Monday, December 30, 2013

"I" is Ambiguous?

A recent case out of the Second Circuit Court of Appeals involves contract construction and, specifically, whether "i" denotes a lower case I or the Roman numeral "i," known as a romanette (Interestingly, the word "romanette" is not capitalized.). 

The district judge determined that the "i" is a romanette, creating a subpart 8(h)(i) in the contract.  The circuit court disagreed, finding that the "i" is a lower case I, designating section 8(i) of the contract.  According to the circuit court, the confusion was caused by an indentation error that lawyers who proofread the contract failed to catch.  The circuit court left open the possibility that extrinsic evidence might show that the "i" is really a romanette and, if presented, would create a factual question for the district court.

The case is Karmely v. Wertheimer, No. 12-3781-CV, ---F.3d---, 2013 WL 6403071 (2nd Cir. Dec. 9, 2013).

Friday, December 20, 2013

Friday Funny, Christmas Edit(ion)

I never write anything--even a two sentence email--without editing it.  I believe editing is essential to effective writing, but these heavy edits to 'Twas the Night Before Christmas are a little much.

I'll be posting sporadically over the next two weeks.  My Ten Commandments of Legal Writing will return in January 2014.

Happy Friday and Happy Holidays!

Tuesday, December 17, 2013

Commandment #7--Don't "Fudge" the Facts or the Law

#7—Thou shalt not fudge the facts or the law and shalt concede harmful facts and harmful law.

You can present the facts persuasively, but you should never try to sway the court by “fudging” the facts.  If a deponent said one thing in a deposition, do not extrapolate to make the deponent say something different.  For example, if the defendant testified that he is not sure if he checked his rear-view mirrors before changing lanes, do not suggest to the court that the defendant admitted he did not check his mirrors.  That is not what the defendant said.  Your adversary will almost certainly point this out, and you will lose credibility.

Similarly, every fact should be supported by a citation to evidence in the record, such as deposition transcripts, discovery responses, and affidavits.  You should not include fact statements for which you have no record support.  Offering “facts” for which you have no admissible evidence is equivalent to misrepresenting the facts. 

You also should never mis-cite authority or misrepresent the status of the law to the court.  For example, it is inappropriate to suggest to the court that “one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract." Dominic v. Eurocar Classics, 310 Ga. App. 825, 828, 714 S.E.2d 388, 391 (2011).  While this statement is a direct quote from Dominic, it is not a complete representation of the law.  Third party beneficiaries also have standing to sue for breach of contract under O.C.G.A. § 9-2-20(b).  Avoid the temptation to cherry-pick quotes or misrepresent the holding or reasoning of a case.  Attempting to bolster your case in this way will backfire.

Never try to hide unfavorable facts or law.  A lawyer’s duty of candor to the court should be enough to dissuade you from doing so.  In many cases, however, you might actually help yourself by acknowledging weaknesses in your argument before the opposing party has the opportunity to tell the court about those weaknesses.  By acknowledging specific weaknesses, you give yourself the opportunity to explain why unfavorable facts or law do not affect the outcome of your case. An unfavorable case may, for example, be factually distinguishable.  You might be able to argue that an unhelpful statute doesn’t apply given the facts of your case or that public policy dictates a different result from that reached in a prior, similar case.

Good legal writers use the facts and law to their advantage in a way that is accurate and truthful. 

Friday, December 13, 2013

Mr. Grinch Hires a Lawyer

Clients letters can by tricky, especially if you are dealing with an unsophisticated client.  You must  inform the client  of (sometimes complicated) law in a way the client can understand.  This client letter from Who W. Who to Mr. Grinch does a pretty good job of explaining Whoville defamation law.

Happy Friday!

Wednesday, December 11, 2013

Commandment #8--Explain the Facts and the Law in an Organized, Coherent Manner

#8—Thou Shalt* Explain the Facts and the Law in an Organized, Coherent Manner

Explaining Facts

The facts should be organized so they tell the story of the litigation.  The best organizational scheme will often depend on the strength, relevance, and perceived persuasive value of those relevant facts.  Often, the facts are best presented in chronological order.  Sometimes, however, a topical approach is best.  And at other times, a combination of the two approaches provides the best result.  If you aren’t sure, default to chronological order. 

If the facts are lengthy, complex, or can’t be easily organized chronologically, use subheadings to guide the reader and increase the flow and clarity of the factual story.  Assume you’re involved in a complex breach of contract case where the parties entered into a services contract, which references and incorporates a lease contract, and the services contract at issue was assigned by one of the parties.  The following types of subheadings will help the court sort-out the complex nature of the relationship:

The Service Contract

The Lease Contract

Arthur Assigns the Service Contract to Terry

Facts are critically important in brief writing.  Ensure your fact section tells the story of the case in a way the court can easily understand.

Explaining Law

When presenting the law, general legal authority should usually be presented first, followed by more specific, nuanced concepts.  If you represent a defendant in a tort case, for example, and are filing a motion for summary judgment, list the elements of the tort first and then delve deeper into what the plaintiff must prove to establish each element.  Assume you represent a plaintiff in a California who is suing for invasion of privacy:   

To allege a tort claim for invasion of privacy under California law, a plaintiff must prove (1) public disclosure; (2) of a private fact; (3) the disclosure of which would be objectionable to a reasonable person; and (4) the fact is not of legitimate public concern.” Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998).

Disclosure is considered public if it is made to the public generally or to a large group of people. Kinsey v. Macur, 107 Cal. App. 3d 265, 270 (1980).  Disclosure to a single person will not suffice. Id.

And if an element (or two or three) is not at issue—say so up front.  Don’t make the court wonder why you aren’t addressing a particular issue or element.  Take the same example from above.

To allege a claim for invasion of privacy under California law, a plaintiff must prove (1) public disclosure; (2) of a private fact; (3) the disclosure of which would be objectionable to a reasonable person; and (4) the fact is not of legitimate public concern.” Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998).

The parties agree that David publicly disclosed information about Hunter and that the disclosure would be objectionable to a reasonable person.  Thus, the only issues before this Court are whether the information disclosed was private and of legitimate public concern.

Information is private if it is not known by or available to the public. Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040, 1047 (1984).  Facts that are a matter of public record or available to the public are not private. Green v. Uccelli, 207 Cal. App. 3d 1112, 1120 (1990).  For example, information pertaining to criminal charges and judicial proceedings is not private. Wasser v. San Diego Union, 191 Cal. App. 3d 1455, 1462 (1987).

If you follow these general outlines for presenting the law and the facts, your writing will be clearer and easier for the court to understand.

* A kind blog reader, Douglas Bauman, informed me that "shalt" is actually the proper verb form for the subject "thou."  So, henceforth, I shall use "shalt."  For an explanation, check out this website.  And hat tip to Mr. Bauman--thanks for teaching me something new today!


Friday, December 6, 2013

He Lives in a Pineapple Under the Sea

The matter of People v. Danser, a 2006 appellate case out of California, is now old news, but I only recently encountered it.  I truly feel bad for this attorney.  We've all found typos and mistakes in briefs that we didn't catch before filing, but this error is really unfortunate.

The attorney was representing a former judge, who appealed his criminal conviction for fixing traffic tickets.  I'm not sure about the substance of the appellate brief, but the attorney did at least one thing I recommend--he spell-checked his document.  Unfortunately, he wasn't very careful in deciding which words to correct. 

In his brief, the lawyer made arguments about what the trial court should have done sua sponte.  The spell-check program he used, however, auto-corrected "sua sponte" to "sea sponge," leading to gems such as:

"It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense." 

The sea sponge argument appeared at least five times in the brief--no word on whether Spongebob also made an appearance. 

A short article about the case is available at

Happy Friday!

Tuesday, December 3, 2013

Commandment #9--Explain First and Argue Second

#9—Thou Shall Explain First and Argue Second

Too many legal writers launch immediately into their legal arguments without explaining to the reader the context in which the litigation has arisen.  And if the relationship between the parties is complicated or unfamiliar to the reader, this strategy makes it even more difficult for the reader to figure out what’s going on.  The reader needs a roadmap.  Without one, just like the wayward driver, the reader does not know where the writer is heading and what issues the reader should be considering.

I highly recommend the use of an introductory paragraph to lay the groundwork for the reader.  Ideally, an introductory paragraph should briefly explain who the parties are, what the litigation is about, what law applies, and what relief the writer is seeking.    

Let’s take an example from my former area of practice—bad faith and coverage litigation.

Alpha Insurance Company filed this declaratory judgment action to determine its rights and obligations under an automobile insurance policy issued to Calvin Strong.  In 2008, Alpha issued a personal auto insurance policy to Strong.  At Strong’s request, that policy specifically excluded coverage for an accident involving Strong’s son, Germain. 

Strong now seeks coverage under the Alpha policy for a January 9, 2013 accident in which Germain was driving the vehicle insured under the policy.  Strong admits that he intended to exclude coverage for Germain under the policy but contends that named-driver exclusions are contrary to Georgia law.  Strong is incorrect.  Named-driver exclusions, such as the one contained in the Alpha policy, are valid and enforceable if supported by consideration. See Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 476 S.E.2d 82 (1996).  The named-driver exclusion in the Alpha policy was supported by consideration because Alpha charged a lower premium for the policy than it would have charged had Germain not been listed as an excluded driver.  Thus, the exclusion is enforceable and applies to exclude coverage for the accident.  Alpha’s motion for summary judgment should be granted.

Versus a brief that lacks an introduction: 

An insurance policy is a contract and, therefore, is subject to the rules of contract construction. York Ins. Co. v. Houston Wellness Center, Inc., 261 Ga. App. 854, 854, 583 S.E.2d 903, 904 (2003).  “The hallmark of contract construction is to ascertain the intention of the parties.” Id.  Where the terms of the policy are “clear and unambiguous, the court is to look to the contract alone to find the parties' intent.” Id.   In cases where the policy language is clear, the interpretation is one for the court.  Middlebrooks v. Atlanta Cas. Co., 222 Ga. App. 785, 786, 476 S.E.2d 82, 82 (1996). 

"An insurance company is free to fix the terms of its policies as it sees fit, so long as such terms are not contrary to law, and it is equally free to insure against certain risks while excluding others." York, 261 Ga. App. at 854, 583 S.E.2d at 904.  Thus, "[a]n insurer may reject coverage for a person expressly excluded from its policy." Middlebrooks, 222 Ga. App. at 786, 476 S.E.2d at 82.  If the exclusion is supported by consideration, it is enforceable. Id

Do you see what a difference the first, introductory paragraph makes?  Once the reader understands the framework of the litigation and the general legal issues, the reader is much more likely to understand the importance of the writer's substantive points--doing this in an introductory paragraph will help ensure the reader has the necessary framework at the earliest possible point.  Without that introductory paragraph, the writer has simply thrown a bunch of law at the reader without explaining what that law means in the context of the litigation.  Explain first and argue second.