March 28th, 2012

A New Personal Injury Waiver (Updated x2)

Running the trail, December 2005

I don’t think I’ve ever used this blog to crowd-source actual legal work, but, what the hell…

As regular readers know, I not only like to run (Boston Marathon in three weeks, if the hammy stays healthy) but am also the founder and race director for a half-marathon trail race in Westchester County.

This puts me at the junction of two concepts: First, putting on a fun running event, and two, trying to avoid potential injuries for my athletes and lawsuits.

Now, generally speaking, an athlete can’t successfully sue a person or organization putting on an athletic event due to the concept of assumption of risk. Assumption of risk means, generally:

By engaging in a sport or recreational activity, a participant consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.

So how does a lawyer protect the organizers? Well, since the time of the dinosaurs, it has been by WRITING IN ALL CAPS BECAUSE IT IS SO EASY TO READ and using godawful legalese. This also ensures that no one actually reads the piece of paper that will get waved around to defend a lawsuit later.

But — and you knew there was a “but” coming didn’t you? — it isn’t that I’m worried about being sued, what I want first and foremost is to prevent injury. So I wrote my own waiver, trying to make it as readable as possible. And I offer it up now for your comments as to what it is missing or how it should be changed. Without further ado…a waiver for a trail race…

I realize that this trail has plenty of rocks, roots, stumps and other tripping hazards. There are two stream crossings with stepping stones. The trail is narrow at times and could be crowded as faster runners overtake slower ones. There might be poison ivy, ticks, bugs, bees and other woodsy things you find in the great outdoors. (Is this a great waiver, or what?)

Wind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Vandals may swipe trail markings. Race officials may deliberately create extra hazards. Just for fun.

I’ve also been informed that there are a number of wooden catwalks, whose condition varies with their age and the weather. Those boards can become damaged in storms, or simply be jarred loose by other runners. They are also very slippery when wet. I agree to stay in the center of these walks and will not pass while on them. I understand that I will have more than ample opportunity to pass other runners in safer spots. In other words, I agree to cool my jets on the catwalks.

I also understand that there are only three water stops, so it’s important to carry a water bottle and any food that I want.

But even though I might get hurt or lost, I want to compete in this race. I therefore release and discharge all race officials, volunteers, sponsors and municipalities, and I also release the rocks, roots, bugs and other stuff, dead or alive, gnarly or not, that might cause me to get seriously hurt. I know that trail running is a high-risk activity.

By signing this form I certify that I am physically fit, responsible for my own actions, and have sufficiently trained for an event of this nature. In other words, I won’t sue any of the people or groups responsible for this race if I get hurt. And if I am under 18, then my parent or guardian is signing this release.

I agree to all of this even though it is written in plain English instead of stupid legalese.

Update: Something else to add, perhaps:

This trail has known knowns; there are things I know that I know.

I also know there are known unknowns; that is to say I know there are some things I do not know.

But there are also unknown unknowns – there are things I do not know that I do not know.

And I accept the risks of all of that. Known and unknown.

Update #2 (3/31/12): At Legal Blog Watch, Bruce Carton made some additional suggestions.

March 1st, 2012

Lousy Legal Writing (Even form letters suck)

Let’s face it, legal writing sucks. Which is to say, the godawful pretentious nature of the humblest of form letters is enough to suck the wind out of anyone that gives a damn about the written word.

This is a letter I recently received. The author’s name has been omitted to protect the guilty. Original in black. My version in red.
——————-

Dear Sir/Madam: Dear Ccounsel (or perhaps, simply Counsel:, depending on my mood)

Enclosed herewith please find defendants’ Bill of Particulars. Enclosed is the defendant’s Bbill of Pparticulars. Please note that at the present time this document is unverified. It is not yet verified.We are in the process of securing same from our clients, and upon receipt of our client’s verifications, we shall forward copies to your office. We hope to receive it soon from our clients and forward it on to you.

Thank you for your anticipated courtesy and cooperation in this matter. Thank you for your anticipated courtesy.

Very truly yours,

/s Lawyer
——————-
The original is 55 words, exclusive of salutation and valediction. Mine is 33 words. Now take this simple form letter and think about it in the context of a brief.

You get the picture.

January 5th, 2012

This is how easy it is to e-file in New York…

New York now has mandatory e-filing for some commercial cases in New York County. (That’s the Borough of New York Manhattan, not the City or State of New York, for you out-of-towners.)

E-filing is easy, right? That’s one of the reasons we do it, right? Easy-peasy. Less paper, no more running down to the courthouse.

Ahh, I pity the poor fool that thought that.

Want to know if your commercial case is subject to mandatory e-filing? This is the definition you are looking for:

202.5-bb. Electronic Filing in Supreme Court; Mandatory Program.

….

(2) For purposes of this section:

(i) “commercial actions” shall mean actions in which at least one claim of the types described in subparagraph (1) of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, as amended by chapter 416 of the laws of 2009 and chapter 528 of the laws of 2010, is asserted.

Nice, huh? I can just see the law clerks that drafted that humdinger sitting around a desk laughing their asses off.

Let’s file this puppy under Legal Writing, for lack of a better place, and put it right next to these decisions with 300+ word sentences.

December 7th, 2011

The Ostrich Offense

Many people have heard of the Sergeant Schultz defense (“I know nothing”), named for the Hogan’s Heroes character. It’s quite popular with defense lawyers and politicians looking to evade responsbility for something, even it it happened right before their eyes. (We will likely see much of this in the Penn State abuse scandal.)

But into the legal lexicon now comes comes The Ostrich Offense. Courtesy of Seventh Circuit Judge Richard Posner, he lambassted two lawyers recently for ignoring controlling opinions on the subject of forum non conveniens. But worse than criticizing, he actually mocked them by inserting the two graphics that you see here right into the text of the opinion in Gonzalez-Servin v. Ford Motor Company. Pictures in an appellate opinion? Never seen that one before.

The language you see that follows, or a paraphrased part when used in the lower courts, is virtually guaranteed to see wide citation well beyond the issue being discussed, as it goes to the far broader subject of intelligent legal advocacy:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.

…

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” (citations omitted)

The message to the bar in naming and mocking the two lawyers seems clear: Don’t screw around when you appear before us. You will regret it if you do. If there is a “bad” case on your side, you better figure out how to deal with it, or concede the point and don’t waste our time.

I use the phrase Ostrich Offense (as opposed to Schultz Defense) because the most likely use of this case, and potentially the graphics, is as a sword to strike down the other side in Reply for ignoring important case law.

(And, by the way, this is not the first time Judge Posner has opined on ostriches in arguments)

Abraham Lincoln, Twitter, and This Blog

Tomorrow is November 19th. Seven score and seven years ago, on that date, Abraham Lincoln dedicated the Gettysburg battle field with one of the great speeches in American history (reprinted below). And yet, it’s only 272 words. That’s something to think about when you hit page 20 of your next brief.

I also put Twitter in the post title. How can something so trite and easily abused be compared to the Gettysburg Address? Because it teaches people to be succinct.

And today is the four-year anniversary of this blog. When I started it, it was with the desire to take complex ideas and break them down to simple concepts. I don’t know how well that worked, but it’s something I strive for and seems related to the concepts above.

I picked up that lesson from my father, who ran one of the largest plaintiff’s medical malpractice departments in New York until he retired. He demanded that every case be described in one line, almost like a Twitter post. Because if you knew the one-liner, it meant you knew the case. It also came in handy when the judge asked you what the case was about. So a case might be described, for instance, as a “10 month failure to diagnose and treat breast cancer in a 53 year old woman resulting in…”

And master legal writer Bryan Garner insists that, when framing an issue for court, a lawyer should do so in no more than 75 words. If you can’t do it in 75 words you don’t understand it, and therefore you can’t communicate it to the court

Brevity and clarity are important. They focus the brain.

And with that, I give you America’s most famous trial lawyer, who delivered these words 147 years ago:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.