Wednesday, July 18, 2012


Rarely does a federal appellate court opinion come along that relates solely to the conduct of one of the lawyers handling the case. That, however, is exactly what happened in Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011). 

An attorney* acting on behalf of the plaintiffs filed suit against the defendants but, after giving the attorney three separate chances to file a complaint that complied with Rule 8 (which requires that a complaint be simple, concise, and direct) and Rule 10(b) of the Federal Rules of Civil Procedure, the trial court dismissed the case with prejudice. 
The plaintiff appealed; however, the Seventh Circuit Court of Appeals held the trial court did not abuse its discretion in dismissing the action with prejudice because of the failure of the plaintiff’s attorney to correct deficiencies in the “generally incomprehensible” documents he filed with the court. Id. at 793. For those familiar with the term, plaintiff’s counsel’s writing in this particular case is best described as a “hot mess.” Consider these gems offered by the Seventh Circuit as sufficient justification for the trial court’s dismissal of the action:
(1) At least 23 sentences contained more than 100 words;
(2) All three documents contained “rampant grammatical, syntactical, and typographical errors";
(3) The original complaint, first amended complaint and second amended complaint all contained a “staggering and incomprehensible 345-word sentence"**; and
(4) The trial court pointed out specific errors in the original complaint but the later-filed complaints contained the very same errors.
In addition to affirming the trial court’s dismissal, the Seventh Circuit ordered the attorney to show cause as to why he should not be removed or suspended from the Seventh Circuit’s bar and ordered the clerk to forward a copy of the opinion to the Illinois Attorney Registration and Disciplinary Commission.
I don’t want to be too hard on this attorney because he apparently was suffering from some severe health problems during the time he was handling this case. Suffice it to say that this attorney’s conduct and writing is a primer on what not to do.
* Interestingly, for those who follow high-profile criminal cases, this attorney also represented former Bolingbrook, Illinois police officer Drew Peterson in civil matters related to his arrest for the murder of his third wife, Kathleen Savio. That arrest occurred after Mr. Peterson’s fourth wife, Stacy Peterson, disappeared in October 2007.
** The entire 345-word sentence, including all original errors, is quoted below:
That pursuant to the RICO Act, Defendants extortive activities constituted a Pattern of Racketeering activity and conspiracy involving violations of 1956(a)(1)(B)(ii), and 18 U.S.C. § 1341 (wire fraud—the use of interstate mail or wire facilities, here telephone and facsimile transmissions), or the causing of any of those things promoting unlawful activity), and 18 U.S.C. § 1951 (interference with commerce and extortion by using and threatening to use legitimate governmental powers to obtain an illegitimate objectives under color of official right by wrongful plan, extortion, intimidation and threat of force and/or other unlawful consequence and through fear and misuse of there office to obstruct, hinder, interfere with, and/or affect commerce and the use and enjoyment of Plaintiffs' property and obtaining, as uniformed public officials payment for unwanted services to which they were not e

ntitled by law, attempting to conceal from the United States of America their true and correct income and the nature thereof so obtained from Plaintiffs in order to attempt to evade paying lawful taxes thereon in violation of 26 U.S.C. § 7201, et. seq., thereby using the governmental powers with which they have been entrusted to gain personal or illegitimate rewards and payments which they knew or should have known were made and/or obtained in return for the colorable official acts as aforesaid, and knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity with the intent to promote the carrying on of specified unlawful activity all in violation of RICO and the other laws set forth herein, inter alia, as well as acts chargeable under any of the following provisions of the laws of the State of Illinois 720 ILCS 5/33-3(d) (official misconduct); 720 ILCS 5/12-11 (criminal home invasion); 720 ILCS 5/19-4 (criminal trespass to a residence) 720 ILCS 5/19-4); (theft 720 ILCS 5/16 (a)(1) & (2) by knowingly obtaining or exerting unauthorized and/or through threat control over Plaintiff's property as aforesaid.
Id. at 802, fn7.

Saturday, July 7, 2012

Guilty Pleasure

OJ Simpson prosecutor Marcia Clark’s second novel, Guilt by Degrees, follows Los Angeles Special Trials District Attorney Rachel Knight as she takes over a murder prosecution bungled by a less-qualified D.A.   Rachel soon discovers the victim is the brother of a police officer killed years before in a vicious attack, and there may be a link between the brothers’ murders and the officer’s beautiful, mysterious widow. 

Guilt is, by no means, a fine work of literature.  It is, however, at least as interesting as similar bestselling novels by authors such as Jeff Deaver, Lisa Scottoline, and Patricia Cornwell.  Rachel is an interesting heroine and Ms. Clark clearly has worked hard to ensure sufficient character development, something that plagues many novels in this genre.  Guilt concludes with a number of unanswered questions, both about the case and about Rachel herself, that are sure to be addressed in the third Rachel Knight novel on which Ms. Clark apparently is still working.      

The most interesting parts of this novel for me are the ones clearly written from Ms. Clark’s heart.  In one part, Rachel is speaking with a district attorney who lost a high-profile case.  The way in which Ms. Clark describes the effect the loss had on this D.A., who otherwise had an impeccable track record, smacks of the way Ms. Clark herself must have felt after the Simpson prosecution and all the negative press she received as a result.   Ms. Clark also works throughout the novel to portray the camaraderie and relationships between Rachel and the people with whom she works, relationships that almost certainly must be based on those Ms. Clark had with colleagues and investigators during her years as a prosecutor.   

While I recommend Guilt as an entertaining summer read, there are parts I’m not crazy about.  The pace of the book is skewed at times, particularly toward the end, where it feels a bit like Ms. Clark tries to cram 100 pages worth of story into half that space.  While the first 300-350 pages flow at a relatively constant pace, the last pages fly by at breakneck speed. 

The book also has too many superfluous storylines and details for my taste.  Much of the story takes place in various restaurants and bars where Ms. Clark describes in painstaking detail every martini, glass of wine, and meal that any character consumes.  No one loves to eat and drink more than me, but the descriptions are distracting at times.  Additionally, a number of minor characters are described in painstaking detail, only to offer some superfluous piece of information and then disappear completely, never to be heard from again.

Despite these flaws, Guilt is a fun, quick read perfect for a round-trip flight or a day at the beach—it’s a good mix of substance and brain candy.  Guilt is definitely a Guilty pleasure.    

Sunday, July 1, 2012

Avoiding Tpyos

This recent article is a reminder of how difficult proofreading can be. 

A similar incident occurred when I was in law school.  The assistant in the career services office sent out an email to the entire student body about the Pubic Sector Career Fair.  I did not initially notice the typo, and do not believe many of my fellow students did either, until some smart-ass hit the "Reply All" button and pointed out the error.  Needless to say, the secretary was mortified and quickly sent an apology email.

While typos and grammatical errors happen, even to the best of us, these tips can help writers avoid embarrassment:

1.         Do not try to proofread on a computer screen.

It is much easier to find typos and grammatical errors when you proofread a document on paper as opposed to a computer screen.  I have never read any explanation for this phenomenon, though I suspect it is because people read more quickly off a screen than off paper.  You will be amazed how many errors escape detection on screen but are easily caught when proofreading from paper.  It also is much easier to catch formatting errors and font discrepancies on paper than on a screen.  

2.         Turn off any "auto correct" feature. 

I once had a client whose last name was Voit.  Every time I typed his name, my word processing program would attempt to change Voit to vomit.  That case was a nightmare, and made me want to vomit every time I thought about it, but it would have been highly embarrassing to send a letter or email addressed to Mr. Vomit.  Auto correct features often can do more harm than good.  Instead, use a spell check feature* to catch misspellings before printing a document to proofread.

*But see number 3 below

3.         Do not rely solely on spell check features.

While spell check features are very handy, do not rely solely on them and do not get into the habit of clicking "Change" without checking to see that you really want to change the spelling of the word.  Many words with legal significance, such as “voir dire” and “pro hac vice,” get caught by a spell check feature, and if you are not careful, your motion in limine will pertain to “void dire,” and your application will end up being “pro hack** vice.”  

**I have known a number of lawyers who are hacks, but you get the point.

4.         Double check short, frequently used words.

Writers frequently mix up "is" and "it," "of," "or," and "on," and "to," and "do," among others.  Proofreaders are prone to miss these errors because as we read, we are focusing on the larger, more important words in our sentences and often mentally gloss over the smaller, less significant words.  Be sure to check the smaller words in your documents too.

NOTE:            Many proofreading professionals' number one tip is to avoid proofreading a document immediately after you have drafted it.  As a practicing attorney, I know this is not possible 95 percent of the time.  Of course, if you have time, it is always best to wait a few hours (or a day) after drafting a document to proofread it.