When in Doubt, Call for Backup

Last night I was reviewing case law to decide which arguments I want to make in support of a motion I'll be filing this week.  I was getting tired and frustrated when my little doxie Magnus decided he'd try to give me some assistance (notice the highlighted Westlaw pages he's lying on).

 
Unfortunately, Magnus wasn't much help with my legal argument, but he did cheer me up.  Sometimes we get so caught up in what we're trying to accomplish, we forget we're not in this alone.  Remember that professors, friends, colleagues, and others are available to proofread, critique, and serve as sounding boards!

More Misused Words

Allude/elude

To allude to something (or make an allusion, below) is to mention it indirectly.  Elude means to escape from something.  Evade is also similar to elude except that evade means to escape or avoid something by the use of strategy or deceit.

The plaintiff alluded to her pre-existing condition, but never testified about it directly.

The defendant attempted to elude the investigator’s question by changing the subject.

Allusion/Illusion

An allusion is an implied or indirect reference.  An illusion is a misleading image or impression.  

Counsel did not directly address, but made an allusion to, the policy arguments supporting her client’s position. 

The court found the plaintiff’s recollection of the events to be an illusion.  

Compliment/complement

A compliment is a flattering remark.  A complement is something that completes or makes another thing perfect.

The court complimented the parties on their well-written briefs. 

The defendant’s oral argument complemented his brief well.

Discreet/discrete

Discreet means acting prudently, with good judgment, or in an unobtrusive way.  Discrete means distinct.

The undercover officer discreetly approached the defendant so as not to raise suspicion.

Maritime issues are governed by a discrete body of law.

Farther/Further

Farther refers to physical distance or proximity.  Further means figurative distance.  If you can’t decide which to use, stick with further.

The defendant lived farther from the accident scene than did the plaintiff. 

The argument the defendant intentionally spoliated evidence could not be further from the truth.

Over/more than

The term “over” refers to physical proximity while the term “more than” refers to amounts.

The courthouse is over 10 miles from my office. 

It costs more than $100 to file a civil complaint.

Precede/Proceed

Precede means to come before.  Proceed means to go forward or continue doing something.

The arguments on the motions preceded the jury’s entry into the courtroom.

After the objection, the expert proceeded with her testimony.

Principal/principle

A principal is the head of an organization or an amount of money.  A principle is a basic tenet or law.

The defendant was ordered to pay $15,000 principal plus post-judgment interest. 

The court’s decision was guided by the principle of stare decisis.

Another Lawyer in Trouble for Disrespectful Language

I've talked before about the importance of being respectful to your adversary and the court and avoiding charged language.  This lawyer apparently didn't get that message.

A Memphis attorney was recently given a 60-day suspension for comments made during a 2008 medical malpractice trial.  The attorney apparently called one of the trial judge's rulings "crazy,"  accused opposing counsel of lying to the judge, and stated the judge might "set a world record for error" with her rulings.  Counsel's statements caused the judge to declare a mistrial, and the case settled shortly thereafter.

The three-member disciplinary panel that handed down the suspension found the attorney's comments "contentious, combative, and protracted."  Specifically, the panel stated:

We do not believe that such conduct can be justified no matter how worthy or vulnerable the attorney's client may be, or how poorly the judge may be performing or how difficult or unethical the adversary counsel may be ... Simply abusing or insulting the court to get rulings in your favor cannot ever be endorsed or justified by our rules and our system of professional conduct.

The attorney has indicated he intends to appeal.  The 60-day suspension won't take effect until all his appeals are exhausted. 

I don't have a copy of the panel's opinion, but the story, from the Commercial Appeal, can be found here:

http://www.commercialappeal.com/news/2013/jan/06/memphis-lawyer-vows-to-fight-60-day-suspension/
    

Another Lesson on Proofreading

Happy New Year!

Since this is bowl week, I thought a football-themed post was in order.  This newspaper teaser line in the Weirton Daily Times is a reminder of the importance of proofreading.  Spell-check didn't catch this unfortunate error.

http://now.msn.com/wvu-loses-bowel-in-newspaper-typo

105-page Opinion Too Long for 11th Circuit Judge

In a case recently decided by the Eleventh Circuit Court of Appeals, Judge J.L. Edmonson agreed with Judge Ed Carnes in upholding the defendant’s murder conviction, but refused to join in Judge Carnes’ opinion because of its 105-page length. Holsey v. Warden, 694 F.3d 1230 (11^th Cir. 2012). 

 

Judge Edmonson noted that “longish opinions always present a strong possibility of error lurking somewhere in the text,” and make it difficult for readers to distinguish the holding from dicta. Id. at * 1274.  In his concurrence, Judge Edmonson quoted Mark Twain:

 If you want me to give you a two-hour presentation, I am ready today.  If you want only a five-minute speech, it will take me two weeks to prepare.

Id. at 1274 n 1.*

*This case is interesting for several other reasons.  The defendant was charged with and convicted of the murder of a police officer.  He argued he was ineffectively represented after his trial lawyer’s quart-a-day drinking habit came to light.  The lawyer later was prosecuted and disbarred for stealing client funds.      

   

A Company is an "It"

In speech, we often refer to a company as "they."  This makes sense, at least to some degree, because a company is run by people, and any company act is the result of decisions made by those people.  However, for legal writing purposes, a company is an "it" and acts individually as an "it," not collectively as "they."  Thus, for example, you should not say, "Citigroup laid off some of their employees this week."  Citigroup is a corporation and, therefore, laid off some of its* employees.  The sentences below offer more correct examples:

The judge found INS Insurance Company breached its duty to act in good faith toward its insured.

The company argued the defendant was an independent contractor because it paid the defendant by the job rather than by the hour.

A corporation many not represent itself in litigation; it must hire counsel.  

*More to come in the future on the it's/its distinction

Etc.

“Etc.” is an abbreviation for the Latin phrase “et cetera” which literally means “and other things.”  It is appropriately used when discussing various, similar things but not when discussing various, unrelated topics or things. 

I do not believe the abbreviation “etc.” should be used in formal writing. I’m indifferent to the use of the full phrase “et cetera” in formal writing—I don’t personally use it, but I also don’t believe it is incorrect to use it in appropriate situations.  If you do choose to use “etc.” or “et cetera,” follow these guidelines:

-The abbreviation “etc.” should always have a period.

-Do not precede “etc.” or “et cetera” with “and.”  “Et” means “and.”  Adding “and” is duplicative.

-Do not italicize “etc.” or “et cetera.” 

-“Etc.” or “et cetera” should always be preceded by a comma.

-“Etc.” and “et cetera” should not be used when speaking of persons.  The lawyer’s favorite, “et al.,” is appropriate in that situation.

-Use one and only one “etc.” at the end of a list.

Consider the following appropriate uses of "etc.":

To prepare for our trip, please pack toiletries, cosmetics, clothes, etc.

My favorite books, A Hundred Years of Solitude, The World According to Garp, etc., have influenced my writing style.    

My favorite authors, Garcia Marquez, Irving, et al., have influenced my writing style.