Category Archives: Analysis

Schiess’s biggest pet peeves: analytical writing

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Here are my biggest pet peeves in analytical legal writing—primarily memos and briefs. I’ll have another list for legal drafting. This isn’t a list of the biggest problems in legal writing, just the ones that bug me.

Abstraction

  • Three rules for legal writing: specify, specify, specify.

Lack of up-front summary or preview

  • I’m busy and impatient. Don’t start with background—tell the point, then give the background.

Double-spacing

  • No, it doesn’t make text easier to read. No, it isn’t good use of white space. Please, for the love of eyes and trees, stop double spacing.

All-CAPS

  • Banished from my writing many years ago, even for titles and headings. ALL-CAPS is for shouting in email and for license plates.

Run-on sentences with however

  • You seem to know how to write a sentence, however, you do not seem to know how to punctuate it.

Over-deletion of that

  • Mr. Lee admitted being a minority . . . made him sensitive to comments about race.

Over-creation of defined names

  • (the “over-defining syndrome”)

Unnecessary dates

  • On September 30, 2010 . . .

Analogical reasoning after case explanation

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I excerpted the paragraphs in my “true topic sentences” posts from a real brief. I then rewrote the paragraphs. What followed those case-explanation paragraphs was an argument. I have rewritten it below.

This court should affirm the summary judgment in Jensen’s action against the hospital just as the Oklahoma Supreme Court affirmed the trial courts in Dover, Williams, and Sanders. Jensen cannot prove an element of his claim, specifically that the hospital had a duty to protect him against the puddle on the floor. The hospital had no duty because the puddle was an open and obvious danger.

By his own admission, Jensen noticed the puddle. He is therefore in the same position as the plaintiff in Williams, who saw the wet floor, and the plaintiff in Dover, who knew about the ice. The court affirmed summary judgments in those cases precisely because the plaintiffs knew about the dangerous conditions; the conditions were open and obvious. Those plaintiffs could not prove the duty element of their claims, and Jensen, who knew about the puddle, cannot prove the duty element of his claim.

What’s more, Jensen saw the puddle but tried to step over it, just as the plaintiff in Williams walked on a floor he knew was wet. Under the circumstances, the result in Williams is appropriate here: The hospital has no duty to protect Jensen against an open and obvious danger—one Jensen knew about. The trial court’s summary judgment should therefore be affirmed.

More on “Before and after true topic sentences”

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Comments on my post “Before and after true topic sentences” have prompted me to clarify the post and make some changes.

One commenter pointed out that “if the proposition is basic and general, then there is no need to discuss the facts of cases so holding.”

Unless, of course, you are discussing the cases as a prelude to making specific comparisons of the facts of your own case to the facts of these precedents. I took these paragraphs out of the context of the real brief in which they originally appeared, and I thus left their purpose unclear. The next paragraphs in the original brief used factual analogies to make the point that the result in the case at hand should be the same as the result in the precedents.

I also took to heart the recommendations of another commenter to clarify the paragraphs by being explicit with case names. So I offer the following revision:

A property owner has no duty to protect an invitee against a danger the invitee knows about. Dover v. W.H. Braum, Inc., 111 P.3d 243, 246 (Okla. 2005). In Dover, the court affirmed summary judgment, holding that a store owner had no duty to warn a patron who slipped and fell on ice while leaving the store. Id. The patron had admitted seeing the ice when entering the store. Id.

But the danger need not be actually known; there is no duty to an invitee as long as the danger is “open and obvious.” Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998). In Williams, an invitee sued a motel for injuries sustained in a slip and fall. Id. at 1284. In affirming summary judgment, the court held that the danger of a wet floor was open and obvious and that the plaintiff should have known of the danger when he chose to walk on the wet floor. Id. at 1285.

Put another way, an open and obvious danger is one that is “plainly visible.” Safeway, Inc. v. Sanders, 372 P.2d 1021, 1023 (Okla. 1962). Thus, in Safeway, a store owner was not liable for injuries to customers who should have seen a plainly visible chair in the store aisle. Id. Summary judgment was affirmed. Id. at 1024.

Before and after true topic sentences.

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Don’t do this:

In Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998) a business invitee brought a negligence action against hotel owners seeking recovery for injuries sustained in a slip and fall. Williams, 58 P.2d at 1284. The Oklahoma Supreme Court held that “It is clear that the danger of the wet floor was open and obvious and Williams knew of the danger when he chose to walk on the wet floor.” Id. at 1285 (emphasis added). Thus, the Supreme Court held that the wet floor that the business invitee slipped on was an open and obvious danger that hotel owners had no duty to protect against. Id. at 1284-85.

In Dover v. W.H. Braum, Inc., 111 P.3d 243 (Okla. 2005), the Supreme Court held that there was “no obligation to warn an invitee who knew the condition of the property against patent and obvious dangers and there is no actionable negligence in the absence of a duty neglected or violated.” Id. at 246. The court further held that the defendant did not enhance a natural hazard; thus, there was no duty on the part of store to warn patron or alter premises to protect patron who slipped and fell on ice while leaving the store. Id.

Moreover, in Safeway, Inc. v. Sanders, 372 P.2d 1021, 1023 (Okla. 1962), the Oklahoma Supreme Court held that placement of a chair in an aisle did not create a hidden or inherently dangerous condition. As a result, the store owner was not liable for injuries of customers who should have observed the chair in the exercise of due care. Id. The Court held that the chair was plainly visible, and there was nothing inherently dangerous about it. Id. “The duty to keep premises safe for invitees applies only to defects which are in the nature of hidden dangers, and the invitee assumes all normal or obvious risks attendant on the use of the premises.” Id.

Do this:

A property owner has no duty to protect an invitee against a danger the invitee knows about. Dover v. W.H. Braum, Inc., 111 P.3d 243, 246 (Okla. 2005). In Dover, the court affirmed summary judgment, holding that a store owner had no duty to warn a patron who slipped and fell on ice while leaving the store. Id. The patron had admitted seeing the ice when entering the store. Id.

But the danger need not be actually known; there is no duty to an invitee as long as the danger is “open and obvious.” Williams v. Tulsa Motels, 958 P.2d 1282, 1284 (Okla. 1998). There, an invitee sued a motel for injuries sustained in a slip and fall. Id. at 1284. In affirming summary judgment, the court held that the danger of a wet floor was open and obvious and that the plaintiff should have known of the danger when he chose to walk on the wet floor. Id. at 1285.

Put another way, an open and obvious danger is one that is “plainly visible.” Safeway, Inc. v. Sanders, 372 P.2d 1021, 1023 (Okla. 1962). Thus, a store owner was not liable for injuries to customers who should have seen a plainly visible chair in the store aisle. Id. Summary judgment was affirmed. Id. at 1024.