Friday, September 23, 2011

Get to the point, already, whether you write pleadings or opinions.

The U.S. Court of Appeals for the 7th Circuit hammered an attorney for his poor writing, and sustained dismissal of his second amended complaint on the grounds of "unintelligibility." In Stanard v. Nygren, decided September 19, 2011, the three judge panel ripped counsel with this elegant admonition:

 ...the district court was well within its discretion in refusing to accept Stanard’s proposed second amended complaint. We agree that it crossed the line from just “unnecessarily long” to “unintelligible.”Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency. Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general “kitchen sink” approach to pleading the case.

The court discerned that "[a]t least 23 sentences contained 100 or more words. This includes sentences of 385, 345, and 291 words but does not include sentences set off with multiple subsections"  The court quotes the longest, in full, at footnote 7, which begins on page 13 of the opinion.  I'll spare you the full quote, but do click the link and give it a read.  Consider it your "puzzler" of the day (if you listen to NPR's "Car Talk," you get my reference).

When you cruise this opinion you might chuckle at the lawyer's expense, or you may even gasp at the horror of his writing.  But I think the appellate judges were just a tad showy in their slap down of this fellow.  Really, now, "prolixity?"

I tell the young folks in the office, try not to write like a lawyer....and, above all, don't write like a judge.

But there are examples and lessons in good writing readily available, if you want to delve into self improvement. If you have free time (and what litigator doesn't??), read Justice Scalia's 205 page book entitled Making Your Case, the art of persuading judges. It is co-written with Bryan Garner, an accomplished speaker and lecturer on the subject of legal writing.  Mr. Garner's most recent book is Legal Writing in Plain English. The exercises will make you feel like a college freshman, again, but they are well worth an hour of time.  You will remember how much you have forgotten!  And, finally, take a run through one of Mr. Garner's other books, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.  I keep this one on my kindle. It can be read in small bites, while you are waiting for your case to be called on the morning docket. I alternate between this and The Art of War (not a litigation book, certainly, but with many congruent principles) and The Tragedy of Pudd'nhead Wilson (I can't explain why, but it's been a favorite since I was a kid).

And let me push one last book on you, Typography for Lawyers, by Matthew Butterick. His premise is that lawyers don't fully accept the role of "professional writer," and thus limit any improvement in our writing to the words used, and not the appearance of those words on the page.  Our word processing programs are tools that should make briefing easier and more persuasive, in conjunction with our prose. By way of example, Mr. Butterick shares simple facts about why wider margins make for better briefs, because of the imperceptible shifting of the reader's eye as he scans across the width of the page.  Each physical movement causes an interruption in comprehension by your audience.  And why on earth do any of us manipulate the font to give the appearance of a typewritten pleading?  There are so many good reasons to bring your views on brief writing current, with 21st Century thinking. Give it read!

Saturday, September 10, 2011

Don't skimp on your affidavits if you expect summary judgment

I am just back from a wonderful vacation in the Berkshires of Massachusetts, catching up on recent decisions.  On September 7, 2011 a Florida appeal out of Palm Beach was widely reported because it involved a failed foreclosure. The headlines trumpet the "further complications" for other pending foreclosure cases in Florida.  The various blogs and listserves trumpet this as yet another smack down for lenders and servicers.  *yawn*

This case is an ordinary, plain vanilla, and rudimentary decision about application of the rules of evidence. It has little to say about the validity of mortgages, standing to foreclose, or "robo-signing."  It is simply another admonition to trial lawyers (regardless of the area of concentration or specialty) to adhere to the rules of evidence for the authentication of business records and the data they contain when seeking judgment. Period.

But first, please enjoy the view I had from my relative's boat, last week, and then I'll explain a bit about the court opinion:

Gary Glarum's lender, LaSalle Bank, sued to foreclose on a defaulted mortgage loan. Florida conducts its foreclosures a bit differently than here, in Maryland, and requires a judgment of foreclosure. The lender filed a motion for summary judgment, supported by the affidavit of a "specialist" employed by the lender's loan servicer (a different entity, as is usual). Judgment in favor of the lender for the full amount of the claimed indebtedness was granted on the strength of the facts presented in the "specialist's" affidavit, and Mr. Glarum appealed.  The appellate court reversed, in a reported opinion.

The Florida appellate court held that the affidavit of the "specialist" was bad evidence.  It was hearsay, based on facts contained in a computer database.  Now, ordinarily, a witness can rely on data kept in the ordinary course of business.  But in this case, the data had been migrated from another loan servicer's system, had been entered by others, and was thus not considered the business record of this particular entity employing the witness.  I think the most troubling aspect for the court was the lack of any verification by the succeeding loan servicer.

In prior posting on this site, I've stated the opinion that a court does not sit to cure deficiencies in my evidence. This case underscores this simple point.  An affidavit that simply regurgitates data from a screen shot will not convert hearsay into an admissible business record.  The Florida decision quickly runs through the elements of its evidence rule on business records.  It is similar to Maryland's evidence rule.

The crux of the matter is trial counsel's willingness to push the lender/client to conduct a proper investigation into the calculation of the debt or element of damage, and to then draft a proper affidavit.  In the Florida case, the "specialist" was deposed, giving trial counsel another shot to prepare the witness so that the underlying data could be explained.

This is a simple point, and one that is lost on most lenders and servicers who delegate trial preparation to very low level employees, or worse, to designated corporate witnesses who fly around the country to recite whatever counsel puts in their hands a few hours before trial.  This annoys me, endlessly.  But did I mention that I am just back from a wonderful vacation in the Berkshires?  I thus refuse to be annoyed, and choose, instead, to reflect on last weeks more tranquil moments, as the ice slowly melted in my glass....see you in court!