Be Careful How You Move…

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Getting slammed with seemingly frivolous “form motions”?  Or are you the one obsessively filing them?  Here’s a not-so-subtle smack-down from Tennessee’s Court of Criminal Appeals …

Counsel also claims that his repeated motions to recuse — footnoted in every recent motion he has filed — result from his fear of waiving the issue. Given counsel’s legal experience and expertise, we view this claim to be disingenuous. Rather, we believe repetitive, rote filings of the same motion for the purpose of guarding generally against waiver border on abdication of responsibility to use professional judgment. Prolific motion practice may be justified through zealous advocacy, but such does not justify repeated motions that are wholly unnecessary when given a modicum of reasonable thought. Counsel needs to give all his assertions in his pleadings his highly capable considered judgment, not boilerplate treatment.

State v. Huskey 82 S.W.3d 297, 313 (Tenn. Crim. App. 2002)


What’s in a Signature…

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A little wake-up call from Justice Drowata, formerly of the Tennessee Supreme Court:

The certification which results from the attorney’s signature on a motion, pleading, or other document is directed at the three substantive prongs of Rule 11: its factual basis, its legal basis, and its legitimate purpose. Schwarzer, “Sanctions Under the New Federal Rule 11-A Closer Look,” 104 F.R.D. 181, 186 (1985). See also, Note, “The Intended Application Of Federal Rule of Civil Procedure 11: An End To The Empty Head, Pure Heart Defense,” 41 Vand.L.Rev. 343, 361-62 (1988). A signature signifies to the Court that the signer has read the pleading, motion, or other paper, has conducted a reasonable inquiry into the facts and the law, and is satisfied that the document is well-grounded in both, and is acting without any improper motive. Business Guides v. Chromatic Communications Ent., 498 U.S. 533, 111 S.Ct. 922, 929, 112 L.Ed.2d 1140 (1991); Cooter & Gell v. Hart Marx Corp., 496 U.S. 384, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990). “The essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to the [trial judge] that this document is to be taken seriously.” Business Guides, 111 S.Ct. at 930. The purpose of Rule 11 as a whole is to bring home to the individual signer his personal, nondelegable responsibility. “The message thereby conveyed to the attorney, is that this is not a team effort but in the last analysis, yours alone, precisely the point of Rule 11.” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 460, 107 L.Ed.2d 438 (1989). An attorney who signs a paper without the required substantiated belief “shall” be penalized by “an appropriate sanction.” This sanction may, but need not, include payment of the other party’s expenses. Although the rule must be read in light of concerns that it will spawn satellite litigation and chill vigorous advocacy, see Advisory Committee notes, any interpretation must give effect to the rule’s central goal of deterrence. Cooter & Gell, 110 S.Ct. at 2454. See also, Note, “The Immediate Appealability of Rule 11 Sanctions,” 59 Geo.Wash.L.Rev. 683 (1991) (purpose of Rule 11 is to prevent abusive and dilatory tactics by litigants).

Andrews v. Bible 812 S.W.2d 284, 287 -88 (Tenn. 1991)

New Rule #4

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Never begin a pleading with “Comes now” … It’s painfully archaic.  Besides, most lawyers never figured out that when multiple parties are pleading, it should be “Come now” (plural conjugation).  But never mind that.  Abandon outdated form language altogether, and instead just start with a regular sentence like a normal professional (not a lawyer robot).

How many negatives make a positive?

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Here’s a reiteration of my “one negative (if any)” quota.  This sentence reverses itself so much that at the end of the day I have no idea who did what.

The employer contests the plaintiff’s denial that the appellate court erred by reversing the trial court’s conclusion that the plaintiff had not sufficiently pleaded his vicarious liability claim.

Huh?  Seriously, doesn’t this end up being more like an extended algebra equation than a statement of the case’s procedural posture?  And this — dare I say it — came from a judge’s opinion (names were changed to protect the guilty).   To all the esquires — and, yes, Your Honors too: do the plain folk a huge favor and quit with the multiple negatives, already.  It’s terribly confusing.

New Rule #3

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Don’t use labels like “Defendant-Appellee” or “Cross-Complainant” or “Respondent” … Humanize your client — even if (especially if) your client is (mis)perceived to be a huge, evil, billon-dollar, mom-and-pop-killing, corporate mega-conglomerate.

New Rule #2

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Never populate your “Statement of Undisputed Facts” with legal conclusions, personal opinions, or disputed facts.  Please.

New Rule #1

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Always use the serial comma.  Always.  Don’t argue 🙂

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