Friday, July 15, 2011

Texas attorneys bench-slapped for poorly written brief

If you're looking for another "real-life" example of the importance of good legal writing to give to your students, consider this recent decision from the 5th Circuit.  It's a lawsuit brought by a high school cheerleader claiming her civil rights were violated when she didn't make the squad. The appellate court affirmed summary judgment for the defendant-school district, calling the case "a petty squabble, masquerading as a civil rights matter."  The court then went-to-town on the plaintiff's attorneys (pages 23-24) for including the following passage in their brief which the 5th Circuit called a poorly written, "unjustified attack" on the trial judge:

The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

Here's what the 5th Circuit said about the above:

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible.

In a footnote, the 5th Circuit continued its criticism of the plaintiff-appellant attorneys' brief writing skills:

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.

Ouch. You can read the full decision by clicking here.

Hat tip to Above the Law.


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And if you want to hear the oral argument where the bench slapping began, click here

Posted by: Evelyn Calogero | Jul 16, 2011 6:10:32 AM

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