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!