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

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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/

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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!

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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.

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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.

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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!

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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.

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I’ve posted before about the importance of writing right. My students know that I frequently and repeatedly (perhaps incessantly) discuss the importance of being able to writing clearly and concisely, pointing out the word and page limits on filings in Federal Courts. The results (in terms of the papers and pleadings I receive) indicate that they do not take these admonitions seriously. So this from ABAJournal.com is for them (and any working paralegals of the same ilk):

7th Circuit Zaps Lawyer for Exceeding 14K Word Limit in Brief, Summarily OKs Lower Court Decision

n a blistering opinion (PDF) today, a federal appeals court not only stated or implied that a lawyer had been untruthful in his certification that a brief met the 14,000-word limit but criticized his “rambling” writing.

Then, saying that any further effort by appellant attorney John Caudill to file a brief that complied with the 7th U.S. Circuit Court of Appeals rules would be pointless, a three-judge panel summarily affirmed the district court decision in the case.

While it did not dismiss the appeal as a sanction for Caudill’s certification that the brief was within the word limit, it has the power to do so, the court said in a six-page ruling authored by Judge Richard Posner:

“The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.”

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This story from ABAJournal.com is posted there for a different reason than it posted here. It posted here because of the way it is written.  See if you can see the problem:

A 13-year-old Las Vegas teen who was ticketed for jaywalking while in a medically induced coma is out of the hospital, and she’s taking her own legal action against the driver accused of striking and injuring her.

The suit (PDF) filed on behalf of Takara Davis claims she was thrown about 100 feet when she was struck by a driver in a Toyota Camry at around 2:30 in the afternoon on Jan. 4, according to the New York Personal Injury Law Blog. Davis won’t have to go back to court to fight the jaywalking ticket, though; a judge dismissed it last week, according to the Las Vegas Review-Journal and Fox5Vegas.com.

Davis’ mother, Kellie Obong, has criticized the officer who visited the hospital and handed her the ticket for her daughter.

I personally hold blog posts to a lesser standard than the legal writing required in a law office or in student papers (if for no other reason than the amazing correlation between time for posting on blogs and cocktail time), but this does illustrate the misunderstandings that can be caused when one does not write clearly.

In case you did not catch the problem, consider these comments to the post:

“I think there should be some kind of prize for jaywalking while in a coma.  That can’t be easy.”

“I’m still trying to figure out how she was able to jaywalk while in a medically induced coma.

Another well written piece.”

For more on the importance of writing right see this and check the “Consequences of Sloppiness” category.

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In a recent post I ran a humorous and fictional example of legal reasoning taken from Judge Larry Primeaux’s blog noting, “I recommend that every paralegal and lawyer put the Mississippi 12th Chancery District’s Judge’s blog on their RSS feed because of his great checklist and commentary on topics from probating lost wills to final decision making authority in joint custody situations (both of which appear in the last week.) While the focus is on Mississippi law, the concepts are applicable everywhere.” Today I’ll give an example. The judge today posts, “CORROBORATION PROBLEMS = DIVORCE PROBLEMS”

While the corroboration problems of which he speaks relate to the need for a particular type of proof needed in divorce actions in Mississippi, he ends by noting, “The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.” For me this illustrates two major problems that frequently lead to poor performance by the legal team and go well beyond application of particular laws of any state.

First, professionalism requires that every member of the legal team be prepared. For any matter that must be brought to court that preparation must be centered around the requirements of the statute or case law that establishes the cause of action or defense. I am presently working on The Empowered Paralegal Cause of Action Handbook, which focuses on the need to analyze a cause of action or defense into its basic elements and use those elements as the framework for preparing an investigation, a complaint, a defense, discovery, both direct and cross-examination – the entire process of obtaining a favorable result for a client. This form of preparation is introduced in The Empowered Paralegal: Effective, Efficient and Professional especially in the chapter on organizing a trial notebook and evidence tree around the pertinent elements. One point being made by the judge is that some legal teams are unsuccessful simply because they do not fully analyze and understand what is required of a particular cause of action or statute. (Hence his frequent and well-done litigation checklists.)

Second, simply telling a client to bring a witness for any purpose, is likely to lead to disaster. It assumes that a client understands the issues at stake, the nature of a witness testifying, etc. Assuming such understanding is often disastrous for the legal team. Assuring such understanding is, to a great degree, the role of the paralegal. Especially, when the attorney expects the client to perform functions that pertain to the success of the legal team, the client must actually be made part of that team. Paralegals are uniquely suited to obtaining the requisite cooperation from a client.

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