is strange that the lowly footnote should prove to
be one of the most controversial subjects in the whole
field of brief writing. A number of prominent jurists and
authors
oppose
them.
Some
judges
have
actually
declared
that they will not read them. Other courts forbid them.16
And, yet, other respected judges and appellate advocates
find them indispensable.
Those that denounce footnotes believe that they are
diverting. And, there is no question that a brief heavily
freighted with footnotes places an inordinate strain on the
court’s patience. The footnote most likely gained its bad
reputation
from
its
close
association
with
law
review
articles where it sometimes appears as though whole file
drawers of information have been dumped in them. In that
setting, they may chew up three-quarters of a page, and are
unsightly. Only the bravest and most tolerant will venture
down into them.
16
For example, the Fourth Department does not
footnotes in any brief. See 22 NYCRR § 1000.4(f)(2).
28
permit
Despite
their
drawbacks,
footnotes
do
have
some
utility. If used prudently, they can strengthen a brief’s
structure. Virtually every argument carries with it some
material that is supplementary. A footnote is a convenient
place in which such collateral or extra information can be
stored.
For
instance,
when
counsel
quotes
a
few
pertinent
lines from a statute in the body of the brief, the court
may wish to examine in a footnote the entire text of that
law. Moreover, where a salient line of testimony is quoted
in the text of the brief, out of a spirit of fairness,
adjacent lines may be housed in a footnote.
Footnotes can also be used for simplification. They
can attest to the author’s care in making sure the court is
furnished with all relevant facts or authorities. Footnotes
should be tough, to the point, and used sparingly.
29
A rule of thumb in relegating material to a footnote
is whether it is essential to the principal argument. Ask:
Can my argument succeed without the information deposited
in
the
footnote?
If
it
can,
then
it
has
been
properly
classified. But, whatever you do, never allow an important
argument to languish in the margins of your brief.17
17
The Court of Appeals for the Second Circuit has held that
an issue cannot be preserved in a footnote. See United
States v. Restrepo, 986 F.2d 1462 (2d Cir. 1993). Moreover,
the Second Department seems to support that proposition as
well. See, e.g., People v. McDaniel, 295 A.D.2d 371, 371,
743 N.Y.S.2d 532, 533 (2d Dept. 2002) (issues only
addressed in various footnotes, but not in the brief, were
not considered by the court on appeal).
30
The Twang of Exclamation Marks
Some
lawyers
so
distrust
their
readers
that
they
italicize or underline every other word for emphasis. This
literary bellowing is unseemly. An outpouring of italics,
capital letters, heavy underscoring and antic punctuation
can be offensive. And, if the brief becomes too boisterous,
it will alienate the court. In fact, the First Department’s
rules
provide
except
in
that
point
“[b]oldface
headings
type
or
shall
not
subheads.”
be
22
used
NYCRR
§ 600.10(d)(1)(iii).
However, there are exceptional occasions when a single
word or two deserves additional emphasis. For instance, you
may
want
to
stress
that
the
legislature
used
the
word
“shall” in place of “may” in a statute to accentuate its
mandatory intent. When quoting from a case, there may be a
need
to
underscore
the
court’s
use
of
(“and”) rather than the disjunctive (“or”).
31
the
conjunctive
The Style of the Brief
Style is what holds the brief together and gives it a
special force. A whole host of factors, some large and
others small, go into making up a distinctive style. As we
have
discussed
subheads,
a
here,
bright
sentences,
opening
line
captivating
and
tantalizing
the
use
of
imaginative charts, all play a significant role in creating
a unique style.
The
differences
in
narrative
styles
are
many.
A
sensible, somber brief touches us with its understatement,
while a flamboyant, dramatic brief can excite and inspire
the
reader.
Prose
that
addresses
itself
quietly
and
intelligently to the issues can be just as effective as one
that is rich with colorful language. However, the first
rule of style is to be true to yourself. Whatever style you
choose, it should be authentic and natural.
One
final
caveat:
no
amount
of
literary
accomplishment, exciting visual detail or vibrant words can
make a brief succeed that is not sound in both authority
and logic.
32
Babe Ruth Struck Out More Times than Anyone
We are the only profession where our future lies in
the
past.
Since
our
system
of
justice
is
built
on
precedent, we spend much of our time looking backwards. To
some extent, we are handicapped by tradition, which can
provide
the
most
oppressive
confinement
of
all.
Our
greatest enemy is habit. Therefore, to be inventive, we
must discard the shackles of convention.
Albert Einstein said, “imagination is more important
than knowledge.” That is true. It is not that as lawyers we
lack imagination; it is that we don’t always connect our
imagination to our work.
In 1927, when Babe Ruth established the record for
hitting more home runs than any player in either league, he
also set another record that no one reads about: He struck
out more times than anyone in the American League!
33
If
there
is
a
lesson
to
be
learned
from
those
seemingly inconsistent statistics, it is if you want to be
distinctive, you have to swing for the fence. And, often,
you’ll miss -- and miss badly. But, better that, than a
life of professional mediocrity. Let your imaginations take
flight and try new techniques that will make your briefs
more
effective,
more
compelling
and,
hopefully,
more
successful.
The
whole
environment
of
brief
writing
should
move
toward more experimentation and away from convention. We
can be in the forefront of this movement. Don’t be afraid
to take chances.
34
Conclusion
The privilege of briefing and arguing a case can be
one of a lawyer’s highest and most rewarding achievements.
When given that opportunity, you must make the most of it.
We hope, in some small way, this article helps you attain
that success and satisfaction.
March 2011
Herald Price Fahringer, Esq.
Erica T. Dubno, Esq.
Fahringer & Dubno
120 East 56th Street, Suite 1150
New York, New York 10022
(212) 319-5351
35
No Clarity, No Persuasion©
by
Theodore L. Blumberg
If the reader or listener understands what we, as advocates, are saying, he or she
may or may not be persuaded; persuasion depends on a complex set of circumstances
including the facts, the law, the society’s political climate, the fact finder’s predispositions,
etc. Many, even most, of those variables are normally beyond our control. But if the
reader or listener cannot understand what we’re saying the game is lost. Persuasion begins
with clarity. Here are seven tips that will add clarity to your utterance, written or spoken.
Use the active voice
As Strunk and White point out in The Elements of Style, the active voice is usually
to be preferred because it’s direct and vigorous: “I shall always remember my first visit to
Boston,” is better than “My first visit to Boston will always be remembered by me.”1
The passive voice fights the way we naturally process language. Comprehension
depends on the reader’s ability to translate words into images and ideas. By detaching
syntax from the way it is most readily understood—as a meaningful sequence of events—
the passive voice often slows comprehension.2 “The ball was thrown by the quarterback”
makes the reader work to associate the words with the things they signify and then
rearrange the sentence so it can be apprehended as a logical sequence of events. “The
quarterback threw the ball,” on the other hand, is immediately understandable. It’s clear.
1
William Strunk, Jr. & E.B. White, The Elements of Style 18 (1979).
2
See Bryan A. Garner, Legal Writing in Plain English 25 (2001).
2
The active voice orders ideas in the way in which native speakers of English most
readily comprehend them. “When you use a verb in the active voice, the subject of the
sentence does the acting. ‘John kicks the ball.’”3 In other words, “its syntax meets the
English-speaker’s expectation that the subject of a sentence will perform the action of the
verb.”4 And it just sounds better:
“Joe saw him” is strong. “He was seen by Joe” is weak. The first is
short and precise; it leaves no doubt about who did what. The second is
necessarily longer and it has an insipid quality: something was done by
somebody to someone else . . . A
style that consists of passive constructions will sap the reader’s energy. Nobody ever quite knows what
is being perpetrated by whom and on whom.5
In addition to its other virtues, the active voice makes for shorter, terser sentences.6
Anything that eliminates unnecessary words is to be valued. Unnecessary words are
clutter. The active voice, with its natural ordering of syntax and its tendency to promote
concision, is a valuable weapon in the fight for clarity.
Nevertheless, precisely because of its inherent shortcomings, the passive voice can
be useful on those occasions when we need to distance the reader from our words.
Litigators can use the passive voice to take the emotional charge out of ugly facts.
“Defendant Faber had three beers, left the bar, got into his Pathfinder and started driving
up Lexington Avenue. At 40th Street he ran a red light and slammed into Kyle Chan as the
3
Richard C. Wydick, Plain English for Lawyers 29 (1998).
4
Garner at 25.
5
William Zinsser, On Writing Well 68 (1998).
6
See also Strunk & White at 19 (“when a sentence is made stronger [through using active
voice] it usually becomes shorter . . . brevity is a by-product of vigor.”); Garner at 25 (the
active voice “usually requires fewer words.”).
3
boy was crossing the street on his skateboard. According to witnesses, Chan flew into the
air, crashed onto the Pathfinder’s windshield, shattering it, and fell to the ground.”
Let’s say you represent Faber. Your characterization of the facts will be quite
different. You’ll want to be passive and abstract. “Several beers were consumed at the bar
by Mr. Faber. A quarter of an hour later, at approximately 4 p.m., as the intersection of
Lexington Avenue and 40th Street was approached by his vehicle, the traffic light turned
from yellow to red. Tragically, at that moment the decedent skated into the crosswalk on
his skateboard. Unable to stop his vehicle in time, the intersection was entered by the
vehicle, and the decedent was struck by the vehicle.”
The passage is noticeably longer in the second version, and part of that length is
caused by the passive voice. Note, too, the juxtaposition of the passive voice (“as the
intersection . . . was approached by his vehicle”) with the active voice (“the traffic light
turned from yellow to red.”) The passive voice slows the action, the active speeds it up to
create the impression that the light changed abruptly. The overall effect of the second
version, though it’s admittedly heavy-handed in its use of the passive voice to illustrate the
point, is to distance the reader from the squeal of brakes, the thudding crack of steel
against flesh and bone, the sound of shattering glass, and the soft thud of a body falling to
the asphalt.
Film directors use different speeds, lenses, and angles. Lawyers have words,
words, words but words are more than enough. This, after all, is the point of rhetoric, an
4
unjustly maligned term of late7 that is at the heart of what we do as advocates. It’s not
what you say; it’s how you say it.
Avoid “Abstract Expressionism”
Concrete language conveys the sense of real people doing things—leaving property
to their children, selling a business, proving they were in Cleveland when the victim was
murdered in Astoria. Because we deal in the practical, our writing should be vivid yet
plain, clear and concise. A good test is to ask yourself, when reading something you’ve
written, if you can picture the events you’ve written about. “Anticipatory repudiation”
sounds important but I can’t conjure an image of what it means to flesh-and-blood people.
Tell me Ajax, Ltd. was habitually paying your client’s bills three to six months late, which
led your client to suspect that Ajax was about to founder, so she canceled Ajax’s contract
to prevent losing money. That I can picture.
Shun abstraction in favor of the concrete. We help people do what they need or
want to do. Our language should be plain and practical as hardware, and as quietly
handsome in its unadorned way.
Watch the Dictatorial Adverbs
Every law student learns to avoid “clearly,” as in “Clearly, the agreement was void
from the outset.” Too bad “significantly,” “incredibly,” “undoubtedly,” “erroneously,”
“fallaciously,” etc., aren’t also singled out. They occur in legal writing with annoying
7
See Brian Vickers, In Defence of Rhetoric viii, 1 (1988); Richard A. Posner, Cardozo, A
Study in Reputation 54 (1990).
5
frequency, often as the first word of a sentence: “Significantly, the agreement was
modified after Barnes had signed it . . .” “Incredibly, the Government contends that the
search was justified by exigent circumstances . . .” “Undoubtedly, the rubber ducky was
dangerous when it came off the assembly line, and the manufacturer clearly knew of the
danger . . .”
Indiscriminate use of adverbs, like overindulgence in italics, insults the reader’s
intelligence.8 If your point is significant or fallacious, clear or incredible, there is no
reason to shout. Adverbiage, as I call it, creates resistance in the reader to the very
conclusion you would like her to draw. This is particularly true of judges, who wade
through brief after brief in which lazy lawyers, rather than making the points plain through
careful writing, take the adverbial shortcut and sabotage themselves. Allowing readers to
conclude from the undisputed facts that your point is incredible or significant is more
powerful than trying to force it upon them by auctorial fiat.
Most of us don't like to be told what to think or feel. This goes double for lawyers
and judges, who are trained to read with a skeptical eye and varying degrees of scrutiny.
Go over your writing with a pen at hand and circle the adverbs. Determine whether you’re
taking adverbial shortcuts because you haven’t bothered to make the point through careful
writing, or whether the adverbs are useful. When in doubt, make significant points
significant through content and context and let the reader discover the significance on his
own.
8
See Effective Appellate Advocacy at 148.
6
Can you please be briefer, please?
Think of every brief you file as an infliction.
Judges don't read our briefs because they look interesting or have flashy covers
with imaginative illustrations of contracts being sundered, marriages destroyed by
adulterous trysts or patents being infringed by unscrupulous upstarts. There is no author
photo on the back cover with a brief bio: “Janet Hastings, a partner at Childs, Reznor and
Calabash, lives in Alexandria, Virginia with her husband Tom and their sons Peter and
Raoul. A recipient of the National Advocacy Foundation’s award for her groundbreaking
work on federal jurisdiction, this is her fifth brief on the Commerce Clause.” Judges read
our briefs (at least we hope they read them) because they have to.
In short, write short. Never use fewer words than necessary but never use more.
Your reader has an attention span of about 30 seconds.9 Edit ruthlessly. Most first drafts
can be cut by 50 percent without losing any information.10 Cut the underemployed words,
superfluous citations, and needlessly repeated ideas. If you still produce a long document,
you’ll know every word is earning its keep.
One good way to edit is by putting in brackets every word and phrase that’s likely
expendable.11 Re-read the piece and skip the stuff in brackets. If it still makes sense,
jettison the bracketed material. Repeat the process. More can almost always be cut. Pay
close attention to long sentences (any sentence of thirty or more words). They often form
9
Zinsser at 9.
10
Id. at 17.
11
Id. at 17-18.
7
verbal labyrinths the reader will get lost in. When you’re in the initial stages of writing,
write to your heart’s content. Get it all on the page. Every idea, no matter how odd or
useless it might seem. First drafts, as Hemingway once put it, are always garbage.
(Though he didn’t use the word “garbage.”) Then start reordering and trimming. When
you have your second or third draft, start cutting and keep cutting.
One of the chief causes of wordiness is redundancy, particularly when it takes the
form of pleonasm or tautology, the needless use of two or more words to say the same
thing (“baby puppies” “wet water” “terrible tragedy”). Legal writing is full of what Bryan
Garner calls “doublets” and “triplets.” 12 “Cease and desist.” “Indemnify and hold
harmless.” A common triplet is “give, devise, and bequeath.” These should be removed
from our forms, our writing, and our sensibility.
Another bad habit that contributes nothing but verbosity is “The Superfluous Title.”
You open a letter from a lawyer. Centered and in bold, underscored for good measure, it
says:
Re:
Roberts v. Private Reserve, Inc., Case no. 8799/06 (Shirer, J.)
Then the opening sentence: “I am writing with regard to the above-referenced action . . . .”
What else would the letter be about? The “Re:” line gave it away. It would be better to get
on with it: After the salutation (“Dear Mrs. Tanzanite”) jump in: “The court has
scheduled a preliminary conference for May 1 at 2 p.m.”
I call it the Superfluous Title because it’s nearly always seen in briefs. A lawyer
files a brief with the title “Plaintiff’s Memorandum of Law In Support of Her Motion for
12
Bryan A. Garner, The Redbook, A Manual on Legal Style (2002).
8
Sanctions Because of Defendant’s Spoliation of Evidence.” Nine times out of ten the
brief’s opening sentence will be something like “Plaintiff Sheila Squeri, through her
counsel, respectfully submits this Memorandum of Law in support of her motion for
sanctions due to defendant Michaels’s spoliation of evidence.” A wordy, stultifying,
pointless way to make a first impression.
Let the title do its job. Use your first sentence to grab the reader’s attention:
“When Michael Smith, the defendant’s Director of Compliance, received the Complaint,
which was filed on December 4, 2006, he pulled Ms. Squeri’s personnel file, took out her
memoranda to the company’s President, in which she complained that Smith was sexually
harassing her, and shredded them.”
Here’s Justice Scalia’s opening sentence from a watershed decision: “Petitioner
Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia.”13 No
procedural jabber or throat clearing. Scalia gets to it. That opening sentence tells us what
we need to know about the background. Its concision reassures me that the decision will
get to the points and stick to them. I know that I’m in the hands of a masterful stylist.
From the opening sentence, my interest is engaged and the writer’s credibility is
established.
Make your points clearly and as quickly as possible. Strive to be brief. Robert
Frost’s advice to poets (or maybe it was Gertrude Stein to Hemingway) is also good for
lawyers: “Concentrate, concentrate, concentrate.”
13
Crawford v. Wash., 124 S.Ct. 1354, 1356 (2004).
9
Use footnotes sparingly, if at all
Footnotes intrude and distract. They’re a phone that won’t stop ringing.
I mean speaking footnotes, the ones that create digressive blocks of text at the
bottom of the page. Using footnotes purely for citations, on the other hand, is an excellent
idea. Bryan Garner suggests relegating every citation to a footnote to avoid distracting
islands of citations that interrupt the text.14 Whenever you feel tempted to use a speaking
footnote, ask yourself if the information is indispensable. If the answer is yes, put it in the
text. If no, cut it. If the information falls somewhere between useless and essential; if it’s
truly helpful to the reader but just doesn’t belong in the text, then consider relegating it to a
footnote.
Once is usually enough
Good writing makes every word count. Here’s a paragraph from Orwell’s essay
Politics and the English Language. See if you can find extraneous words.
Most people who bother about the matter at all would admit that the English
language is in a bad way, but it is generally assumed that we cannot by
conscious action do anything about it. Our civilization is decadent and our
language—so the argument runs—must inevitably share in the general
collapse. It follows that any struggle against the abuse of language is a
sentimental archaism, like preferring candles to electric light or hansom cabs
to aeroplanes. Underneath this lies the half-conscious belief that language is a
natural growth and not an instrument which we shape for our own purposes. 15
14
Bryan A. Garner, The Winning Brief 114-19 (1999). See also William Glaberson, Legal
Citations on Trial In Innovation v. Tradition, N.Y. Times, July 8, 2001, at A1.
15
George Orwell, Politics and the English Language, in A Collection of Essays 156
(Harvest, 1981).
10
Here’s a passage from a factual statement in a brief written by a law firm that ranks
as one of the top ten firms in the country. I’ve bracketed unnecessary words and changed
the names of the parties:
In June 2002, HYZ terminated Smith [from his employment as a senior
auditor and assistant vice-president] based on the deterioration of his
job performance over [a period of] several years. In November 2004,
Smith commenced an arbitration before the New York Stock Exchange
seeking [both] compensatory and punitive damages based on allegations
that he was [wrongfully] discharged because he [had] detected money
laundering in HYZ’s Chicago office. Smith also sought compensation
for consulting services he provided to HYZ after his termination. On
March 1, 2005 [in connection with the arbitration] Smith and HYZ
entered into a confidentiality agreement concerning any documents from
HYZ [that were] in Smith’s possession, [as well as discovery material
exchanged in the course of the arbitration] . . . .
The passage is full of redundancy. Smith was terminated. Leaving aside the question
whether “discharged” or “fired” would be a better verb, we know he was terminated from
his employment. We know what deteriorated was his job performance as opposed to, say,
his acumen playing spoons. If he seeks compensatory and punitive damages, both is
unnecessary. Cutting “wrongfully” eliminates a needless word and sharpens the issue: the
reader will be prompted to wonder “Is it against the law to fire someone who finds out his
employer is committing a crime?”
In Tristram Shandy Laurence Sterne satirizes legal writing by including a contract
brimming with tautologies. Shandy was published in 1760, but its parody of legal writing
looks like contracts and forms that cross my desk every week. The editor of my edition
11
states, “The . . . contract parodies legal language that says the same thing as many different
ways as possible in an attempt to keep slippery life under control . . . .”16
Well, that’s the point. Slippery life is so slippery that trying to control it with
language—let alone redundant language—is a fool’s errand. Look at the thousands of
lawsuits over documents that were full of doublets and triplets and all the boilerplate that
has failed the test of time.
Think—and write—positive
Our minds have a hard time comprehending something that isn’t. Linguists and
psychologists posit that the unconscious is incapable of grasping the negative; the negative
part of the statement remains unprocessed.17 Doctors versed in hypnotherapy frequently
give patients directives loaded with double-negatives. Because the unconscious can’t
grasp them, the conscious mind has to untangle the meaning, which distracts the patient
while suggestions directed to the unconscious can be embedded in the doctor’s speech.18
So if you’re a doctor trying to induce a light trance, double-negatives are not entirely
unhelpful if you don’t want the patient not to stop focusing on what you aren’t offering to
his conscious mind.
If you’re a lawyer, double-negatives are verbal algebra. But they’re often used in
legal writing. Here’s a quote from a recent decision I found while leafing through the Law
16
Laurence Sterne, Tristram Shandy 27-28 n.4 (W.W. Norton & Co., 1980).
See, e.g. Milton H. Erickson, M.D. & Ernest L. Rossi, Hypnotherapy, An Exploratory
Casebook 153 (1992).
17
18
Id.
12
Journal: “The government has not contested that a claim of ineffective assistance of
counsel is not procedurally barred by the failure to raise it on direct appeal, nor could it.”19
Why not “A claim of ineffective assistance of counsel may be raised in a habeas petition
whether or not it was raised on direct appeal”?
Use a double-negative and you give the reader a puzzle. If the reader wanted a
puzzle she’d likely peruse math texts, crosswords, or murder mysteries set in places with
names like Derbyshire. Change double-negatives to positive statements. Instead of saying
swimming is not prohibited, tell us it’s allowed. If settlement is not unlikely, say it’s likely
or probable. Even single-negatives should be made into positive statements. “At
Ramsdale Ltd., office romances are not encouraged” is nice and coy. Who needs nice and
coy in an employee handbook? “At Ramsdale Ltd., office romances are discouraged.”
Sometimes one has to grit the teeth, gather the courage, and make a positive
statement in a simple declarative sentence.
Conclusion
I had dinner with a close friend who’s also a client. We talked about a legal
question he’d hired me to answer. After researching the issue I sent him an opinion letter.
I asked if he’d read it. He had. I asked if he understood it and said my question wasn’t
meant as an insult but some of the issues were tough. He said it was the only letter from a
lawyer he’s ever read all the way through—and understood. I was flattered. He’s dealt
with his share of attorneys. I asked, “Why don’t you read letters from lawyers?”
19
Graziose v. United States, 2004 WL 1194590, at *5 (S.D.N.Y. June 1, 2004).
13
He said, “They’re impossible to decipher. Lawyers don’t write for people. They
write for each other.”
He’s right.
And if you write clear, durable prose you’ll likely be viewed as a heretic. At many
firms new associates who write well despite law school often find that their work is revised
(that is, corrupted) until it’s got the ring of legalese. Prose that would pass muster in The
Wall Street Journal, The New York Times, or The New Yorker would likely be viewed as
crude and undignified by many a lawyer, who would want to gild it with jargon and a big
dose of incomprehensibility. Of course this is self-defeating. Legalese disguises sloppy
thinking and fools not only the client but the lawyer who wrote it into believing he’s said
something of substance. Only in the legal profession is clear and plain English considered
subversive. The best legal writing should be as good as the best journalism and literature.
And it can be. Write plain English. Commit to clarity.
Then when someone says you “don’t write like a lawyer” give me a call. I’ll bring
the champagne.
14
Faculty Biographies
Erica T. Dubno
Erica T. Dubno has practiced law with Herald Price Fahringer for more than 15 years. She represents
individuals and corporations in all stages of criminal and civil proceedings, including white-collar criminal
defense, free speech matters and administrative hearings. Together with Herald Fahringer, she has drafted
criminal and civil appeals in the federal Courts of Appeals for the Second, Third, Fourth, Eighth and Ninth
Circuits, as well as the Supreme Court of the United States and New York’s Court of Appeals.
Ms. Dubno graduated with honors from Oberlin College. Thereafter, she worked for Shearman & Sterling
LLP, before attending Brooklyn Law School, from which she earned a J.D. in 1994. Ms. Dubno joined the
firm of Lipsitz Green Fahringer Roll Salisbury & Cambria LLP at its New York City office in 1995, and
subsequently became a member of Fahringer & Dubno.
She teaches Continuing Legal Education classes for the New York County Lawyers’ Association and the
Rockland County Bar Association. In addition, Ms. Dubno lectures at Monroe College Summer Law for High
School Students program and has been a guest speaker at Fordham University. As a faculty member of
Lawline.com, Ms. Dubno presented classes on “The First Amendment: Defamation on the Internet;” “The
Use of Demonstrative Evidence to Achieve a Successful Outcome;” “The Basics of Legal Writing;” and
“Sentencing: Making the Best of a Bad Situation.” Ms. Dubno has co-authored a number of published
articles and book reviews with Herald Price Fahringer.
Ms. Dubno is admitted to the Bars of New York and New Jersey. She is also admitted to practice before the
Supreme Court of the United States, the federal Courts of Appeals for the Second, Third, Fourth, Eighth,
Ninth and Tenth Circuits, and the District Courts for the Southern, Eastern and Northern Districts of New
York, as well as the District of New Jersey.
Herald Price Fahringer
Herald Price Fahringer has tried cases in 27 states and has
briefed and/or argued more than 400 appeals, including 15 in the
United States Supreme Court. His Law Day speech, given in 1998,
was
voted
the
best
in
the
nation
by
the
American
Bar
Association. In 1999, he received the Outstanding Practitioner
Award from the Criminal Justice Section of the New York State
Bar
Association.
In
1995,
he
received
the
New
York
State
Association of Criminal Defense Lawyer’s Thurgood Marshall Award
for outstanding contribution to the criminal law. And, in 2008,
he received the New York Criminal Bar Association’s award for
professional excellence.
Mr. Fahringer is a Fellow of the American College of Trial
Lawyers,
the
American
Academy
of
Appellate
Lawyers,
the
International Society of Barristers and the American Board of
Criminal Lawyers. He is the former General Counsel to the First
Amendment Lawyers Association. He has published more than 50
articles in law review journals and other legal publications
covering a wide range of subjects. Herald Fahringer is a member
of Fahringer & Dubno / Herald Price Fahringer PLLC.