Monday, September 30, 2013

Take Heed 'Cause He's a Lyrical Poet

Judge William Pryor recently wrote a panel opinion for the Eleventh Circuit Court of Appeals in which the court held that certain jury findings from a 1999 class action lawsuit brought by smokers against cigarette manufacturers could be used against the manufacturers in subsequent trials.
In the opinion, Judge Pryor noted that the risks of smoking have long been known and cited a 1947 song by Tex Williams—“Smoke! Smoke! Smoke! (That Cigarette):”
            Smoke, smoke, smoke that cigarette
            Puff, puff, puff, and if you smoke yourself to death
            Tell Saint Peter at the Golden Gate
            That you hate to make him wait
            But you’ve just got to have another cigarette
Pryor isn’t a novice citer of song lyrics—in a 2011 opinion in a suit involving the group Expose, Pryor scattered the group's song titles through the opinion, discussing, for example, how the relationships between the members and management reached a “Point of No Return” and how the district court's ruling wasn't the “End of the World” for one litigant.  That case is Crystal Entertainment & Filmworks, Inc. v. Jurado, 643 F.3d 1313 (11th Cir. 2011). 

Friday, September 27, 2013

Six Word Stories

Professor Lisa A. Mazzie recently discussed the value of six word stories for teaching law students to write concisely.  Her blog post on the subject can be found at the Marquette University Law School Faculty Blog.

Professor Mazzie's article inspired me to write some six word stories of my own about law:

Billable hours suck; Hang a shingle

Palsgraf falls, Brown sues, Bush wins

Every day a search for truth

Lawyer: Working for the greater good

And legal writing:

Ambiguity for want of a comma

Maintaining a legal writing blog: nerdy  

And my jobs:

Educating future lawyers: Best job ever 

Law clerking: Best job ever too

What are your six word stories?

Tuesday, September 24, 2013

Happy National Punctuation Day!

September 24 each year is National Punctuation Day, developed as "[a] celebration of the lowly comma, correctly used quotation marks, and the proper uses of periods, semicolons, and the ever-mysterious ellipsis."

The NPD website contains a list of online and other resources for people interested in learning more about proper punctuation, punctuation playtime activities for children, and products for those who just need a shirt that asks: "Is there a hyphen in anal-retentive?" (Oddly enough, the answer is "It depends.")*

One of my favorite quotes on punctuation comes from Poe:

"The writer who neglects punctuation, or mispunctuates, is liable to be misunderstood....For the want of merely a comma, it often occurs that an axiom appears a paradox, or that a sarcasm is converted into a sermonoid."

Another favorite is from F. Scott Fitzgerald, who advises writers to avoid exclamation points: "An exclamation point is like laughing at your own joke."

*This point is open for some debate, but in my opinion, when used as a noun, the term "anal retentive" does not have a hyphen.  When used as an adjective, it does.

She is anal retentive.

She's an anal-retentive proofreader.

Tuesday, September 17, 2013

Size Matters

Bryan Garner’s recent article in the ABA’s Student Lawyer highlights an E.D. Hirsch piece in which Hirsch discusses the correlation between a large vocabulary and long-term success in any profession.  Garner notes that simply knowing more words will make you a better, faster reader and includes a tough 30-question quiz of words used in numerous post-1900 cases. 
As a logophile, I love learning new words.  But, as I’ve said before, and as Garner reminds readers in his piece, you shouldn’t use motions or other court filings to show off your vocabulary and should generally avoid using words that readers won’t know.  You want your writing to highlight the substance of your argument, not your large vocabulary.
One way I increase my vocabulary is using Merriam-Webster’s free iPhone app.  I use the app to look up words as I encounter them.  If I had to go get a dictionary or look up words online, I’d be much less likely to do it.  But since my phone is almost always close, I can easily, quickly find definitions.   
What are some of your favorite “big” words?  Right now, I’m loving pernicious (highly destructive), mellifluous (having a smooth, rich—even sweet—flow), and stultify (to negate or cause to appear ineffective or illogical).






Tuesday, September 10, 2013


Ethics rules are clear that lawyers must not make misrepresentations to the court—regardless of whether those representations are written or oral.  An interesting case on ghostwriting just came down from the Eleventh Circuit Court of Appeals, Torrens v. Hood, No. 1215925, ---F.3d---, 2013 WL 4574249 (11th Cir. Aug. 29, 2013).  For those unfamiliar with the term, “ghostwriting” is writing for another person when the other is represented to third parties as the author.    

The Torrens court ultimately found that attorneys who helped a client complete a Chapter 13 bankruptcy petition and file that petition pro se did not violate their ethical duties to the court by failing to disclose their involvement in preparing the petition.  The court made clear, however, that its holding is limited to the facts of the case, leaving open the possibility that it could uphold sanctions against attorneys for ghostwriting other types of documents. 

In Torrens, a secretary for the lawyers wrote the client’s responses to questions contained on the client’s Chapter 13 bankruptcy petition and then helped the client file the petition pro se.  The bankruptcy court found that the lawyers had perpetrated a fraud on the court by failing to sign the petition. 

The Eleventh Circuit reversed, finding that the Florida Rules of Professional Conduct require that an attorney who assists a client in “drafting” a pro se document must identify the document as being one prepared with the assistance of counsel.  The court concluded that the attorneys did not “draft” the bankruptcy petition because they did not “write or compose” the pre-formatted petition.  The court noted that a fill-in-the-blank bankruptcy petition stands in “stark contrast to a ghostwritten brief,” which requires “extensive preparation.” 2013 WL 4574249, at *3.  The court held that the attorneys showed no fraudulent intent and the client gained no unfair advantage by filing the pro se petition he had prepared with his attorneys’ help.

Tuesday, September 3, 2013

Tale of a Tragic Torontonian

In May 2013, a frustrated Toronto Blue Jays fan, Joe, jumped onto the field and was arrested for criminal mischief.  The hilarious police report that followed paints Joe as a tragic figure who, "in an attempt to inject some kind of spark into [the] listless Jays," jumped onto the field, interrupting the game, but giving Jays fans a "brief respite from their season long agony."  The officer notes that, thankfully, Joe was sitting in the 100 level seats and wasn't "forced to jump from the 500 level out of sheer frustration."  An article about the incident and a copy of the police report can be found here
That report, however, is not quite as hilarious as the prosecutor's subsequent letter to Joe's attorney, who had apparently inquired about how Joe could avoid prosecution for the incident.  The prosecutor seems to agree with the officers that Joe may be a tragic figure, like Shakespeare's Hamlet, faced with the decision of "whether 'tis nobler in the mind to suffer the slings and arrows of outrageous fortune or to take arms against a sea of troubles and by opposing end them."  In my favorite part of the letter, the prosecutor concludes that "[w]hile Shakespeare would arguably support [Joe's] flight onto centre-field, the criminal law tends to be firmly planted in the 'suffer the slings and arrows camp....'"

All's well that ends well for Joe--he apparently escaped prosecution by donating to a Jays' charity and is still allowed to attend games at the Jays stadium.