Friday, January 21, 2011

Self-indulgent writing invites judicial rebuke

     Two recent court decisions highlight the dangers of self-indulgent and otherwise poor writing by lawyers. On January 11, the California Court of Appeal issued an opinion caustically criticizing the parties’ briefs. The money quote (p. 17, with emphases in original):

     The opening brief of the Jammu defendants is 72 pages long. Following an abbreviated “Statement of the Case,” the brief spends almost 21 pages on a “summary of facts,” reciting the claimed facts from the Jammu defendants’ perspective only, their “summary of [plaintiff’s] evidence and declarations” consisting of a grand total of 20 lines. Such advocacy is not to be condoned. (See generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) § 9:27, p. 9-8 [“brief should accurately and fairly state the critical facts . . . :”].) Beyond that, the brief is not well organized, and lacks any meaningful or logical argument headings, jumping from arguments referring to “issues of public interest” (Arguments IV and V) to “free exercise of religion” (Argument VI) to “limited public figure” (Argument VII) to “public figure status.” (Arguments VIII, IX, and X.) The brief is, in a word, unhelpful.
     The 66-page (!) reply brief is no better, with five arguments (some with multiple subparts) set forth with headings ranging from five lines to 13 lines. Again, not commendable. (See Eisenberg, supra, 9:107, p. 9-31, advising to “keep headings short and concise”.) These arguments jump too, from “free exercise” and “free exercise clause” (Arguments II and III) to “public figure status” (Argument IV) to “issues of public interest” (Argument V).
     But beyond these deficiencies, the briefs utterly fail to come to grips with the issue here.

     A day later in Florida, the Court of Appeal for the Fifth District, in Marion v. Orlando Pain & Medical Rehabilitation, ordered one of the attorneys to appear in court “to show cause why monetary or other sanctions should not be imposed” for filing and pursuing a motion the court characterized as “naked re-argument at best and an emotional tirade at worst.” A motion that begins this way foreshadows bad things to come for its author:

1.  Oh.
2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.
The opinion recites more gems. Unsurprisingly, the court neither retracted nor reconsidered.


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