· web viewwith gary karl and created the online contract editor contractcatch. ross’s newest...

Writing StrategiesFoley Hoag Paris

2

ROSS GUBERMAN is the president of Legal Writing Pro LLC and the founder of BriefCatch LLC. From Alaska and Hawaii to Paris and Hong Kong, Ross has conducted thousands of workshops on three continents for prominent law firms, judges, agencies, corporations, and associations. His workshops are among the highest rated in the world of professional legal education.

Ross holds degrees from Yale, the Sorbonne, and the University of Chicago Law School.

Ross’s Point Made: How to Write Like the Nation’s Top Advocates is an Amazon bestseller that reviewers have praised as a “tour de force” and “a must for the library of veteran litigators.” Ross also wrote Point Taken: How to Write Like the World’s Best Judges, which Court Review called “the best book . . . by far . . . about judicial writing.” He coauthored Deal Struck: The World’s Best Drafting Tips with Gary Karl and created the online contract editor ContractCatch.

Ross’s newest product, BriefCatch, is a first-of-its-kind editing add-in. Its devoted users include lawyers and law firms, judges and courts, and corporations around the world. BriefCatch was named one of TechnoLawyer’s Top 10 Products of 2019.

An active member of the bar and a former attorney at a top law firm, Ross has also worked as a translator, professional musician, and award-winning journalist. Slate called his investigative reporting about Fannie Mae “totally brilliant and prescient,” and Pulitzer Prize–winner Gretchen Morgenson wrote that his article “made even the most jaded Washingtonian take note.”

For nearly a decade, Ross has been invited to train all new federal judges on opinion writing. He has presented at many other judicial conferences and for the Association for Training and Development, the Professional Development Consortium, the Appellate Judges Education Institute, and the Corporate Counsel Summit, among others.

Ross is a founding “Trusted Adviser” for the Professional Development Consortium and consults for Caren Stacy’s OnRamp Fellowship. He is often quoted in such publications as the New York Times and American Lawyer.

© Legal Writing Pro 2021. All Rights Reserved.

3

Ross won the Legal Writing Institute’s 2016 Golden Pen award for making “an extraordinary contribution to the cause of good legal writing.” He was also honored as one of the 2016 Fastcase 50 for legal innovators, and his feed has been named to the ABA’s Best Law Twitter list.

A Minnesota native, Ross lives with his wife and two children outside Washington, DC. Family travel has taken them everywhere from Argentina and Bhutan to Greenland and Zambia.


4

Warm-Up I: Former Forever

Can you find any English errors?

– February 22, 2021 –Statement on the Continuing Political

Persecution of President Donald J. Trump

This investigation is a continuation of the greatest political Witch Hunt in the history of our Country, whether it was the never ending $32 million Mueller hoax, which already investigated everything that could possibly be investigated, “Russia Russia Russia,” where there was a finding of “No Collusion,” or two ridiculous “Crazy Nancy” inspired impeachment attempts where I was found NOT GUILTY. It just never ends!

So now, for more than two years, New York City has been looking at almost every transaction I’ve ever done, including seeking tax returns which were done by among the biggest and most prestigious law and accounting firms in the U.S. The Tea Party was treated far better by the IRS than Donald Trump. The Supreme Court never


5

should have let this “fishing expedition” happen, but they did. This is something which has never happened to a President before, it is all Democrat-inspired in a totally Democrat location, New York City and State, completely controlled and dominated by a heavily reported enemy of mine, Governor Andrew Cuomo. These are attacks by Democrats willing to do anything to stop the almost 75 million people (the most votes, by far, ever gotten by a sitting president) who voted for me in the election—an election which many people, and experts, feel that I won. I agree!

Warm-Up II: Well Above Average

Which of these is the likeliest meaning of this “Best Reasonable Efforts” definition?

1) AstraZeneca must try as hard as a comparable company would.

2) AstraZeneca must try harder than a comparable company would.

3) AstraZeneca has satisfied the standard if it feels like it has.


6

From Raw to Refined in One Draft

Based on a Paul Clement memo for Clearview.


7

Step One: Raw Material

Step Two: Core Moves

Imagine whittling the word cloud down to three or four core points, each expressed in a single sentence. Which four of these five points would qualify—and in what order?

___The Fourth Amendment inquiry starts with whether an individual has an “expectation of privacy” that “society is prepared to recognize as reasonable.”


8

___Carpenter does limit these uses when the subject’s physical location is implicated.

___When a user uploads an image for matching, Clearview compares that image against images from publicly available sources (social media, news media, employment networking sites).

___The specific concerns in Carpenter and related cases do not apply to Clearview.

___Law enforcement agencies’ use of Clearview as intended does not trigger Fourth Amendment protections.

Step Three: Authority Figures

Take the reordered core moves and plug in the relevant authorities. Order them logically. Cut any that seem duplicative. And then think of the most efficient way to convey what each authority adds to the mix.

Example: What should we quote from Smith to make the reader’s task as easy as possible?

(1) The starting point for any Fourth Amendment inquiry is whether an individual has an “expectation of privacy” that “society is prepared to recognize as reasonable.”


9

CarpenterSmithMiller

(2) Law enforcement agencies’ use of Clearview as intended does not trigger Fourth Amendment protections.

Clearview factsSmith

Individuals do not have a reasonable expectation of privacy in images or other information that they (or others) have voluntarily turn[ed] over to third parties like social media sites or directly transmitted into the public sphere. Smith, 442 U.S. at 734-44.

BurkeMeregildoBowery

(3) Carpenter did limit these uses when a subject’s physical location is implicated.

CarpenterCell-phone info tracker

(4) The specific concerns in Carpenter and related cases do not apply to Clearview.

Tech differences: cell phone location vs. Clearview


10

Style, Speed, and Flow

Step Four: Fast and Tight

Edit the bolded language for conciseness, readability, and punch.

Pursuant to these principles, law enforcement agencies’ use of Clearview as intended does not, in our view, “trigger Fourth Amendment protections.”

In instances in which a user uploads an image for purposes of matching, Clearview compares that image against publicly available images from publicly available internet sources—namely, social media, news media, employment networking sites, etc. Individuals do not have a reasonable expectation of privacy with respect to images or additional information that they (or others) have . . . .


11

The Fourth Amendment would not be implicated by using a Google search in order to obtain information made available on the internet.

. . . when the government obtains cell phone records demonstrating an individual’s physical location, notwithstanding the fact that the location information was . . . .

That the technology (and records capturing that technology) formed the basis of an “exhaustive chronicle” of a person’s “physical movements” was particularly troubling to the Court.

The Court made much of the proposition that the cell phone location information both was incidentally generated . . . the images against which it compares a user-generated image are made publicly available to a range of third parties by voluntary acts in lieu of the incidental operation of a device utilized for additional purposes . . . .


12

Step Five: Transitions

___But___Indeed___Just as___so too___That remains true ___To be sure___To the contrary

A person “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.”

Individuals do not have a reasonable expectation of privacy in images or other information that they (or others) have ”voluntarily turn[ed] over to third parties” like social media sites or directly transmitted into the public sphere. Smith, 442 U.S. at 734-44; see also California v. Greenwood, 486 U.S. 35, 40-41 (1988) (no Fourth Amendment interest in trash placed at a curb for pickup; individuals had put out garbage “for the express purpose of conveying it to a third party” and for, “in a manner of speaking ... public consumption”). That remains true even if an


13

individual uploaded an image for a “limited purpose” (for example, a job networking site). Miller, 425 U.S. at 443. _________ the Fourth Amendment would not be implicated by using a Google search to obtain information made available on the internet, _________ is the Fourth Amendment not implicated by using Clearview to do the same.

________, the Supreme Court observed in Carpenter that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere.” 138 S. Ct. at 2217. The Court held in that case that . . . . _______ Carpenter was a “narrow” decision that focused on one particular set of circumstances—obtaining cell phone records that provide a “ comprehensive chronicle of the user’s past movements.”

None of these concerns is implicated in the case of Clearview: it does not track a person’s “ physical movements”; the images against which it compares a user-generated image are made publicly available to a range of third parties by voluntary acts rather than the incidental operation of a device used for other purposes. _______, the Court expressly stated in Carpenter that it was not “call[ing] into question conventional surveillance techniques and tools . . . . _________, the fact that four Justices did not think there was a Fourth Amendment problem in Carpenter goes a long way to . . . .


14

Transactional SkillsOut of Control

Which drafter did a better job of foreseeing COVID-19?

Issue Hillside Country Club

Water’s Edge

Condition: Examples If acts of God or government authorities, natural disasters

[Performance is subject to] acts of God, war, government regulations or advisory, disaster, fire, accident or other casualty, strikes or threats of strikes, labor disputes, civil disorder, acts and/or threats of terrorism, or curtailment of transportation services,

Condition: Expansion of Examples

or other emergencies or similar cause

Condition: Descriptor beyond a party’s reasonable control

beyond the control of Waters Edge


15

Style

Look Inward

1. According to plaintiffs, this case implicates “international” law because they are BVI entities suing the Ecuadorian government, notwithstanding that these entities are owned by an Ecuadorian family.

2. The gravamen of the intervenors’ claims was a series of seizures by AGD in 2008.

3. Courts in the United States have subject matter jurisdiction over claims against a foreign sovereign or an agency, instrumentality or organ thereof only that was provided by the FSIA.

4. Moreover, plaintiffs’ argument is predicated on a misapprehension of the expropriation exception.

5. This firmly-settled principle, known as the domestic takings


16

rule, bars nationals of foreign countries from bringing claims against their own governments in the United States under § 1605(a)(3).

6. The additional cases cited by plaintiffs are inapposite, as the defendants did not include the foreign country itself.

7. Rendón’s assertions regarding CFN’s relationship with BNP and BNP’s subsidiary Pacific National Bank (“PNB”) are equally devoid of facts indicating that CFN uses the property of BNP or PNB as its own, . . . .

8. Plaintiffs relied on the same argument below that they made unsuccessfully in Florida, i.e., that the SHA provides them with a “right to pursue relief in this Court.”

9. In the 2015 action, Penades asserted the same claims regarding the 2030 Bonds that he asserts now, i.e., that Ecuador allegedly has failed to make interest payments on the 2030 Bonds in violation of the 2030 Bond Indenture, and has failed to observe the Indenture’s pari passu provisions by issuing and paying interest on new bonds but not on his 2030 Bonds.


17

10. AGC further complains that the Angolan Attorney General’s office – the Procuradoria-Geral da Republica (the “PGR”) – allegedly took “no action,” id. ¶ 87, on its complaints.

11. It is already beyond serious dispute that the Lago Agrio Litigation is an elaborate fraud, and that officials of Respondent, the Republic of Ecuador, have politically interfered with the courts and the criminal process in order to assist Plaintiffs in obtaining a large judgment against Chevron.

12. The Court’s astounding refusal to investigate or even acknowledge Plaintiffs’ fraudulent activity appears to be the result of (i) pressure and intimidation from the Plaintiffs

13. Mr. Donziger’s statement came in response to a remark by one of the Plaintiffs’ environmental consultants

14. Despite the fact that the former Prosecutor General and the Pichincha Prosecutor had found no basis for any criminal charges

15. This, along with their effort to halt the Governments’ belated remediation program, indicate that the Plaintiffs’ attorneys are not truly interested in the environment, but rather a large payday.


18

16. Independently and in sum, these acts and omissions have caused significant harm to Claimants’ investments in Ecuador, entitling Claimants to relief under the Treaty.

17. The foregoing principles preclude AGC’s attempt to rely on the alleged expropriation as a commercial activity, see D.E. 1 ¶¶ 20(a), 21(a).

18. The RAP expressly indicated whether particular pits and other areas at each site listed in the Scope of Work and the RAP required remediation and, if so, whether TexPet was responsible for the remediation

19. The RAP’s remediation process was consistent with industry-standard methods for pit remediation at the time, and remains so today.


19

Notes


· web viewwith gary karl and created the online contract editor contractcatch. ross’s newest...

Documents