Archive for the ‘Consequences of Sloppiness’ Category

Sloppy or Misleading

Wednesday, November 18th, 2015

I’ve posted several times about judicial reprimands for sloppy work. Indeed, there’s a “Consequences of Sloppiness” category. Above the Law notes a recent “benchslap” for sloppiness on the part of government in a post entitled, “Judge Loses Patience With Government’s Sloppy Work.” However, the article makes it clear that the judge’s concern went beyond mere sloppiness. She writes that the government exhibited a pattern of “sloppiness” that “in sum” the sloppiness “represents a systematic pattern of the Commission picking the wrong conclusion from the evidence.” If this is the case, the problem goes well beyond sloppiness to a matter of serious ethical concern.

There used to be a commercial in which the tag line was “It’s not nice to fool Mother Nature>” The fact is that most judges are fairly intelligent. It’s not nice to attempt to fool them in this way and they are not likely to be fooled by it. The consequences may go well beyond the consequences of mere sloppiness.

Let’s eat Grandma.

Friday, July 17th, 2015

Teachers use the classic example of the difference between “Let’s eat, Grandma” and “Let’s eat Grandma” to illustrate the importance of a comma to the meaning of a sentence. (Just yesterday I saw it posted on a professor’s bulletin board at the University of Maine School of Law.) However, Celia C. Elwell, The Researching Paralegal recently called a real-life example to our attention by posting a link to a Washington Post article
Ohio appeals court ruling is a victory for punctuation, sanity” together with some of her own commentary. It turns out that there is a difference between a “motor vehicle camper” and “motor vehicle, camper.” Of course, we all know that, but apparently the people who wrote the ordinance did not, thus providing us with another entry in the Consequences of Sloppiness category. So, I join Celia in celebrating Judge Robert A. Hendrickson, of the Twelfth District Court of Appeals in Ohio and this victory for punctuation.

Clear and Concise

Friday, September 19th, 2014

A good deal of our paralegal studies program at the University of Mississippi focuses on developing the ability to write clearly and concisely. (I am fortunate enough to have been given an internal grant from the Center for Rhetoric and Writing to improve  our ability to improve students’ writing ability.) It helps to explain why clear and concise writing is important before attempting to teach it. My explanation usually includes references to page, line, and word limitations in rules of procedure, but while the students read those limits, it seems students and many practicing legal professionals often do not believe the limits are enforced. That’s why I am passing on this story from abajournal.com:

Judge scolds BP for squeezing extra lines into brief

Posted Sep 18, 2014 09:50 am CDT

By Debra Cassens Weiss

BP is on notice that a federal judge will be closely scrutinizing its briefs for excess words in litigation over the Gulf oil spill.

In an order (PDF) on Monday, U.S. District Judge Carl Barbier said BP evidently abused a 35-page limit by slightly squeezing the spacing between the lines. The limit was already 10 pages longer than usual, and it called for a double-spaced brief.

As a result of the manipulation, Barbier said, BP exceeded the already enlarged page limit by about six pages. Slate and NPR have stories.

“The court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this,” Barbier wrote. “Counsel are expected to follow the court’s orders both in letter and in spirit. The court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

“Any future briefs using similar tactics will be struck.”

BP is represented by several law firms, and Barbier did not identify the firm at fault. He does, however, reference the Pacer number on the offending brief, which was submitted under the electronic signature of Kirkland & Ellis lawyer J. Andrew Langan. A Kirkland & Ellis spokesperson did not immediately respond to a request for comment. Langan said he would refer the ABA Journal’s request for comment to the appropriate person.

One comment states:

Instead of word processing tricks, I suggest go ‘old school.’ Consult an early version of Strunk and White’s “Elements of Style” and learn to write using fewer words.

I agree. I suspect Celia Elwell, The Researching Paralegal, also agrees, since she frequently posts articles such as this: Classic Writing Tips from C. S. Lewis

 

I’m not through talking about writing

Saturday, February 16th, 2013

We in the post-secondary education business spend a great deal of time trying to teach our students to write right. It is unfortunate that they are woefully unable to do so as a result of their high school education.  Fortunately or unfortunately, depending on your perspective, there are plenty of examples of how to write wrong to use to illustrate a point. Just this week in my Law of Business Organizations class we talked fairly extensively about the need to write simply and concisely. So it is quite opportune to see this post from Lowering the Bar:

Australian Experts Report First Known Quintuple Negative

A person whose native language is said to be English created the following sentence recently:

The grounds of appeal announced on Monday state Justice Sifris erred in not finding Mr Goldberg was wrong in failing to set aside the summonses.

A brisk debate sprung up as to whether the sentence contained five negatives or only four, but all the experts did agree that it sucked.

The sentence appeared in an article about an appeal by two Australian journalists who had been served with subpoenas requiring them to disclose sources. A magistrate (that’s Mr. Goldberg) ruled that the subpoenas were proper, and on appeal the reviewing judge agreed. The sentence above was written in an effort to explain what happened next. If you follow all the twists and turns, it seems to lead to the right place, but “the journalists say the magistrate should have quashed the subpoenas” gets you there a lot faster.

To be fair to the reporters, they were probably just repeating what lawyers told them, but still.

Scientists operating the Large Hadron Collider reported last June that they had seen evidence of a sextuple negative, but said that if this did happen it lasted only a few fractions of a second before self-destructing.

I don’t normally include another blog’s complete post in my posts here, but Kevin Underhill writes so well about bad writing that I couldn’t resist the opportunity to illustrate both bad writing and good writing at the same time.

Which brings us to another post – this one from ABAJournal.com about a melee at a high school that states, “Thursday’s ruckus began during the first lunch period when one student through a milk carton at another.” (Emphasis added.)

Can Poor Writing Be a Crime?

Monday, January 28th, 2013

I doubt it, but a post today at ABAJournal.com entitled “Lawyer-lawamker blames poor writing for bill that would criminalize abortions by rape victims” suggests that poor writing can create a crime where (if the drafter of the law is to be believed) there was no intent to do so:

A New Mexico lawmaker says the critics misinterpreted her proposed bill that appeared to criminalize abortions by victims of rape and incest.

The bill said procuring abortions in cases of rape and incest could constitute tampering with evidence, a crime meriting a sentence of up to three years in prison, the Washington Post, ABC News and the Carlsbad Current-Argus report. The exact wording: “Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.”

News of the bill led to creation of a Facebook page calling for resignation of the bill’s sponsor, New Mexico state Rep. Cathrynn Brown. But Brown says poor writing is to blame for the furor. Brown says she wanted to make it a crime for a rapist or perpetrator of incest to force the victim to have an abortion.

Brown, a lawyer, said the bill “was never intended to punish or criminalize rape victims,” according to the Post account. She told the Current-Argus that she didn’t catch the drafting error when she reviewed the bill. “I missed this one,” she said.

It is difficult to overstate how important writing correctly is for legal professionals. (Check out the “Consequences of Sloppiness” category.) Even the presence or absence of a comma can make a difference in the meaning of a sentence. Compare these two sentences:

A woman had people over for dinner, but served her children first while the others looked on hungrily. She said, “Eat, my children.”

A woman had people over for dinner, but served her children first while the others looked on hungrily. She said, “Eat my children.”

Yet this point seems to be getting increasing difficult for paralegal educators to make with students. Students often seem to get indignant that we require them to write correctly. Many seem not to have been required to do so in high school – even in English class!

Of course we all make mistakes and can all stand improvement. I subscribe to “Grammar Girl’s Quick and Dirty Tips for Better Writing” podcast. The “lessons” are short, well-done and easy to fit in while waiting for a class to start or waiting on line at the ATM. http://grammar.quickanddirtytips.com/

More Consequences of Sloppiness

Thursday, March 29th, 2012

From “Lowering the Bar:”

JP Morgan won a case this week in which it had been sued by a trader who said his contract promised him 24 million rand per year (US $3.1 million). In yet another example of Why Typos Matter, the contract was missing a decimal point between the “2” and the “4.” JP Morgan said the trader knew this was a mistake, but signed the new contract anyway, hoping to try his luck with a lawsuit. On Monday, a judge agreed and ordered plaintiff to pay £80,000 in costs (no decimal point).

While this case turned out OK despite the typo, the fact of the matter is that the entire court suit could have been avoided if the mistake had not been made in the first place. Yes, this case is from the UK it could just as easily happen here! Therefore, it has earned a spot in our “Consequences of Sloppiness” category!

Beyond Sloppiness to Gibberish

Friday, September 23rd, 2011

Sort of pressed for time these days. (Another manuscript deadline approaching.) But I do want to take a moment to add this to the “Consequences of Sloppiness” file, although as the title to  the post suggests, it goes beyond sloppiness by at least 300 words. From ABAJournal.com:

A federal appeals court is so aggravated by the quality of an Illinois lawyer’s legal writing that it has ordered him to show cause why he shouldn’t be barred from practicing before the court.

Lawyer Walter Maksym was “unable to file an intelligible complaint,” despite three tries given him by the trial court, according to the opinion (PDF) by the Chicago-based 7th U.S. Circuit Court of Appeals. “Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing,” the appeals court said. In addition, “Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court,” the court added.

he district court was well within its discretion when it refused to accept Maksym’s second amended complaint, the appeals court said. “Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency,” according to the appeals court. “Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general ‘kitchen sink’ approach to pleading the case.”

The appeals court included a 345-word sentence by Maksym to illustrate. At least 23 sentences contained 100 or more words. “Much of the writing is little more than gibberish,” the appeals court said. “Given three attempts to file a proper complaint, Maksym could not even bring himself to correct the errors cataloged by the district court following the first two rejections.”

Most of the posts regarding sloppiness here deal with exactly that.  It is highly unlikely that this kind of writing could have emanated from or gotten by a professional paralegal. So the more interesting question, it seems to me, is what a paralegal should do when the attorney is about to file documents like this? How would you handle it? I have some thoughts of my own, but they will have to wait until I have a bit more time.

Judge Shoots Down Extra “n” in Canon

Wednesday, August 24th, 2011

Just yesterday I encouraged by students (it was the first day of all my classes) to check out the “Consequences of Sloppiness” category here as a way of emphasizing the necessity to cross-check our work for grammar, punctuation, spelling, sentence structure and the like. I tend to focus initially on the misuse of apostrophes, which I find particularly irksome. Apparently the judge in this story from ABAJournal.com is particularly irked by the misspelling of “canon:”
Judge Scolds Levi Aron’s Lawyers for Inexperience, Facebook Posts and Misspelled Word
By Debra Cassens Weiss
A Brooklyn judge presiding over the murder prosecution of Levi Aron showed impatience with the defense lawyers on Tuesday.

Judge Neil Firetog grilled the lawyers “about their legal chops” and expressed concern that they don’t have the experience to try such a complex case, the New York Daily News reports. …

Firetog scolded the lawyers for complaining about press coverage of the case after giving media interviews and posting comments on Facebook. He even chastised the lawyers for misspelling “canon” in a reference to ethics, the Times says. “Two N’s means a cannon that shoots at something,” he said.

Given the seriousness of the charge in this case and the apparent concerns over whether the defense attorneys have the needed expertise to provide a defense, it does seem odd that the court would focus on the misspelling of one word. However, for my students and for practicing paralegals the lesson is that, even in the midst of very important matters, judges do notice even small errors and (apparently) can be adversely affected by them. Just another illustration of the importance of writing right.

“[A]nyone can make such an occasional mistake, but…”

Monday, July 18th, 2011

As you may already know the 5th Circuit Court of Appeals has rejected a suit by a Texas cheerleader who did not make the varsity squad, stating ““Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.” While several sources have focused on the case it self, ABA Journal.com also notes that the court’s opinion comments harshly in a footnote on the grammar and spelling in the brief filed by the cheerleader’s law firm:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

In particular, Smith criticized this sentence in the plaintiff’s opening brief: “Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.”

These are the type of errors I see daily in student papers and all too often in documents prepared for submission to a court. As noted previously, writing right is important and there are consequences to sloppiness. (See the category of that name on this blog.)

There are, of course, also issues here regarding the decision of the lawyer to take this case not only to trial, but to appeal. While those decisions are ultimately the attorney’s, good lawyers will use paralegals as sounding boards during the decision process. Paralegals should speak up when given the opportunity (and often even when they are not), to provide some perspective in cases such as this. After all, it is likely the paralegal who will be expected to handle the client!

Professionalism and Wikipedia

Thursday, April 7th, 2011

Despite the title to this post, there is NO connection between professionalism and Wikipedia when it comes to legal or academic research. When I point this out to students or practicing paralegals I generally get responses indicating that the listeners are somewhat stunned by the comment, but they are not all the same. The “stunning” seems to be of two types: those who are stunned because they cannot believe anyone uses Wikipedia to do research and those who cannot understand why I am opposed to its use for these purposes, i.e., they don’t believe anyone really cares if you get your information from Wikipedia. I get similar responses on the issue of citing authority: Some can’t imagine that any legal professional would fail to cite authority and some who c do not believe anyone really cares.

Aside from the many documented instances of Wikipedia being wrong, e.g., reporting Senators Kennedy and Byrd as dead long before the actual events and Rush Limbaugh being hoaxed via Wikipedia today’s ABAJournal.com passes on a story from Legal Blog Watch in a post entitled “Judge Warns Defense Lawyers in Pitino Extortion Case: Don’t Crib Law Discussion from Wikipedia” in which it is clear that some people do care. This is especially important to legal professionals when the “someone” is a federal judge:

A federal judge has issued a legal writing warning to lawyers who sought a new trial for a woman convicted a trying to extort money from University of Louisville basketball coach Rick Pitino.

The defense should not have copied its discussion of ineffective assistance from Wikipedia, U.S. District Judge Charles Simpson of Louisville wrote in a February opinion (PDF). His concerns are outlined in footnote 4 of his opinion denying a new trial for the defendant, Karen Sypher, Legal Blog Watch reports.

“The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia website,” Simpson wrote.

“The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to ‘engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ …

“Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.”

Legal Blog Watch credits Legal Writing Prof Blog for noting the footnote

Professionals do not rely on Wikipedia.  Professionals cite their sources in work submitted to courts. Period.