There’s a lesson for legal writers in these photos of glasswing butterflies: Transparency can be beautiful.
Transparency in writing means that nothing in the writing obstructs the message, as a clean picture window does not obstruct the view. Writing that does that can be exquisite.
Okay, I’ll admit that this post is a stretch. I’m just looking for an excuse to share the photos.
If you’re telling a story involving many players, how do you help the reader keep the players straight? You might do what Judge John R. Brown did in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969) (copy in Word format here). In a case involving 17 characters, he listed the entire cast in footnote 3, providing each player’s full name and shorthand name used in the opinion. For individuals, he also listed each one’s employer. This technique yielded two benefits. First, it spared readers the dreaded parenthetical accompanying each character’s introduction (e.g. “... Coastal Marine Service of Texas, Inc. (“Coastal”)”). Second, it gave readers one sure and easily accessible place to find who’s who.
Wayne Schiess has posted an excellent summary of basic document-design principles for lawyers and other writers. If you’re interested in the scientific research supporting Wayne’s principles, read Painting With Print by Ruth Anne Robbins. If you just want a one-minute how-to, read Wayne’s post.
Today’s West Headnote of the Day carries a useful lesson:
Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).
My guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file. Later, someone copied the opinion—with marginal notes—for inclusion in the appendix, and no one ever eyeballed the appendix to catch embarrassments like this.
The lesson: Before selecting file materials to be copied for an appendix, inspect them to look for marginal notes, underlining, doodles, etc. If you find any, erase them or cover them up with white tape before photocopying.
Federal Rule of Civil Procedure 8(a) requires a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief ....” So what happens when you file a complaint that is 465 pages long, that has a caption 8 pages long, that uses 8 pages to name the six defendants, and that is inflated with paragraphs like this:
Plaintiffs, for a Fifty-Fourth Claim for Relief, reallege and incorporate herein Paragraphs 1 through 105, including the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty- First, Twenty-Second, Twenty-Third, Twenty-Fourth, Twenty-Fifth, Twenty- Sixth, and Twenty-Seventh Claims for Relief alleged under the federal Racketeer Influenced and Corrupt Organizations Act of 1970 [“RICO”][Title 18 U.S.C.A. §§1961 et.seq.], and the Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, Thirty-Second, Thirty- Third, Thirty-Fourth, Thirty-Fifth, Thirty-Sixth, Thirty- Seventh, Thirty-Eighth, Thirty-Ninth, Fortieth, Forty-First, Forty-Second, Forty- Third, Forty-Fourth, Forty-Fifth, Forty-Sixth, Forty-Seventh, Forty-Eighth, Forty- Ninth, Fiftieth, Fifty-First , Fifty-Second, and Fifty-Third Claims for Relief.
If you file such a complaint, you may be met with an order like this, which concludes with this limerick:
Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.
Hat tip to my friend and erstwhile colleague Bob Markle for this lovely.
[Post-post note: The pleading talked about in this post was a practical joke that had me fooled when I wrote this. It was never actually filed, and the lawyer who purportedly signed it was the object of the joke, not the originator. For details, read the comments. — Ray]
Here’s an interesting pleading filed by a member of the Texas State Bar, asserting the dumbass defense. I quote:
Defendants assert that Plaintiff’s damages were caused in whole or in part by his own contributory negligence. Specifically, the plaintiff is a dumbass who failed to unlock a twist lock causing his own injury—fucking idiot. Thus, a jury should also consider the negligence of the Plaintiff and defendants assert the dumbass defense.
...
Wherefore, premises considered, Defendants ... prays [sic] for a take-nothing judgment and that the case be dismissed because the plaintiff is a malingering dipshit, for all costs, and for all other just relief.
A tip of the hat and a thousand thanks to Betsy McKenzie for this gem. Betsy notes that the pleading ironically ends with the complimentary closing “Respectfully submitted.”
A better title for this book might have been What Makes Judges Tick. In it, Judge Posner explores not only the various non-legalistic ways that judges decide cases, but also the things that motivate the behavior of Article III judges, who—unlike most employees (or in Judge Posner’s words, labor-market participants)—don’t have the carrot of pay raise or promotion, and don’t fear the stick of getting fired. Reading this book will increase your empathy with judges. And if you can explore the inside of judges’ heads1, you should have a better idea how to persuade them.
__________
1 Or should that be “head”?
Over the last few days, Howard Bashman and Judge Richard Posner have debated a singular-versus-plural question. It started with this sentence in a Posner opinion:
The reference of course is to the legend that ostriches when frightened bury their head in the sand.
Howard questioned Judge Posner’s use of the singular head:
And while we are debunking canards (which, by contrast, are birds that can fly), allow me to question the use of the singular “head” in the following sentence from Judge Posner's opinion: “The reference of course is to the legend that ostriches when frightened bury their head in the sand.”
To which Judge Posner replied:
Dear Prof. Bashman, to say “ostriches hide their heads in the sand” would imply that each ostrich had more than one head.
Richard Posner
P.S. And yes, canards fly—glad you caught the pun.
Who has the better end of this debate? According to linguistics professor Mark Liberman, Howard does. In a lengthy post on Language Log, he catalogs hundreds of years’ usage of head versus heads, and finds that heads heads head by more than 91:9.
As for myself, I agree with Howard: When in doubt, write around the problem. “The reference of course is to the legend that an ostrich when frightened buries its head in the sand.”
Today’s installment of Garner’s Usage Tip of the Day included this quotation. This is why I preach against over-reliance on form files and encourage writers to nurture their own individual style.
“Much bad writing today comes not from the conventional sources of verbal dereliction—sloth, original sin, or native absence of mind—but from stylistic imitation. It is learned, an act of stylistic piety which imitates a single style, the bureaucratic style I have called The Official Style. This bureaucratic style dominates written discourse in our time, and beginning or harried or fearful writers adopt it as protective coloration.”
—Richard A. Lanham, Revising Prose vi (3d ed. 1992).
