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Start Off StrongRevisions for NRF

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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.

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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.


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Warm-Up I: Be Better

Can you find a mistake in each sentence?

[1.] They were filedfield on July 1.[2.] I know a good web site.[3.] The hospital violated HIPAPA.[4.] Under the Second Amendment Amended

Complaint, you would lose.[5.] The Securities Exchange Act of 19343

applies.[6.] We filed it at the Securities andSecurity

Exchange Commission.[7.] Under the Administrative Procedures Act,

the agency’s decision was arbitrary and capricious.

[8.] The case was retired retried six months later.

[9.] The company at risk of eminent imminent harm.


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Warm-Up II: All Above Average

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

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

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

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


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From Raw to Refined I: Structure and Analysis

Based on a Paul Clement memo for Clearview.


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Stage One: Raw Material

Stage 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.”


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

___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 .

Stage Three: Authority Figures

Take the reordered core moves and plug in the relevant authorities. Order them logically. Cut any that seem


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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.”

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.


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Tech differences: cell phone location vs. Clearview

From Raw to Refined II: Style, Speed, and Flow

Stage Four: Fast and Tight

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

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


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In instances in whichWhen a user uploads an image for matchingfor purposes of matching, Clearview compares that image against publicly available images from publicly available internet sources: socialsources—namely, social media, news media, employment networking sites, and so on.sites, etc. Individuals do not have a reasonable expectation of privacy forwith respect to images or other informationadditional information that they (or others) have . . . .

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 showingdemonstrating an individual’s physical location, even though, notwithstanding the fact that the location information was . . . .

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

The Court stressed thatmade 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 rather thanin lieu of the incidental


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operation of a device usedutilized for other purposesfor additional purposes . . . .

Stage 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


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

________, To be sure, 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 . . . . _______ But 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


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made publicly available to a range of third parties by voluntary acts rather than the incidental operation of a device used for other purposes. _______, To the contrary, the Court expressly stated in Carpenter that it was not “call[ing] into question conventional surveillance techniques and tools . . . . _________, Indeed, the fact that four Justices did not think there was a Fourth Amendment problem in Carpenter goes a long way to . . . .

Bonus: Tone

Does any of this language seem subjective?

Clearview is an investigative application that uses state-of-the-art facial-recognition technology to match the face in a user-uploaded image to faces in publicly available images. It is designed to be used in ways that ultimately reduce crime, fraud, and risk in order to make communities safer. This memorandum analyzes the potential legal implications of Clearview’s use by


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public entities as an investigative tool. We conclude, based on our understanding of the product, that law enforcement agencies do not violate the federal Constitution or relevant existing state biometric and privacy laws when using Clearview for its intended purpose. Moreover, when employed as intended, Clearview’s effective and evenhanded facial-recognition technology promotes constitutional values in a manner superior to many traditional identification techniques and competing technologies.

Transactional and Advocacy SkillsTransactional Task One: Out 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,


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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

Transactional Task Two: Kanye Contract Critique

From Kanye’s May 2012 Def Jam Profit Sharing Agreement / AmendmentGarden-Variety LegaleseContract Lingo / LawIndustry Jargon

In addition to Royalties payable to Artist pursuant to the Recording Agreement in connection with the Master Recordings recorded during the fifth Option Period (the “Album Six Masters”) and the Master Recordings recorded during the sixth Option Period (the “Album Seven Masters”), IDJ will shall accrue to Artist’s account hereunder fifty percent (50%) of the Profits earned in


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connection with the Album Six Masters and the Album Seven Masters and no other Master Recordings (Artist’s share of Profits may sometimes be hereinafter referred to as the “Profit Share”); provided, however, thatexcept that the Profit Share otherwise payable to Artist hereunder shall will be applied to the unrecouped balance in respect of the royalty account under the Recording Agreement (the “Royalty Account”), if any. Notwithstanding the foregoing, IDJ shall maintain a separate account with respect to that share of Advances and royalties which are paid directly to RTW (the “RTW Account”) and a separate account with respect to that share of Advances and royalties that are paid directly to Artist (the “Artist Account”). For the avoidance of doubt, the RTW Account shall will not be deemed payable until such time as the Royalty Account is fully recouped by royalties other than the Profit Share and the Profit Share shall will not be paid through to Artist until such time as the Royalty Account is fully recouped.


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Advocacy Skills Trio

Headings


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Quotations (and Challenge!)


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Interlude: Tone Wars

Exhibit A: Warm Up


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Exhibit B: Cool Down


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Polish

Copyedit This!

Instructions from the Times: “Each of the passages below, from recent Times articles, contains one clear error in grammar or word usage. I’m not counting less-than-elegant phrasing that could be improved, or other more subjective editing judgments.”

Bet up to ten dollars in total. Distribute your bets as you like.

1. The constant haze and unnatural color palate make “Sabrina” a dead ringer for CW’s murder-soaked spin on the Archie comics, “Riverdale,” which is no surprise.

2. What, after all, does a mother do when her adolescent daughter announces, with an age-appropriate mix of uneasiness and defiance, “Ma, I’m having holy visions?” (Bet: $__)

3. Each of the three candidates vying to replace Mr. Flake, who is retiring after a single term, aligned themselves with Mr. Trump. (Bet: $__)

6. In 1954, senators voted to condemn one of their own, Senator Joseph R. McCarthy of Wisconsin, for contempt for flaunting the body’s norms. (Bet: $__)


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7. West Wing aides had hoped to keep the Kansas race away from Mr. Trump’s line of sight[] but were uneasy about what he may do during an extended, and unsupervised, trip to his New Jersey golf resort. (Bet: $__)

8. Genetic analysis of bones discovered in a Siberian cave hint that the prehistoric world may have been filled with “hybrid” humans. (Bet: $__)

9. White residents, who comprise about 8 percent of the population, own roughly 70 percent of the private farmland, according to government figures. (Bet: $__)

11. The jury deliberated for fewer than eight hours—a shorter period than some people had expected—and some jurors told reporters after the verdict was announced that two of them had first leaned toward acquittal. (Bet: $__)


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Notes


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