Hail To The Chief: In The Interest of E.R.
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You know, I hear all the time about what a great advocate and Supreme Court practitioner Chief Justice Roberts was.
And one cannot help but admire the quality of his writing or the clarity of his prose, whether one likes the outcome or not.
But you know what? We've got a chief justice here in Texas too. And for my money, Chief Justice Jefferson is one of the best, clearest, and most persuasive writers around.
What makes his writing work? What makes it effective? His recent opinion for the court, In the Interest of E.R., is a fine example. After the jump, I'll offer my humble homily on what makes good writing good, and we'll use the Chief as an example.
Follow the Chief, and you can make your writing gooder too.
What makes good writing work? How do you communicate the information a reader needs with the minimum amount of effort by the reader and the maximum amount of persuasive force.
One of things that gets the job done is an effective introduction to orient the reader. (Go here or here or here or here for previous posts on this topic. Yeah, I think this is important).
Without an introduction, a reader can feel kidnapped and dropped off in the middle of the night on the side of the road to find their way home alone. With an introduction to highlight what the issue is, how the issue is decided, and why, and the reader knows where they are going and why.
One is a felony. The other is a day trip. You make the choice.
In re E.R.is a great example of an effective intro. Chief Justice Jefferson not only reveals very clearly what the issue is, but he makes a plug for why the issue is important and why the court reached the decision it reached:
When the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures. The most basic of these is notice. If the State cannot deliver notice in person, it may try other means that will likely reach the parent. We consider today whether serving the parent in a newspaper advertisement, “a poor and sometimes a hopeless substitute for actual service,” is constitutionally acceptable when the State knew the mother’s identity, was in regular contact with her, and had at least one in-person meeting with her after it sued to terminate the legal rights to her children. We conclude that the substituted service was poor, hopeless, and unjustifiable under these circumstances.
With that, you can hardly imagine the issue coming out any differently. Mind you, this is a very, very unsympathetic parent who may well, and with justification, ultimately lose her parental rights. But with that, the rest of the opinion makes sense. If you are talking to the mom, whether she's a good mom or a bad mom, substituted service is "poor, hopeless, and unjustifiable."
What else makes the opinion work? The story. Regular readers will know how often I rant on story (like this and this).
Cases involving notice, like this one, turn on who told what to whom and when. What did she know and when did she know it? Written poorly, the factual section of the opinion becomes a maze of dates worthy of a football coach's multiple choice history quiz. The reader is forced to get out a piece of paper or a calendar and construct a time line.
But written well, the events are highlighted for their importance in the story by showing their proximity to other events. THAT is how Chief Justice Jefferson does it. Read the fact section for In re E.R. and you will find nary a sentence that begins with the trial lawyer-eze like "On June 17, 2007 . . . ." Instead, you will find sentences like:
Several months after removing L.R.’s four children from her home and becoming their temporary managing conservator, the Department of Family Protective Services petitioned the trial court to terminate L.R.’s parental rights. . . .
The Department published the citation, and the trial court conducted a final hearing. L.R. did not appear. The hearing transcript spans twelve double-spaced pages. . . . .
[The case worker] stated that L.R. had visited the children at the Department’s offices a month before the termination hearing. . . .
Finley testified that the children had been living with her for approximately six months, that they were happy, and that she planned to adopt them. . . . .
The trial court terminated L.R.’s parental rights as well as those of the putative fathers, and it appointed the Department permanent managing conservator.
L.R. moved for a new trial within two years of the judgment. . . .Three months after briefing had been completed, the Department filed an amended brief, now arguing that section 161.211 absolutely barred challenges made more than six months after the order was signed, . . . .
I got curious. Did the parties give the court briefs that logically set forth the story with relative dating? Nope. The legal analysis in the briefing is clear and well written, but nobody told the story. The lawyers just could not resist giving a recitation of the dates in their pleadings when none of the dates actually matter--only the order in which they occurred and the time that passed between them.
On the rare occasion that the Chief feels that precise dating is necessary, he either drops it to a footnote, or puts it into a portion of the sentence that de-emphasizes its importance and leaves the flow intact.
(This, too follows my Nerdlaw convention of using footnotes to consciously de-emphasize material.)
It's not like Chief Justice Jefferson needs my approval. In re E.R. is the law whether it's well-written or not. Nevertheless, I give it high marks and would note that one can open any random opinion by the Chief and find this same sort of thing: the law clearly stated and easy to read.
So, there you have it, campers. If you want to do it right, find someone who already knows how and see what they do. Then, go thou and do likewise.
Welcome to the Appellate Record-- --the online community and virtual watering hole for appellate lawyers and anyone else who is comfortable with their inner law nerd.
Extending the appellate deadlines in termination and/or adoption suits should be done with great care. The court made a huge mistake in extending the appellate deadline. In the Interest of M.N., 262 S.W.3d 799, 803 (Tex. 2008) the court held that that Family Code did not indicate legislative intent to unfairly or unreasonably preclude parents from appealing final orders. Note the court did not overrule the statute on the grounds it was unconstitutional, but that it was "unfair."
Justice Willet pointed out the flaw in this logic when he wrote " “ For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.
“I fully understand the Court's desire for leniency in enlarging the fifteen-day deadline beyond the statute's terms. Appealing the termination of one's parental rights is serious business, and having such rights vanish because of a counsel's (or pro se litigant's) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible."
While I understand the court's desire to ensure that orders are not void, there was no need to make this very sloppy case create bad law. This is a case of very sloppy trial and appellate work.
The Chief Justice Pointed out in his opinion that the mother appeared to hearings late. If the mother appeared at hearings, she waived any defect in service of process. I do not understand why this case was remanded. It was clear in oral arguments that the mother attended hearings. The interesting legal question may be, did she attend court hearings or administrative hearings at the offices of Child Protective Services. I would argue that in either instance the mother waived any potential defect in service of process. Often there is a recorded record made of these proceedings. The legal proceedings are always discussed. So the fact that the mother knew about and went to, whether late or otherwise a hearing, places her properly before the court.
An interesting factual noted that can be gleaned from the rebuttal argument of the mother's attorney during oral arguments is that the maternal uncle not the mother hired the attorney and was in contact with the attorney. Her attorney admitted in his rebuttal that he was not sure if he could contact his client but was pretty sure he could. What appears to have happened is that CPS was going to allow the aunt and uncle to adopt. From Medina's questioning in Oral argument it is clear that did not happen. The family of the mother now no longer knows where the children are. This means that the mother's family had the children and filed suit, using the pretext of the mother not being properly served to get back before the court two years later when CPS took the children from them. You have to listen carefully to Medina's questioning of the State and the final rebuttal of the mother's attorney to put these facts together.
Take another look at the post and you will find that I am not commenting on the substance of the decision, whether it was right or wrong, or even if it is a good idea, only the quality of the writing.
What your comment points out to me is that, even in the best of circumstances, the state is a poor substitute to a properly functioning family--a reality that lawyers ought to take more deeply to heart when invoking the power of the state in family law matters IMHO.
The only case that ever kept me awake at nights involved the destiny of a child with two parents who were unworthy of the job.