I Second That Emotion

Many Americans use emoticons and emojis in emails, text messages, and online chats to convey meaning that can't necessarily be gleaned from the written words themselves. A writer might use a smiley face to convey that she is joking or happy or a winkie face to suggest flirtation.

These images have become standard, even in business settings, but when they appear in trial evidence, courts have been forced to consider how they should be presented to the jury. This interesting article from the New York Times discusses an emoji fight between prosecutors and defense counsel in the criminal case against Ross Ulbricht, who is accused of running an online ebay-like site that sold drugs and other illegal items.

Prosecutors read several emails into the record but omitted emojis contained in those emails. The defense objected, and the judge ultimately determined that the jury should read the messages because they are "meant to be read" and should "note the punctuation and emoticons.”

Ulbricht's case isn't the only one where the meaning of emojis and emotions is at issue. Recently, 17-year-old Osiris Aristy was arrested by New York authorities for making terroristic threats after he posted a Facebook message that contained an emoji of a police officer and emojis of guns pointed at the officer's head.

I expect the meaning of emoticons and emojis will continue to arise in both criminal and civil cases, and law enforcement officers, attorneys, judges, and juries will continue to struggle to interpret the meanings of these symbols. 

Happy Friday!

Sock it to Him?

The Supreme Court recently heard oral argument in a case about deportation and a sock.
 
Under federal law, a non-citizen may be deported for violating a “law…relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. 1227(a)(2)(B)(i). In 2010, Moones Mellouli was arrested by Kansas authorities for DUI and driving on a suspended license. When Mellouli was searched after his arrest, police discovered four Adderall pills in one of his socks. He ultimately pleaded guilty to DUI and possessing drug paraphernalia (a misdemeanor). Under Kansas law, “paraphernalia” is something that can be used to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.” After his plea, Mellouli was deported under Section 1227.
 
Mellouli argued that he should not have been deported because Section 1227 only allows for deportation when the state conviction “relates” to a substance controlled under federal law, section 802 of Title 21. He claimed that his misdemeanor conviction failed to specify the particular controlled substance at issue, and because the Kansas statute under which he pleaded guilty lists certain substances not included in section 802 of Title 21, the government could not prove his conviction related to a “controlled substance” as that term is defined in section 802.
 
The government argued that “relating to” is sufficiently clear (and broader than a term such as “involving”) and it acted within its authority in deporting Mellouli after his plea to possessing drug paraphernalia. But Justice Scalia questioned this textual argument, wondering whether the sock, if “related” at all, was more than “tenuously related” to the controlled substance. And several justices expressed concern that Mellouli could be deported for possessing something (the sock) that would not have supported a conviction for possessing drug paraphernalia under federal law.

While not relevant to the textual issue, the justices asked other interesting questions during oral argument. Several justices, while admitting that the Kansas definition of “paraphernalia” is broad, questioned the propriety of defining “paraphernalia” to include a sock. As Justice Alito noted during oral argument, items that the average person would not think of as drug paraphernalia—for example, a bag, a pocket, or a glove compartment—could be considered “paraphernalia” if used to store drugs. The justices also seemed concerned that a legal resident could be deported for a minor drug offense, with Justice Kagan noting that Mellouli was convicted for conduct routinely committed by students on “half the colleges in America.”

 

I think Mellouli has the stronger argument here. Even if Mellouli’s possession of the sock was “related” to a controlled substance, I agree that under the plain language of the statute, the controlled substance must be one defined as such under Section 802. If the substance isn’t a “controlled substance” under federal law (even if it is under state law) or if the record doesn’t show that the substance at issue was one outlined in Section 802, I don’t believe a non-resident can lawfully be deported under Section 1227.

It's In the Bag

The Greenbag has released its 2014 Exemplary Legal Writing list. Drew Justice, whose excellent brief I talked about here, made the list. And so did Justice Willett of the Supreme Court of Texas for his dissenting opinion in a forfeiture case, El-Ali v. State.

The short read is an excellent example of the conversational style of opinion-writing that has become the hallmark of some of the strongest writers on the courts, including Justice Kagan. Justice Willett's entire dissent is a gem (and quite persuasive), but my favorite excerpt is probably this one:

This is the story of a Chevrolet truck, but to some observers it evokes less Chevy than Kafka. The modern Texas asset-forfeiture regime bears little resemblance to what we reviewed in 1957 when we last visited this subject.In my view, the civil-forfeiture realities of 2014—the prevalence, procedures, and profitability—compel us to reexamine the constitutional protections due innocent property owners.

The stakes are grave indeed, as asset-forfeiture cases threaten not merely property but, more fundamentally, property rights, something we have recently (and unanimously) extolled as essential to “freedom itself.” Civil forfeiture springs from the Legislature's broad police power, but as we recently made clear, police power cannot go unpoliced.

Put simply, this important subject deserves attentive constitutional reconsideration, if not recalibration. Much has changed since our Eisenhower-era decision in Richards. Forfeiture 2014–style is not forfeiture 1957–style. But even if the Court were to reaffirm its ruling from 57 years ago that due process is unoffended, 21st-century practice merits 21st-century scrutiny. If the State of Texas wants to ensnare guiltless citizens and seize their homes and other property, it must do so—always—within the bounds of our Constitution.

428 S.W.3d 824, 825-26 (Tex. 2014) (Willett, J., dissenting).

Happy reading, and happy Friday!

Drafting Affidavits II

This is the second of a two-part post on drafting affidavits.

I previously offered some specific tips on drafting strong affidavits, Below are some general tips that you should also keep in mind. 

Stick to straightforward, specific language

Ideally, an affidavit should be self-encompassing. When using an affidavit, especially one in support of a dispositive motion, you want to draft the affidavit as tightly as possible to avoid ambiguity that could defeat your motion. Always keep the purpose of the affidavit in mind, and ensure you use easy-to-understand but specific language that can’t easily be disputed through a counter-affidavit or during live testimony. If you’re using the affidavit to prove or disprove certain elements of a claim, track the language of those elements. For example, if you’re using a doctor’s affidavit to support your contention that an accident caused your client’s injuries, know and track the language used in cases or statutes that address the degree of certainty required in expert opinions:

1. In my opinion, to a reasonable degree of medical probability, Plaintiff’s injuries were the direct result of the March 5, 2014 accident.    

Attach documents the affiant relies on or references in the affidavit

 

If the affiant relies on documents, photos, or other evidence in providing the affidavit, attach that evidence to the affidavit. This adds credibility and enables the court to easily find (and review for itself) the information the affiant relied on.

Make the language of the affidavit sound like something the drafter would say

 

Affidavits should be somewhat formal but, at the same time, the language should actually sound like something the affiant would actually say. Affidavits that are too formal give the impression that the writer (the lawyer) is putting words in the affiant’s mouth. Have you ever heard anyone say they were involved in a collision? No—people say “car accident” or “car crash” or something similar. If the affiant is a layman, draft the affidavit using language a layman would use—the affiant will appear more credible. The easiest way to do this is to speak with the affiant, write down some specific terms the affiant uses, then incorporate those into the affidavit.

Review your draft with the affiant

 

This isn’t strictly a writing recommendation and should go without saying. But I’ve been involved in too many cases where an affiant has been torn apart either in deposition or on the stand after backtracking on statements made in his affidavit. Affidavits—especially those relied on for dispositive motions—are strictly scrutinized by the opposing party and the court. Make sure the affiant is 100 percent comfortable with every word included in the affidavit. Remember—both you and the affiant will have to answer for any misinformation in the affidavit. If the affiant isn’t comfortable with the affidavit, change it.

Pencil Me In

I recently saw this cool writing analogy:

Good writing is like a pencil, the more you sharpen the point, the shorter it gets.

Good luck to those of us working in 2015 to make our writing sharper and shorter! 

Happy Friday!

Drafting Affidavits

This is the first of a two-part post on drafting affidavits.

Affidavits are useful to lawyers for a number of reasons, but they can be difficult to draft. In this first part of a two-part post on drafting affidavits, I’ll give you some specific tips to draft strong affidavits.

Start with required information

 

Generally, the first paragraph of an affidavit should include the affiant’s name and a statement that the affiant is over the age of 18 and competent to provide the affidavit.  

1. My name is James Brooks. I am over the age of 18 and competent to give this affidavit.

I also like to include a separate statement that the affiant understands the purpose of the affidavit:

2. I understand that I’m giving this affidavit in support of Bank of America’s motion for summary judgment in the case of Wood v. Bank of America, N.A., No. 13CV8998, pending in the Fulton County Superior Court.

Hopefully this will help you avoid a situation where the affiant (particularly an affiant who isn’t your client) claims he didn’t understand what his affidavit would be used for. This may also help prevent the opposing party (or a third-party) from using the affidavit in a separate proceeding or for a purpose for which the affiant didn’t intend it to be used. 

Add background information

 

The next paragraph (or paragraphs) should include background information that shows the affiant is qualified to give the affidavit, usually either as a result of having personal knowledge of the information contained in the affidavit or as a result of the affiant’s job duties and responsibilities.  

1. I witnessed the March 27, 2013 automobile accident that forms the basis of this litigation.

 

*******

1. I have been employed as a commercial underwriter with Bank of America, N.A. since 2008. On behalf of Bank of America, N.A., I reviewed loan application 12-1405987-D and authorized Bank of America. N.A. to issue commercial loan number 12056894, the loan that forms the basis of this litigation, to Mark Wood.  

You may need several paragraphs to provide all necessary background information on the affiant, especially if the affiant is an expert witness. Ideally, the affidavit should be all-inclusive and convince the reader that the affiant is qualified to offer the information contained in the affidavit. For an expert, the necessary background information might include a brief explanation of the expert’s educational background and relevant experience. You could also attach as copy of the expert’s CV and reference it. (I’ll talk more about attaching documents next week).

1. In 1979 I received a PhD in economics from the London School of Economics. Since 1980, I have taught economics courses to undergraduate and graduate students at the University of Chicago. 

2. I am the author of two economics textbooks: The Principles of Economics (Pearson Publishing Co. 2000) and Valuing Lives Through Economics (Prentice Hall 2005).

3. Since 1980, I have served as an economics expert witness in more than 1,000 lawsuits.

Identify documents relied on by the affiant

 

If the affiant reviewed and relied on any documents in giving the affidavit, identify those documents. You may also consider attaching them. 

1. In preparing this affidavit, I reviewed and relied on the contents of Bank of America N.A.’s underwriting file for commercial loan number 12056894, attached as Exhibit A.

 

*******

1. To assist me in preparing this affidavit, I reviewed Plaintiff Kyle Tyler’s medical records from Plano Medical Center for the period from January 1, 2014 through January 11, 2014. These records include x-rays and CT scans, nurses’ notes, radiological reports, post-operative reports, and discharge instructions.    

Define terms used in the affidavit, especially terms of art

 

Include definitions if the affidavit contains industry-specific language or terms the reader might not be familiar with or understand. These shouldn’t necessarily be dictionary definitions but should be written to encompass the affiant’s understanding of the meaning.

1. As a commercial underwriter, one of my responsibilities is entering loan application information into BOA’s Loan Management System, known as LMS. The loan is then run through LMS, which generates a list of “hits” based on the loan information. A “hit” occurs when any information contained in the loan application matches information contained in a prior loan or loan application made with BOA.

2. For example, LMS would generate a “hit” if the applicant had previously applied for a loan with BOA or if BOA had previously issued a loan secured by the same piece of property, because the property.

 

*******

1. In street parlance, a “snitch” is a police informant or a person who provides information to police in exchange for either avoiding prosecution or receiving a reduced sentence.

Give straightforward, specific statements of the affiant’s knowledge

 

Like the “short and plain” statements required in complaints, statements made in affidavits should be short and as straightforward as possible. Affidavit statements should also be as specific as necessary to achieve the desired goals of the affiant (or the lawyer). 

1. Just prior to the March 27, 2013 automobile accident, I was standing of the corner of Second and Main Streets.

2. I heard a loud noise to my left, and I turned, I saw a newer-model black Ford Mustang driving southbound on Main Street toward Second Street.

3. When I first saw the Mustang, it was driving at a speed of approximately 60 miles per hour.

4. When the Mustang was approximately 100 feet from the intersection of Main and Second Streets, the driver of the Mustang appeared to lose control of the vehicle, and the vehicle jumped the curb and ran into a large mailbox on the sidewalk.

5. Approximately two or three seconds passed, then I witnessed the driver of the Mustang put the vehicle in reverse, back off the sidewalk and onto Main Street, and continue driving toward Second Street.

These statements are straightforward and easy to read and understand. The reader can visualize exactly what the affiant saw. You should also draft statements of opinion in the same straightforward manner.

1. Based on the mortality tables I used, Debra Jettie would have been expected to live to the age of 78.

 

*******

1. In my opinion, the accident would not have occurred but for a manufacturing defect in the right, rear wheel of the vehicle.

 

*******

1. I believe Karen Wheeler is a fit mother capable of caring for her children.

Include the date, signature, and space for notary attestation

Have the affiant sign and date the affidavit in the presence of a notary, if required. Many notaries are uncomfortable notarizing documents not signed in their presence.

Egyptian Punctuation Marks

During my recent trip to Egypt, I noticed some hieroglyphs that look suspiciously like modern punctuation marks:

Periods:

Commas:

And even carets:

Happy Friday!

The Real Deal

I’m a big fan of Ross Guberman and Point Made, so I was excited to receive a new contract drafting book by Guberman and co-author Gary Karl, Deal Struck: The World's Best Drafting Tips. I hesitate to call Deal a book—it’s really a short, user-friendly manual. I love

the bright cover. And the spiral design, which lies flat, is genius. The design allows the reader to easily use Deal while writing or typing, unlike traditionally bound books, which you either have to prop open with a paperweight or hold in one hand while typing with the other.

Deal’s stoplight theme is also user friendly. For those who need a quick answer, Guberman and Karl summarize the content of each page in the margin using red, yellow, and green shapes. Green circles designate recommended language, yellow triangles suggest the need for care, and red squares tell the reader to avoid certain terms.

Roughly the first half of Deal centers on what Guberman and Karl call the “Core Four” provisions of all contracts—covenants, conditions, representations and warranties, and remedies. Guberman and Karl offer helpful tips about when to use and when to avoid common contract terms, such as “shall,” “may,” “will.” 

 

For example, Guberman and Karl recommend using “shall” for affirmative obligations and “shall not” for negative obligations and avoiding “may not,” “may only,” and similar phrases for negative obligations. In addition, Guberman and Karl offer tips to avoid common drafting pitfalls (“Be sure to include specific remedies for all…contingencies”), discuss often-litigated provisions (“Courts may construe and and or in the conjunctive, in the disjunctive, or in both”), and explain how to avoid drafting ambiguous agreements (“Avoid…hidden ambiguities,” such as “from Monday to Friday,” and “between Monday and Friday”).   

The second half of Deal is devoted to drafting other common contract provisions, including definitions and boilerplate provisions, finalizing drafts and scrubbing previously used templates, and locating model agreements (both free and at cost). Guberman and Karl also offer a list of helpful books, websites, and blogs (such as Ken Adams' excellent Adams on Contract Drafting blog).

You won’t find lengthy sample contract terms or discussions of little-known provisions specific to certain areas of law in Deal. It isn’t a comprehensive drafting treatise—but it isn’t intended to be. Deal shows the reader how to draft common contract terms to advance the client’s objectives while minimizing the likelihood of litigation arising from the contract. Deal is a must-have for young lawyers and those unfamiliar with or unskilled at drafting. It isn’t the only drafting book you’ll need, but it’s one I think you’ll refer to time and time again.