Speaking of amendments
In contrast to the last post, a lesson in powerful writing

Huh? (Another lesson in how not to write a brief.)

Here is another lesson in how not to write. A couple of months ago, the U.S. Supreme Court not only denied a petition for certiorari; the Court ordered the lawyer who filed the petition to show cause “why he should not be sanctioned for his conduct as a member of the Bar.” This story has been covered by the WSJ Blog and by Josh Blackman’s blog.

So what got the lawyer in trouble? The Court hasn’t said. So I did a little research and located a copy of the petition. And Lord!, I don’t have a clue what he’s talking about. Here, for example, are the questions presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,

  • require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/ Bilski/ Mayo/ Myriad/ Biosig/ Alice line of unanimous precedents framework, or does the US Constitution for such decisions
  • entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

I thought maybe he had violated a rule requiring cert petitions to be written in English. But the good folks at the WSJ Blog think the problem may lie in footnote 30 (page 37), where the author credits his client “for significant contributions to this Petition.” That footnote appears to violate the Court’s guidelines, which dictate that

names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.

To me, this petition offers a more important lesson in how not to write a brief. In legal writing, the prime directive is clarity. You must write so that the reader can understand what you’re saying. If you fail to do that, everything else you do is wasted effort.


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Nick Purifoy

As a lawyer, this type of thing frustrates me to no end. The guys who wrote this probably make a small fortune doing what they do. Which, based on what I've read, is terrible legal work. I wonder what the briefing looked like in the circuit court.

Michael Drake

So someone supposedly read 37 pages of this? Right...

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