Is it Just Me, or is this a Mouthful?

In Roddy v. Superior Court, case no. D049796 (decision filed May 16, 2007, ordered published on June 7, 2007) the jury commissioner sought writ review of a trial court order enforcing a subpoena duces tecum served on him.  The suboena sought DMV information in the jury commissioner’s possession.  It was served on behalf of criminal defendants who were challenging the constitutionality of the procedures employed by the jury commissioner.  The Fourth District Court of Appeal summarizes its conclusion this way in the introduction:

We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation of their reasonable belief that underrepresentation of cognizable groups may be the result of improper jury selection practices.

Usually I am quite impressed by how a court succinctly sums up its holding.  But this seems to me like too many long, complicated words in a single sentence.  It’s grammatically and substantively correct, but I might have broken it into two or more sentences, even if it made the summary longer.


The Principle behind Homonyms — and a Pet Peeve: Sole Solos

Have fun reading Professor Martin’s teasing about a grammatical error repeated in two recent Ninth Circuit opinions. I agree with the professor. A mitigating circumstance, however, is that the mistake relates to a homonym pair for which I’d venture one word or the other is present in almost every legal opinion, so the odds of a mistake once in a while are high, even though the overall error rate might be low.

While on the grammar front, here’s a pet peeve. Every time I see a reference to a “sole practitioner,” I think of someone who’s the only lawyer in town. Or maybe a shoe repairman. Judging by most of the bar-related publications I read, “sole practitioner” seems to be the term of choice for identifying lawyers who practice on their own.

But shouldn’t we refer to these lawyers as SOLO practitioners — like we did when I was in law school?

Granted, “sole” may be technically correct according to these definitions of the word (my favorite: “without company or companions; lonely”), but compared to the definition of “solo” (among them: “a person who works, acts, or performs alone”), it certainly seems the less accurate. Besides, you never hear of anyone “flying sole.” Jazz musicians don’t break into “soles.” And would Harrison Ford’s Star Wars character have had the same roguish swagger if he were named “Han Sole?” I don’t think so!

If anyone cares to differ . . .well, that’s what the comments section is for. Have at it. Then again, if it turns out most of you agree with me, I think we should start a movement to banish the use of “sole practitioner” — unless, of course, one really is referring to the only lawyer in town.

Bibliography: Unabridged (v 1.1). Random House, Inc. (accessed: May 31, 2007).

Posted in Writing. 1 Comment »

A Quip Too Far? Update

I’ve updated my May 17 “A Quip Too Far?” post with a link to more recent, and quite excellent, commentary on the unorthodox opinion in Funny Cide Ventures, LLC v. Miami Herald, and am providing this separate post for those who already read my previous post and aren’t likely to see the update in it.  Matt Conigliaro of Abstract Appeal promised last week to follow up on his original post, and he delivers a winner with his explanation of why it may be impossible to make judicial opinions understandable to non-lawyers and still have them adequately serve their function as precedent.

Judge Kozinski’s Nautically Themed Dissent

Twenty-five years after graduating from the Naval Academy, I still call whatever I happen to be walking on — whether a carpet, concrete, a lawn, or bare ground — “the deck.” I like a nautical theme as much as the next guy, maybe more.

Maybe that’s why I don’t share Professor Martin’s opinion that Judge Kozinski’s dissent in today’s Ninth Circuit Exxon Valdez decision (Baker v. Exxon Mobile Corp., 04-35182 (May 23, 2007)) is an example of a clerk and/or judge “trying too hard.” Indeed, I thought there were some missed opportunities to use even more nautical turns of phrase — either Judge Kozinski missed them, or he deliberately refrained from using them so as not to go overboard (ouch). In any event, while Judge Kozinski’s opinion fires a few broadsides (ouch again) at the majority, I think the theme keeps the opinion engaging without taking anything away from the seriousness of the issues.

Robert Loblaw at the Decision of the Day can’t resist either, asking, “Has the Exxon Valdez litigation finally run aground?” But that’s just the first sentence of a more informative post that also wonders about the future of the litigation.

Settled Statements, New Trials, and the Languishing Criminal Defendant

When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(g). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007).

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.

On Writing Concisely – Part 2 (Updated)

I think you’ve hit a nerve when Judge Kozinski takes the time to write a dissenting opinion from an order granting your motion to file an oversized supplemental brief.  After the moving party filed an opening and reply brief, had two amicus briefs filed in support, and apparently made a successful joint motion for supplemental briefing in which he explicitly agreed to abide by the 14,000 word limit imposed by Fed. R. App. P. 32, an additional motion asking for leave to file an oversized brief of 15,500 words is apparently more than Judge Kozinski is willing to take.  He concludes (link added):

Not only do we abet the flouting of our rules, which must be discomfiting to those lawyers who abide by them, we also do a disservice to the litigants.  See Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 231 (2d ed. 2003) (“All the judges quoted in this book have one bit of advice in common: emphasize the muscle of your brief and cut out the flab.”); see also id. at 234 (“The poorest, least persuasive briefs are all too often those that the lawyer has not taken the time to reduce to its essence.” (quoting Chief Judge John M. Walker, Jr.)).  Here, tightening up petitioner’s brief to conform to our rules would not only help conserve judicial resources and promote respect for our rules, it would better serve the client.

Following up on this post.

Update (5/22/07):  Decision of the Day weighs in with this post (which I highly recommend for its witty writing), believing that Judge Kozinski’s dissent is likely to defeat its purpose, and actually encourage overly long briefs, because it brings attention to a lenient order few were otherwise likely to notice.  But I suspect that any lawyer who knows that Judge Kozinski will participate in deciding a similar motion will think twice.

Posted in Writing. 1 Comment »

A Quip Too Far?

The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case.

To be fair, Judge Farmer lays out why he wrote the supplemental opinion:

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago.  I had decided that the style of some opinions could — and should — be unconventionally changed for greater openness to all readers.  I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.  Then came this case.

Nothing, judge?  Admittedly, the somewhat far-out legal theory in this case invites some mirth.  Plaintiff owners of the thoroughbred Funny Cide alleged that as a result of a statement by the Miami Herald suggesting that Funny Cide’s jockey cheated in his Kentucky Derby win, the jockey rode the horse too hard in his Preakness Stakes win, leaving the horse with no reserves and unable to win the Belmont Stakes to complete the fabled Triple Crown.  ( covered the lawsuit here when it was filed.)

Judge Farmer concludes his introduction with this:

So I give this explanation for what I wrote, laying my version along side the panel’s substitute.  Readers can compare a conventional opinion with an unconventional style — the pious with the impious.

Several bloggers take the judge up on his invitation.

Professor Orin Kerr at The Volokh Conspiracy titles his post “Most Self-Indulgent Opinion?” Kerr makes clear in his conclusion that he is not against witty writing per se:

To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I’m sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I’m just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.

The comments are worth browsing.

Nevada appellate lawyer Tami Cowden at Appealing in Nevada is way on the other side of the spectrum in her post, “A page turner of an opinion“:

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.  Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

I agree with both, to an extent.

I read (and recommend) Cowden’s piece in Nevada Lawyer on using fiction-writing techniques in brief writing.  She doesn’t so much recommend a style as she does technique in proposing that lawyers can be more persuasive by incorporating elements of fiction — theme, characters in conflict, a point of view and “showing rather than telling.”  And I think she makes a persuasive case for it.  I just don’t think Judge Farmer does a very good job of carrying it off.

The reason I think the opinion fails, despite its good intentions and my agreement with Cowden that fiction techniques can be effective, is that Judge Farmer is also trying to be cute. That’s where I agree with Professor Kerr. Notwithstanding the justifications Judge Farmer offers, I found it hard to read the opinion without thinking that he was being too “smart-alecky” in a bid to seek attention, rather than making a good faith effort to achieve his stated goal of making the opinion more readable to non-lawyers.

Finally, note two more takes on the subject.

The Wall Street Journal’s Law Blog takes note of the opinion’s novelty without taking a stand on it except to say, “If you’re going to read one opinion today, the Law Blog beseeches you to check out Funny Cide Ventures v. Miami Herald.

Florida appellate lawyer Matt Conigliaro of Abstract Appeal offers the briefest of comment here, but promises more later.

Update (5/24/07):  Matt Conigliaro has his promised update here, and it’s very good.  He’s the first I’ve seen raise the excellent question of whether judicial opinions can be made understandable to non-lawyers while still serving well in their function as precedent.  His argument is well worth reading.