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Candor toward the tribunal

Spotted on Legal Antics:


“Comes now the Appellant, by counsel, and moves the Court to reschedule the Oral Argument currently scheduled for August 1, 2007. The grounds for this motion are that undersigned counsel will be out of town in Oregon, on a 350-mile bicycle trip from July 30 through August 4, 2007, for no other reason than to please his wife. Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip.”

Next up on my reading list

My copy of Making Your Case, by Justice Antonin Scalia and Bryan Garner, finally arrived today. Judging by the first 16 pages (all I’ve read so far), it’s easy to read and hard to put down. I look forward to reading the remaining 190 pages.

While purchasing MYC on Amazon, I also picked up Judge Richard Posner’s new book, How Judges Think. I had read a blog post about this book on The Blawgraphy that piqued my interest. Just from glancing at the book, it looks like it may be more difficult reading than Making Your Case. But then, mining for gold isn’t supposed to be easy. Here is Judge Posner’s blurb from the back of the dust jacket:

I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges—and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession—including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit.

Oh boy!

Some enjoyable reading (for me, anyway)

Because I practice law in Louisiana, I rarely need to read decisions from the U.S. First Circuit, which means that I rarely get to read decisions written by Judge Bruce M. Selya. But I came across one a few days ago, and was immediately struck by Judge Selya’s use of interesting words and figures of speech. The decision is Colasanto v. Life Insurance Co. of North America, 100 F.3d 203 (1st Cir. 1996). It includes these gems:

  • “Upon a close perscrutation of the record, the parties’s briefs, and the applicable law, we discern no error.”
  • “The appellant contents that Farley filched the papers; Farley claims that Colasanto gave them to him.”
  • “The standard of review referable to a trial court’s refusal to order judgment as a matter of law is set in cement.”
  • “Transfer of ownership is a critical datum ....”
  • “The appellant then tries to hoist this asseveration by its bootstraps ....”
  • “There are two visible flaws in the fabric of the appellant’s thesis.”
  • “At the very least, a reasonable jury, faced with this concatenation of circumstances, had a right to conclude ....”
  • “Second, the Rule 56(d) approach is little more than stultification by tactical semantics.”
  • “Applying the principles gleaned from these cases, we descry no error here. It is plain as a pikestaff that Colasanto’s use of the word ‘executor’ in response to line 10(c) creates an ambiguity.”
  • “We need not paint the lily. On this scumbled record, a rational jury could have inferred ....”
  • “We add here only that, on both issues, the totality of the evidence does not suggest ... that justice miscarried ....”
  • “The appellant contends that the trial court blundered ....”
  • “In a last-ditch effort to stem the tide ....” [At first I thought this was a mixed metaphor. It’s not. Imagine someone digging ditches in the shoreline to divert the waves.]
  • “The preconditions for deployment of Rule 804(b)(5) are formidable.”

Some may argue that a writer should avoid using words likely to send the reader in search of a dictionary. But I didn’t mind Judge Selya’s choice of words in this decision. Although some of these words are new to me, the context provided the general idea. And reading new and interesting words is the only effective way to learn them.

Another thing: I like individuality in writing. I have a hunch that words like these come naturally to Judge Selya, and that they are expressions of his individuality. If you want to emulate Judge Selya, don’t reach for obscure words. Use the words that come naturally to you.

A short history of written advocacy

In The Art of Written Persuasion: The Rise of Written Persuasion, Troy Simpson traces the rise of written advocacy in England and Wales, Australia, and America. This article is the first of a series. In future installments, Simpson will examine why, despite the rise of written advocacy, lawyers’ written-advocacy skills remain under-developed and will suggest some possible solutions. (Hat tip to beSpacific.)