Bad Writing Kills Client’s Big Dreams

Angry client comes to lawyer. Angry client had big dreams of holding his own outdoor concert series. He thought it would be epic.  And like Wayne Campbell and Roy Kinsella years before him, he believed that if he built it, they would come.  So he set to work building his concert facility. But alas, the cops shut him down over security concerns, thereby dashing his dreams. 

So he did what people do: He went to a lawyer. Lawyer is moved by angry client’s story. “We will draft such a lengthy and powerful complaint that it will force them to relent!” Lawyer says. “Hoorah!” says angry client. Lawyer then grabs his Dictaphone and sets to work spewing forth every lurid detail. Somebody types it up. Who? We don’t know. The lawyer then files it. But alas (yes, a second alas), he either failed to proofread it or was so jacked on Aerosmith tunes that he must have just plain missed all the typos, punctuation and grammatical errors. The defense moves to dismiss—“What does any of this even mean, your Honor…?” 

But of course, district court judges are loath to kill dreams so easily. The judge gives the dreamers a second chance, and then apparently a third chance to amend. But it seems the story was just too good to leave any of it on the cutting room floor—or at least clean up its punctuation and grammatical errors. The district court tossed it. Enough is enough.  

The dreamers were not done—they never are when it comes to litigation.  They appealed to the Seventh Circuit (Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011)).  Surely that court would see the merit in their cause.  But the Seventh Circuit was unmoved.  It affirmed the dismissal; calling the third amended complaint nearly incomprehensible, lacking in punctuation, and riddled with grammatical and syntactical errors.  In the process, the court felt compelled to acknowledge (at n.7) “the unfortunate reality that poor writing occurs too often in our profession[.]” The takeaway: Raise the bar, write well, be thorough yet concise, proofread, and then rock on.

The takeaway: Raise the bar, write well, be concise, proofread, and then rock on.

The “Drastic Remedy” Myth

Have you ever received a summary judgment opposition memorandum that warns the trial court that summary judgment is a “drastic remedy,” as if that is a standard the trial court must apply or consider when ruling on the motion?  That language litters opposition memoranda in dockets around the state.  And why not? There is plenty of Utah caselaw that supports it.  See, e.g., Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (“‘Summary judgment procedure is generally considered a drastic remedy,’ and is appropriate only when the facts are clear and undisputed.’”) (quoting Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993)).

This label appears to have taken root in a 1956 Utah Supreme Court opinion, Holland v. Columbia Iron Mining Co., 293 P.2d 700 (Utah 1956).  There, the court explained that summary judgment “is a drastic remedy with great possibility of saving time, but will neither save time or further justice unless granted only where it affirmatively appears that there is no reasonable possibility that the loser could establish a valid claim.” 4 Utah 2d 303, 317 (Utah 1956).  This view was repeated over the years, several times by a single justice—Justice Crockett—who appeared openly hostile to the procedure: 

  • Holland v. Columbia Iron Mining Co., 293 P.2d 700, 311 (Utah 1956) (“It is true, indeed, that a summary judgment is a drastic remedy which the courts are, and should be reluctant to use.”) (Crockett, J., concurring).
  • Richards v. Anderson, 337 P.2d 59 (Utah 1959) (“It is true that summary judgment is a severe measure which courts should be reluctant to use, and that doubts should be resolved in favor of allowing a full trial of the case.”) (Crockett, C.J.) 
  • Welchman v. Wood, 337 P.2d 410, 28 (Utah 1959) (“Summary judgment is a drastic remedy and the courts should be reluctant to deprive litigants of an opportunity to fully present their contentions upon a trial.”)
  • Pender v. Alix, 354 P.2d 1066, 11 Utah 2d 58, 59 (1960) (“It should be kept uppermost in mind that this is a review of a summary judgment; that it is a drastic remedy which deprives the party of the opportunity to present his evidence; and which the court therefore should be extremely reluctant to grant.”) (Crockett, C.J., dissenting)
  • Housley v. Anaconda Co., 427 P.2d 390, 127 (Utah 1967) (“Prior decisions point out that summary judgment is a drastic remedy and should be granted with reluctance.”)
  • Burningham v. Ott, 525 P.2d 620, 624 (Utah 1974) (“A summary judgment … is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue as to any material fact.”) (Crockett, J., dissenting in part).
  • Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993) (“Summary judgment procedure is generally considered a drastic remedy, requiring strict compliance with the rule authorizing it.”)
Continue reading The “Drastic Remedy” Myth

Put the Glass in Your Reader’s Hand

For those who are old enough (my fellow GenXrs), remember how exciting it was when your teacher rolled the projector into class? Especially if the reel was a big one. The big reel not only meant a longer film, but also increased the odds that the film would jam up in the machine, taking further time away from academic pursuits.  Today, let’s roll out the projector. Short reel. 

It is well known (or should be) that a good writer leads the reader to a conclusion by showing, not telling. As C.S. Lewis explained, “Don’t say it was ‘delightful’; make me say ‘delightful’ when we’ve read the description.”  The clip below, from the TV show The West Wing, is a great example of this.  In the scene, Leo McGarry (played brilliantly by the late great John Spencer) is an alcoholic who had a relapse.  He is about to endure questioning in front of a congressional subcommittee and is explaining his relapse to his attorney.  But instead of writing simple dialogue in which McGarry tells his lawyer, effectively, “I’m an alcoholic and couldn’t help myself,” the writers lead us there by putting the glass in our hands. This is how you show…

Stay Energized and Focused

If you are doing it right, the law can become an all-consuming drain on you: mentally and physically. Here’s a few tips for staying energized and focused. 

  1. Change the view.  Don’t be a slave to your desk.  Get out of the office.  Change the landscape.  I often find myself doing my best writing and editing while sitting at a downtown St. George park looking at the red rock hills as opposed to the wall in my office with the phone or others interrupting me every 10 minutes. 
  2. Exercise.  Take a break and do something else.  Go throw weights around the gym, go jogging, go biking, join a CrossFit box. Do something to rest the machine that is your mind and to exercise the other machine that is your body. 
  3. Find an outside passion. Find something that you enjoy doing outside the law and make the time to do it. Whether it’s coaching sports, fishing, cooking, painting, or traveling—find something that you are passionate about, put it on the calendar, and immerse yourself in it. That’s how you recharge the batteries.
  4. Remember why you do it.  Remember why you do it: Your family.  Make time for them because you never know how much you have. I have never heard of a lawyer on their deathbed regretting that they did not bill more hours.

Toleration of Conflicting Viewpoints

Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.

Board of Education v. Barnette, 319 U.S. 624, 644 (1943) (Black, J., concurring).

Build a Cathedral

Justice Robert Jackson (one of the great justices and writers in Supreme Court history and a former Solicitor General) once gave a parable about three stone masons, each of whom was asked what they were doing. The first answered, “Earning my living”; the second replied, “I am shaping this stone to pattern”; but the third said, “I am building a Cathedral.” Applying the parable to appellate advocates, Justice Jackson explained:

The attitude and preparation of some show that they have no conception of their effort higher than to make a living. Others are dutiful but uninspired in trying to shape their little cases to a winning pattern. But it lifts up the heart of a judge when an advocate stands at the bar who knows that he is building a Cathedral. 

Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 528 (2001) 

The 24 Hour Rule

While in law school, I started my illustrious (or not so much) legal career clerking at the Oklahoma Attorney General’s office. I was helping an attorney on a case and the other side did something that really ticked us off. I don’t remember exactly what, but we were smokin’ hot. I was instructed to write a letter. I did. And it was epic. As I recall, it explained in sufficient detail how wrong the opposition was and how the great State of Oklahoma was about to land on his head like a house thrown from an F5 tornado. I showed it to my supervising attorney. With a smile on his face, he explained that, yes, it accurately reflected everything that occurred and what we would do in response. But we should wait 24 hours before sending it to see if it read as well after the waiting period. Of course, it didn’t. We toned down the official version the next day. This was my introduction to the “24 hour rule.” Anytime you write something while you’re angry or emotional—letter, email, brief, text, memo, whatever—wait 24 hours (or even a longer cool down period) to send or file it. It will often look different to you after the waiting period and you will thank yourself for it.

Get Your Hands Dirty

“Arguments, like gardens, take work, and a party who hopes to prevail on appeal should be willing to dig in the dirt and not expect that opposing counsel or the court will do that work for them.”  

A.S. v. R.S., 2017 UT 77, ¶ 16, 416 P.3d 465. 

Know all the facts and law that surround

“Know thoroughly each fact. Don’t believe client witnesses. Examine documents.  Reason; use imagination.  Know bookkeeping—the universal language of business; know persons … know not only specific cases, but the whole subjects.  Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” 

–Louis D. Brandeis

Decluttering Citations to Court Documents

You are drafting your opposition memorandum or response brief.  That means directly engaging arguments advanced by the opposing party, which requires you to cite where they made those arguments in their motion.  That citation usually looks something like this:

Plaintiffs next argue that they were entitled to 30 days’ advance written notice and opportunity to cure under Section 3.  See Plaintiffs’ Motion for Summary Judgment at pp. 11-13.  That assertion is false and violates straightforward rules of contract interpretation.

There’s nothing wrong with this citation.  We see it all the time in different forms.  But notice how it slows down the read and clutters up the text.  Now consider the same excerpt with a mid-sentence citation:

Plaintiffs next argue (at 11-13) that they were entitled to 30 days’ advance written notice and opportunity to cure under Section 3.  That assertion is false and violates straightforward rules of contract interpretation. 

This type of citation ensures a much smoother ride and accomplishes the same result.  You can also use it to refer to your own filings, as in a reply:

As we argued in our motion (at 7), Utah case law mandates this result …

Read any sampling of briefs from the top flight appellate attorneys and you will see that this is how they do it. It’s also a preferred citation method in the Solicitor General’s Style Guide. There are, of course, times when a direct, old school citation is needed—such as when citing to multiple different court documents or in multi-party cases to avoid confusion.  You’ll know it when you see it. But most of the time, this should be your go to.  Smooth. Bold. Refreshing.