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Happy Friday!

Judge Posner's Collections Letter Template

Courts don’t often help lawyers out by providing templates, but Judge Posner’s opinion in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997) offers a form letter for those seeking to collect certain consumer debts. In the underlying lawsuit, the plaintiff sued Heibl, a lawyer, for violation of the Fair Debt Collection Practices Act, claiming Heibl’s collection letter was so confusing it didn’t meet the Act’s required notice provisions. This copy is somewhat grainy (and written in the dreaded Courier font), but still readable:

 

The Seventh Circuit agreed, concluding Heibl’s letter was confusing and impliedly contradictory. The court noted, for example, the confusion created by reference to the one-week and thirty-day time periods:

On the one hand, Heibl's letter tells the debtor that if he doesn't pay within a week he's going to be sued. On the other hand, it tells him that he can contest the debt within thirty days. This leaves up in the air what happens if he is sued on the eighth day, say, and disputes the debt on the tenth day. He might well wonder what good it would do him to dispute the debt if he can't stave off a lawsuit. The net effect of the juxtaposition of the one-week and thirty-day crucial periods is to turn the required disclosure into legal gibberish. That's as bad as an outright contradiction.

Id. at 501.

To avoid future uncertainty, the court offered a suggested revision to Heibl’s letter that would comply with the notice requirements of the Act:

I have been retained by Micard Services to collect from you the entire balance, which as of September 25, 1995, was $1,656.90, that you owe Micard Services on your MasterCard Account No. 5414701617068749.

If you want to resolve this matter without a lawsuit, you must, within one week of the date of this letter, either pay Micard $316 against the balance that you owe (unless you've paid it since your last statement) or call Micard at 1–800–221–5920 ext. 6130 and work out arrangements for payment with it. If you do neither of these things, I will be entitled to file a lawsuit against you, for the collection of this debt, when the week is over.

Federal law gives you thirty days after you receive this letter to dispute the validity of the debt or any part of it. If you don't dispute it within that period, I'll assume that it's valid. If you do dispute it—by notifying me in writing to that effect—I will, as required by the law, obtain and mail to you proof of the debt. And if, within the same period, you request in writing the name and address of your original creditor, if the original creditor is different from the current creditor (Micard Services), I will furnish you with that information too.

The law does not require me to wait until the end of the thirty-day period before suing you to collect this debt. If, however, you request proof of the debt or the name and address of the original creditor within the thirty-day period that begins with your receipt of this letter, the law requires me to suspend my efforts (through litigation or otherwise) to collect the debt until I mail the requested information to you.

Id. at 501-02.

I think the revised letter could still be misunderstood, but that’s a result of the complexity of the Act, not the language of the letter itself. This example certainly isn’t the only way the original letter could have been redrafted to improve clarity. But a lawyer could use this revised letter as a template for future collection letters with some assurance (at least in the 7th Circuit) that a court wouldn’t later find the letter confusing or ambiguous.

We lawyers like to use the fancy words we learned in law school to make ourselves sound smart and to encourage others to recognize we are lawyers with special training. But, as this case demonstrates, a lawyer can shoot himself in the foot by using those fancy words at the expense of clarity.

Last week I talked about client letters, and even though this letter was to a creditor, it’s also a good reminder to be clear in your client letters. If you aren’t clear, you client could misunderstand the implications of the litigation or potential outcomes, leading to an unhappy client and potential malpractice suit. You should draft clear, concise letters no matter the recipient, but they’re especially important when written to a non-lawyer.

There is No Claim for Pooping and Scooping

A funny opinion from Justice E.M. Morgan of the Superior Court of Justice--Ontario has been making the rounds this week. I agree with Lowering the Bar, which called the opinion "great stuff."

The suit that precipitated the opinion was a dispute between neighbors in a wealthy Toronto neighborhood who apparently relish annoying the hell out of each other. The plaintiffs kept at least two security cameras aimed at the defendants' house and presented evidence of a "dog urination" incident in which the defendants allowed their dog to mark the hedge at the edge of the plaintiffs' lawn and a "dog feces" incident in which the defendants disposed of bagged dog excrement in the plaintiffs' trash can, which was on the street for pickup at the time.

The parties apparently legally,  but "annoyingly," parked their cars on the street in front of the other's house, and the respective wives had shouted at each other while one gave "the finger" to the other. The parties made other similar claims against each other, but in what Justice Morgan describes as the piece de resistance of their suit, the plaintiffs alleged the defendants "sometimes stand in their own driveway or elsewhere on their property and look at the [p]laintiffs’ house."  

In his opinion, Justice Morgan scolds the parties, highly educated, successful people, for acting like children and dismisses the suit, but his recitation of the parties' behavior and claims is worth its weight in gold. The opinion, in my view, contains just the right amount of snark and sarcasm--enough to (hopefully) make the parties realize how silly they have acted without belittling them. (See this response letter for the type of bad, belittling snark I'm talking about).

For example, in response to the claim the defendants look at the plaintiffs' house, Justice Morgan notes:

One of the video exhibits shows [the defendant-wife] doing just that, casting her gaze from her own property across the street and resting her eyes on the [p]laintiffs’ abode for a full 25 seconds. There is no denying that [the defendant-wife] is guilty as charged. The camera doesn’t lie.

Unsurprisingly, Justice Morgan doesn't find that conduct (or any of the other alleged bad acts) actionable and goes on to hold:

There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.

You must read the whole opinion, available here, for full effect.

Happy Friday!

Tips for Client Letters

Writing client letters isn't the sexiest part of law practice, but knowing how to write them is an essential skill for every lawyer. The following tips will help you draft letters that serve the important purposes of keeping the client informed about the lawsuit, recording how you’ve handled the case, and informing the client about what to expect from the litigation.

Develop a plan based on the client’s level of sophistication and desire for information

Is your client an individual or a large, sophisticated company frequently involved in litigation? How often does your client want to hear from you and how much does the client want to be involved in the litigation? These questions will guide you in determining the information and level of detail of your client letters. Some corporate clients require letters at certain intervals, such as every three months or upon the completion of certain tasks (e.g. discovery). Others don’t want to pay for client letters and only want them sent sporadically. Individual and corporate clients may be deeply interested in minute details about the litigation or may only want or understand very general information about the lawsuit. You likely will need to explain legal terms and concepts to unsophisticated clients, while sophisticated ones will understand what a motion for summary judgment is and why you want to file one. Decide how often you need to write to the client and what level of detail you want to include and calendar dates for sending updates.        

Briefly Outline What’s Happened and What the Happenings Mean

You generally should start each client letter with a summary of what’s happened in the litigation since the last time you spoke with or wrote the client. Keep your letter a short as possible while including the most important information and details:

As you know, on March 21 I attended a hearing on your behalf and argued the defendant’s motion for summary judgment should not be granted. The judge agreed and has issued an order denying the defendant’s motion.

Then let the client know what any happenings mean in the greater scheme of the litigation:

This denial means your lawsuit continues, and we can either attempt to settle your suit with the defendant or go forward with a jury trial.

Tell the Client What to Expect

Is the opposing party likely to file a motion to dismiss or motion for summary judgment? If so, let the client know that in advance so the client won’t be surprised if it happens in the future. Will the client need to give a deposition? Go ahead and let him know that in advance. Include likely time frames as well, since many inexperienced litigants don’t understand how long the legal process can take. You might write something like this:

I have just filed your answer, so now the 6-month discovery process will begin. During discovery, the plaintiff will send written questions and requests for documents. When I receive these requests, I’ll contact you so we can work together to draft responses and gather the requested documents. The plaintiff also likely will want to take your deposition. At your deposition, you’ll be placed under oath, and the plaintiff’s attorney will ask you questions about yourself and the accident at the center of this lawsuit. I’ll be at the deposition with you to ensure that the questions are appropriate. Don’t worry yet about your deposition. Once we confirm the deposition date, I’ll meet with you to prepare for the deposition and let you know more about what to expect.

Invite Questions

Some clients feel they cannot contact their attorneys to ask questions (often, but not always, because the attorney has done something to make them feel this way--such as not returning voicemails or emails). This feeling can lead to dissatisfied clients, which can lead to bar complaints or, worse, legal malpractice lawsuits. Despite your best efforts to be clear, you client still might not understand your letter or the litigation process. Conclude each client letter by inviting the client to contact you with any questions about the contents of the letter or the litigation in general:

I will let you know as soon as the judge rules on the motion to strike the plaintiff’s expert’s affidavit. In the meantime, if you have any questions about the lawsuit or the contents of this letter, please feel free to call or email me.   

You've Gotta Fight...For Your Right...to Annoy

In this interesting opinion, the New York Court of Appeals (the highest appellate court in New York) struck down a penal statute as unconstitutionally vague. The statute defined the crime of Aggravated Harassment in the Second Degree as communicating with the intent to "harass, annoy threaten or alarm...in a manner likely to cause annoyance or alarm."

The defendant's father is a renowned expert on the Dead Sea Scrolls (above), and the defendant apparently used psedonyms to attack his father's academic rivals online, even opening email accounts in those rivals' names and sending emails purportedly written by them. The defendant was conviced under the harassment statute and appealed. Predictably, the court held there is no clear, universal understanding of what is meant by "in a manner likely to cause annoyance or alarm" because, of course, what's likely to cause annoyance for some isn't likely to cause annoyance for others.

The opinion's a win for the defendant, but a loss for the rest of us, who might have been able to use the statute to get rid of those annoying Kardashians...

The matter is State v. Golb, and you can find a New York times article about the case and opinion here.

Happy Friday!

Legal Writing's So...Subjective

Dear Lady Legal Writer:

Legal writing seems so subjective. Professors and judges have their pet peeves, and there don’t appear to be any “universal” rules. How am I supposed to become a good legal writer if everyone has a different opinion about what makes writing good?

Wondering 1L

Dear Wondering,

 

You are correct—there is some subjectivity in legal writing. But that doesn’t mean there aren’t universal rules. I think the pet peeves you reference are just that—pet peeves that don’t really impact the quality of writing. Whether you refer to the prosecuting party as “Plaintiff” or “the plaintiff” isn’t substantively relevant. And, practically speaking, the “Statement of the Facts” is no different than the “Factual Background.”

 

While you’re a student, though, follow your legal writing professor’s guidance. Once you become a practicing attorney, you’ll need to develop your own voice in your writing and decide what works for you.   But remember—good writing is good writing. If you follow IRAC, CREAC, or some similar organizational form, your brief will be organized. And all professors and judges agree on good grammar practices—subject-verb agreement, proper word choice, correct use of colons and semicolons etc. While you don’t need to learn every rule in the Bluebook or ALWD manual, know how to use the manuals and make sure your citations are correct. And always, always, always follow the local rules, which often outline certain sections and subsections for briefs, limit the number of pages, and require specific formatting.

 

Poorly written briefs can sink a case—no doubt. But an otherwise well-written brief that contains one or a few of a judge’s pet peeves isn’t going to lose your client’s case. Focus on learning the structure of legal writing and working to improve your grammar and writing ability. Read good writing—both legal and non-legal. I think you’ll find there are many universal characteristics of good writing that you can implement in your own work.

 

LLW     

The "P" Word--Plagiarism

A recent email on one of my listserves got me thinking about plagiarism and the ways people attempt to sugarcoat it. The word "plagiarism" itself seems euphemistic--a nice way of saying: stealing someone else's work and passing it off as your own.

Lawyers are encouraged--even required--to take language from cases, statutes, treatises, and the like to support their positions. But lawyers, like journalists and scientists, must be careful to properly cite their authorities. 

The Lab Times has compiled a list of euphemisms scientific journals have used in retraction notices. The short list can be found here.

My favorite from the Lab Times list: "significant originality issue"

Some other plagiarism euphemisms:

-recycled from other works...
-borrowed language from another...
-paid homage to the writing of...
-appropriated the work of...

Happy Friday!

Tips for Response Briefs

Many people tell me they think response briefs are much more difficult to write than initial briefs. I agree response briefs can be tricky—especially if the opposing party’s initial brief is poorly written. But, believe it or not, the basic outline for a good response brief isn’t much different than that for a good initial brief. Follow these tips for a strong response brief:

Address the facts

Remember: law is important, but the facts are the backbone of any case. Without facts, there’s nothing to apply the law to. The facts are a crucial part of any brief (and any response brief), so make sure the reader is clear about the facts before you do anything else. If the moving party’s version of the facts is accurate, there’s no reason to re-state them again in your brief. Tell the reader that you agree with the moving party’s facts, and move on to your argument.

If you take issue with or need to clarify some (or many) of the moving party’s facts, tell the reader that you agree with certain facts—and tell the reader which ones—but state that you must address others. Then discuss why those facts at issue are incorrect, citing to pleadings and, if appropriate, other evidence to support your position. Make sure the reader is clear about the facts before you address anything else.          

Make your argument first, then address your adversary’s argument

Address the facts and fully outline and argue your position, then respond to your adversary’s counterarguments. If you put your adversary’s arguments front and center in your brief, you may unintentionally give them more credence than they deserve and weaken the force of your own arguments. Instead, make your points first, without mentioning your adversary’s position, then address your adversary’s arguments.

Let’s take a simple choice of law issue. The plaintiff argues that New York law applies and he prevails, but you want to argue that California law applies. Instead of starting the response brief by talking about New York law and why the plaintiff shouldn’t prevail under it, start with your best argument—that California law, not New York law, applies. Once you’ve argued that California law applies, argue that the plaintiff can’t (or hasn’t proven that she must) prevail under California law. Then address why the plaintiff doesn’t or can’t prevail even if New York law does apply. Thus, you’re response brief will look like this: 

1. California law applies because…
2. Plaintiff cannot prevail (or has not proven as a matter of law   that she must prevail) under California law because…\
3. Even if New York law applies, as Plaintiff contends, Plaintiff still cannot prevail (or has not proven as a matter of law that she must prevail) because…   

Or this:

1. California law applies and Plaintiff cannot prevail (or has not proven as a matter of law that she must prevail) under California law because…
2. Even if New York law applies, as Plaintiff contends, Plaintiff still cannot prevail (or has not proven as a matter of law that she must prevail) because…  

Don’t try to address your adversary’s arguments first then make your own or—worse—address your adversary’s arguments while simultaneously making your own. You’ll just end up with a disorganized brief that doesn’t do a good job of either.

Make concessions, if warranted

If concessions are warranted, don’t be afraid to make them. Let’s use the choice of law example again and alter the facts. Assume that if New York law applies, the plaintiff will prevail. Don’t try to argue that your client will still prevail under New York law if he won’t. Make the concession—you’ll increase your credibility greatly and narrow the issues for the court to decide. If you concede that your client will lose if New York law applies, that is one less issue the judge will need to consider, thereby giving the judge more time to focus on your strongest argument—that California law applies and is favorable to your client. I’ve made this point before, but it’s especially applicable when responding to an initial brief: save your energy for good arguments and don’t waste your time (and credibility) on losing ones.

God the Prosecutor?

I've been doing some research about judicial citations to the Bible and came across this interesting dissenting opinion. The quoted part is a little long, but worth the read. 

The defendant had been convicted of selling drugs after he sold heroin to a police officer, who had been introduced to the defendant by an informant. The defendant had sought and been denied a jury charge on entrapment. The majority agreed that the entrapment charge was inappropriate, but the dissent didn't and compared the situation to that of Adam and Eve and the serpent in the Garden:

The majority opinion declines to recognize the entrapment defense, and contends it was the mere setting of a trap into which the defendant fell. Of course! That is exactly what entrapment is. The majority opinion, on page 132, cites and relies on Sutton v. State, 59 Ga. App. 198, 199, 200 S.E.2d 225, 226 (1938), to show that the State is entitled to set a trap for the defendant, and also that the defense of entrapment, as pleaded in the Garden of Eden (that ‘The serpent beguiled me and I did eat’), was not then allowed by Christian ethics, nor now by any code of civilized ethics, to give indemnity to the culprit.

But this argument by the majority mistakes and confuses the premise upon which entrapment may be pleaded. Entrapment is allowed as a defense against the prosecutor (or the state or the government), only when the prosecutor (or the state or the government) is alleged to have entrapped the defendant. Entrapment is not available as a defense if some third person, who is not acting as an agent of the prosecutor, state or government, entraps the defendant. Code Ann. section 26-905 provides that when the idea of the crime originates with an officer or agent of the state, who by undue persuasion, incitement, or deceitful means, induces defendant to do something he otherwise would not have done, then the defense of entrapment is available as a complete defense.

In Holy Writ, the Lord God occupies the position of the prosecutor, or the state, or the government. God did not send his agent into the Garden of Eden to entrap Adam and Eve. To the contrary, the serpent was working the other side of the street, acting on his own volition, and as an agent of the Devil. Therefore, the woman could not say to God that your agent deceived me, but her plea was that, ‘The serpent beguiled me and I did eat.’

 

The serpent was not the agent of the Lord God, he was the agent of the Devil-he was on the other side from the government, and indeed the serpent himself came under heavy criticism and condemnation for his wrongful conduct, as follows: 'And the Lord God said unto the serpent, 'Because thou has done this, thou art cursed above all cattle and above ever beast of the field; upon thy belly thou go, and dust shalt thou eat all the days of thy life. And I will put enmity between thee and the woman, and between thy see and her seed; it shall bruise thy head and thou shalt bruise his heel." Genesis 3:14-15. In the present case, if defendant had been entrapped by someone completely disconnected with the state-a serpent, for instance-he would not be allowed to raise the defense of entrapment. He would be in a position similar to that of Adam and Eve-entrapped by the forces of evil, but not by the Lord God, nor by an agent of the state.  

 

Thomas v. State, 134 Ga. App. 18, 24-25, 213 S.E.2d 129, 133-34 (1975) (Evans, J., dissenting in part). 

 

Happy Friday!