November 23, 2017

Archives for December 1, 2011

Legal Writing Pro: Judges Gone Wild

Is the country’s malaise affecting our judges as well?

The Seventh Circuit just referred a lawyer to the state ethics board for possible suspension of his license. His sin? “Rampant grammatical, syntactical, and typographical errors” (full opinion).

A federal judge in Texas recently issued a “Kindergarten Order” comparing the lawyers in a discovery dispute to squabbling kindergarteners. (The judge himself was then chastised for “caustic, demeaning, and gratuitous” rhetoric by the Chief Judge of the Fifth Circuit but has refused to back down.)

Also in Texas, in a civil-rights case filed by the mother of a high-school cheerleader who didn’t make the squad, the Fifth Circuit accused the firm representing the plaintiff of “miscues” that were “so egregious and obvious that an average fourth grader would have avoided most of them.” Although the errors flagged by the Fifth Circuit may be “obvious”; many other issues in the main offending paragraph are far less so.

Can you spot 15 writing issues in the highlighted parts of this passage?

The Magistrate’s egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

As I mentioned, there’s much more to this passage than meets the eye—and met the Fifth Circuit’s wrath.

Here are 15 issues, by category:

Four attention-to-detail issues

  1. “Vacateur” is misspelled, though that error is neither “obvious” nor “egregious.”
  2. In the last sentence, “principals” is the wrong spelling. This error may seem “obvious,” but this word is the most commonly misspelled word in legal writing. (Trick: When you mean “rule”, spell “principle” with an –e. Every other time it’s spelled “principal” with an –a.)
  3. Also in the last sentence, “are” agrees with “principals,” not “incompetence.” (Although this error may seem “obvious” as well, I’m not sure that it’s “egregious.” Many other lawyers make the same mistake, not because we don’t know about agreement but because under time pressure, we tend to agree verbs with the last noun we typed.)
  4. As a singular name ending in –s, “Sanches” is made possessive with an apostrophe –s, not just an apostrophe. (Exception: biblical, classical, and mythological names like Jesus or Moses.)

Five redundancy issues

  1. “Failure to utilize or apply the law” says the same thing twice. So often, when we use two verbs, either they have the same meaning or one swallows the other. “Failure to apply” is plenty. Not to mention that “utilize” is jargon for “use.”
  2. “Applying improper legal standards” and “ignoring precedent” mean the same thing.
  3. “Failing to consider Sanches’ 1983 claims” and “summarily dismissing them” mean the same thing.
  4. “Summarily dismissing them” and “without analysis or review” mean the same thing.
  5. “Analysis” and “review” mean the same thing.

Three legal-convention issues

  1. The proper term is “Magistrate Judge,” not “Magistrate.” (In my view, the Fifth Circuit was too harsh in pouncing on this error.)
  2. Inconsistency in using pronouns to refer to the Magistrate Judge. You can make a case for “he” or “she” and “his” or “her.” You can also make a case for “it” and “its” if you see the Magistrate Judge as a proxy for an institution. But you can’t go back and forth. Plus the lawyers dropped the “the” before “Magistrate” in the second sentence.
  3. Don’t “elegantly vary” the language you use to refer to the same thing. If it’s “Court,” call it “Court”; don’t switch to “Judge” or “decision-maker.” Here, then, the lawyers should have avoided shifting between “Magistrate” and “Court.” Switching terms in such a way just confuses the reader.

One syntax issue

  1. If “ignoring precedent” had to be there at all, it should have been much closer to what it modified: “the Magistrate [Judge] applied improper legal standards.” Instead, it dangled at the end of the sentence. (Tip: put all –ing phrases as close as possible to what they modify.)

One rhetorical-construction issue

  1. “Because” is a great word, but it must introduce a true cause-and-effect relationship. Surely “incompetence at applying the law” isn’t “ordinary” for Article III judges—and yet that’s what the lawyers suggest.

One tone issue

  1. Speaking of the “incompetence” line, the main reason for the Fifth Circuit’s tirade was not the various errors in isolation. It was the overall tone: The language is too snarky, even aggressive, suggesting that the lawyers just didn’t think about their audience here. (Tip: The angrier you sound, the more your readers will assume that you don’t have the goods to back up your claims.)

I’ll leave it to you to decide whether the Fifth Circuit’s own language was too harsh, just right, or not harsh enough. But I’m sure we can agree that many of the issues in this paragraph are more common than the court suggests. And if you learn nothing else from this brouhaha, make sure you don’t mess with a Texas cheerleading mom!

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Where Change Begins: Inspiration (Part 1)

Editor’s Note: This is the first in a three part series of job search and career transition articles. Click here to read Part 2.

Change starts with inspiration. Inspiration ignites us. It is both fuel and fire, the match that strikes and the blaze that bursts. Inspiration makes the impossible possible. Without inspiration, we’d never change or create anything.

At the core of inspiration is this one idea: something else is possible . . . and because it is, everything must move aside to make room for it. No, more than that – everything else must become new.

Inspiration invades our numbed lives, overwhelms our defenses. It disconnects our habitual sense of what is normal and possible, detaches our allegiances to status quo. One minute we have an ironclad case for The Way Things Are; the next we’re tearing it down. One minute we’re drifting and purposeless; the next we have a cause to throw down for.

Inspiration is our beginning. It is also our destination – the shining new reality we will inhabit when our idea unites with our hope and takes shape in our lives. What we see and think and feel when inspiration greets us is what we’ll see and think and feel on that grand and glorious day when we finally arrive where inspiration calls us to go.

Sometimes, inspiration comes with visions of glory. When it does, it thrills us with new passions and possibilities, shocks our unused neural pathways into unaccustomed life. It shakes us awake in the dead of night, urges us to our feet and outside to gaze into deep space. It plays a new tune on a new instrument, until our long submerged essence resonates with a new boldness, stunned at the robustness of its own long-silenced voice.

Inspiration awakens us to glory days we live with abandon. We revel in their freedom, joy, and passion. They are the days of newness and discovery, celebration and vigor – the days of wildness and courage and daring, the sweeping dive of new love, the dizzy freshness of everything that’s good about life.

At other times, inspiration isn’t so kind or so pretty. [to be continued]

Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He has led two workshops for the CBA’s Job Search and Career Transitions Support Group. His next one, scheduled for January 10, 2012, is called Work With Passion: Find Your Fire and Fuel It! Click here for registration information.

Colorado Court of Appeals: Week of November 27, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and twenty-seven unpublished opinions for the week of November 27, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

[UPDATED] Corporate Practice Update: What to Do When Representing Franchises

To most people, the term “franchise” conjures images of fast-food restaurants crowding the highways and city streets of the American heartland. In reality, franchising is more than restaurant and hotel chains. Franchising is a method of distribution used by more than 75 different industries, accounting for billions of dollars and hundreds of thousands of jobs in the United States today.

From the lawyer’s perspective, the term “franchise” means a legal relationship between two parties that requires a careful understanding of federal and various state laws. The regulation of this legal relationship has evolved over time as the business model has become more popular and thus increasingly subject to abuse by unscrupulous franchisors.

With the expansion of franchising in the United States, more and more attorneys are finding themselves approached by business owners wanting to convert their current businesses into franchises, and by franchisees wanting guidance regarding the legitimacy of and legal issues related to a franchise business they are evaluating.

The various federal and state requirements for the sale and operation of a franchise business and the ramifications of non-compliance are discussed in the CBA-CLE book, Practitioner’s Guide to Colorado Business Organizations. A section of the book from the Franchises chapter is provided below, which discusses federal franchise law disclosure requirements. More information about the book can be found here.

The Corporate Practice Update Series has been postponed.

CBA-CLE also invites you to attend the upcoming Corporate Practice Update program covering franchises and the fundamentals attorneys need to know when representing franchises. The program will cover domestic franchises, international franchising, and the ins and outs of your role as counsel for these organizations. Registration information is also provided below.

The program is being presented by some of Colorado’s leading business entity experts:

  • Kevin Hein, Esq.
  • Jeffrey Brimer, Esq.
  • Brian Schnall, Esq.
  • H. Michael Drumm, Esq.

And, don’t miss the other great sections of the Corporate Practice Update Series, covering the Civil Access Pilot Project, Business Entity Update, Securities, Privately Held Businesses, M&A, and Ethics.

Colorado Business Organizations: Franchises

Tenth Circuit: Unpublished Opinions, 11/30/11

On Wednesday, November 30, 2011, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Unpublished

Stuart v. State of Utah

Antelope v. United States

Moehring v. Milyard

Garza v. State of Kansas

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.