Clash of the Titans

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Well, I know where I’m going to be at 5pm CST. It’s not every day that we get to watch the fate of the world being live-streamed from a San Francisco courthouse. That is, assuming the Ninth Circuit’s website doesn’t crash from all the traffic. Everyone pop some popcorn, sit back, relax, and enjoy your front-row seat to political, presidential, and legal history in the making!

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Words Matter

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Sometimes I feel silly for being so obsessed with words. But every now and then, I’m reminded that, yes, words are actually pretty important. That’s not silly. And there are worse things to obsess over.

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The Power of Words!

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Just heard that a case I briefed on appeal in Tennessee has been reversed and remanded! It was an uphill battle, replete with municipal immunities and judicial fact-finding, but we won! I always love to hear when battles are won with the mighty pen. Here’s to the power of persuasive writing!

A Useful Double-Negative

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Most people communicate to be understood; you need to communicate so that you cannot be misunderstood.

I just stole this awesome quote from a friend of mine, who stole it from a friend of his.  I hope neither one of us gets banished for our thievery, but this is such a nifty thought that I just couldn’t resist sharing.

Less is More

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I happened upon this interesting dissent in my research recently.  If you can forgive the biting tone (note the judge’s befitting name), I think the minimalist technique is pretty effective.  It’s not bogged down with preachy legalese.  It doesn’t pontificate or soliloquize. It’s short and (not so) sweet.  Here it is, from Ex parte Clay, 675 S.W.2d 765, 768 (Tex. Crim. App.1984):

Onion, Presiding Judge, Dissenting.

I dissented in Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982). I dissent again. I simply call attention to the unrealistic and laughable statements of the majority:

“It is important to note that the ‘carving doctrine’ was abandoned primarily because it encouraged crime … The abandonment of the ‘carving doctrine’ overcame an aspect of the criminal trial that substantially impaired its truth-finding function.”

Fantastic.

Rarely do I have the pleasure of seeing judges describe their distinguished colleagues’ reasoning as “laughable” (forgive me for being entertained).  Regardless of whether you agree with the dissent or the majority, I think this pithy opinion offers good evidence of why less is more.  Note the very short sentences and short paragraph.  In fact, most of the “argument” commandeers (and makes a mockery of) the majority’s own words. The grand finale is a one-word sarcastic scoff.  No need for a conclusion sentence.

Again, the tone is another matter and a different debate.  But after reading this dissent, it’s hard to avoid at least being tempted to second guess the majority.  So in that sense, perhaps this dissent succeeds in its rhetorical goal.  If you want to check out the full opinion, here it is on Leagle.com.

Even Judges Prefer Plain English…

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Check out this article by Sean Flammer, posted in the Michigan Bar Journal in September, 2011 (kudos to John Hightower for sharing this on LinkedIn) …

Now there’s actual research to prove it… Yes, even judges want us to cut the jargon and just speak plainly.

Even Tough Cases Can Be Won with Good Writing

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A few months ago, I wrote appeal for a lawyer representing an undocumented alien in a personal injury case.  They were kicked out of court on Rule 56 & Rule 41 after it came to light that (unbeknown even to his own lawyer) the plaintiff had been using an alias.  The entire case had been prosecuted under this alias to that point.  The attorney did what he could to correct the record, but after a bit of procedural gymnastics by the court, the case was dismissed.  Just found out that based on the appellate brief I wrote and the attorney’s oral argument, the appellate court revered the dismissal and remanded the case.  We’re back in business!

Moral of the story: I don’t condone this plaintiff’s use of an alias or his failure to disclose that fact to his own attorney.  However, I think our strategy of being honest and straightforward about these circumstances weighed heavily in our ultimate victory at the appellate level.  I would advise attorneys not to minimize, ignore, or attempt to justify what may be perceived as bad acts by their clients.  Instead, face them head on and deal with them in earnest through whatever legitimate legal means are available, and let the chips fall where they may.

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