Lawyers['] Writing Wrongs

2008-05-16T06:49:00.000-07:00

This issue became moot when [defendant] filed it’s unopposed motion to
withdraw it’s Eleventh Amendment immunity assertions.

How do people get all the way through law school without understanding its v. it's? Misuse of either should result in automatic bar failure.

2008-05-07T07:55:00.000-07:00

Plaintiffs rely on [affiant's] affidavit which is not only inadmissible
hearsay, it is incorrect.

Counsellor, I can excuse a failure to pair "not only" with "but also." It happens, though I don't like it. You have also, however, managed to generate both a comma splice and a comma omission in the same sentence. Wow.

No vernacular. Please.

2008-04-21T14:01:00.000-07:00

Initially, it is beyond curious that a buyer, acting through a trust, buys
property for all cash, no contingencies, days after the death of a former owner,
without offers or counter-offers, no escrow, and no title. In today's
vernacular, “What's up with that?”

Stop trying to be cute! The law is not cute. Lawyers are not cute, nor are briefs. Accept it and move forward. Counsellor, you will then realize that there is no reason to say "What's up with that" in a brief.

Excluding historical linguistic analysis and possibly a few other contexts, "today's vernacular" is generally redundant.

You just tried to get too fancy, counsellor.

2008-04-21T13:51:00.000-07:00

"This belies the falsity of the [habeas] applicant's tape-recorder claim."

FAIL.

Many of us grieve our employment decisions daily.

2008-03-11T13:38:00.000-07:00

[The] County has adopted policy and procedures for grieving adverse
employment decisions.

Yes, there is a procedure. You can remember it with the helpful mnemonic DABDA¹: First you're in Denial about the adverse employment decision. Then you get Angry about the adverse employment decision. You begin to Bargain with God/boss about the adverse employment decision. Eventually you become Depressed about the adverse employment discrimination, but eventually you will Accept the adverse employment decision. It's a long process, but you just have to work through it.

¹ I can't say I ever expected to find myself linking to About.com for wisdom on death.

It's not a pinata, but it's still pretty sweet.

2008-02-23T17:37:00.000-08:00

Oh, pinatas. Often I think back on the pinata brief, fondly of course. Such good times, so many laughs. [A video montage of my feelings on this matter would be set to the song "This used to be my playground." But that is neither here nor there.]

I miss the pinata brief. And while bad writing is everywhere, sometimes it lacks panache. I find myself wistfully sighing, "Where have all the pinatas gone?" I've tried, with some success, to recapture the joy it brought me. In my darker moments, I think that I will never see another piece of legal writing so melodramatic, so poetically overwritten as that.

But like that last swing at the pinata, after several whiffs, finally connecting when you thought you'd again be the laughingstock of all the kids at the party, this single sentence brings me hope:

"On November 29, plaintiff declared the legal equivalent of nuclear war by serving its first amended complaint on defendant."

So simple, so good.

And I'm sure you're wondering, What, what absolutely egregious legal maneuver, beyond all bounds of legal legitimacy, did plaintiff do? With the benefit of the entire (not that interesting) brief, I can enlighten you, gentle reader: Pretty much just serving a complaint. About real estate. Seriously.

There should be a cause of action for this.

2008-02-19T14:58:00.000-08:00

These highly individualized claims are unique to each plaintiff.

Intentional infliction of unnecessary words.

And now he has inflicted it on us.

2008-02-01T11:13:00.000-08:00

"He has inflicted this self inflicted wound on himself."

2008-01-16T08:51:00.000-08:00

The use of "clearly" never bodes well:

Clearly, on the basis of these individuals' own sworn statements, their claims are vastly different and not similar at all.

One cliche is worth...

2008-01-16T06:03:00.000-08:00

"One accurate document is worth a million false ones (actually much more)."

Where to begin?

2008-01-14T14:32:00.000-08:00

The Second segment of uncompensated occurs during the Plaintiffs uncompensated thirty (30) minute meal/rest break.. Defendant's have deliberately instituted a time keeping system which forces Plaintiffs to work during their 30 minute rest period for no compensation.

Originally, I inserted "sic"s. But the quote just became too visually cluttered. So instead, LWW offers this passage as a Wednesday morning challenge: Can you find five grammatical errors in the above?

It's a small point, really.

2008-01-04T13:11:00.000-08:00

Counsellor, I understand you're busy. You have many things on your mind. You have footnotes to drop, cases to cite, parentheticals to craft. Perhaps the details slip through the cracks. I also understand that spellcheck does not review words in all caps, because it believes they're acronyms.

Nonetheless, please do whatever is necessary not to type "breif" in the title of your brief.

Make utilization of this.

2008-01-02T15:30:00.000-08:00

I hate "utilize." It has no purpose but to make a sentence longer and less clear. There is virtually no situation in which "utilize" would not better be "use."¹ "Make use of" is equally annoying.² But one example:

The question is one of [defendant's] mindset in utilizing [read "using"] the lease agreements. What was [defendant's] goal in utilizing [read "using"] the lease agreements?³

Counsellor, you are not in fifth grade any more, writing a book report on The Outsiders, which may be no shorter than four pages, else five points will be docked. Your brief can be as short as you want! No need to replace short words with long ones, I promise.

Over the holidays, as I pondered "utilize" and its equally ugly twin "make use of," I had a flash of verbose inspiration. I generated the Ubermensch of irritating, flabby phrasing: "make utilization of." So unnecessary! So annoying! Brilliant!

Alas, I had underestimated the legal profession's desire to wax verbose. This phrase, which I thought my own verbal Frankenstein, already lumbers through the public record, frightening all who encounter it.⁴ I regret to inform that I offer but a few examples:

While the initial filing fee for arbitration may indeed be higher to Plaintiff, this in and of itself is not sufficient to make utilization of the agreed upon forum impracticable in light of the fact that this cost can be fully recouped if Plaintiff is successful.
It is precisely these kinds of multiple party transactions, in which the involved parties rarely, if ever, deal directly with one another, that make utilization of the UCC's available protective filings crucial. Failure to utilize to full potential all the protection that the UCC affords leaves unsecured parties' interests inferior to those of parties who wisely follow UCC directives.
There have been occasions when the Court, after initially fashioning a per se rule for a certain type of conduct, has subsequently determined that the absence of demonstrably certain anticompetitive effect and the possibility of economic utility for such an arrangement make utilization of per se treatment unwarranted.

I'll note only that this last bullet point is doubly infuriating, because the entire phrase could not only be changed to "use" but could be struck out entirely.

¹A very smart man with a very cool webpage informs me that in two particular situations, "utilize" and "utilization" are the correct technical terms. LWW will assume without finding that he is correct. I submit, however, that these particular uses of the term (which are neither interesting nor relevant) have only become accepted jargon because the original jargonators wanted their jargon to sound longer and less clear, thereby making the jargonators more necessary.

² Arguably more so, because there's no jargon use to justify "make use of" at all.

³This brief actually uses "utilize" six times in twelve pages. My rage grows comprehensible, I hope.

⁴ It was almost, but not quite, as disappointing as the time I thought I had a really great idea, and slowly realized that I'd essentially invented cash money. But that is a story for another day.

Where have all the piñatas gone?

2007-12-20T06:33:00.000-08:00

Piñata Tuesday or Thursday is currently on shore leave, presumed drunk. We here at LWW would never leave port without it - because a voyage ain't a voyage without piñata to sing shanties to, drink rum with, and bugger - which leaves us at the mercy of the whims of piñata. With profuse apologies, followed by a prolonged period of uncomfortable silence while we wait for you to say 'I forgive you,' and then you don't, so we say 'maybe we should go,' and you say 'I think that's best,' and then it's all 'WTF? mate,' we contritely offer unto you the following gem in lieu of piñata:

This complaint is brought within a timely manner.

The next day, we send this over since you still aren't returning our calls:

[IMAGE WILL BE ADDED - BLAME BLOGGER]

The next step is to dig Reagan up and shoot him. You should really get back to us.

Not too lazy to blog, but too lazy to be original.

2007-12-19T12:45:00.000-08:00

Marmaduke's will is ten percent of property law and has veto power over the other ninety percent

Joe is the bomb.
http://marmadukeexplained.blogspot.com/2007/12/marmadukes-will-is-ten-percent-of.html#links

Stop. Please, just stop.

2007-12-14T06:35:00.000-08:00

(And I mean a full stop, as in a period.)

[Defendant] wants it both ways, it wants to convince this Court to change its own opinion that the lease agreement could in and of itself be a violation of the Act, and at the same time deny Plaintiff evidence to establish the overall corporate mindset and practice of utilizing the leases with its optometrists, all in the hope of being able to argue to this Court and undoubtedly the []Circuit Court of Appeals, that [Plaintiff] has not produced any evidence to establish the requirements for class certification, all the while having attempted to prevent her from acquiring such evidence from [defendant] itself.

By my estimate, this "sentence" should properly be about four. Of course, two of those four would be redundant and the remaining two would still be annoyingly verbose.

But the comma splice? Who does that? (!!?!)

Really?

2007-12-12T14:43:00.001-08:00

"[Defendant] did not produce any documents of a substantive nature beyond the six (6) pages that they did produce."

I've got a rhetorical question for you: WHY?

2007-12-12T11:32:00.000-08:00

The key and foremost issue in this case, at the class certification and liability stages, is what was the mindset and intent of [defendant] when issuing said lease agreements to optometrists; put another way, what did [defendant] know about what it was trying to accomplish by utilizing such leases, and when did they know it?

Counsellor, what do you know about what you're trying to accomplish?

2007-12-10T07:10:00.001-08:00

"Promises counsel made were erroneously false."

Thanks for encouraging the general bias against footnotes.

2007-12-05T12:45:00.000-08:00

"'Blue cards'¹ are an anonymous method for employees to complain to management."

¹ The anonymous complaint system uses cards that are blue in color.

2007-12-05T09:47:00.000-08:00

"Sharpening time is compensable as it is integral and indispensable to principal work activity of cutting meat."

2007-12-04T11:36:00.000-08:00

"[Witness] saw the noose and, in his mind, it could not have been anything other than a noose."

"And you shall know them by the trail of piñata..."

2007-12-04T06:11:00.000-08:00

Nothing beats a good piñata metaphor.* A good piñata metaphor is so satisfying that it's hard to stomach a poorly executed one. We here at LWW are 100% committed to generating dialogue on best practices for piñata metaphor in the hopes that no piñata metaphor will fail to live up to its potential, and no metaphorical candy loving children will be left behind. LWW: A catalyst for change.

Example:

Over the next few months, CIC apparently began to sense that claimants were circling ATG much like stick-wielding children around a piñata.

It's not bad, mind, but there is absolutely no excuse for a half assed metaphor about piñatas. This is my version:

Over the next few months, CIC apparently began to sense that claimants were circling ATG much like laser-wielding tiger sharks around a chum-filled piñata at a dystopian underwater birthday nightmare.

(Unfortunately, when the circling ceased, no money spilled out.)

Another example:

In competitive markets, an ILEC can't be used as a piñata.

My version:

In competitive markets, an ILEC can't be used as a piñata. What are you, some kind of fucking retard? Go back to Russia. Prick.

And finally:

If a litigant knows that he or someone aligned on his side has not consented, he can keep silent, and grant his consent if the magistrate judge decides in his favor, but withhold his consent and get another crack at the piñata if the magistrate judge decides against him.

This, I think, is the idea counsel is really trying to express:

If a litigant knows that he or someone aligned on his side has not consented, he can keep silent, and grant his consent if the magistrate judge decides in his favor, but withhold his consent and get another crack-filled piñata if the magistrate judge decides against him.

* Except for the metaphorical children, beating it with metaphorical sticks.

An Unnecessarily Literal Discourse on Metaphorical Geography

2007-12-03T09:08:00.000-08:00

While this is not as cringe-worthy as most of our selections here at LWW, the mind-blowing obviousness of the metaphor (or, perhaps more generously, its failure to synch up with the rest of the sentence in any illuminating way) earned it a spot.

This superficial agreement masks significant conflict, however, in the standards that the circuit courts use to identify the “rare and exceptional” cases that warrant equitable tolling. It also masks significant disparity in the frequency with which the various circuit courts grant equitable tolling to untimely habeas prisoners. Literally and figuratively, the courts are all over the map, and the chief determining factors in whether an untimely habeas petition will survive a motion to dismiss would seem to be the location of the prisoner and the court in which he files.

Was this written by 13-year-old aspiring John Grisham?

2007-11-29T15:44:00.000-08:00

If not, it's just embarrassing:

Defendant [prison guards] entered [plaintiff's] cell with plans for a party. And though [plaintiff] was invited to this party, his only purpose at this party was to be their personal pinata. Once Defendant[s] entered the cell they began putting a whooping on [plaintiff] like none he had ever experienced before. Each of the Defendant[s] took turns punching and kicking [plaintiff] in the head and torso of his body. Unfortunately, when the beating had ceased, no candy spilled out of [plaintiff], rather, he was left with three broken ribs from this brutal and savage attack.

1. Sorry for the excessive bracketing, but after a traumatic pinata experience, the guy deserves some anonymity. But not so much that his pain shouldn't be posted as fodder for amusement, of course.

2. To clarify for any non-lawyers out there, "putting a whooping" is not a term of art.

3. I think the head of my body is getting a headache. Of my body.

4. The metaphor was so good that the final comma splice was really gilding the lily.

Charging by the word now, eh?

2007-11-29T09:11:00.001-08:00

"Thus, in light of the facts of this case and the law governing the disputed facts, it becomes transparently obvious that current and former employees of Defendant, if do have "a right" to recover for any time spent performing the activities complained of in the complaint, if said activities were uncompensated. Other than compensability under the FLSA, a far more nebulous question to resolve (though readily ascertainable after discovery) is how much time is owed on an average is owed to class members."

Res Ipsa Loquitard

2007-11-28T10:15:00.000-08:00

"When reviewed in accordance with the facts in the Forte and Hood and Rast cases and the above legal authorities, the question is presented - what difference results in deciding the issues surrounding Plaintiff's motion to consolidate, whether in the manner in which Plaintiff seeks or in the manner in which Defendant seeks? The answer is none, with one big exception."

The One that Got Away was Even Bigger!

2007-11-28T10:12:00.001-08:00

From a pro se litigant, explaining why 28 USC 2241's limitations period for filing habeas claims does not bar his petition:

Petitioner has made/shown diligent deep sea fishing and as a result hooked a predicate not knowing it's revelation.

1. Spell-check much? 2. Um... what?

2007-11-26T14:59:00.000-08:00

"The instant case presents a plethera [sic] of facts that unequivicably [sic] establish that Plaintiff was subjected to a sexually hostile work environment and the victim of sex-based discrimination."