March 31st, 2010

Pope to be Deposed? (How, exactly, do you mean that?)

Depose is a funny verb. It can mean removing someone from a throne, or it can mean testifying under oath. (Merriam-Webster)

For Pope Benedict XVI it now has both meanings. His testimony is sought in the ongoing priest sexual abuse scandal where he wants to shield himself. And there are people calling for his removal.

And that’s a circumstance you just don’t see too often. OK, maybe not ever before. And that makes it worth noting.

More here:
Will the Pope Be Deposed? Not If the Vatican Can Help It (WSJ Law Blog)

March 8th, 2010

New York Appellate Court Gives Lesson in Lousy Legalese (In an important case) – Updated

It’s a contest! For the worst judicial writing in America. And I have here the first entrant.

Now I confess that I publish this with great trepidation, since I appear before this appellate court from time to time. And what I have to say isn’t kind.

But at the risk of pissing off some judges before whom I may appear, I have to ask, would you want our briefs to contain sentences with 300+ words? And would you want me to make you strain to figure out the points I’m making?

Exhibit A: A decision from the Second Department in December in Dockery v Sprecher, regarding a $109M medical malpractice verdict that was reduced to $9 million for a brain damaged man. The first sentence of the decision, regarding the procedural history, weighs in at a staggering 303 words. Without any semicolons. Is there a secret law that says writing a procedural history must induce dread on the part of the reader?

But wait! There’s more! Not to be outdone, the second sentence of the same decision laughs in the face of the first, stomping it into the ground with a jaw-dropping 343 words. But at least that has two semicolons. (Both re-printed below.)

Really, is such gobstopping exposition necessary? Have simple, declarative sentences been outlawed? Is clarity a crime?

I challenge anyone to find a sentence in another judicial opinion of such length.

The format of this decision is unfortunate given its importance. The decision speaks to the issue of how outlier verdicts — those that “deviate materially from what would be reasonable compensation,” in the parlance of New York law — get reduced by courts on review by ordering a new trial unless a party stipulates to a lower amount. I had written of the subject as a newbie blogger (How New York Caps Personal Injury Damages — 1/23/07) due to the popular misperception among the public that the verdicts they see in newspapers are the amounts that actually get collected.

But those verdicts in the papers are there for a reason; either because a celebrity was involved or the verdict was an outlier.

A decision on a blockbuster verdict that helps to define the limits of permissible compensation, and demonstrates how the courts manage those outlier verdicts, is one that would assist the public in understanding how our judicial system works. And it would assist trial judges and lawyers in understanding how the appellate court might see things, and therefore it would be important guidance.

But sentences of 300+ words don’t do that. Instead of offering clear explanation, they offer the reader the opportunity to engage in code breaking, with a WW II Engima machine as a required tool.

And that is not the only place this decision lacks clarity. Because the decision also fails to explain the injuries. Imagine that, a $109M verdict reduced to $9M, and no discussion of the damages? John Hochfelder has written quite a bit on that recurring issue, including this:

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why [the Appellate Division] can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

It takes much hard work to actually figure out what the Appellate Division did in Dockery v. Sprecher, because not only did it reduce the verdict but it also lowered the apportionment of fault for the defendants from 45% to 10%. And it failed to let the reader know what the actual effect of that apportionment change was.

And since this report indicated that there was also a $4.4M pres-suit settlement with a hospital, that means that there would be an offset for the settlement amount under New York’s General Obligations Law 15-108, though you wouldn’t know if from reading the opinion.

So we have a major decision on the issue of damages, with a new trial ordered unless the plaintiff stipulates to a reduction, a change in the apportionment, a settlement requiring an off-set, but with tortured language in the decision, missing information, and open questions for the reader. And that’s a shame.

[Update: Hochfelder unravels the guts of the injury claims in a new post, and comes up with this result:

$4,400,000 (the pre-trial settlement the hospital and one doctor) plus
$957,000 (The 10% share of the remaining defendant, resulting from the new $9,570,000 limit placed by the court)]

So let me politely suggest that our appellate judiciary do a few things:

1. Read the opinions of Justices Scalia, Posner, or Kozinski. Just for style. Ask yourselves this question: Would any of those jurists compose anything resembling the mind-numbing legalese I’ve re-printed below?

2. Contact legal writing guru Bryan Garner, who has given a gazillion seminars on writing to lawyers and judges;

3. Take the writing manual that you are working from and dump it. Whatever comes out the other end of the recycling process will be of better use.

OK, here they are, the first two sentences, in all their gory glory, followed by my closing thoughts:

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof dismissing the complaint insofar as asserted against the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C.; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs’ case, for judgment as a matter of law dismissing the complaint insofar as asserted against them is denied, the order entered December 3, 2007, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for a new trial as to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., on the issues of apportionment of fault and damages for past and future pain and suffering and past and future loss of services unless, within 30 days after service upon the plaintiffs of a copy of this decision and order with notice of entry, the plaintiffs shall file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to the apportionment of 10% of the fault to the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., and 90% of the fault to nonparties Philip Howard Gutin and Memorial Sloan Kettering Cancer Center, and to reduce the damages for past pain and suffering from the principal sum of $10,000,000 to the principal sum of $1,200,000, the damages for future pain and suffering from the principal sum of $27,750,000 to the principal sum of $6,750,000, the damages for past loss of services from the principal sum of $18,000,000 to the principal sum of $350,000, and the damages for future loss of services from $48,700,000 to the principal sum of $1,000,000, and to the entry of an amended judgment accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Two final thoughts. One reason that this decision might be written so poorly is that the court doesn’t want it to be cited and followed. But, like Hochfelder, I believe that such obfuscation leads to more litigation as it leaves the current state of the law a mystery. If the bar understands that, for example, a verdict for a broken arm will be tossed out if it exceeds (or is lower than) x, then the parties can turn to the liability aspects and make informed judgments with more confidence of the best case and worst case scenarios. And the trial level courts will have guidance on permissible parameters when deciding post-trial motions. And that would mean fewer trials, fewer appeals, and reduced judicial case load. It would, dare I say, promote efficiency.

And last: When I appear before you next, please, please, PLEASE, don’t hold my criticisms against my client. I write because I think the courts can do better, and that we are all better served when decisions are clear.

February 1st, 2010

R.I.P. Jane Jarvis, Shea’s Queen of Melody (And a Lesson For Lawyers)

Jane Jarvis, the long-time organist for the New York Mets at Shea Stadium, died last week at age 94. Shea Stadium’s Queen of Melody inspired fans over the course of 15 years, and her playing, oddly enough, held lessons for lawyers. Stay with me here. I have a point this time.

Those of my age that grew up spending times watching the Mets at Shea remember her playing for the fans, and the fans responding, and Jarvis tinkling the ivories back at us. It was like an exuberant conversation during her 1964-1979 tenure as she kept us entertained between innings and during other breaks. Anyone who spent time at the now-gone ball yard remembers Jarvis doing Meet the Mets on the Thomas organ.

Ultimately she was replaced by over-amplified canned music (and a thousand other distractions of the modern ball park). But canned music, of course, can’t respond to the fans. Her playing was personal. She could see and hear what was going on, and speed up, slow down and modify on the fly. Live music is like that.

So where does the law come in to this? Lawyers often used canned materials too. We borrow briefs and memos from others for use.

But here is the important part: Too many lawyers, it seems, borrow the brief and don’t actually read it. They don’t make it personal to the actual facts of the case. The writing doesn’t crackle with originality and pertinence, because oft times it is neither.

I once read a brief that was filled with “this honorable court” and “respectfully” this and “respectfully” that, and behind all the obsequious writing was garbage. I always figured that if one wanted to be respectful to the court, one would tailor the brief to the actual facts and points that needed to be made. The writer would make it easy on the eyes instead of forcing the judge (or clerk) to go burrowing through the darn thing trying to figure out what the actual point is.

Other briefs I’ve seen over the years have clearly been filled with cut-and-paste from other briefs, or straight out of WestLaw. It’s pure laziness and the message that the judge no doubt receives is, “If the lawyer didn’t care, why should I?”

There isn’t anything intrinsically wrong with a form book, of course. If you are doing something for the first time it’s good to see how someone else did it. The mistakes are in believing that this the only way to do it, or that the form shouldn’t be changed at all. The mistake is in ignoring your audience.

Jarvis used sheet music to get her songs down when learning them. But then she adapted each song, just as the lawyer must adapt each and every argument (if, that is, you actually want to communicate a point to the judge)

Jarvis was a virtuoso when it came to the organ and the crowd. And that was because she didn’t sit back and rely on the forms she started with.

A 2008 article in the Daily News described Jarvis’s experience this way:

When it comes to music and the Mets, Jarvis once wrote the book. “I made all the decisions,” she says. She had a song for when the Mets trotted to their positions, and a song for when they smacked a homer, and then there was the Mexican Hat Dance to get things going when the home team really needed it during the seventh-inning stretch. An entire generation of Met fans came to identify the team’s championship run in 1969 with her lilting keyboard work.

Rest in peace.

(P.S. Pitchers and catchers report in 17 days. I think Jarvis would want me to mention that)

Updated:

New York Times obituary
Recalling a Meeting With the Pied Piper of Shea (NYT)

January 12th, 2010

Why Use Orthogonal?

A confluence of two events:

Last week, wordsmith extraordinaire Bryan Garner twitted this little gem of a quote:

“Some of the worst things ever written have been due to an avoidance of the ordinary word.” — Henry Bett

Fast forward to yesterday, and in the US Supreme Court, University of Michigan law professor Richard Friedman was arguing the Constitution’s Confontation Clause and used “orthogonal” to signify propositions that are extraneous or irrelevant to each other.

Don’t feel bad if you don’t know what the word means. Neither did justices Roberts or Scalia, and probably several others. Prof. Friedman was forced to explain, and thereby detracted from his argument. He sheepishly confessed, “That is a bit of professorship creeping in, I suppose.”

And that’s called being too smart by half, where there is such a desire to prove you’re smart that you lose your audience. And that’s just dumb.

A well-made argument, like a well-written brief, shouldn’t make make people work to figure it out. It should come easily and naturally, and lend itself to being received while having the feet up on the coffee table with a drink at hand.

More at Volokh from Orin Kerr, who has a transcript of the exchange, and who notes that the Supreme Court has never used the word “orthogonal” in a written opinion. Nor is it likely to, I might add, in my lifetime.

Update: Scott Greenfield also wrote about orthogonal this morning, with a contrary view:

Did it distract from his point? Sure, though the point that the argument he was challenging was tangential was hardly difficult to follow. Did it eat up time? Obviously, though not much. Did it break the tension, allow Friedman to relax as he moved forward and create an endearing moment that will enhance Friedman’s likability and hence credibility to all wings of the court. You bet.

Eugene Volokh seems to agree that use of orthogonal was a distraction.
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Update – 1/25/10 – And the verdict is in: Orthogonal does not appear in the decision.

January 6th, 2010

Can A Cartoon Law Exam Help You in the Practice of Law?

We start with a law professor that wants to make an exam “fun” by having students relate a cartoon to course materials. Then we move to a practicing lawyer that rips that idea to shreds and beyond. But, believe it or not, I think the concept can lead to better lawyering.

This little idea emanated from Howard Wasserman at TortsPrawf, who wrote:

For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Scott Greenfield, who often writes of how out of touch law professors are with the actual practice of law, was not amused by this “fun.” He wrote:

This could, of course, be great experience if a client arrives at your office, one-frame cartoon in hand, and asks your advice.

But the idea clicked in my head, though not for the reason Wasserman stated. Many practicing lawyers, the folks in the trenches, can’t write because they can’t sharply identify the issue and present it up front. One-frame cartoonists, however, know all about succinctly nailing the issue.

That succinctness is something I first practiced when working for my dad after law school, because one of his office rules was that every case had to be reduced to a “one-liner.” Thus, a complicated medical malpractice case, that might have many different issues, would be reduced to:

1 year delay in diagnosing breast cancer in 52 year old woman, married, three kids

And that one-liner came in handy not just for office management, but when you approached the bench at a conference and the judge asked what the case was about. Five seconds later the judge knew what is going on and could delve into those parts of the nitty-gritty that might be needed for the conference. That one-liner also served as the opening of every brief.

Law school exams teach you to write, and write and write. Then write some more. And that may be wrong. Perhaps they would better serve aspiring lawyers if they taught them to more sharply focus the issues and write less.

How sharply? Give each student a maximum of 75 words to define each issue. That is a skill they can use in the practice of law. With just 75 words, its tough to bluff.

That 75 word limit comes, by the way, from writing guru Bryan Garner. If you can’t define the issue in 75 words, he teaches, you probably don’t know what it is. Everyone that attends Garner’s CLE class walks out amazed after watching numerous videos of appellate judges discussing how poorly the issues are framed by the lawyers, and even how difficult it might be to find them in voluminous papers.

So that cartoon idea does have some merit to it, though not for the “fun”reason. Teach the students to write less, not more.

And as to the length of this post, if I had more time I’d have written less.
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Addendum: Scott Greenfield wrote last year about how Twitter cruelly forces that type of brevity.