Category Archives: Judge Irritants

The art of lengthy quotes!

Legal writing contains lots and lots of quotations.  Why is that so, you ask?  Well, it’s mostly because legal argument is based on precedent—so it helps to quote court decisions to show your judge that adopting your argument won’t get her reversed by a higher court.  Also, in a case involving a contract or a statute, it is often necessary to quote the exact contractual or statutory wording at issue.

But readers may choose to skip over lengthy quotations, especially those written in block-quote format.  In fact, the Chief Judge of the Ninth Circuit Court of Appeals says that he never reads block quotes and starts thinking about gardening or chickens when he sees block quotes in legal briefs:

You know what?  I don’t read block quotes.  I skip over them.  To me, it’s yada yada yada yada.  If there’s something good in there, I expect the lawyer to tell me what it is.  So the bigger the block quote, the less I’m likely to find what you’re looking for.  . . .  I now start thinking about something else.  I start thinking about another case, or probably I start thinking about my gardening.  Or my chickens. You know, I have chickens.

I suspect that the judge’s comment is hyperbolic.  But even if it is, it’s indisputably true that block quotes make reading a legal brief a tedious chore, and risk turning your judge’s mind to other things.  So what’s a writer to do?

The obvious answer is to avoid block quotes entirely.  But that’s not always possible.  The next best thing is to introduce the quotation with a lead-in that summarizes the quotation’s gist (which I did above with the Chief Judge’s quote about gardening and chickens).  Here are two examples—read them and consider which is more effective.

First example:

This case involves personal injuries plaintiff Sallie Smith suffered when she was severely bitten by defendant Kaleen Jones’s cat, Vincent, while Smith was a guest at Jones’s home.  Vincent, a tiger stripe kitty, repeatedly bit Smith after he found Smith eating from Vincent’s feed bowl.

The Oregon Supreme Court has held that a human being who is attacked while eating from a cat’s food bowl has no cause of action:

From ancient Egyptian times, the cat has been cherished by man.  Ancient petroglyphs in Egypt, the Pink Panther, The Cheshire Cat, The Cat in the Hat, and Orangey (the orange-and-black tabby that portrayed Holly Golightly’s cat in the 1961 classic Breakfast at Tiffany’s) have aptly symbolized the faithful service felines have rendered since time immemorial.  In view of this long history of devoted service, we are unwilling to hold that this state permits a tort action for damages occurring when a cat does what comes naturally:  protecting its food.  Therefore, we hold that the law recognizes no cause of action in favor of a human who is attacked while feeding from a cat’s bowl.  Garfield v. Arbuckle, 283 Or 201, 205 (1978).

Second example:

This case involves personal injuries plaintiff Sallie Smith suffered when she was severely bitten by defendant Kaleen Jones’s cat, Vincent, while Smith was a guest at Jones’s home.  Vincent, a tiger stripe kitty, repeatedly bit Smith after he found Smith eating from Vincent’s feed bowl.

The Oregon Supreme Court has held:

From ancient Egyptian times, the cat has been cherished by man.  Ancient petroglyphs in Egypt, the Pink Panther, The Cheshire Cat, The Cat in the Hat, and Orangey (the orange-and-black tabby that portrayed Holly Golightly’s cat in the 1961 classic Breakfast at Tiffany’s) have aptly symbolized the faithful service felines have rendered since time immemorial.  In view of this long history of devoted service, we are unwilling to hold that this state permits a tort action for damages occurring when a cat does what comes naturally:  protecting its food.  Therefore, we hold that the law recognizes no cause of action in favor of a human who is attacked while feeding from a cat’s bowl.  Garfield v. Arbuckle, 283 Or 201, 205 (1978).

The second example is less effective than the first example for three reasons.  First, the reader must wade into the quotation without any context (inviting thoughts about gardening and chickens).  Second, the writer leaves it to the reader to decide what the Supreme Court concluded about cat-on-people attacks.  And third, the writer has missed a chance to achieve credibility by accurately summarizing the court’s holding before offering the quotation as verification that the writer’s word can be trusted.

So next time you need to include a block quote, try introducing it with a short summary and see if your use of quotations becomes more effective.

That is all for now …

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Good grief, get to the point!

This week we discuss one of The Scribe’s pet peeves—written materials that show the reader that the writer has no qualms about wasting the reader’s time.  Please, get to the point … quickly!

Written materials should immediately get to the point.  This admonition not only applies to materials submitted to judges (who are especially cranky when you waste their time), but also to materials submitted to anyone else.  So although the rest of this tip is focused on written submissions to judges, it applies to any written materials.

Every motion submitted to a judge should begin with a summary that succinctly describes (1) the nature of the case (“This lawsuit concerns John Smith’s alleged exposure to asbestos supplied by TraneCo.”),  (2) the purpose of the submission (“TraneCo moves for summary judgment against Smith’s claims because there is no evidence that Smith worked around any TraneCo product.”), and (3) the reasons why the court should rule in your favor (“During his deposition, Smith testified that he couldn’t associate TraneCo with any product that he worked on during his career.  Therefore, no jury could conclude that Smith worked around any TraneCo product or was exposed to asbestos from that product.”).

Judges don’t read your filings because they are interested in your case and have nothing else to do; they read them because it’s their job.  And judges don’t want to work any harder (or longer) than necessary to figure out what you are asking them to do.  So please, don’t make their job more difficult by hiding—on page 10—the key issue that you want decided; the judge should understand the nature of the case and the issue presented after spending no more than 90 seconds with your brief.

Set out below is an example of how to do it. By the time you finish reading this introduction, you won’t have all the details, but you’ll know exactly the nature of the case, what the court is being asked to do, and why:

This lawsuit arose from the crash of one of defendant-appellant Reliable Helicopters, Inc.’s helicopters in August 2008.  As a result of that crash, nine people were injured.  Even More Reliable Helicopters, Inc.—along with many other companies, including Reliable—has been sued in lawsuits arising from that crash.  In its Fourth Claim for Relief, EMRH sought a declaration that Reliable has a duty to defend EMRH in those lawsuits.

Eighteen years earlier, EMRH and Reliable entered into a Repair/Overhaul Services Agreement that governs the services performed by EMRH on Reliable’s helicopters.  In that Agreement, Reliable agreed to defend future “claims made” against EMRH that exceed certain monetary thresholds ($1 million for any one individual claim or $2 million for all claims arising from any one occurrence) that are allegedly related to EMRH’s provision of services under the Agreement.  It is undisputed that the thresholds have been reached with respect to claims made against EMRH arising from the August 2008 crash, and that the claims are allegedly related to EMRH’s provision of services under the Agreement.

Based on Oregon’s contract-interpretation rules, the Agreement’s plain language, and the undisputed fact that the monetary thresholds have been reached, the district court ruled that Reliable has a duty to defend EMRH in the helicopter-crash lawsuits.  That ruling should be affirmed.

As you can see, this introduction explains, quickly, what the appeal is about (at least from EMRH’s perspective) and why the district court’s ruling should be affirmed.  In other words, it gets to the point . . . quickly.  And in doing so, it shows the reader that her time will not be wasted.

That is all for now …

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Legalese is a speed bump on your legal argument superhighway.

This week we consider legal jargon.  So easy to type, but so annoying to read.  Consider this confounding sentence:  “As hereinafter explained, and pursuant to the infra citations, and the legal analysis embodied therein, Jones is entitled to summary judgment.”  Or consider these puzzling sentences:

  • Comes now defendant in answer to plaintiff’s complaint.
  • In witness whereof, I hereunto set my hand and seal.
  • Further affiant sayeth not.

Say what?

Legal writing guru Bryan Garner (and one of the Scribe’s heroes) advises that “in every state in which judges have been polled, they’ve overwhelmingly said that they’d like lawyers to stop using legalese.”  This has been the Scribe’s experience as well—readers prefer sentences and paragraphs that are uncluttered by legalese.  Why?  Because legalese does nothing to communicate your point; and if language doesn’t actually communicate, then it shouldn’t be used.  It may help to think of legalese as speed bumps on your legal argument superhighway.  It makes for a jarring ride.

Now, that doesn’t mean that you can’t use certain Latin phrases that describe legal concepts—such as quantum meruit and res ipsa loquitur.  But you should let go of phrases such as “matters set forth herein,” “aforementioned,” and “above-referenced cases.”  They just don’t add anything to your writing.

That is all for now …

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Squib: boy, why didn’t he get to the point?

The following exchange took place in the Central District of California during a hearing on January 30, 2012.  Here, Judge Dale Fischer explains why lawyers should focus more on persuasion and less on rhetoric:

THE COURT: Now, there were a number of declarations attached to the reply that apparently were not filed immediately after they were signed. Why was that?

DEFENSE COUNSEL: Your Honor, we waited to file them with our reply.

THE COURT: And you seriously thought that was the appropriate approach?

DEFENSE COUNSEL: Yes, I did, your honor.

THE COURT: Well, for future reference, it wasn’t. Don’t hold back evidence that relates to your motion until after the opposing party files its opposition and then just stick it to them at the end. So I’m not sure why you thought that was appropriate, but now you know.

Along those lines: I also want to tell you, I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…

But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point. So, please, in future pleadings, remember that.

DEFENSE COUNSEL: Yes, your Honor.

THE COURT: In addition to that, I’ve been around awhile both in practice and on the bench, so I suspect I’ve seen a few more cases than you, and really, it’s not all that staggering and it’s not all that great a magnitude, so when your experience and mine differ, it just takes all of the punch out of those comments.

To make matters even worse, Counsel, your statement that the government failed to make any effort to preserve the documents is simply false. And your statements in your papers so often go beyond the bounds of zealous advocacy that I have to say your papers had very little persuasive value. In fact, as I was trying to check some of the references you made to deposition testimony, I looked at it three or four times because I thought I must be searching for the wrong page because the pages you were citing to had oftentimes no relationship to the proposition you were citing them for. You started off extremely poorly as I started reading the papers, and I had little confidence in anything you had to say as I went through them.

Judge Fischer denied the defendants’ motion.

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