Tuesday, November 26, 2013

Ten Commandments of Legal Writing


In preparing for the upcoming semester, I’ve developed my Ten Commandments of Legal Writing.  I’ll be posting my commandments (from ten to one) over the coming weeks, starting today!

#10—Thou shall* follow all local rules regarding page limitations, formatting, and font.

While this isn’t solely a “legal writing” rule, I think it is important enough to include in my Ten Commandments.  Every jurisdiction has local rules that govern the filing of documents.  Often, these local rules set forth page limitations and font size and style requirements.  The local rules frequently outline formatting requirements—such as the size of margins and whether footnotes may be single-spaced.  You should always follow these rules.  Many appellate courts, including the Circuit Appellate Courts, are extremely particular about the format of documents filed.  I once had an appellate court (temporarily) refuse to accept my record excerpts because I had failed to include a blank cardstock page on the back of each volume of the excerpts.  If that court noticed my failure to attach the cardstock, you can be sure it, and similar courts, notice other non-compliances.    

And never, never attempt to evade page limitations by shrinking font size, fiddling with margin size, or placing substantive arguments in footnotes.  Courts will see right through these tricks.  You aren’t fooling anyone—just ask the lawyer in Abner v. Scott Memorial Hosp., 634 F.3d 962 (7th Cir. 2011) (appellate brief struck where brief exceed page length and word limitation and attorney falsely certified that brief complied with local rules). 

Think twice before you ask permission to file a brief or document that exceeds the page limitations in the local rules.  Even if the court grants your request, it likely will do so begrudgingly and against its better judgment.  In most cases, “a modicum of informed editorial revision” could easily reduce the brief to the page limit without changing the substance. See Belli v. Hedden Enters., Inc., No. 8:12-cv-1001-T-23MAP, 2012 WL 3255086, at *1 (M.D. Fla. Aug. 7, 2012); see also Brian Garner Interview with Honorable Bruce D. Willis: On Page Limits, available at http://www.lawprose.org (last visited Nov. 25, 2013).

In his The Winning Brief, Brian Garner notes that Charles Alan Wright successfully opposed a petition for certiorari to the United States Supreme Court in a mere six pages. It took Wright only six pages of straightforward, to-the-point sentences to convince the highest court in this country that a circuit court’s decision was correct and did not warrant review. If Wright could accomplish that in a mere six pages, the rest of us can learn to keep our briefs brief too.  Request a page extension only when absolutely necessary. 

Does all this really matter, you ask.  Aren’t cases won on facts and law, not Times New Roman 14-point font and 1½ inch top margins?  As a law clerk, I can tell you that following the local rules does matter.  Judges and justices are less likely to respect the substantive points made by attorneys whose briefs don’t comply with the local rules. Why? Because failure to comply with the local rules means one of two things: either the attorney couldn’t be bothered to read the local rules or—worse—the attorney read them but didn’t care enough to comply with them. How can the judge trust the substantive work of someone who is either that lazy or that careless?  Local rules exist for a reason.  Even if you don’t understand that reason, comply with the local rules anyway.

* I understand Bryan Garner would be displeased with my use of “shall,” a directive that has its own set of problems.  See Bryan A. Garner, The Redbook: A Manual On Legal Style § 24.3(a) (2d ed. 2006).  Since this is a list of ten commandments, not a contract or statute, I’ll take the risk.  

Monday, November 25, 2013

ABA Blawg 100 Honoree

Many thanks go out to all the fans of this blog.  Thanks to you, Lady (Legal) Writer was selected as an ABA Blawg 100 blog for 2013! 

If you like this blog and think it deserves another honor--the favorite among ABA voters in the "Legal Research/Legal Writing" category--please vote for it here.

I'll make my regular Tuesday post tomorrow.  As some of you may have noticed, I've started making a second weekly post on Fridays.  The "Friday Funny" post is intended to be a short, entertaining snippet about legal writing, grammar, editing, or the intersection of those with popular culture (don't laugh--it happens sometimes).   

Thanks again to all the readers!

Friday, November 22, 2013

Hoop Dreams

I’m always searching for interesting judicial opinions.  I recently discovered Judge Ricardo Martinez’s opinion in City of Seattle v. Professional Basketball Club, LLC, No. C07-1620RSM, 2007 WL 3217556 (W.D. Wash Oct. 2, 2007), a suit between Seattle and an investment group, PBC, that purchased the Seattle SuperSonics (and moved them to Oklahoma City).  PBC argued that the City’s suit was subject to an arbitration provision in the agreement between the parties.  Judge Martinez denied PBC’s motion to stay the litigation, finding that its argument was “as errant as a typical Shaquille O’Neal free throw.”

For the uninitiated—O’Neal made less than 53% of the free-throws he took in his professional basketball career. 

Happy basketball season!

Monday, November 18, 2013

Follow Up: Who Cares About an Oxford Comma?

I previously wrote about a case pending before the Supreme Court of Georgia in which interpretation of a statute hinges on an understanding of serial commas.

The Supreme Court of Georgia's Kia opinion came out today and can be found here.  Unsurprisingly, the court held that the serial comma in a statute exempting certain records from disclosure under the Open Records Act creates three separate classes of exempted records.  According to the court, under the rules of English grammar, a limiting phrase inserted after the first class of documents and followed by a comma means that the limiting phrase applies to the first class of documents only and not to the other two classes of documents. 

As Justice Blackwell noted, when interpreting statutes, the court must presume that the Legislature knew the rules of grammar and "meant what it said and said what it meant."       

Friday, November 15, 2013

Incomprehensible!

Thanks to a tweet today from @LegalTweets, I discovered this amazing 2006 order in which Judge Leif Clark denied a party's motion on the ground of incomprehensibility.  What makes this order epic is the footnote reference in which the Court likens the motion to a statement made by Adam Sandler's character, Billy Madison, in the movie of the same name:    

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard.  At no point in your rambling, incoherent response was there anything that could even be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, and may God have mercy on your soul.

Ouch. 

Tuesday, November 12, 2013

A Picture Is Worth A Thousand Words

Photos are staple evidence in many trials.  But they pop up less frequently in briefs.  Briefs that incorporate photos can be very effective in certain types of cases—such as copyright and trademark infringement actions.  Photos can go a long way toward showing a judge what a litigant cannot effectively describe with words alone.

Take, for example, a recent complaint for declaratory judgment.  An entrepreneur, Dan McCall, produces and sells items that parody the NSA and the Department of Homeland Security.  For example, one of McCall's creations features the NSA seal over the words "Spying On You Since 1952."  McCall has sought a declaration that he did not violate federal statutes, which prohibit the use of the NSA and DHS names and seals in a way that conveys the impression that the agencies approve or endorse the use.  As you can see here, in his complaint, McCall included pictures of the items he sells.  These photos, to me, effectively show that no reasonable person would believe the NSA or the DHS endorses the items and, therefore, McCall did not violate the statutes. 

And, as we’ve seen before, the creative use of photos can be wonderfully impactful in other types of cases as well.  One of my favorites is a motion filed by counsel for Mark Cuban.  Cuban was sued by Ross Perot Jr., who alleged Cuban mismanaged the Dallas Mavericks.*  Cuban offered this photo as the only authority in support of his motion for summary judgment.

 
Cuban’s argument was simple: How can a team that went from being one of the worst professional teams under prior ownership to NBA champions under Cuban’s ownership have been mismanaged?  The trial judge agreed with Cuban and granted his MSJ.  Cuban could have cited documents and deposition testimony to support his MSJ—and might still have prevailed.  But a photo of the victorious Mavericks hoisting the Larry O’Brien Championship Trophy was, in my opinion, far more effective than any other evidence Cuban could have offered.  

This tactic is not for the faint of heart—you’ll notice that Cuban’s lawyers hang their (10-gallon) hats on that single photo.  The motion contains no statutes, case law, or other documentary support.  But could we expect anything less from lawyers for the incorrigible Cuban?

*Perot claimed Cuban’s mismanagement significantly decreased the value of Perot’s property around the Mavericks’ American Airlines Center.

Tuesday, November 5, 2013

Captain Justice, Defender of the Innocent

This piece of hilariousness has been making the rounds this week, so I can’t help but talk about it as well.

By way of background, attorney Drew Justice (yes—Justice is his real last name) represents a criminal defendant charged with attempted aggravated burglary in the Williamson County, Tennessee Circuit Court.  The prosecutor filed a motion in limine to prevent Justice from referring to her as “the government” at trial and suggested alternative names that would be acceptable, including “assistant attorney general.” 

Justice responded by making a First Amendment argument, which probably would have been sufficient to prevail, but then took it a step further.  If the court granted the prosecutor’s motion, Justice requested that his client not be referred to as the “defendant,” which has a negative connotation and, instead, be referred to as “Citizen Accused” or, alternatively, “that innocent man.”  Justice also requested that he be given a distinguished-sounding title, such as “captain” to match the prosecutor’s “general” title and not be referred to as a “lawyer” but, rather, “Defender of the Innocent.”   

Of course, I wouldn’t recommend filing something like Justice’s response.  While snarkiness provides tons of fodder for folks like me, it doesn’t usually go over well with judges.  As discussed in my post here, it’s generally best to let judges draw conclusions for themselves.

However, in this case, I think the response works because it highlights what the defense attorney believed was the ridiculousness of the prosecution’s motion.  And it does so without calling the motion ridiculous.  I can’t imagine a situation in which the use of the term “government” when referring to the prosecutor in a criminal trial would be inappropriate or derogatory, as the prosecutor claimed, but maybe I’m na├»ve.  At any rate, Justice’s response was the winning one because the judge denied the prosecutor’s motion.

Sunday, November 3, 2013