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.

Avoid Wordiness and Verbosity (Get the joke?)

Judge Steven Merryday of the Middle District of Florida recently taught a practitioner a lesson about conciseness.  The plaintiff's attorney sought leave to file a brief that exceeded the court's page-limit restriction.  Judge Merryday denied the motion, noting that the brief could be brought within the court's 25-page limit through use of "a modicum of informed editorial revision."

Judge Merryday's order can be accessed at:

https://docs.google.com/file/d/0B88bY5UGykqoclZra0thaEN1M3c/edit?pli=1

Discoverability of Facebook Activity

A number of courts recently have held that information posted on social networking sites is discoverable, even where the poster used privacy settings to limit the dissemination of information.  For example, in Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (N.Y. Sup. Ct. Sept. 21, 2010), the defendant in a personal injury action sought production of information contained on the plaintiff’s MySpace and Facebook pages, including archived information.  The Suffolk County Supreme Court held the information was discoverable.  The court noted that while both sites offer privacy controls, both also warn users that information on their pages and profiles may be available to others.  Furthermore, according to the court, people who use social networking sites consent to have their personal information shared, and there are minimal privacy concerns where a person voluntarily shares information with others. Id. 

The same result occurred in Largent v. Reed, No. 2009-1283 (Pa. C.P. Nov. 8, 2011), where the court found information on the plaintiff’s Facebook page was discoverable.  The court held there is no reasonable expectation of privacy for information shared on Facebook, a social networking site.  According to the court, only the “uninitiated or foolish” would believe information posted on Facebook is private. See also Pororcaro v. City of New York, No. 100406/10, 2012 WL 1231021 (N.Y. Sup. Ct. April 9, 2012) (one who voluntarily posts information on Facebook cannot claim the information is immune from discovery).

Attorneys defending certain cases (most notably, personal injury actions) are wise to request access to an opposing party’s social networking profiles--remembering, however, the sword cuts both ways.  A picture showing a personal-injury plaintiff roller skating is equal in worth to a video showing a defendant who claims to be a conscientious driver drag racing.

These cases also are a reminder to all of us with an online presence--be careful what you post!

Judge Kozinski, Disagreeing with Everyone

As lawyers know, judicial opinions written by panels of judges often are not unanimous.  A judge who disagrees with the majority opinion generally writes a dissent.  Judge Kozinski of the Ninth Circuit Court of Appeals, however, has taken it to another level.  In the Ninth Circuit’s opinion in Garfias-Rodriguez v. Holder, ---F.3d ---, No. 09-72603,  2012 WL 5077137 (9th Cir. October 19, 2012), an immigration case, Judge Kozinski wrote a dissenting opinion “disagreeing with everyone.”  Who needs a plain ’ole dissenting opinion?  Not Judge Kozinski. 

As someone who frequently disagrees with everyone, I find the description of this dissent especially funny.

Don't Write in Crayon

The short opinion in Bradshaw v. Unity Marine Corp, Inc., 147 F.Supp.2d 668 (S.D.Tex. 2001) on statutes of limitations and the Erie doctrine is worth a read for every lawyer interested in learning what not to do in drafting motions.  Both the plaintiff’s motion and one defendant’s motion suffered from a lack of either supporting authority or analysis.  The dry, sarcastic tone of the entire opinion is hilarious.  My favorite sentence:

Both attorneys have obviously entered into a secret pact—complete with hats, handshakes, and cryptic words—to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed.

Id. at 670.