July 17, 2019

Archives for January 8, 2019

Repetition of Substance: When It Helps, When It Hurts

When it comes to repetition, advice conflicts. On the one hand: tell them what you are going to tell them, tell them, and then tell them what you told them. On the other hand: don’t beat a dead horse, I got it already, make your point and move on.

Truth be told, like every technique repetition can be effective or ineffective. When used purposefully to add value, repetition helps. When used because of habit, repetition hurts.

One form of repetition is “repetition of substance”—i.e., repeating the same point even if done with different words. All briefs repeat substance. To some degree, a brief’s structure requires this repetition. When and how to add more is strategy.

I. Acknowledge the inherent repetition in a brief’s structure by moving on to the “why”

To avoid tedious repetition, acknowledge the inherent repetition in a brief’s structure.

Briefs contain most of the following features:

  • Caption
  • Introduction
  • Summary of Argument
  • Headers
  • Topic Sentences
  • Concluding Sentences
  • Conclusion

Each of these features repeats the substance of at least one other item on the list (usually several), sometimes with a different degree of detail.

Although writers draft these features separately, readers process them cumulatively. Failure to recognize the inherent repetition among these features can cause excessive repetition of substance, like this:

MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM

Plaintiff brings this Motion to Dismiss the Complaint for Failure to State a Claim because the Complaint’s allegations fail to state a claim. . . .

Summary of Argument

The civil rules require dismissal of complaints that fail to adequately state a claim. Here, this Complaint fails to state a claim because . . .

Argument

I. Complaints that fail to state a claim must be dismissed

Rule 12 requires dismissal of complaints that fail to adequately state a claim. . . .

II. The Complaint fails to state a claim for tortious interference

Here, the Complaint fails to adequately plead a claim for tortious interference. . . .

We get it. You want to dismiss the complaint because it fails to state a claim. Whether separated by lines or pages, the repetition’s effect is the same: tedious pounding. That tediousness comes from overlooking the inherent repetition in the structure.

In this example, each section operates as if in a vacuum and with a need to be self-sufficient. But the reader doesn’t need that. The reader wants to move forward, while the brief keeps moving backwards; instead of starting where the prior section left off, each section reverts to the beginning. After the first sentence, the reader knows you want to dismiss the complaint for failure to state a claim. The reader wants to know why the complaint fails to state a claim. Even if the why comes in the second or third sentence of a section, the damage is done by the repetitious headers and opening sentences.

A brief’s inherent repetition should suppress fears of a judge not remembering your points or misunderstanding your main ideas. For example, a conclusion does not need to repeat any substance. It can state the remedy you want. And nothing else. If a judge does not understand why you win by the conclusion, you have bigger problems that repetition will not solve.

Even when judges read briefs in piecemeal fashion—starting, stopping, and returning—the judges remember what the brief is about or can re-read or re-skim the brief. I have yet to find a judge who expects a particular section to repeat all the substance learned up to that point. Think about it: for good reason you have never read a book where chapter eighteen repeats all the substance from chapters one through seventeen.

II. Add repetition to compensate for structural incoherence

Sometimes a brief’s structure works against you. When structure stuffs material between two related points, the reader might struggle to link the two.

This often happens in multi-issue briefs. Imagine an appellate brief that raises issues with jury selection, cross-examination, and damages. The brief might begin by discussing jury selection facts, then add pages of unrelated facts on the other issues, and then return to jury selection in the Argument section. Those intervening pages may cause the reader to temporarily forget some of the relevant jury issue facts. Another example is when an argument starts with the law, then adds facts, and then applies the law to the facts. In both scenarios, the middle section is such a dramatic shift (from one issue to another, or from the law to the facts) that the reader may not remember everything covered in the first section.

When structure weakens cohesion, punchy repetition can help get the reader back on track. But the point is to recall information, not recite it. Referencing the key point is enough to yank the information forward:

  • “Recall the balance between access and cost that this doctrine pivots on;”
  • “Recall how the prosecutor called the defendant a ‘liar’ during closing argument not one or two, but three times;
  • “But remember Justice Holmes’ warning;”
  • “Remember the elaborate safety diagrams placed on the product to avoid this precise kind of accident.”

Here, the repetition is not re-teaching or re-informing the reader. Rather, the repetition helps connect non-consecutive information.

III. Perseverance is not an effective writing strategy

Repeating substance in short succession often does more harm than good. Readers assume every paragraph moves an argument or story forward. But repetition moves backwards. So repetition in short succession resembles a stalling car; the reader tries to move forward while the author moves backwards. Cue frustration.

Usually this occurs when writers try to overwhelm the reader with an onslaught of authority spread over paragraphs. Something like this:

The diversity jurisdiction statute only grants jurisdiction to cases involving controversies worth over $75,000. 28 U.S.C. § 1332(a). The Supreme Court held there is no diversity jurisdiction when the complaint alleges damages of only $75,000. [cite case].

Every circuit court agrees. The Tenth Circuit upheld dismissal of a complaint that alleged $75,000 in damages. [cite case]. So has every other circuit. [string citation].

Wright & Miller also states that $75,000 is not enough. [cite treatise]. See also [string citation of treatises].

“I got it. Why are we still on this?,” thinks the reader. These paragraphs do not move forward. Instead, they repeat the same message with different authority. Even if the opponent challenges this hornbook proposition, repetition is not an effective counter argument. Rather, a single, short, decisive sentence with a citation to binding authority speaks volumes.

Another example of excessive successive repetition is when briefs try to use the same fact to make the same point over and over again (occasionally with bold font and underlining). It looks like this:

The baker agreed to purchase eggs from the farmer every Monday for $2,000. The farmer drafted a contract, signed it, and sent it to the baker. But the baker never signed the contract.

For the next thirty Mondays the farmer sent eggs and the baker sent money. Both parties acted with a mutual understanding. But the baker never signed the contract.

Even though both parties had lawyers who advised them during the transaction, and even though the contract involved the sale of goods, the baker never signed the contract.

That the contract was not signed is important. And that importance was clear the first time. Plus, surely the fact will appear again when discussing the statute of frauds.

Effective storytelling emphasizes key facts; repetition does not. Repeating the same fact over and over again, even a very important fact, is more annoying than emphatic. Although some writers risk annoyance for the assurance that a judge not forget a key fact, that is not a choice you need to make. Use storytelling, paragraph and sentence structure, or headers to highlight a key fact. When done well, the reader remembers.

IV. Repetition, without more, is just repetition

Varying volume is an effective speaking tool; shouting all the time is not. Similarly, there is no correlation between an amount of repetition and the strength of your argument. Repeat substance when it helps; don’t when it doesn’t.

Much of unnecessary counter-productive repetition stems from high school requirements that you bookend sections with topic and concluding sentences. The concluding sentence (we were taught) is just the topic sentence slightly reworded or with a concluding transition word like “therefore” in front. Many writers believe such repetition brings resolution. The opposite occurs. The reader expects the last sentence to move forward, but it only states what they already know. It wastes space and words.

Consider the following:

The evidence is inadmissible for three reasons. First, . . . . Second, . . . . Third, . . . . Therefore, the evidence is inadmissible.

The first and last sentence are repetitive, and nothing more. The last adds nothing new. The only reason most writers think to include the final sentence is because of high school. When repetition does not advance your argument, cut it.

V. Repetition that adds value is effective

Repetition of substance works well when it adds something. Counterintuitive yet true, repetition can add something the first incarnation did not. Here are some ideas on useful repetition of substance.

Repetition Plus: Repetition with elaboration or additional support does more than remind the reader of a point. These couplets add to a reader’s understanding and move the argument forward.

Repetition Connectors: You can also use repetition to connect a previously mentioned point with a new concept. For example:

The Fourth Amendment balances the government’s interest in investigating crimes against each individual’s interest in privacy

. . .

Thus, condoning an arrest warrant under these circumstances upsets the Fourth Amendment’s delicate balance by dramatically favoring the government’s interest to the detriment of every individual’s privacy rights.

Here, the section begins with a generic point about the Fourth Amendment that introduces a “balance” to the reader. This concept probably fades into an analysis of facts and precedents. But the last sentence links the analysis with the balance referenced at the beginning to tie them together.

VI. Conclusion

Overused and frequently misunderstood, repetition of substance is a powerful tool when used well.

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he worked as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals before becoming Staff Counsel at Wheeler Trigg O’Donnell, LLP. Michael also serves as a volunteer firefighter for the City of Golden.

Colorado Court of Appeals: Walkway Qualifies as “Public Roadway,” Not Sidewalk, Even if Private Vehicles Not Permitted to Drive On

The Colorado Court of Appeals issued its opinion in Trujillo v. Regional Transportation Dist. on Thursday, December 28, 2018.

Government — Colorado Governmental Immunity Act — Immunity and Partial Waiver

In this governmental immunity case, the key issue is whether a certain walkway is a “sidewalk” as described in section 24-10- 103(6), C.R.S. 2018, which would exempt the Regional Transportation District from the Colorado Governmental Immunity Act’s immunity provisions. Under that statute, sidewalk is defined as “that portion of a public roadway between the curb lines or the lateral lines of the traveled portion and the adjacent property lines which is constructed, designed, maintained, and intended for the use of pedestrians.” § 24-10-103(6). Thus, the court must determine whether the road adjacent to the walkway is a “public roadway.” A division of the court of appeals concludes that a road qualifies as a “public roadway” as that term is used in section 24-10-103(6) where, even though private vehicles are not permitted to drive thereon, its purpose is for transporting the general public via public buses.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Postconviction Matters for County Court Felony Criminal Matter Resolved in County Court, Not District Court

The Colorado Court of Appeals issued its opinion in People v. Vargas-Reyes on Thursday, December 28, 2018.

Criminal Law — Commencement of Prosecution — Felony Complaint in County Court; Criminal Procedure — Appeals From County Court

A division of the court of appeals considers whether, when a felony case is commenced in county court pursuant to section 16-5- 101(1)(c), C.R.S. 2018, and resolved with a plea agreement involving only misdemeanor pleas, the plea and any subsequent postconviction matters are handled by the county court or by the district court. We conclude that unless the matter is formally bound over to the district court before the plea is accepted, it remains a county court matter for purposes of appeal. Because this appeal involves a challenge to the denial of a postconviction motion issued by the county court, this court lacks jurisdiction and the appeal is dismissed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/7/2019

On Monday, January 7, 2019, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Wei v. University of Wyoming

Hale v. Federal Bureau of Prisons

United States v. Guardado-Panuco

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.