Ten New Year’s Resolutions: BriefCatch Takes on Two Supreme Court Clerks

Here’s to finessing our writing in 2018! To show that we can all improve, I uploaded to BriefCatch a motion for Facebook filed by two litigation partners who are former Supreme Court clerks (for Alito and Thomas). You’ll see some of what BriefCatch flagged below.

BriefCatch’s output, your resolutions. Enjoy!

     1. Avoid throat-clearing and windups

[T]here can be no dispute in this case that the offensive statements (cut)

It cannot seriously be doubted that Facebook is a “provider” of (cut)

Applying these well-established principles to the facts of this case, it is beyond doubt that § 230 requires this Court (cut and start with “Section 230 thus”)

It is blackletter law that a plaintiff seeking to recover (cut)

It is well-established that, to form the basis of (cut)

2. Cut references to your own case

Mr. Zuckerberg, a named codefendant in this case, is the founder

Plaintiff filed his initial complaint in this case on March 31, 2011

[T]here is no basis in this case for holding Facebook liable

3. Cut “clearly,” “plainly,” and “obviously”

[P]laintiff’s claims clearly seek

[T]hat is clearly insufficient

Facebook clearly did not try

Mr. Klayman’s negligence claim also clearly fails

That clause is clearly enforceable

Plaintiff’s allegations thus plainly are attempting

[P]laintiff’s assault claim obviously fails

4. Avoid litigation clichés

militate against creating out of whole cloth any state-law duty (try “inventing”)

Plaintiff’s claim suffers from the fatal flaw that the statements (try “Plaintiff’s claim fails because”)

5. Avoid Latin and legalese

[A] Facebook user sued Facebook alleging, inter alia, that (try “among other things”)

Count II is a common-law negligence claim wherein plaintiff alleges that (try “in which”)

6. Reduce phrases to words

Defendants have also filed a motion to transfer this case (try “moved”)

conclusory allegations of injury that are entirely bereft of any factual specificity (try “without any” or “with no”)

By the terms of the amended complaint (try “Under”)

the amended complaint is entirely devoid of any allegation that Facebook (try “lacks”)

possibility that such harm might materialize in the future is not, as a matter of law, sufficient to satisfy the damages element (try “cannot,” and, in general, don’t be too quick to write “as a matter of law”)

7. Don’t set the bar higher than need be

conclusory allegations of injury that are clearly insufficient to state a plausible claim (cut “clearly” or change the whole phrase to “cannot”)

his damages allegations are woefully insufficient to comply with it (cut “woefully” or change the whole phrase to “cannot”)

8. Edit case parentheticals for clarity and parallelism

See, e.g., Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123-1124 (9th Cir. 2003) (Matchmaker.com provides interactive computer services because it allows users to post information on a profile page and share that information with others) (add “finding that” or holding that” and focus on the takeaway for Facebook, not on Matchmaker)

9. Split verb phrases naturally

any concomitant overt act would likely have been impossible (try “would have likely been impossible”)

10. Cut needless time references

Indeed, two courts have previously ruled that Facebook (“have ruled” already means “previously”)

over two months have elapsed since the date on which the alleged intifada (try “since”)

Needless to say, a threat to cause bodily harm at a point in time six weeks in the future (try “six weeks later,” and consider cutting “Needless to say” as well)

As you can see, even the best lawyers and best writers miss these edits in their final drafts. Want to edit better while saving time? Try BriefCatch today.