Archive for the ‘Legal Writing’ Category

Soccer, Arguing and Lawyering

BrandiChastain

Brandi Chastain after scoring the winning goal in 1999 Women’s World Cup.

As I follow the World Cup with one eye, I stumbled across a letter to the editor in the New York Times sports section, and it left me scratching my head. What the devil was the writer thinking when he sent this in, and why did the NYT bother to publish it?

Since the letter makes an argument, and this is what lawyers do, I wanted to add my two rupees on what not to do when lawyering.

We start on the futbol soccer pitch with the fact that extra time gets added to the standard 90 minutes to account for delays of the game, such as players taking a dive trying to get the ref to call a penalty. As Geoff Foster from the WSJ puts it:

All too often during matches, seemingly fit men fall to the ground in agony. They scream, wince, pound the grass with their fists and gesture to the sidelines for a stretcher. Some of them clutch a limb as if it was just freed from the jaws of a wood chipper.

But after a few moments, just as the priests arrive to administer last rites, they sit up on the gurney, shake it off, rise to their feet and run back on the field to play some more.

Foster does an analysis of the worst offenders of the flopping game, calling the extra minutes “writhing time.” Personally, I prefer “Flop Time.” Your mileage may vary.

And the issue devolves very quickly to this:  No one but a ref with a watch really knows exactly how much time is left on the clock. The New York Times wrote about this in: In Time Warp of Soccer, It Ain’t Over Till … Who Knows? Apparently, I wasn’t the only one wondering:

Imagine if an N.F.L. coach never knew when to call for the last-second pass, or an N.B.A. star had to guess when to throw up his desperation half-court shot.

Such situations would be unthinkable in other sports, but vagaries of time are the norm in soccer. Games do not end when a clock expires, but only when the referee decides they are over.

Soccer’s elastic definition of time means that no player on the field, no fan in the stands and no announcer on television has any earthly idea as to when the last kick of the ball will come.

(Don’t worry, we’ll get to the lawyering part in a moment. Stay with me here. This time I have a point to make.)

This article didn’t sit well with Thomas Jandl of Washington, who wrote in to the Times in a letter published in yesterday’s sports section. This was the guts of the short letter, with its logical inconsistency:

In baseball, football and even the more free-flowing basketball, coaches prepare and then call certain plays. In soccer, the flow of the game is unpredictable. Players make split-second decisions about their runs, passes, shots or tackles at virtually every moment. As a result, using a stopwatch to determine how much time was wasted or when exactly a game should end makes no sense.

The part about not using a stopwatch –in a game that has a clock — is a complete non-sequitor to comparisons of the game to other sports. It fails the rules of logic. As lawyers, we need logic.

The most common of logical arguments is probably the ancient syllogism. “If this is true, and that is true, then such and such must follow.”

Thus, in a brief, a lawyer might frame the issue with these major and minor premises to lead the court to the obvious answer:

Major premise: According to the statute, the defendant had x days to assert the affirmative defense.

Minor premise: The defendant failed to act within x  days on that affirmative defense.

Therefore the affirmative defense was waived.

But that is not what the writer to the NYT did, which is why it’s worth analyzing. He produced, and the NYT printed, the non-sequitor.

The letter instead, has these concepts:

Major premise: Soccer has a clock with 90 minutes plus extra time.

Minor premise: Soccer is wonderful because the flow of the game is unpredictable.

Therefore a stopwatch makes no sense.

If a judge saw this flow of logic from a lawyer, there is an excellent chance the lawyer would lose whatever argument s/he was trying to make. Now I might not be the world’s best writer, but I know enough to try to make logical arguments and avoid those that make me look silly.

The Times gets a gazillion or two letters each day. Why its editors chose something so logically empty is  beyond me.

File this under Legal Writing.

Abe Lincoln, Jack Kennedy and Lawyering

Abraham-Lincoln-Trial-LawyerThis is a big week for anniversaries. On Friday it is 50 years since John F. Kennedy was assassinated in Dallas. And tomorrow is 150 years since Abraham Lincoln delivered his two-minute long Gettysburg address, in a scant 270 words or so, which I wrote about three years ago.

Lincoln left behind on that Gettysburg battlefield some of the most memorable language that we have regarding the future of our democracy, “whether that nation, or any nation so conceived, and so dedicated, can long endure.” He thought it important for the nation to resolve  ”that government of the people, by the people, for the people, shall not perish from the earth.”

On the day Lincoln spoke for just a few minutes, so too did Edward Everett a noted politician of the day. He spoke for over two hours. Nobody quotes Everett.

One thing that Lincoln and Kennedy both left behind was the simple power of their words, in that they were able to enrich broader concepts. A simple search of quotes on Kennedy turns up these well-known words, and much more:

  • My fellow Americans, ask not what your country can do for you, ask what you can do for your country.
  • Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.
  • Things do not happen. Things are made to happen.
  • Mankind must put an end to war before war puts an end to mankind.

This leaves us with a few questions:

  1. What words are you using to communicate, and how many do you really need?
  2. What are you doing today that will cause people to remember you after you’re gone?
  3. What are other people doing in your name?

Legal Briefs, Twitter Style

twitterLawyers love to write. And write. And write. Some “briefs” go on for dozens of pages, with the author often scrambling around in search of an issue, much to the pain and frustration of the reader.

Does using Twitter help, given that writers are constrained to only 140 characters?

Yesterday I tweeted a story from the NY Post about a  lawyer that wanted to exclude all Jews from a jury, claiming that with his militant Islamist client “that there’s going to be inflammatory testimony about Jews and Zionism, I think it would be hard for Jews to cast aside any innate antipathy.”

But despite the limitations of Twitter, and the highly charged nature of the lawyer’s claim, a few lawyers were able to brief the subject anyway:

Max Kennerly took a shot:

Seems to me he could cure most of the assumed problems in voir dire, w/o categorical exclusion RT @bcuban@Turkewitz http://bit.ly/10tvuNP

And then Ted Frank:

@MaxKennerly @bcuban @turkewitz Inducing error at this trial gives client free bite at apple; if guilty verdict, new lawyer gets reversal.

And David Sugerman:

@tedfrank Huh? I’m no crim law expert, but invited error. Def gets reversal for getting relief def sought??@MaxKennerly @bcuban @Turkewitz

And Ted Frank again:

@DavidSug @maxkennerly @bcuban @turkewitz Ineffective assistance; plus defendant has standing to raise constitutional injury to juror.

Of course, because each lawyer was using the @ symbol to copy others, they were each using even less than the full allotment of 140 characters.

Did they do a full and complete job discussing the story? Of course not. But using very few words each of them undertook the most essential part of lawyering: issue identification. Because if you can’t identify issues, you won’t succeed writing any kind of brief.

Twitter, while a pretty big waste of time for many, can also be used as a teaching tool. If you force lawyers to state their case in 140 characters, it forces them to remove extraneous information and argument.

Legal writing guru Bryan Garner teaches lawyers to frame their issues in just 75 words. If you can’t do that, he argues, you haven’t sufficiently identified the issue and simplified your writing. Think of Twitter as a more extreme form of Garner’s 75-word rule.

 

Another Legal Waiver (A little help here?)

You guys know how much I love legalese, right?

Last year I wrote a waiver for a half marathon trail race that was crowd-sourced a bit. It came out great, in my not-so-humble opinion.

I’m now doing another one for participation in my little running club. Any comments or suggestions are welcome. You can find a little background on the concept of assumption of risk for athletic events here.)

This is a draft of the document club members would have to sign…and if you know about a Legal Waiver Hall of Fame, please let me know:

——————–

Club Membership Agreement and Waiver

I’m reading this because legal waivers are incredibly exciting documents. It’s always fun to see how lawyers butcher English, making it incomprehensible to mankind. I’m looking forward, especially, to ALL CAPS, since I know that’s how these things roll.

I know, of course, that I have to read and sign this, because running in and volunteering for organized group runs, social events, and races are potentially hazardous activities. It’s possible that I could be injured or somehow squashed like a bug. I certainly hope that doesn’t happen, but life is unpredictable when you engage in athletics.

I’m smart enough to know that I shouldn’t participate in any club-organized events without being in appropriate physical shape. Doing otherwise would be stoopid.  With my John Hancock at the bottom, I certify that I’m medically able to engage in all activities associated with the club, that I’m in good health, and properly trained.  Yay me!

And because I want to participate, I agree to abide by rules established by the club, even if they don’t seem to make sense at first blush. This includes the right of any official to deny or suspend my participation for any reason whatsoever. I think this is what the lawyers mean when they say they don’t “always seem to make sense at first blush.”

I attest that I have read the rules of the club and agree to abide by them.  If I haven’t actually read the rules, and am just claiming that I have, this will be my problem.

Some of the risks associated with participating in club activities may include falls, contact with other participants, weather effects, traffic and the conditions of the road or trails, all such risks being known and appreciated by me. There might be, for example, bicycles, skateboards, baby joggers, roller skates/blades, dogs, and alligators. I realize that the lawyers just kinda tossed in the alligators to make sure I was still reading.

Sometimes, of course, there will be unexpected problems, deviations, and detours. Trail running in particular, may have risks that are unforeseen even by organizers.

Having now read this waiver, and being appreciative of the lack of ALL CAPS, I (and my heirs should I kick the bucket), waive and release NewRo Runners and all club sponsors, their representatives and successors (and anyone else a lawyer can dream up) from all claims of any kind arising out of my participation.  I also grant permission to all of the foregoing to use my photographs, motion pictures, recordings or any other record for any legitimate promotional purposes for the club.

——————

Any suggestions regarding things that I left out, or ways to improve it, please let me know…

 

A New Personal Injury Waiver (Updated x2)

Running the trail, December 2005

I don’t think I’ve ever used this blog to crowd-source actual legal work, but, what the hell…

As regular readers know, I not only like to run (Boston Marathon in three weeks, if the hammy stays healthy) but am also the founder and race director for a half-marathon trail race in Westchester County.

This puts me at the junction of two concepts: First, putting on a fun running event, and two, trying to avoid potential injuries for my athletes and lawsuits.

Now, generally speaking, an athlete can’t successfully sue a person or organization putting on an athletic event due to the concept of assumption of risk. Assumption of risk means, generally:

By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

So how does a lawyer protect the organizers? Well, since the time of the dinosaurs, it has been by WRITING IN ALL CAPS BECAUSE IT IS SO EASY TO READ and using godawful legalese. This also ensures that no one actually reads the piece of paper that will get waved around to defend a lawsuit later.

But — and you knew there was a “but” coming didn’t you? — it isn’t that I’m worried about being sued, what I want first and foremost is to prevent injury. So I wrote my own waiver, trying to make it as readable as possible. And I offer it up now for your comments as to what it is missing or how it should be changed. Without further ado…a waiver for a trail race…

I realize that this trail has plenty of rocks, roots, stumps and other tripping hazards. There are two stream crossings with stepping stones. The trail is narrow at times and could be crowded as faster runners overtake slower ones. There might be poison ivy, ticks, bugs, bees and other woodsy things you find in the great outdoors. (Is this a great waiver, or what?)

Wind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Vandals may swipe trail markings. Race officials may deliberately create extra hazards.  Just for fun.

I’ve also been informed that there are a number of wooden catwalks, whose condition varies with their age and the weather. Those boards can become damaged in storms, or simply be jarred loose by other runners. They are also very slippery when wet. I agree to stay in the center of these walks and will not pass while on them. I understand that I will have more than ample opportunity to pass other runners in safer spots. In other words, I agree to cool my jets on the catwalks.

I also understand that there are only three water stops, so it’s important to carry a water bottle and any food that I want.

But even though I might get hurt or lost, I want to compete in this race. I therefore release and discharge all race officials, volunteers, sponsors and municipalities, and I also release the rocks, roots, bugs and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt.  I know that trail running is a high-risk activity.

By signing this form I certify that I am physically fit, responsible for my own actions, and have sufficiently trained for an event of this nature. In other words, I won’t sue any of the people or groups responsible for this race if I get hurt. And if I am under 18, then my parent or guardian is signing this release.

I agree to all of this even though it is written in plain English instead of stupid legalese.

Update: Something else to add, perhaps:

This trail has known knowns; there are things I know that I know.

I also know there are known unknowns; that is to say I know there are some things I do not know.

But there are also unknown unknowns – there are things I do not know that I do not  know.

And I accept the risks of all of that. Known and unknown.

Update #2 (3/31/12): At Legal Blog Watch, Bruce Carton made some additional suggestions.

Lousy Legal Writing (Even form letters suck)

Let’s face it, legal writing sucks. Which is to say, the godawful pretentious nature of the humblest of form letters is enough to suck the wind out of anyone that gives a damn about the written word.

This is a letter I recently received. The author’s name has been omitted to protect the guilty. Original in black. My version in red.
——————-

Dear Sir/Madam: Dear Ccounsel (or perhaps, simply Counsel:, depending on my mood)

Enclosed herewith please find defendants’ Bill of Particulars. Enclosed is the defendant’s Bbill of Pparticulars. Please note that at the present time this document is unverified. It is not yet verified.We are in the process of securing same from our clients, and upon receipt of our client’s verifications, we shall forward copies to your office. We hope to receive it soon from our clients and forward it on to you.

Thank you for your anticipated courtesy and cooperation in this matter. Thank you for your anticipated courtesy.

Very truly yours,

/s Lawyer
——————-
The original is 55 words, exclusive of salutation and valediction. Mine is 33 words. Now take this simple form letter and think about it in the context of a brief.

You get the picture.

This is how easy it is to e-file in New York…

New York now has mandatory e-filing for some commercial cases in New York County. (That’s the Borough of New York Manhattan, not the City or State of New York, for you out-of-towners.)

E-filing is easy, right? That’s one of the reasons we do it, right? Easy-peasy. Less paper, no more running down to the courthouse.

Ahh, I pity the poor fool that thought that.

Want to know if your commercial case is subject to mandatory e-filing? This is the definition you are looking for:

202.5-bb. Electronic Filing in Supreme Court; Mandatory Program.

….

(2) For purposes of this section:

(i) “commercial actions” shall mean actions in which at least one claim of the types described in subparagraph (1) of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, as amended by chapter 416 of the laws of 2009 and chapter 528 of the laws of 2010, is asserted.

Nice, huh? I can just see the law clerks that drafted that humdinger sitting around a desk laughing their asses off.

Let’s file this puppy under Legal Writing, for lack of a better place, and put it right next to these decisions with 300+ word sentences.

 

The Ostrich Offense

Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)

But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.

The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” (citations omitted)

The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.

I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.

(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)

More on The Ostrich Case:

Was Judge Posner a Dodo in His Ostrich Opinion? (Lat @ Above the Law)

Who’s the Ostrich? (Palazzolo @ WSJ Law blog) – in which the mocked lawyer responds

Judge compares lawyer to ostrich (Pallasch @ Chicago Sun-Times) Lawyers don’t recall ever seeing pictures to make rhetorical point

 

 

 

 

 

 

 

Abraham Lincoln, Twitter, and This Blog

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address? Because it teaches people to be succinct.

And today is the four-year anniversary of this blog. When I started it, it was with the desire to take complex ideas and break them down to simple concepts. I don’t know how well that worked, but it’s something I strive for and seems related to the concepts above.

I picked up that lesson from my father, who ran one of the largest plaintiff’s medical malpractice departments in New York until he retired. He demanded that every case be described in one line, almost like a Twitter post. Because if you knew the one-liner, it meant you knew the case. It also came in handy when the judge asked you what the case was about. So a case might be described, for instance, as a “10 month failure to diagnose and treat breast cancer in a 53 year old woman resulting in…”

And master legal writer Bryan Garner insists that, when framing an issue for court, a lawyer should do so in no more than 75 words. If you can’t do it in 75 words you don’t understand it, and therefore you can’t communicate it to the court

Brevity and clarity are important. They focus the brain.

And with that, I give you America’s most famous trial lawyer, who delivered these words 147 years ago:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

See also:

Pope to be Deposed? (How, exactly, do you mean that?)


Depose is a funny verb. It can mean removing someone from a throne, or it can mean testifying under oath. (Merriam-Webster)

For Pope Benedict XVI it now has both meanings. His testimony is sought in the ongoing priest sexual abuse scandal where he wants to shield himself. And there are people calling for his removal.

And that’s a circumstance you just don’t see too often. OK, maybe not ever before. And that makes it worth noting.

More here:
Will the Pope Be Deposed? Not If the Vatican Can Help It (WSJ Law Blog)

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