"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 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.

http://pages.towson.edu/lieb/bestchristmascard.html

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!

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. 

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.    

http://www.npr.org/blogs/monkeysee/2013/12/12/250420788/im-your-lawyer-mr-grinch

Happy Friday!

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!

 

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 www.law.com.

Happy Friday!

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. 

Commas Save Lives, Thanksgiving Edition

Courtesy of Grammarly.

Happy Friday!

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.  

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!

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!

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."       

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. 

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.

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 naïve.  At any rate, Justice’s response was the winning one because the judge denied the prosecutor’s motion.

U Should Proofread Everything

Including your GameDay sign.  I think you mean "lose."

 

 

Petrifying Precedent

Law practice is scary—the devil is in the details, and it’s easy to overlook a local rule, deadline, or statutory requirement and kill your client’s case.  But courts around the country have dealt with some hair-raising issues that don’t generally haunt most lawyers. 
 
In my favorite spooky case, a New York court held that a house was haunted as a matter of law.  In Stambovsky v. Ackley, 169 A.D.2d 254 (1991), the court held that a buyer was entitled to rescind his contract to purchase a house because of the existence of ghosts in the house.  The court held that the seller, having reported ghostly activities in Reader’s Digest and numerous local publications, was estopped to deny the existence of ghosts and therefore, as a matter of law, the house was haunted. Id. at 256.
 
There may be a general duty not to scare others—but, according to the Louisiana Court of Appeals, that duty vanishes on Halloween: The “general duty not to scare” is modified on Halloween, when society “encourages children to transform themselves into witches, demons, and ghosts and play a game of threatening neighbors into giving them candy.”  Bouton v. Allstate Insurance Co., 491 So.2d 56, 58 (La. Ct. App. 1986).    

 

As one might expect, cases involving haunted house attractions have scared up litigation across the country.  Generally, the courts have held that injuries sustained by frightened haunted house patrons are not actionable.  For example, the Louisiana Court of Appeals held that a plaintiff who was injured at a haunted house assumed the risk of injury.  The court held that the plaintiff “had to realize the very nature of the attraction was to cause patrons to react in bizarre, frightened, and unpredictable ways,” and she could not recover when she was injured from “being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.” Bonnano v. Continental Cas. Co., 285 So.2d 591, 592 (La. Ct. App. 1973).

The infamous Michael Myers mask from the Halloween movies has even haunted one court.  In Don Post Studios, Inc. v. Cinema Secrets, Inc., 124 F. Supp. 2d 311 (E.D. Pa. 2000), a court considered whether the creator of the Michael Myers mask could state claims for copyright and trade dress infringement against a party that had been given a non-exclusive license to produce the mask by the Halloween filmmaker.

And, in an opinion issued—appropriately—on October 31, the Court of Appeals of Kentucky upheld a trial court’s dismissal of a contract action against Spooky Hollow Realty Company. Langley v. Spooky Hollow Realty Co., 64 S.W.2d 459 (Ky. Ct. App. 1933).

Happy Halloween! 

Tweet Me

I’ve joined Twitter and will be tweeting on all things relevant to legal writing—Riveting might not be the right word, but you’ll definitely learn something! 

Please consider following me @LadyLegalWriter

Ridiculousness

The Sixth Circuit Court of Appeals recently issued this gem of an opinion in my former area of practice—insurance coverage work.  The plaintiff was injured when she was struck by and thrown onto the hood of a vehicle insured by the defendant.  The defendant’s policy provided coverage for an “occupant” of a vehicle, but defined that term broadly to include anyone “in, on, entering, or alighting from” a vehicle.  The plaintiff argued she was occupant.  The defendant argued the plaintiff was not an occupant and called the plaintiff’s position “ridiculous.” 

The Sixth Circuit didn’t take kindly to the defendant’s name-calling, noting that there are good reasons not to call another party’s argument ridiculous, including common civility and the likelihood that the hyperbole will make the court dislike the party making it.  And, the biggest reason, according to the Sixth Circuit, was because “the argument that [the defendant] deride[d] as ridiculous [was] instead correct.”

The court noted that while the plaintiff might not have been an “occupant” of the vehicle under the ordinary definition of that term, the policy specifically defined “occupant” to include someone “on” the car.  The parties did not dispute that the plaintiff was thrown “on” the hood of the car during the accident, so the policy provided coverage for the plaintiff’s injuries.

The statement attacking the plaintiff was completely unnecessary to the defendant’s argument and came back to haunt the defendant’s lawyers.  As the Sixth Circuit pointed out, even if the plaintiff’s position had been ridiculous, the defendant would have been better served to “lay out the facts and let the court reach its own conclusion.”  Instead, its words backfired in a big way. 

Lesson Learned: Use words like ridiculous, ludicrous, preposterous, absurd, nonsensical and the like at your own risk.

Email Errors: One Attorney in Trouble, the Other Embarrassed

The Indiana Discipline Commission has recommended that a lawyer who privately criticized a judge should be suspended from practice for a year.  The lawyer sent an email to another lawyer involved in an estate case and stated, among other things, that the judge “should be turned in to the disciplinary commission for how he handled th[e] case.”  What’s not clear, however, is how the judge received a copy of the email. 

The commission recommended the suspension based on its conclusions that the attorney believes he is above the courts and the law and that his criticism of the judge was “filled with inaccurate claims and slanderous innuendo.”  The lawyer has responded that his speech was private and protected by the First Amendment.  In an interesting twist, the commission apparently would have dropped the matter had the attorney apologized to the judge, but the attorney refused to do so.

The Indiana Supreme Court’s disciplinary decision will be forthcoming.  An article about the case can be found here.

In another case, a Nebraska lawyer accidentally copied a Nebraska Supreme Court justice on an email about a case that had just been heard by that court.  The lawyer (who was not involved in the case) sent the email to two attorneys involved in the case to congratulate them on their oral arguments in the case and the way they “dealt with some ill-conceived and uninformed questions.”  Unfortunately for the lawyer, he accidentally copied twenty-four other people on the email, including the chief justice.

The email came to light after the justice filed a disclosure to let the parties know about the email and to assure them that it would not impact his ruling, though he did give them the option to seek to recuse him if they felt it necessary. 

Unlike the Indiana lawyer, however, the Nebraska lawyer promptly apologized and indicated he intended no disrespect.  The Lincoln Journal Star article is here.     

Attorneys walk a fine line with email communications.  Email is a great, quick way to communicate, but it has risks (e.g. copying unintended recipients).  Always double check the recipient list and think twice before making disparaging comments.  For other email tips, see my earlier post about email etiquette.

Metaphors Be With You

I’m developing a short, fun article on metaphors in the law, and my research got me thinking about the prevalence of legal metaphors.  So many of our legal concepts are metaphors, similes, and the like.  Consider the “fruit of the poisonous tree” concept so important to criminal law.  And Constitutional concepts such as the “wall of separation” between church and state, the “chilling” effect on free speech, and the requirement that the exercise of personal jurisdiction comport with concepts of “fair play.”

 

Contracts often contain “boilerplate” language; a party may seek to pierce the “corporate veil;” an attorney may object to discovery as a “fishing expedition;” many contracts and statues contain “safe harbor” provisions; and a party may argue that a particular holding would create a “slippery slope.”

 

Some folks believe legal metaphors are bad—those people argue that metaphors muddle already confusing concepts and are often inaccurate.  Others, like me, see legal metaphors as indispensable.  After all, metaphors are an essential part of everyday life and rhetoric.  A person might be described as having a sunny disposition or a cloud hanging over her head; a crafty person is a sly fox, whereas a glutton makes a pig of himself; an intelligent person is sharp as a tack, while an uneducated person is described as “not very bright.” 

 

Since metaphors abound elsewhere, I don’t see how they can be avoided in the law.  Or why they should be.

 

What do you think? Are legal metaphors helpful or harmful?  

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). 

 

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?

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.

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).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ghostbusters

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.

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. 

Check Yourself Before You Wreck Yourself

Editing is a skill that takes lots of practice.  Entire books have been written on editing, so I can’t teach you to be a great editor in one short blog post.  A few tips, however, can go a long way toward helping you produce documents with fewer errors.

1.    Tips that too few people follow.

Too many lawyers forget these “common sense” tips—use spell check (but don’t rely solely on it), ensure that your font size and style are consistent throughout the document, double check small words, such as “is,” “it,” and “in,” and words that have multiple spellings (e.g. guarantee and guaranty).  Review case and statute citations twice.  It is very easy to transpose reporter and page numbers and your audience (i.e. the judge) will get frustrated if she can’t find the case or statute you’ve cited.

2.     Proofread on Paper

I’ve never met anyone who can proofread well on a screen.  Readers catch more errors when they proofread on paper—I don’t know why this is true, but it is.  Print your draft double-sided if you’re concerned about conserving paper.

3.     Spell check will not catch spelling errors in ALL CAPS.

Many folks don’t realize this, but it’s a fact.  Thus, if you don’t carefully check document titles, section headers, and other parts of motions and briefs in all capitals, you’re just as likely to submit a BREIF as a BRIEF.

4.     Give yourself time, if you can.

The best writers give themselves time to put a document away for a few days so they can look at it again later with fresh eyes.  Even if you don’t have that much time, don’t start editing immediately after you finish drafting—come back an hour or two later.

5.     Read your document out load.

This tip is a particularly good way to catch awkward sentences and redundant words and phrases.  It may seem silly, but try it after you’ve already made one proofreading pass-through and see if you don’t catch additional errors.