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!

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!

The difference between clogged arteries and clogged rights of redemption

Poor circulation or shooting pains in your arms might suggest a trip to your doctor for lack of proper circulation in your arteries, but how do you know if your redemption rights have been clogged?  And why should you care? And is it fatal?


If you have even heard the phrase "clogging the equity of redemption" before, congratulations!   If you harbor an interest to know more, then you are very special, indeed.  I had not given this legal concept much thought, until a recent exchange between several very bright colleagues on the Maryland State Bar Listserves.  And if the cool kids are talking about it, well, then count me in, too!


What is the equity of redemption? Imagine you had but one remaining payment to make to your bank, but because your payment was made one day late the bank took ownership of the property....the whole thing...lock, stock and barrel. That is the harshest of harsh results. Since the reign of Charles I, the common law has recognized that a mortgagor remains at high risk to lose title to his land right through the last payment, and has fashioned a doctrine that permits some leniency for the temporarily defaulting debtor. (follow this link to a first person account of the execution of Charles I in 1649)


The common law evolved to recognize that a mortgagor has the right to reacquire clear title to the property pledged as security upon repayment of that debt, plus interest. This is your "equity of redemption." You can find a more "lawyerly" description in a motion for summary judgment I filed, several years ago.( I have redacted information about the parties' identities and the property location.) 


Maryland takes a strong public policy position against documents that preemptively strip a borrower's right to exercise this redemption in the future.  But some private, or "hard money" lenders continue to require a borrower to execute a deed in lieu of foreclosure, when the loan is made, as added protection to the lender in case of default.  The deed in lieu is then filed away until the borrower misses a payment....and then it is pulled from the file, dusted off, and recorded in the land records.  And just like that, the borrower's title is lost to the lender, without a foreclosure action ever being filed.


This morning, I stumbled on an exchange of questions/answers on the Maryland State Bar Listserve that questioned application of the rule against clogging the equity of redemption in foreclosure cases, where a deed in lieu is negotiated AFTER the foreclosure is filed, but BEFORE the sale.


One very able foreclosure lawyer, Jeff Fisher, posited that:

The purpose of foreclosure is to put the property to a public sale so that a price for it can be obtained and, if the price is sufficient to satisfy the debt, the excess proceeds are available for the benefit of the mortgagor or those who claim under the mortgagor. It is a fundamental right. All deeds in lieu of foreclosure are subject to equitable scrutiny, even when the deed in lieu is negotiated after default occurs. If the mortgagor is just giving his equity away to his mortgagee, how is that not a clog on the equity of redemption.

Another very bright and capable lawyer, Byron Huffman, posted this rejoinder:

I respectfully disagree with Jeffrey as to the “clog on redemption” where a deed in lieu is executed post-default.  At that point, the DIL is a negotiated instrument for valuable consideration.  The clog on redemption occurs where there is no present intent of conveyance whether in connection with the original loan transaction or in connection with, say, a loan modification or forbearance.  That in my view always results in a deed in the nature of a mortgage.  Title insurance counsel may disagree with me, but where there is a negotiated DIL and a present intent of conveyance, a sale thereafter to a bona fide purchaser would be unassailable

This exchange caused me to go back through my old research. I found that in 1892, a published treatise on Maryland property law said "[t]he right to redeem, even in a mortgage context, can be itself divested by a valid mortgage foreclosure sale, or by a waiver made subsequent to, and outside the mortgage instrument itself." (you can buy the book, on Amazon, if you are a legal history buff, for about twenty bucks).

The Venable treatise continues to be quoted by the Maryland appellate courts. It was most recently quoted authoritatively in late 2010. This leads me to agree with Mr. Huffman. A deed in lieu that is negotiated later, after the initial loan transaction, should not be deemed to clog the equity of redemption. To borrow Venable's words, the waivers made in the deed in lieu are subsequent to the loan transaction, and are "outside the mortgage instrument itself."


So, my title friends, here's what I conclude: A deed in lieu that is given in the course of a foreclosure proceeding is not an impermissible clog of the equity of redemption. It is a subsequent waiver of the right of redemption.

Time for recess! Meet you all at the jungle gym.