June 20, 2019

Archives for March 14, 2012

Legal Writing Pro: Four Motion Mistakes

A federal judge in Florida recently “corrected” dozens of errors in a routine motion.

He mainly fixed typos, but he also marked up several types of errors that many excellent writers make. Here are four examples; the sample sentences are from the judge’s corrected version.

1. Faulty capitalization of Order and Motion

Throughout the judge’s mark-up, he changes “order” to “Order” and “Motion” to “motion.”

What gives?

The convention is to lowercase these words when they are used generically to describe a category of actions or papers:

Defendant in this action has filed a motion to dismiss.

but to capitalize the words when they describe a specific document:

As indicated in Plaintiff’s response to Defendants’ Motion to
Dismiss . . . .

Plaintiff hereby files this Response to the Court’s Order . . . .

2. Faulty capitalization of Plaintiff, Defendant, and Court

This judge knows his capitalization rules.

The rule here is like the rule for orders and motions.

Capitalize Plaintiff, Defendant, and Court if (1) they are the plaintiff, defendant, or court in the case you’re litigating or (2) you are using Court to refer to the U.S. Supreme Court:

Defendant was not Plaintiff’s employer.

The Court subsequently denied Defendant’s motion.

But lowercase plaintiff, defendant, and court if (1) they are the plaintiff, defendant, or court in a case you’re citing or (2) if you’re referring to plaintiffs, defendants, and courts generically.

Plaintiff filed this action against the wrong defendant.

3. Faulty punctuation of quoted material

This judge is no Anglophile. He insists that his lawyers follow American usage rules for punctuating quoted material. And that means you must put periods and commas inside the closed quotation marks.

. . . sought relief against the “Good Samaritan Society,” that being a fictitious name for Defendant.

And no, there’s no exception for a single word—or even a single letter.

See Exhibit “A.”

(Note that here the lawyer didn’t need the quotation marks in the first place.)

4. Faulty use of ordinal numbers

Unless you’re writing a date in the “1st of January, 2010” format, always spell out ordinal numbers.

That’s why the judge objected to “7th Judicial Circuit.” As he suggests, it should be “Seventh Judicial Circuit.”

Click here to view The Marked-Up Motion

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.

Top 10 Reasons Your Firm Should Play Lawyers’ League Softball

10. Have fun. Let’s face it: slow-pitch, co-ed softball in a relaxed league (there are no umpires, and balls and strikes are not called) is simply fun. It’s way less frustrating than golf and there are more cardio benefits. And you might get a cool trophy at season’s end.

9. Have fun with others at your office. You don’t have to be a lawyer to play in the Lawyers’ League, so it is a great way to bond with the rest of your office.

8. Get out of the office on the weekend. Not that you should need an excuse to get out of the office on the weekend, but it is nice to have a built-in one if you do. Games are finished on Saturday by about lunch time, so you have the rest of the weekend to work if you really have to.

7. Be a part of history. I’ve been league commissioner for nearly 20 years, and I have contacted the last two commissioners before me. Nobody can even remember when the league began, thus if you join you can be part of something where “the memory of man runneth not to the contrary.”

Join Lawyers League Softball
DBA Lawyers’ League Coed Softball starts June 9 and runs through Aug. 11. Games are played Saturdays at Cranmer Park (at 1st Avenue and Bellaire Street). This is a relaxed league more concerned with having fun than, well, pretty much anything else. Cost varies depending on the number of teams in the league. For more information or to sign up, contact Jack Tanner at jtanner@fwlaw.com.

6. Have fun with clients. Did you know being up with two on and two out is a marketing moment? Well, it can be (especially if you come through with a hit). I guarantee you that if your client spends 90 minutes playing softball, drinking adult beverages, and generally having a good time on Saturday, that client will call you first when a legal need arises on Tuesday.

5. Save a life. I grew up on the Gulf Coast and was a lifeguard from seventh grade through law school, but never once actually saved anybody. Playing softball in the Lawyers’ League, however, I once used CPR to help revive a guy who had been struck by lightning.

4. Have fun with your family. Bring your kids (or grandkids, or parents, or distant relatives, or dog) and have a good time as a family. One of my favorite things about this league is that it is one of the few things my teenage son and I do together.

3. Bond with other members of the Bar. Even if you don’t like how a fellow litigator acts during discovery, that same litigator can be a peach on the softball field. If not, it’s always more incentive to play hard for a win.

2. It’s cheap! Because we play days (and therefore on an unlighted field) and have no umpires, the field fees are nominal. The cost is only a few hundred bucks per team for the entire summer.

1. You’ll be doing a service to the Bar. If I get enough teams to play this year, I won’t have to try to drum up more next year, and no one will have to read another article from me next year.

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Judge James Klein to Retire from Twentieth Judicial District Bench

The Twentieth Judicial District Nominating Commission will meet May 7, 2012 to interview and select nominees for appointment by Governor Hickenlooper to the office of District Judge for the Twentieth Judicial District (Boulder County).  The vacancy will be created by the retirement of the Honorable James C. Klein on June 30, 2012.

Judge Klein is a fourth generation Colorado native and has served on the Twentieth Judicial District bench since August 2005. From 1988-1991, Judge Klein was in private practice in Denver. In July 1991, Judge Klein joined the Colorado Attorney General’s office as an Assistant Attorney General where his practice focused primarily on workers’ compensation and unemployment insurance related matters. In 1994, Judge Klein was hired by the Colorado Department of Labor and Employment, Division of Workers’ Compensation to serve as a Prehearing Administrative Law Judge in its Dispute Resolution Unit. In September 2002, Judge Klein was hired by the Colorado Department of Personnel and Administration to serve as an Administrative Law Judge in its Workers’ Compensation Unit.

Eligible applicants for appointment to fill the vacancy must be qualified electors of the Twentieth Judicial District and must be admitted to the practice of law in Colorado for five years. Applications must be received by Friday, April 13. The appointed district court judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.

Further information about applying for the vacancy is available here from the Colorado Judicial Branch.

Tenth Circuit: No Double Jeopardy for Convictions for Both Possession and Receipt of Child Pornography where Separate and Distinct Conduct Supports Each Charge

The Tenth Circuit Court of Appeals published its opinion in United States v. Sturm on Tuesday, March 13, 2012.

The Tenth Circuit affirmed the district court’s convictions. Petitioner subscribed to a child pornography website and was found to have images on a hard drive in his possession. Petitioner was charged with “(1) knowing possession of three specific images of child pornography . . . and (2) knowing receipt of materials containing images of child pornography . . . . At trial, [Petitioner] did not dispute he had searched for and viewed child pornography on the internet. At the time, such conduct was not a federal crime. Instead, [he] sought to highlight weaknesses in the government’s proof of the interstate commerce aspect of the charges, and its proof that he had knowingly downloaded the images of child pornography found on his computer. Following a nine-day trial, the jury returned guilty verdicts on both counts.” Petitioner now seeks reversal of his convictions. He “challenges certain jury instructions and the admission, pursuant to Fed. R. Evid. 414, of his prior conviction for a similar offense. [Petitioner] also contends his convictions for both ‘possession’ and ‘receipt’ of child pornography violate the Double Jeopardy Clause of the United States Constitution.”

The Court disagreed with Petitioner’s contentions. The Court held that “(1) it is not necessary to show an intent to distribute to support a conviction under 18 U.S.C. § 2252A(a)(2)(B) for ‘knowing receipt’ of child pornography; (2) a prior state-law conviction may constitute an ‘offense of child molestation’ admissible under Fed. R. Evid. 414(d)(2) notwithstanding the absence of a connection to interstate commerce; and (3) the Double Jeopardy Clause does not prohibit convictions for both possession and receipt of child pornography where separate and distinct conduct supports each charge.”

Tenth Circuit: Unpublished Opinions, 3/13/12

On Tuesday, March 13, 2012, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.


Bangerter v. Roach

Nozlic v. Romano

United States v. Kindt

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