January 18, 2013
For those of you who need a reprieve from the Manti Te’o dramas, I found this timely article on the ABA website. I vote for “pleaded.” What do you think: “pleaded” of “pled”?
January 10, 2013
Not too long ago, I posted a note entitled “The Little Stuff Matters.” The post featured a sign from a car window, in which a parent rightly extolled his/her son’s military service. There is perhaps nothing more worthy of public adulation than military service. And yes, the service-person does fortify the many freedoms that I enjoy here at home. However, the window sign appeared to mock those familiar bumper stickers that celebrate honor roll students. In the process, the sign unfortunately misspelled a word. In my post, I pointed out the “catastrophic irony” of the misspelling, under the circumstances. One responder countered that the service-person’s sacrifice is far more important than his parent’s ability to differentiate homophones. Very true! Not only do I agree, but that was precisely my point!
The “irony” I meant to highlight is the sign’s apparent condescension towards “honor roll students,” and the reason I think it is catastrophic is because it deflects attention from the parent’s original source of pride — the son’s brave and selfless military service. In my post, I conceded that the definition of the word ‘homophone’ is pointless in the grand scheme of things. In my opinion, technicalities like spelling have very little (if any) correlation to a writer’s content, ability, or intent. It is for that very reason that I hate to see technicalities steal the spotlight from substance. For example, the best-qualified person for a job might be passed over because of an inadvertent typo in his/her resume. In that case, both the applicant and the employer get the short end of the stick. Nobody wins — and frankly, it just seems downright unfair. But of course, it happens every day. And that’s why I teach my students that The Little Stuff Matters. Maybe it shouldn’t — but the reality is, it does. And when the content involves a serious or consequential subject, I’d argue that the little stuff matters even more.
What do you think? In the legal context (since this is a legal writing blog), are judges warranted in doubting the credibility of lawyers whose briefs have spelling or grammar errors? We all make them, after all. Is it just a matter of degree? How strict should judges be? Lawyers: in your practice, have you ever suffered a substantive loss due to a technical mistake in writing? And do you secretly feel more confident with every typographical error you read in your opponent’s legal memorandum? Or do find that those trivialities make little or no difference in the end?
January 10, 2013
Here’s an example of what can happen when judges are less than impressed with attorneys’ legal briefs:
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. 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. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.
* * * *
Defendant begins the descent into Alice’s Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir. 1998). That is all well and good — the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court’s water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute…. A more bumbling approach is difficult to conceive — but wait folks, There’s More!
Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886” of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) (What the …)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff’s counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive. There is nothing in Plaintiff’s cited case about ingress or egress between a vessel and a dock, although counsel must have been thinking that Mr. Liddy must have had both ingress and egress from the cruise ship at some docking facility, before uttering his fateful words.
Further, as noted above, Plaintiff has submitted a Supplemental Opposition to Defendant’s Motion. This Supplement is longer than Plaintiff’s purported Response, cites more cases, several constituting binding authority from either the Fifth Circuit or the Supreme Court, and actually includes attachments which purport to be evidence. However, this is all that can be said positively for Plaintiff’s Supplement…. Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon — Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.
Now, alas, the Court must return to grownup land. As vaguely alluded to by the parties, the issue in this case turns upon which law-state or maritime-applies to each of Plaintiff’s potential claims versus Defendant Phillips. And despite Plaintiff’s and Defendant’s joint, heroic efforts to obscure it, the answer to this question is readily ascertained….
Ladies and gentlemen, meet Judge Samuel B. Kent (an interesting character unto himself). This gem of an opinion is published — yes, as in for all the world to see — at Bradshaw v. Unity Marine Corps, 147 F.Supp.2d 668 (S.D. Texas 2001). Putting aside whether Judge Kent’s sarcasm was appropriate, if this ain’t enough to make you spend a few extra hours on that brief, nothing is.
January 2, 2013
October 23, 2012
Had a great time working with the fabulous attendees at the TABL Law Students Conference at Belmont University in Nashville! I look forward to working with the students again very soon!
August 8, 2012
The Tennessee Alliance for Black Lawyers has done it again! On June 8, 2012, we offered Anatomy of an Appellate Brief as a 2-hour CLE in Memphis during the annual convention. This time, I taught the class with Judge Camille McMullen of the Court of Criminal Appeals. Once again, it was awesome! Special thanks to Judge McMullen, to TABL and its members and leadership, and to all the attendees who helped make the CLE a success yet again!