Write As I Say, Not As I do
We almost take it as a given that lawyers can’t write. (Just don’t tell Scott Turow or John Grisham.)
Why is that so? Why can’t lawyers write? At least in part, I think it is because we read so much bad writing when we are learning to be lawyers. Think of all the turgid prose and passive voice and inscrutable jargon in all those cases you had to read in law school. With that as a model, little wonder that baby lawyers thrive on writing the unreadable.
And judges are still giving us the kind of writing they tell us that they don’t like. After the break, an example taken from the recent Civil Appellate Practice Conference and the paper authored by Chad Baruch.
When we judges see a date or a series of dates, or time of day, or day of the week, . . . most of us assume that such information presages something of importance and we start looking for it. But if such detailed information is purely surplus fact and unnecessary minutiae, you do nothing by including it other than to divert our attention or anticipation from what we really should be looking for. In essence, you will have created your own red herring.
I heartily share Judge Wiener’s frustration. Dates are distracting. They only confuse me and leave me wondering, “Is this going to be on the test?” More than once I have wanted to hurl myself from the office window upon reading work product whose only reason for being was to regurgitate a chronology from the trial lawyer’s three ring binder.
A much better approach is what Baruch calls, “relative dating.” This technique simply puts events in relation to each other and gives useful information about the passage of time where it matters, such as:
- before
- after
- very shortly or
- more than two years after the accident
I doubt anyone (other than an unrepentant trial lawyer) would disagree with this. But one need not look far to find unnecessary dates in a judicial opinion.
The Supreme Court’s final opinions from last term included Christian Legal Society v. Martinez, which includes these sentences in its factual recitation:
Founded in 1878, Hastings was the first law school in the University of California public-school system.
* * *
From Hastings’ adoption of its Nondiscrimination Policy in 1990 until the events stirring this litigation, “no student organization at Hastings . . . ever sought an exemption from the Policy.” . . .
In 2004, CLS became the first student group to do so.
* * *
On September 17, 2004, CLS submitted to Hastings an application for RSO status, accompanied by all required documents, including the set of bylaws mandated by CLS-National.
* * *
On October 22, 2004, CLS filed suit against various Hastings officers and administrators
These dates had nothing to do with the First Amendment question pending before the court. And they really did not advance any narrative story being told. They were just there, taking up mental and physical space.
And the Fifth Circuit’s recent per curiam opinion in Smallbizpros, Inc. v. MacDonald contains both unnecessary dating and stilted syntax such as "upon the filing" and "prior to":
MacDonald argues that the district court’s jurisdiction ceased on August 7, 2009, upon the filing of a voluntary “Stipulation of Dismissal”
* * *
Immediately prior to a hearing scheduled for July 30, 2009, the parties orally agreed on settlement terms. The parties read the terms of their agreement into the record at the hearing. The district court asked that the parties reduce the terms to a writing to be signed by the judge. On August 7, 2009, the parties filed the Stipulation . . .
The district court signed the Order on August 14, 2009.
The issue in the case did depend on timing, but all that mattered was that the language of the dismissal order did not retain jurisdiction to enforce the settlement agreement after the district court’s jurisdiction had expired. None of the dates matter, so why not write it this way:
Right before a hearing, the parties agreed to settle. They read their oral agreement into the record at the hearing, but the court asked them to prepare a written agreement for the court's signature. They did so, and one week later the court signed an order of dismissal. MacDonald contends that the court’s jurisdiction ceased when they filed the written stipulation of dismissal.
I believe the children are our future.
Let's teach them well and let them lead the way.
Let’s save them from having to read our own bad writing.
Judges and practitioners alike: every time a date appears in a draft, let us presume that it ought to be deleted or rewritten with relative dating. Rare is the exception when the date actually counts
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