Friday, May 4, 2012


I give a presentation each semester on legal writing to undergraduates taking a business writing course.  One of the things I emphasize is the need for precision in legal writing--say what you mean and mean what you say.  In addition to all the grammatical issues I see as a practitioner (comma splices, lack of subject-verb agreement, and mixed tenses, to name a few), one of the things that strikes me is the lack of precision in what is written by attorneys, judges, and, sometimes, even appellate justices. 

I suppose the need for precision is more clear to me than many other practitioners because I am a coverage attorney.  Much of my practice is devoted to analyzing and interpreting language in insurance policies, where a comma can mean the difference between no coverage and $1,000,000 in coverage.    

I recently was involved in a (non-coverage) case that highlights the need for precision by all practitioners.  This case probably would have settled long before trial had the attorney been precise in drafting written discovery.

In the case, the plaintiff, an attorney herself, claimed she sustained personal injuries in an automobile accident.  The plaintiff's counsel drafted written discovery requests and asked the defendant to provide the substance of any conversation she had with the plaintiff "regarding the cause of the accident."  The defendant responded that she had no conversations with the plaintiff regarding the cause of the accident, and the case proceeded.

On the eve of trial, the plaintiff's counsel learned that, according to the defendant, as the plaintiff stepped out of her car at the scene of the accident, the plaintiff angrily shook her fist at the defendant and told her: "I'll sue you and take you for everything you have."  The plaintiff's counsel sought to exclude any testimony regarding the alleged statements by his client on the ground that the defendant did not disclose the statement in response to written discovery requests.

The judge denied the plaintiff's request, finding that the plaintiff's interrogatories to the defendant did not encompass the plaintiff's alleged statement about suing the defendant.  The judge rightfully concluded the plaintiff's interrogatory sought only conversations about the "cause" of the accident.  Because the plaintiff's alleged statement did not pertain to the "cause" of the accident, it was not responsive to the plaintiff's request and, therefore, the defendant did not act inappropriately in failing to disclose the statement. 

As a result of the judge's ruling, the plaintiff, who was not a particularly sympathetic individual, settled with the defendant.  Had the plaintiff's counsel drafted a more precise request and sought, for example, all conversations "pertaining to the accident" or all conversations "at the scene of the accident," he would have learned of his client's alleged statement much sooner and probably would have attempted to settle the case much earlier.     

This is my first post on my first foray into the world of blogging.  I look forward to posting on this blog and sharing my thoughts on legal writing, the practice of law, current events, and other interesting law-related stories and anecdotes.   

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