October 31, 2014

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.

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