Prolixity is the soul of witlessness.
Wayne’s document-design cheat sheet

Tip of the day: Proofread appendices

Today’s West Headnote of the Day carries a useful lesson:

Conduct of Department of Justice attorney in scribbling in the margin of district judge’s opinion, submitted as appendix to Department’s brief, the word “WRONG” beside several findings of district judge was “indecorous and unprofessional conduct.” Allen v. Seidman, 881 F.2d 375 (1989).

My guess is that the attorney never intended for anyone outside the office to see those marginal notes. He or she probably wrote them while reviewing the district judge’s opinion, then put the opinion in the file. Later, someone copied the opinion—with marginal notes—for inclusion in the appendix, and no one ever eyeballed the appendix to catch embarrassments like this.

The lesson: Before selecting file materials to be copied for an appendix, inspect them to look for marginal notes, underlining, doodles, etc. If you find any, erase them or cover them up with white tape before photocopying.



I agree. Those comments were never meant to be read by anyone outside of that office.

Hopefully, when the other side's brief arrives, several things immediately happen. The response date for the brief is docketed, and someone makes "work copies" for everyone who is working on the case. "Work copies" are used for cite-checking and making notes or comments. They are drafts that are meant to remain in-house and, if kept, should be filed separately from the pleadings or main file.

The original and its exhibits belong in the "main file." The original is what I would use to make an exhibit or appendix to any document used outside of the office or filed with the court.

To avoid this mistake in the future, perhaps it would help to stamp "COPY" in red ink on each work copy, as well as write the receiving attorney's name on the first page to make it easier to identify whose notes are whose? Or even better, stamp the first page as "PRIVILEGE - Attorney Work Product?" Or use different colored paper for work drafts?

My guess is that a last-minute flurry to get the brief finalized, copied, and filed on time is part of the cause of this proofreading error.


I agree as well. I note that I've written far less decorous things in the margins of opinions, which fortunately never found their way into any record. The judges appear to be alarmingly thin-skinned in this case.


The language from the opinion is as follows:

A final point. We are disturbed that the Department of Justice, in submitting Judge Hart's opinion as an appendix to its brief, as it was required to do by Fed.R.App.P. 30(a), submitted a copy on which the Department's lawyer had scribbled critical marginalia, such as the word “WRONG” beside several findings of Judge Hart with which she took particular issue. This is indecorous and unprofessional conduct, which we have noticed in other cases and remark publicly today in the hope it will not recur.

It seems that this was less designed to embarrass the individual lawyers than to show the judges' displeasure with this kind of garbage appearing over and over.

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