Beholder Reflections - Part Ii - July 2006 - the Scrivener: Modern Legal Writing

• Publication year: 2006
• Pages: 93

35 Colo.Law. 93 Colorado Lawyer 2006.

2006, July, Pg. 93. Beholder Reflections - Part II - July 2006 - The Scrivener: Modern Legal Writing

The Colorado Lawyer
July 2006
Vol. 35, No. 7 [Page 93]

Departments and More
The Scrivener: Modern Legal Writing
"Beholder" Reflections - Part II
by K.K. DuVivier
(c) 2006 K.K. DuVivier

K.K. DuVivier is an Assistant Professor and Director of the Lawyering Process Program at the University of Denver Sturm College of Law.

DO YOU HAVE QUESTIONS ABOUT LEGAL WRITING?

K.K. DuVivier will be happy to address them through the Scrivener column. Send your questions to kkduvivier@law.du.edu or call her at (303) 871-6281

This column is the second in a series analyzing feedback from readers about what they believe is good legal writing. In the January 2006 Scrivener,(fn1) I provided a survey containing writing samples for three parts of an objective legal analysis. The survey questions asked readers to indicate which samples they preferred and why, and to comment on specific devices used in the samples.

In the May 2006 Scrivener,(fn2) I reported on the reader response to questions pertaining to samples for the first part of a legal analysis: the introductory roadmap paragraph. This second column will address reader response to samples dealing with the explanation of legal authorities (the "rule" portion of an objective legal analysis). These samples are shown below.

Survey Sample 2:

Explanation of Authorities Related To the Executive and Management Personnel Exception

Sample 2A

Colorado courts have held that management personnel are "in charge" of the business. Id. Two characteristics of being "in charge" are the extent of the employee's responsibilities in the company and the executive powers of the employee. Porter Indus., Inc. v. Higgins, 680 P.2d 1339, 1342 (Colo.App. 1984); Mgmt. Recruiters of Boulder, Inc. v. Miller, 762 P.2d 763, 765 (Colo.App. 1988). For example, the Porter court held that the employee ("Higgins") was not in charge because he was responsible for negotiating and selling contracts and promoting company business. Porter, 680 P.2d at 1342. Similarly, the court in Management determined that the employee ("Miller") was not management personnel, as he was largely an "information gatherer" who collected job candidate information for the recruitment agency. Mgmt. Recruiters, 762 P.2d at 765. The Porter and Management courts established that an employee who is "in charge" not only manages the business, but also has significant responsibilities. Porter, 680 P.2d at 1342; Mgmt. Recruiters, 762 P.2d at 765.

In addition to the...