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March 2008
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JALWD on-line

Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit.

If you’re brave enough to actually want to write an article for the JALWD, the call for articles for the Fall 2009 issue is out. Its theme: Best practices in persuasion. Legal Writing Prof Blog has the details, for those up to the challenge.

A different way to begin a motion

The other day I was writing a motion to exclude an expert’s opinions on grounds that the other side failed to disclose them timely. Most motions like this would begin in this ho-hum fashion:

Now comes XYZ Corp., defendant, who moves the Court to exclude the opinions of Joe Blowhard, on grounds that ABC Corp. failed to disclose ....

Occasionally a bold writer may dispense with the “Now comes” and get right to the point:

XYZ Corp., defendant, moves the Court to exclude the opinions of Joe Blowhard, on grounds that ABC Corp. failed to disclose ....

That’s how I usually write a motion. But for no particular reason, for this motion I tried an unconventional opening. Since the case was settled a couple of days ago, I figured there would be no harm in sharing it with you. Here it is, with names changed:

On April 8, 2008, three months after its deadline to make expert disclosures, ABC Corp. produced an expert report authored by someone never previously identified or disclosed as an expert witness in this case: economist Joe Blowhard. Though Blowhard does not appear on any party’s witness list, ABC apparently intends to offer his opinions into evidence by having another purported expert, accountant Jane Runway, “consult with” and “rely” on Blowhard’s opinions.

XYZ Corp. moves the Court to exclude Blowhard’s opinions from evidence under Fed. R. Civ. P. 37(c)(1) and Fed. R. Evid. 802. XYZ further moves the Court to exclude any testimony from Runway purporting to “rely” on Blowhard’s opinions, on grounds that any such “reliance” would be an abuse of Fed. R. Evid. 703.

Instead of beginning with the relief requested, this begins with the events that motivated XYZ to seek relief. What do you think of beginning a motion this way?

Contraction reaction

Over at California Blog of Appeal, Greg May asked readers for their views on using contractions in legal writing, and received a variety of responses. I have my own opinion on that topic, which I left in a comment on Greg’s blog. Here, I want to relate not an opinion, but a fact: Seventh Circuit Judge Richard Posner—regarded by many as one of today’s finest judicial writers—frequently uses contractions in his legal opinions. Here are just two examples which I happened to come across today:

  • In re James Wilson Assocs., 965 F.2d 160 (7th Cir. 1992): six contractions.
  • Dura Automotive Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002): four contractions.

To those who think contractions have no place in legal briefs, I put this question: If contractions are good enough for Judge Posner’s published opinions, why are they not good enough for a brief to be submitted to, say, Judge Posner?


p.s. One more Posner decision, which I happened to read today: Allan Block Corp. v. County Materials Corp., 512 F.3d 912 (7th Cir. 2008)— four contractions.

More is not always better

Sometimes in the heat of battle, litigators can lose perspective. That seems to have been the court’s impression in TK-7 v. Estate of Barbouti, 993 F.2d 722 (10th Cir. 1993), an apparently hard-fought civil conspiracy case. The defendants prevailed, but the district court declined to award them their court costs, ordering instead that each side bear its own costs. Why? It seems that the paper war got out of hand, so the district court decreed a pox on both sides’ houses:

The Court feels compelled to note that as was the case prior to trial, there has been, after trial, an inundation of a steady stream of motions seeking some form of relief ... [a total of twenty post trial motions and responses]. Virtually any relief, fee, or sanction that could be requested has been, and a response or objection to it has been filed. The sheer volume of the pleading in this case is evidence of the hostility between these parties. [footnote omitted] The hostility is so great that the Court believes it is clouding counsels’ judgment and good sense. Discretion and reason would seem to call for tempering the tone of the requests, if not their number. The attitude of counsel has “fomented litigation” and protracted this case. All counsel are equally guilty of this conduct, and none stands before the Court with clean hands.

Id. at 735–36 (bracketed material by Court of Appeals). Evidently the volume and tone of the paper filed in this case made an impression, but it wasn’t the desired impression.

So next time you find yourself driven to file, say, an emergency opposition to your opponent’s motion for leave file a surreply, stop. Take a deep breath. Count to ten. And think about whether reflexively firing back may do your client more harm than good.

Here come da judge

For a long time, I’ve been a fan of Judge Mark Painter, who, unlike Sammy Davis Jr., is neither too old nor too bold. So I’m happy to announce a legal-writing seminar he is bringing to Louisiana later this month: April 15 in Shreveport, April 17 in Baton Rouge, and April 18 in New Orleans. The seminar is based on his book, The Legal Writer, which contains 40 sound rules for improving your writing.

The seminar brochure (in two PDF files) is here and here. For a free, condensed version of Judge Painter’s 40 rules, read the lead article he wrote for the Summer 2005 issue of Certworthy.

Tactical choices in briefwriting

Mark Herrmann has an interesting post at Drug and Device Law about tactical choices in briefwriting. His point: Every choice has its potential benefits and potential risks. Reasonable tacticians may disagree on the best choice. Sometimes the best choice doesn’t work out.

To set the stage: A drug manufacturer, defendant in a state-court class action, is alleged to have promoted its brand-name drug for off-label uses, i.e. uses not approved by the FDA. The manufacturer filed a motion for summary judgment seeking to dismiss claims based on use of generic versions of the drug that the manufacturer did not make or sell. There is no caselaw from the forum state addressing the issue, but there is abundant and unanimous caselaw from outside the forum state—including the federal circuit encompassing the state—holding that the manufacturer cannot be held liable for claims arising from use of generic drugs not manufactured by the defendant. If you’re writing the brief for the manufacturer, what do you do? Herrmann sees two choices:

  1. File a short, sweet, 5- or 10-pager, citing all the cases that say the manufacturer should win, and then shut up. After all, judges always say that they prefer shorter briefs.
  2. “[L]et the thunder roar.” Cite all those cases, but buttress them with policy arguments and maybe analogical reasoning showing that all this foreign caselaw accords with the forum state’s law.

Either choice is reasonable. Herrmann thinks that the manufacturer may have gone with option # 1. If it did, this time shorter was not better. The judge rendered a scathing decision denying the manufacturer’s motion, featuring a 4½ page block quote from a criminal bill of information, to which the manufacturer pleaded guilty.

I haven’t read any of the briefs in the case, so I have no idea what tactical choices the lawyers made in writing them. But the judge’s opinion provides a clue that the parties’ issue statements may have been crucial, and that the judge adopted the plaintiffs’ issue statement. Here’s an excerpt from page 12 of the opinion:

Plaintiffs claim that defendants ... intentionally manipulated the consensus of medical opinion in America so that doctors came to believe that Gabapentin was a suitable drug for uses which had never been approved by the FDA.... Plaintiffs claim defendants did this when they had a statutorily imposed monopoly on the sale of Gabapentin and that the fruits of this illegal activity resulted in a continuing loss to class members after their monopoly had ceased. The question presented by this Motion for Partial Summary Judgment is whether this loss is compensable as to class members who purchases the generic equivalent of Gabapentin after the defendant’s monopoly had ceased if these allegations are eventually proven at trial.

The legal question presented by this Motion for Partial Summary Judgment is whether under Pennsylvania Law, a drug company which negligently or intentionally perpetrates a fraud upon the medical community may be held responsible for sums paid to other drug manufacturers because of their misrepresentations....

The lesson here may not be brevity versus “letting the thunder roar,” but the importance of framing the issue in a favorable way, to persuade the judge to adopt your statement of the issue.