April 25, 2019

Colorado Court of Appeals: Summary Judgment Inappropriate Where Reasonable Security Measures May Have Prevented Harm from Gunman

The Colorado Court of Appeals issued its opinion in Wagner v. Planned Parenthood Federation of America, Inc. on Thursday, February 21, 2019.

Premises Liability—Summary Judgment.

Dear drove into the parking lot of the Colorado Springs clinic operated by Planned Parenthood of the Rocky Mountains (PPRM), a member of Planned Parenthood Federation of America, Inc. (PPFA) and shot several people in the parking lot, two of whom died. He then entered the clinic and wounded several more people. When police arrived he engaged in a lengthy gun battle, killing one officer and wounding five others.

Plaintiffs were the victims or survivors of other victims killed by Dear. Plaintiffs alleged they were invitees of PPRM under Colorado’s Premises Liability Act (CPLA). They also filed a common law negligence claim against PPFA, asserting PPFA controlled PPRM. The trial court granted summary judgment in favor of PPRM and PPFA on both claims.

On appeal, plaintiffs argued it was error to grant summary judgment in favor of PPFA because there was a genuine issue of material fact whether PPFA’s control over PPRM created a duty of care owed by PPFA to plaintiffs. This was a nonfeasance case, where the existence of a duty is recognized only in situations involving a limited group of special relationships between the parties. Here, the trial court correctly found that no such special relationship existed, that PPFA merely exercised discretion and not control over PPRM, and that it was not the owner or possessor of the land associated with the clinic. The court did not err in concluding that PPFA owed no duty to plaintiffs and in granting PPFA’s summary judgment motion.

Plaintiffs next argued that the trial court erred in concluding as a matter of law that Dear’s actions were the predominant cause of the injuries and deaths and in granting summary judgment to PPRM on that basis. Plaintiffs claimed they tendered sufficient evidence to raise genuine issues of material fact whether PPRM knew of reasonable security measures that would have prevented harm to the victims, and PPRM was sufficiently aware of the potential for criminal conduct against its clinics to prepare for the types of offenses Dear committed. Here, it was undisputed that the injured parties were invitees and PPRM was a landowner under the CPLA. The issue before the Court of Appeals was whether there was a genuine dispute of fact whether PPRM knew or should have known of the danger faced by the invitees. Plaintiffs presented evidence suggesting the risk of an active shooter incident in a Planned Parenthood facility like PPRM, especially one providing abortions, was not unknown. The Court found that there was enough of a dispute on this issue of material fact that it should go to a jury.

The summary judgment in favor of PPFA was affirmed. The summary judgment in favor of PPRM was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

C.R.C.P. 80, C.R.C.C.P. 380, and Crim. P. 55 Amended in Rule Changes 2019(06) and 2019(07)

On Thursday, February 14, 2019, the Colorado Supreme Court issued Rule Change 2019(06) and Rule Change 2019(07), effective immediately.

Rule Change 2019(06) repeals Rule 80 and amends Rule 380 of the Colorado Rules of Civil Procedure. A comment has been added to Rule 80, stating “C.R.C.P. 80 has been repealed as Chief Justice Directive 05-03 entitled, Management Plan for Court Reporting and Recording Services, addresses matters related to court reporters in District Court matters.” Subsection (c) of Rule 380 was amended as follows:

(c) Reporter’s Notes, Electronic or Mechanical Recording; Custody, Use, Ownership, Retention. All reporter’s notes and electronic or mechanical recordings shall be the property of the state. The notes and recordings shall be retained by the court for no less than six months after the creation of the notes or recordings, or such other period as may be prescribed by supreme court directive or by instructions in the manual entitled, Colorado Judicial Department , Records Retention Manual Management. During the period of retention, notes and recordings shall be made available to the reporter of record, or to any other reporter or person the court may designate. During the trial or the taking of other matters on the record, the notes and recordings shall be considered the property of the state, even though in the custody of the reporter, judge, or clerk. After the trial and appeal period, the reporter shall list, date and index all notes and recordings and shall properly pack them for storage. Where no reporter is used, the clerk of court shall perform this function. The state shall provide the storage containers and space

Rule Change 2019(07) amended Rule 55 of the Colorado Rules of Criminal Procedure. Subsection (e) of Rule 55 was amended as follows:

(e) Reporter’s Notes; Custody, Use, Ownership, Retention. The practice and procedure concerning reporter’s notes and electronic or mechanical recordings shall be as prescribed in Rule 80, C.R.C.P., for district courts and Rule 380, C.R.C.P., for county courts. For proceedings in district court, the practice and procedure concerning court reporter notes and electronic or mechanical recordings shall be as prescribed in Chief Justice Directive 05-03, Management Plan for Court Reporting and Recording Services. For proceedings in county court, that practice and procedure shall be as prescribed in C.R.C.P. 380.

Redlines and clean versions of the rule changes are available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Bringing Malpractice Claim to Reduce Liability for Attorney Fees is Not Abuse of Process

The Colorado Court of Appeals issued its opinion in Parks v. Edward Dale Parrish, LLC on Thursday, February 7, 2019.

Torts—Malpractice—Abuse of Process—Breach of Fiduciary Duty—Attorney Fees—Expert Witness

Parrish and Edward Dale Parrish LLC (defendants) represented plaintiff in two cases, a partition case and a dissolution case, against plaintiff’s former, long-term girlfriend. Plaintiff was not satisfied with the results. After he failed to pay Parrish for his legal services, Parrish filed a notice of attorney’s lien in the partition case. In response, plaintiff filed this case against defendants, alleging that they provided negligent representation and breached their fiduciary duty to him in both cases. Defendants counterclaimed for breach of contract (seeking an award of fees incurred in previously representing plaintiff) and abuse of process (based on plaintiff bringing this case).

At the close of plaintiff’s evidence, defendants moved for directed verdicts on all of his claims. The district court concluded that the breach of fiduciary duty claim was duplicative of the negligence claim and dismissed that claim. Plaintiff moved for a directed verdict on the counterclaims, which the court denied. The jury returned verdicts for defendants on all claims and counterclaims. The court also awarded defendants costs for their expert witness. Plaintiff moved for judgment notwithstanding the verdict (JNOV). This motion was deemed denied when the district court did not timely act on it. 

On appeal, plaintiff first contended that the district court erred in denying his motion for directed verdict and motion for JNOV on defendants’ abuse of process counterclaim. Bringing a malpractice case to obtain a result that such an action is designed to achieve doesn’t constitute an improper use of process, regardless of the motive. Here, the district court erred in reasoning that the jury could find an abuse of process if it found merely that defendants didn’t provide negligent representation. Given the lack of evidence of any improper use of process, the district court should have granted plaintiff’s motion for a directed verdict or motion for JNOV on the abuse of process counterclaim.

Plaintiff next contended that the district court erred in dismissing as duplicative his breach of fiduciary duty claim relating to the partition case. Where the professional negligence claim and breach of fiduciary duty claim arise from the same material facts and the allegations pertain to an attorney’s exercise of professional judgment, the breach of fiduciary duty claim should be dismissed as duplicative.  Here, plaintiff alleged that Parrish breached his fiduciary duty by entering into a stipulation without his consent. The same allegation underlies in part the negligence claim and implicates Parrish’s exercise of professional judgment. Therefore, the district court did not err in dismissing the breach of fiduciary duty claim.

Plaintiff also contended that the district court erred in denying his motion for a directed verdict on defendants’ breach of contract counterclaim. Defendants claimed that plaintiff breached a contract by failing to pay them attorney fees. Plaintiff argued that defendants had to prove the reasonableness of the fees they sought through expert testimony, and because defendants didn’t present any such testimony, the claim necessarily fails. When breach of contract damages are unpaid attorney fees, laypersons can determine the reasonableness of fees without an expert’s help. Here, Parrish testified about the services rendered, the reasonableness of the time spent on the services, and the fees charged for the services, and the jury considered the bills to plaintiff. Thus, the jury had sufficient evidence to assess the reasonableness of the claimed fees.

The judgment in favor of defendants on the abuse of process counterclaim was vacated. The judgment was affirmed in all other respects. The case was remanded for the district court to enter judgment in plaintiff’s favor on the abuse of process counterclaim and to amend the judgment as to damages accordingly.

Summary provided courtesy of Colorado Lawyer.

Repetition of Phrasing

“REPETITION—far too often avoided—can be a powerful rhetorical device. It can bring order and balance to a sentence’s parts. And it can rivet a word to the reader’s frontal lobe with more impact than elegant variations ever could.”[1]

I. Types of Repetitive Phrases

If you thought repetition was only repeating the same point again, prepare yourself. Repetition is a class of rhetorical devices. Brigham Young University’s Silva Rhetoricae database describes an arsenal of rhetorical devices involving repetition.[2]

One class within this arsenal is repetition of letters, syllables, and sounds. You probably already know alliteration, which is repetition of the same sound at the beginning of words.[3] Is there a name for when you get so excited about alliteration that you work it in wherever you can? Thankfully, yes. In the X Games of Rhetoric, the event known as paroemion is “alliteration taken to an extreme” — think tongue twister (Peter Piper picked a peck . . . ).[4] A variation is repetition of word endings (running, biking, swimming).[5]

Another class is repetition of words or phrases. One type repeats the same word or words at the beginning of phrases, sentences, or paragraphs (I have a dream . . . ;[6] We shall fight in France, we shall fight on the seas . . . [7]).[8] You can flip that strategy to repeat words at the end (a government of the people, by the people, for the people [9]).[10]

Searching for these unique “turns of phrases” is very difficult. Every now and then they pop out if you are looking for them: “Outlaw to outcast [repetition of prefixes] may be a step forward, but it does not achieve the full promise of liberty.”[11] Nonetheless, it is worth keeping an eye out for them to give yourself ideas.

II. Common Critiques

Any discussion of repetition of phrasing has at least two common criticisms. First, such repetition is showy and ornamental, or is more well-suited for oral than written communication. Second, such repetition is far too time consuming to work into a legal brief, especially given the small payoff. Both criticisms are true, sometimes.

Like any rhetorical device, repetition of phrasing becomes showy and ornamental when it draws the reader’s attention to it—“it” being your choice to repeat phrasing. Readers tend to notice a writing technique only when that technique does not fit; it stands out for one reason or another. In these cases, any technique can become showy, ornamental, and have little payoff. In fact, it probably hurts your brief by being distracting. Even if you get credit for being a wordsmith, your argument suffers as your reader admires you and not your position. But when used selectively and seamlessly, repetition of phrasing is a worthwhile technique.

III. Superfluous Phrases

Sometimes we inadvertently combine two terms that mean the same thing, yielding superfluous repetition: “absolutely certain,” “added bonus,” “difficult dilemma.” Some books list dozens of such commonly used phrases.[12] It’s unlikely any writer has the time to review these lists while proofreading a brief. But skimming these lists and keeping an eye out for such phrases is worthwhile.

IV. Use Repetitive Phrasing to Make a Point

Sometimes repetition is part of a larger technique. Here are some ways to weave repetition and paragraph structure together to make a powerful point.

Repeat a paragraph structure to emphasize a reappearing (and helpful) fact.

As he turned the first corner, he heard the radio announcement about I-70 closing due to bad weather. Tractor trailers were flipping. But the Plaintiff continued on anyway.

As he turned the second corner, he saw skid marks and two cars crashed into the guard rail. But the Plaintiff continued on anyway.

As he turned the third corner, he skidded and regained control just in time to barely avoid crashing into another car. But the Plaintiff continued on anyway.

And then he came to the corner where the accident occurred.

Here, the repeated phrase and its location emphasize a key fact for the defense: the Plaintiff repeatedly rejected signs to turn around and instead chose to continue into bad conditions. Unlike the tedious repetition of a particular fact, here the same fact keeps reappearing. The repetition of phrasing helps draw the reader’s attention to it.

Use repetition to establish a pattern and then break the pattern.

We often think of repetition as a way to draw the reader’s attention to what is being repeated. But you can use it for the opposite effect too—to draw attention to the only thing not being repeated.

Here is one way to make a point: “In every other training of 2018 the safety instructor identified a radio channel. The only time the instructor did not was the training that injured Firefighter Smith.” Here’s another way:

The Department’s Safety protocols revised in January require that before any live fire training the safety instructor (1) take all trainees through the building to identify all exits, (2) assign teams, and (3) identify the radio channel.

At the February live fire training, the safety instructor began by taking trainees throughout the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the March live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then the instructor identified the radio channel.

At the April live fire training, the safety instructor began by taking trainees through the building to identify all exits. Then the instructor assigned teams. And then, training started.

No one identified a radio channel.

Combining repetitive language and structure can establish a pattern—here a routine or procedure. The repetition blends together, establishing a cadence for the reader. The break in that pattern draws attention to the only thing not repeated: a key fact. Here, the repetition both draws attention to a key fact and highlights how that fact is inconsistent with a trend.

V. Conclusion

Don’t dismiss repetition of phrasing as too showy or too difficult. Call upon this tool when you need to.


[1] Bruce Ross-Larson, Stunning Sentences: The Effective Writing Series 40 (1st ed. 1999).

[2] Silva Rhetoricae, Figures of Repetition, http://rhetoric.byu.edu/Figures/Groupings/of%20Repetition.htm (last visited Dec. 27, 2018).

[3] Silva Rhetoricae, Alliteration, http://rhetoric.byu.edu/Figures/A/alliteration.htm (last visited Dec. 27, 2018). Bruce Ross-Larson, supra note 1 at 42 (repetition of prefixes and suffixes).

[4] Silva Rhetoricae, Paroemion, http://rhetoric.byu.edu/Figures/P/paroemion.htm (last visited Dec. 27, 2018).

[5] Known as homoioteleuton or homoioptoton. Silva Rhetoricae, Homoioteleuton, http://rhetoric.byu.edu/Figures/H/homoioteleuton.htm (last visited Dec. 27, 2018); Silva Rhetoricae, Homoioptoton, http://rhetoric.byu.edu/Figures/H/homoioptoton.htm (last visited Dec. 27, 2018). See also Bruce Ross-Larson, supra note 1 at 42-44.

[6] Martin Luther King, Jr., “I Have a Dream” (August 28, 1963).

[7] Winston Churchill, “We Shall Fight on the Beaches” (June 4, 1940).

[8] Silva Rhetoricae, Anaphora, http://rhetoric.byu.edu/Figures/A/anaphora.htm (last visited Dec. 27, 2018).

[9] Abraham Lincoln, “Gettysburg Address” (November 19, 1863).

[10] Silva Rhetoricae, Epistrophe, http://rhetoric.byu.edu/Figures/E/epistrophe.htm (last visited Dec. 27, 2018).

[11] Obergefell v. Hodges, 135 S.Ct. 2584, 2600 (2015).

[12] Mark Nichol, 50 Redundant Phrases to Avoid, https://www.dailywritingtips.com/50-redundant-phrases-to-avoid/ (last visited Dec. 27, 2018). See also Bruce Ross-Larson, Edit Yourself: A Manual For Everyone Who Works With Words 1-6 (1996); Robert Harwell Fiske, The Dictionary of Concise Writing 47-396 (2d ed. 2006).

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: Colorado Court Must Recognize and Give Effect to South Carolina Liquidation Order

The Colorado Court of Appeals issued its opinion in Garrou v. Shovelton on Thursday, January 24, 2019.

Interlocutory Appeal—Uniform Insurers Liquidation Act—Federal Liability Risk Retention Act—Enforcement of South Carolina Order.

The Garrous sued Shovelton, among others, for medical malpractice. Shovelton’s malpractice insurer is Oceanus, a South Carolina industrial insured captive corporation formed as a risk retention group. In 2017, a South Carolina court issued an order commencing liquidation proceedings against Oceanus that, among other things, imposed an injunction and an automatic stay of proceedings against the insurer, its assets, and its policyholders. Shovelton moved to stay the proceedings based on the South Carolina order. The district court denied the motion, and Shovelton moved for C.A.R. 4.2 certification of the court’s order denying the stay.

On appeal, Shovelton contended that the district court erroneously denied his motion for stay because Colorado and South Carolina are reciprocal states under the Uniform Insurers Liquidation Act (UILA), so Colorado must give full faith and credit to any injunction order in a liquidation proceeding. Because Colorado and South Carolina are reciprocal states under the UILA, Colorado must recognize South Carolina’s order. In addition, the Federal Liability Risk Retention Act of 1986 governs risk retention groups and requires Colorado to honor the South Carolina order. South Carolina has jurisdiction over Oceanus and its policyholders, including Shovelton. The district court erred in denying the motion for stay as to Shovelton.

The order was reversed and the case was remanded with directions to stay the proceedings as to Shovelton and to enter any further orders deemed necessary and appropriate as to the remaining parties.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Insurer’s Notice of Cancellation Must Be Accurate or It Is Ineffective

The Colorado Court of Appeals issued its opinion in Brown v. American Standard Ins. Co. of Wisconsin on Thursday, January 31, 2019.

Automobile Insurance Coverage Cancellation Requirements—Accuracy of Reason for Cancellation.

In March 2014, Brown purchased motorcycle insurance from American Standard Insurance Co. (American Standard). In August 2014 American Standard mailed Brown a notice that it was cancelling his policy for lack of a driver’s license. In September 2014, Brown was involved in a motorcycle accident. He made a claim against the American Standard uninsured/underinsured motorist coverage. American Standard denied coverage for the accident, and Brown sued. American Standard moved for summary judgment. Brown filed a response to the motion supported by an affidavit attesting that he had a valid Colorado driver’s license both at the time of cancellation and on the date of the accident. The trial court concluded there were no issues of material fact and granted the motion.

Brown appealed the summary judgment. Colorado law requires insurers to strictly comply with statutory and contractual requirements when canceling an automobile policy. A cancellation notice, other than one for nonpayment, must include either a reason for cancellation or a statement that a reason will be provided upon request. It is implicit in these requirements that the stated reason for cancellation be factually accurate. The court of appeals held, as a matter of first impression, that when an insurer provides a reason for cancellation the reason given must be accurate or the notice of cancellation is ineffective. Here, there is a disputed issue of material fact as to whether Brown had a valid driver’s license at the time of cancellation, and the trial court erred in treating the cancellation notice as dispositive on summary judgment.

American Standard contended that its policy cancellation was effective regardless of whether the cancellation reason was inaccurate because Brown didn’t contest the cancellation until well after the accident and not before filing suit. The fact that Brown did not challenge the cancellation before bringing suit on the policy did not constitute a waiver of his right to sue under the policy or a ratification of the allegedly improper cancellation.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: If More than Six Years Have Elapsed Since Entry of Judgment, Judgment Creditor Must Revive Judgment Prior to Asserting Lien

The Colorado Court of Appeals issued its opinion in Security Credit Services, LLC v. Hulterstrom on Thursday, January 24, 2019.

Civil Procedure—Creditors and Debtors—Judgments—Judgment Liens—Revival.

In 2010, the district court entered a money judgment in favor of plaintiff. In 2017, Marshall Recovery II LLC (Marshall) filed notice with the district court that it had purchased the money judgment from plaintiff. Soon thereafter, but more than six years after entry of the judgment, Marshall moved under C.R.C.P. 54(h) to revive the judgment. The district court denied the motion.

On appeal, Marshall argued that the trial court erred in denying its request to revive the judgment. A creditor may obtain a judgment lien at any time during the 20-year life of the judgment, but if more than six years have passed since entry of the judgment, the creditor must first revive the judgment and record the transcript of the revived judgment. This is true whether or not the judgment creditor previously obtained a judgment lien. Here, not more than 20 years had passed since the judgment entered, so Marshall was entitled to revive the judgment to obtain a judgment lien.

The order denying the motion was reversed and the case was remanded to address the motion

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Burden to Prove Collectability of Judgment in Underlying Case Lies with Claimant

The Colorado Supreme Court issued its opinion in LeHouiller v. Gallegos on Monday, January 28, 2019.

Attorney Malpractice—Burden of Proof—Tort.

In this attorney malpractice case founded on professional negligence, the supreme court was asked to decide who—the client or the attorney—bears the burden to prove that any judgment that could have been obtained against the underlying defendant would or would not have been collectible. The court held that because the collectibility of the underlying judgment is essential to the causation and damages elements of a client’s negligence claim against an attorney, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.

Here, the record shows that client-plaintiff failed to prove that the underlying judgment would have been collectible. However, given the absence of a clear statement from this court regarding client-plaintiff’s burden to prove collectibility at the time of trial, and given that the issue was not raised in this case until after client-plaintiff had presented her case-in-chief, the court reversed the court of appeals’ judgment and remanded the case for a new trial.

Summary provided courtesy of Colorado Lawyer.

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 Supreme Court: Prejudgment Interest Applies in Garnishment Proceedings

The Colorado Supreme Court issued its opinion in Thompson v. Catlin Insurance Co. on Monday, December 10, 2018.

Appellate Mandate—Garnishment—Prejudgment Interest.
At issue in this garnishment proceeding was the amount of insurance proceeds owed to petitioners. The court of appeals grappled with the amount of this debt on four separate occasions. In Thompson v. United Securities Alliance Inc. (Thompson IV), 2016 COA 128 ¶ 27, __P.3d __, a division of the court of appeals upheld the district court’s determination of attorney fees and costs that the insurance company may deduct from the liability limit under its policy. It is this decision in Thompson IV about fees and costs that the supreme court reviewed here. First, it addressed whether the Thompson IV division erred when it upheld the district court’s decision to consider new evidence on remand from Thompson v. United Securities Alliance, Inc. (Thompson III), No. 13CA2037 (Colo. App. Oct. 16, 2014). Because the Thompson IV division reasonably construed the mandate issued by the Thompson III division, the supreme court perceived no error. Second, it addressed whether the Thompson IV division erred when it held that petitioners are not entitled to prejudgment interest in a garnishment proceeding. The court concluded that the division erred. Petitioners are entitled to prejudgment interest under C.R.S. § 5-12-102. Accordingly, as to the first issue, the court of appeals’ judgment was affirmed. As to the second, it was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unnecessary Presence of Parents at Initial Consultation Voids Attorney-Client Privilege

The Colorado Supreme Court issued its opinion in In re Fox v. Alfini on Monday, December 3, 2018.

In this original proceeding pursuant to C.A.R. 21, the court reviews the district court’s order compelling production of a recording of the Petitioner’s initial consultation with her attorney. The district court determined that the recording was not subject to the attorney-client privilege because her parents were present during the consultation and their presence was not required to make the consultation possible. Further, the district court refused to consider several new arguments that the Petitioner raised in a motion for reconsideration.
The supreme court issued a rule to show cause and now concludes that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that the Petitioner had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, the court perceives no abuse of discretion in the district court’s ruling that the recording at issue was not protected by the attorney-client privilege.
The court further concludes that, under settled law, the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Accordingly, the court discharges the rule to show cause.

Summary provided courtesy of Colorado Lawyer.