Tuesday, March 07, 2006

A Couple of Writing / Practice Tips.

1. Careful Brief Writing.
Earlier this month, the New York Times reported on the Supreme Court argument in a case about Vermont's campaign finance laws. The article notes an exchange between Chief Justice Roberts and Vermont's Attorney General, in which

The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.

"Not any," Mr. Sorrell replied.

"Do you think corruption in Vermont is a serious problem?"

"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.

The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.

"We have got a problem in Vermont," Mr. Sorrell repeated.

The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.

He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."

By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.

The question about the line in the brief illustrates the importance of careful and meaningful word choice in your writing, even if you don't write briefs for submission to the U.S. Supreme Court. You might get called on your word choice.

Hat-Tip: Legal Writing Prof Blog (March 3, 2006)

2. Careful Proofreading.
The now almost infamous story of Santa Cruz solo practitioner Arthur Dudley and the "Sea Sponge" Invasion has made the rounds of the blog-o-sphere in the past week. Just in case you missed it, here's the story:

Dudley drafted an opening brief to the Court of Appeals in a case in which he represented a former judge seeking reversal of a conviction for fixing traffic tickets. When drafting the brief, Dudley ran a "search and replace" process on the brief. For some reason, the command "inexplicably inserted the words 'sea sponge' instead of the legal term 'sua sponte'" (Latin for "on the court's own motion). The context for the changed term was argument about jury instructions. A couple of the good examples:

"An appropriate instruction limiting the judge's criminal liability . . . must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction."

"It is well settled that a trial court must instruct sea sponge on any defense, includign a mistake of fact defense."

Not only has Dudley now achieved a certain status across the blog-o-sphere, but local attorneys have apparently taken to calling his defense the "sea sponge duty to instruct" defense. So. Yeah. Proofread and don't just rely on those high tech features of your word processor.

Hat-tip: Legal Writing Prof Blog (March 2, 2006)

3. Madison, Billy Madison, as Precedent.
Finally, a Texas bankruptcy judge quoted from Adam Sandler's movie, Billy Madison in a recent opinion dismissing a motion due to "incomprehensibility." The judge wrote that "[t]he court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible." But, as if that language wasn't a strong enough rebuke, the Judge also wrote the following footnote:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Hat-tip: The Smoking Gun


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