I still practiced law, I represented insurers in coverage and bad faith
actions. I had a serious case in which the insured refused to cooperate with
the insurer. And when I say refused, I mean flat-out refused. He was ultimately
compelled to give a deposition, and he was not happy about. At one point he
yelled at me to “hurry up with this shit” and at another told me to “stop
asking dumb fucking questions.”
I include those quotes in my motion for summary judgment asking the court to
relieve the insurer of its duty to defend for failure to cooperate? You bet I
did. Why? Because they told the story of the insured’s refusal much better than
I ever could.
it’s contained in an email, captured in a surreptitious recording, or part of
live testimony, many cases involve bad language in one way or another. Judges
have heard most anything and everything you can imagine, but some lawyers still
seem hesitant to use bad language, even in cases where the specific language
used may make or break the case (e.g. Title VII claims).
my rule about using “dirty words”: If the language speaks to an element of a
claim or crime, I include it without modification (usually with some notice
that the language is offensive). If the language is just superfluous, I leave
use grawlixes or obscenicons, the symbols some people use in place of bad
language (e.g. a**hole), because they don’t have the same connotation that seeing
the exact language in print does.
of opinions contain bad language for the same reason, though some judges refuse
to include it, reasoning that “quoting vulgar language [does not] contribute[ ]
to the development of [bodies] of law.” Carr
v. Allison Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1015
(7th Cir. 1994) (Coffey, J., dissenting).
do you think? Is bad language acceptable when it serves to further a case? Or
should lawyers and judges sanitize those seven “dirty words?”
The death of baseball icon Yogi Berra has everyone talking about their favorite "Yogi-isms."* Berra's formal education was limited; he left school as a young teenager to help support his family. But his athletic skill, depth of practical knowledge, and wit made him one of America's most beloved sports icons and a favorite source of aphorisms.
Unsurprisingly, Yogi-isms have made their way into law as well. Justice
Brown of the Supreme Court of California used a famous Yogi-ism in an
interesting way in People v. Mendez, 969
P.2d 146 (Cal. 1999), a case involving California’s certificates-of-probable-cause requirement for appeals from guilty or nolo pleas. Justice Brown,
frustrated with the court’s inability to articulate a workable scope for the
certificate requirement, noted the court’s 15 previous attempts to articulate
the standard and called the case “déjà vu all over again.” (A quote normally used by
courts asked to decide multiple issues within the same litigation.)
an entertaining case involving an oral licensing agreement between a distributor
and the Butthole Surfers, Judge Evans of the Seventh Circuit opined: “One would
ordinarily think that an agreement of the type we just described would be in
writing, for as Yogi Berra observed, ‘A[n] oral contract isn't worth the paper
it's written on.’” Walthal v. Rusk,
172 F.3d 481 (7th Cir. 1999).
the Supreme Court of Florida cited Berra not once, but twice, in a case
involving baseball’s antitrust exemption. The court called the issue “déjà
vu all over again” as it had answered the question previously and cautioned
readers of the opinion not to consider it a ruling on the merits of an
antitrust claim against the National League, because “it ain’t over till it’s
over.” Butterworth v. Nat’l League of
Professional Baseball Clubs, 644 So.2d 1021 (Fla. 1994).
*Interestingly, Berra may or may not have uttered many of the sayings attributed to him. Some he claims; others he doesn't.
finished a memo or brief only to realize it is WAY too long. If you’ve edited
your statement of facts, explanation of the rule, and arguments but you’re
still over your page limit, these tips should help you eliminate excess words
and phrases and tighten up your writing.
single-word names, if possible, and avoid honorific terms, like Mr. For
example, use the first or last name only, such as “Smith” or “Jane” or “John,” instead
of the full name.
2. Look to
eliminate or reduce the number of prepositional phrases, if possible.
Prepositional phrases often add bulk but not meaning.
The Smiths were walking across
the street on their way to eat lunch
when they were struck by a car driven by
Jones’ car struck the Smiths as
they were crossing the street.
(I also eliminated passive voice.)
active voice rather than passive voice. Look for sentences in which the true
subject has something done to it rather than doing something itself. Double
check forms of the “to be” verb (is, are, am, was, were, has been, had been,
etc.) followed by a past participle (usually a verb that ends in –ed)—these
usually signal passive voice.
The Smiths were struck by Jones. →
Jones struck the Smiths.
The court held that the plaintiff
was injured by the defendant. →
The court held the defendant
injured the plaintiff.
(I also removed the prepositional
possessives. You’ll significantly reduce the word count by modifying phrases to
create possessives when doing so doesn’t change the meaning.
glass, thrown by Jones, struck the car
owned by Smith.→
beer glass struck Smith’s car.
extraneous phases. Phrases such as “the fact that” can often be removed without
changing the meaning
that the defendant was a minor on the date he committed the crime
Defendant’s youth on the date of the
crime is irrelevant.
paragraphs that overlap slightly onto another line. Try to remove just a few
words to pull that paragraph up a line. Sometimes doing so will actually pull
your paragraphs up two or three lines (because of the way Word spaces lines and
Photo courtesy of /www.pbs.org/wgbh/masterpiece/downtonabbey
Judge Carnes of the Eleventh Circuit has been providing entertaining opinions for years. I wrote about one of them here.
Earlier this week, Judge Carnes chose Maggie Smith's Dowager Countess from Downton Abbey to make his point about lying. Judge Carnes' opinion in United States v. Hough, in which the defendant was convicted of tax fraud, begins:
It may be, as the Downton Dowager bemoaned, that “[l]ie is
so unmusical a word,” but it strikes the right note for some of the statements
that Dr. Patricia Lynn Hough made in her tax returns.
I've discussed many topics, both academic and practice-related, over the years. I continue to strive to provide content that's interesting and helpful for LLW readers. Some topics interest only a few readers, while others have more broad appeal. So I'm asking you: As a LLW reader, what writing-related topics do you want to see me cover? Do you have questions about memo or brief writing? Do certain grammar issues continue to confound you? Do you know of a unique brief or opinion that makes for good fodder? Do you have a book you'd like reviewed? If you have a topic you'd like to see on this blog, please tweet me, email me, or respond in the comments. If I use your idea, I'll send you a copy of my book, co-authored with Adam Lamparello, Show, Don't Tell: Legal Writing for the Real World.