Archive for the ‘Consequences of Sloppiness’ Category

Rambling Writing

Thursday, March 10th, 2011

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.”

 

 

 

The Case of the Jay-walking Teen

Thursday, February 3rd, 2011

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.

Professional Preparedness

Tuesday, January 18th, 2011

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.

It takes two to manage a docket calendar

Tuesday, December 21st, 2010

In The Empowered Paralegal: Effective, Efficient, and Professional, I explain that effective docket control involves the entire legal team. It is not enough for the attorney to simply delegate this task to the paralegal:

C. Dual Calendar Systems – Dual Attorney/Paralegal Responsibilities

You can and must manage your calendar. You also have some responsibility for managing your attorney’s calendar because you and your attorney are a team. The good news is that you and your attorney are a team so the attorney also has responsibility for managing the attorney’s calendar and some responsibility for managing yours.
Deadlines aren’t disastrous or dreadful. Missed deadlines are both. Cases, clients and law office reputations are lost due to late filing of documents. Even worse, jobs are lost. Take heart, there are systems designed to minimize this danger. When such systems are chosen and modified by you, your attorney and your office to suit your office’s practice, they can practically eliminate the danger. When your chosen system is combined with effective time, work, client and attorney management techniques and double-checking, missing a deadline should be a very rare occurrence indeed.

Legal.com posts a case today illustrating the dangers of failing to have a double-checking system in place.

Plaintiff—appellant Ber’Neice Harris appeals the district court’s dismissal of her Title VII action for failure to timely file her complaint. Harris argues that the ninety-day filing period for her religious discrimination action should be equitably tolled because the delay was caused not by the plaintiff but by a clerical error made by her attorney’s paralegal. We agree with the district court that equitable tolling does not apply to normal situations of attorney negligence or inadvertence. Accordingly, we AFFIRM the district court’s order dismissing the Title VII case for failure to timely file the complaint.

There is no doubt that the paralegal screwed up here, but I maintain that part of the responsibility lies with the law office, and not just because the rules make the attorney responsible for staff screw ups. This kind of error can be avoided by having a system in place that requires that every docket entry be cross-checked by someone else on the legal team. If the client is brought into the process (as I also advocate in The Empowered Paralegal), the client may play this role but I prefer that this responsibility remain within the law office.  I am sure that the attorney in this case came down hard on the responsible paralegal – and justifiably so. However, some of the wrath must be reserved for the attorney and law office that did not foresee this possibility and have a system in place to prevent it.

As part of your year-end assessment, check your office’s system for controlling and preventing docket calendar entries. If it is not a dual system, a system that has someone cross-checking what you do, talk  to your attorney about implementing the necessary changes. If you are concerned about having that conversation, read Chapter Six of The Empowered Paralegal: Effective, Efficient, and Professional.

Paralegals Help Prevent Dustbunnies

Thursday, November 18th, 2010

Chancery Judge Larry Primeaux has another excellent post today entitled, “Sweeping Dustbunnies.” I’m reposting it here because I think you need to read the whole thing to get the full picture and the judge as previously indicated he doesn’t mind me lifting his material. I recommend that any paralegal interested in understanding practice before a court to put his blog on their RSS. It is worth it for the checklists alone.

My only contribution will be this foreword to the post, partly addressed to attorneys and partly to paralegals:

Attorneys: A good, professional paralegal can save you a lot of grief. They are not maids, butlers, super-secretaries, who clean up the office. But as an effective member of the legal team they can greatly assist in preventing dustbunnies of the type depicted by the judge. For this to happen it is important that you understand, respect, and properly use the special skills a good paralegal brings to the legal team. Support your paralegals in this regard by providing them with the time and means to obtain appropriate CLE and membership in professional associations. Talk to your paralegals about what can be done to improve their skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

Paralegals: It is, indeed, part of your role on the legal team to use effective and professional time, workload, workspace, docket, and client management skills, to prevent the accumulation of dustbunnies. Use examples such as this case to do a self-assessment and an assessment of your office systems. How many of these dustbunnies would have been prevented in your office and how many would likely have begun gathering in the small spaces between the files piled on the legal team members’ desks? Talk to your attorneys about what can be done to improve your skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

OK, homily over, here’s the judge’s post:

Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?

The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.

Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.

Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.

And that is when the discombobulating deluge of dustbunnies (¤) began to develop.

It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.

Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.

Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.

In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.

Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.

Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.

In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.

To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.

They’re beginning to pile up, aren’t they?

At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.

The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.

Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.

The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.

Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.

So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.

Writing Wrong

Friday, September 3rd, 2010

My last post related to using or disregarding grammar rules in order to communicate clearly. This evening I ran across these headlines for the same story. While headlines are not like real writing, a certain amount of clarity (which means thinking about what you are writing) is still required. Which of these three do you think most accurately represents the story:

Mother of 4-year-old Marchella Pierce, found dead and weighing just 15 pounds, arrested for assault. (Wow, the child’s mother weighed 15 pound, was found dead, and was stillcharged with assault!) New York Daily News.

Mother of underweight child found dead charged with assault (I’m actually surprised that the New York Post is a bit better than the New York Daily News.) New York Post.

Brooklyn Mother Charged In Connection With Underweight Daughter’s Death NY1

A sad story no matter how you look at it, but it does at least deserve intelligible writing.

When to boldly split an infinitive

Friday, September 3rd, 2010

It is difficult to exactly determine when to deftly split an infinitive and when not to do so. A post on ABAJournal.com reports on a lawyer and public relations consultant who advises,

“Blindly following grammar rules can be a mistake for legal writers..That means it is permissible to boldly split your infinitives, according to a Recorder article by AT&T lawyer John di Bene and public relations consultant Elizabeth Lampert.

“Lawyers will write the worst sentences in order to keep infinitives together, ruin the flow of their arguments and lose their readers in the process,” they write. “Remember, you are not writing for a grade, you’re writing to make a point. While it is important to know a rule, it is just as important to know when you should break it.”

They also advise against convoluted language, jargon and a patronizing tone.

This should not, however, be taken by any one that they can simply ignore the rules of grammar as a professional paralegal.

First, there is significant disagreement as to whether splitting infinitives is grammatically incorrect. So splitting an infinitive may not be a rule contravention at all. More important, though, is to take heed of the context: it is OK to bend the rules of grammar in order to avoid ruining the flow of an argument, or confusing or losing a reader. Most rules of grammar are intended to prevent these very same problem. Writing clearly, concisely, and persuasively is the goal. Most rules of grammar support that goal in most instances. They should be followed unless they clearly run counter to that goal.

Writing right remains an essential paralegal skill. Sloppy writing has its consequences some of which are illustrated in the “Consequences of Sloppiness” category. The most likely consequence is that your reader will not understand you. A brief is not likely to persuade a judge if the judge cannot understand what is being said. It certainly will not persuade a judge if the judge decides not to finish reading it.

I join with U.S. Bankruptcy Judge Robert Kressel of Minnesota in strong agreement with the advice to avoid jargon.

Say what?

Thursday, August 26th, 2010

This has little to do directly with paralegal, other than as an object lesson on sentence structure and clear communications. Here’s the introductory sentence from an ABAJournal.compost:

Ohio tort lawyer Stan Chesley is facing an ethics investigation by the Kentucky Bar Association for his conduct in litigation involving fen-phen and priest abuse.

I admit to being behind in such matters, but I was totally unaware of a connection between fen-phen and priest abuse. In fact I wasn’t aware priest were being abused. You can check out what they really meant here.

Professional Preparedness

Monday, August 2nd, 2010

I often contend that it is freqently the best prepared case that wins the day rather than the best case. A good deal of The Empowered Paralegal focuses on preparedness whether the discussion relates litigation, client management, or any other aspect of paralegal work. Preparing for trial requires much more than lining up witnesses, marking exhibits, and the like. It includes knowing whatever can be known about the jury pool, court room, courthouse, witnesses, parties, and the judge. Consider, plan, and prepare the entire trial presenation from the standpoint of its effectiveness in that particular courtroom and from the viewpoint of the other participants. Having great evidence is of little import if that evidence is not presented in a way that can be seen, heard, and understood by the factfinder. Evidence is only “proof” when it convinces the factfinder.

Here in Mississippi we are fortunate to have a judge who blogs. And in his blog he tells legal teams what he expects from them in court. I suspect that what he expects is quite similar to what most judges expect. It comes as no surprise that one of his expectations is that the legal team be prepared! Consider this recent [edited] post:

Is this you? Your client, Otis, is on the witness stand. Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side. You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate. The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct. Give yourself a gold star and a pat on the back for a correct answer to this quiz. Give yourself a big, fat F for your trial technique.

…Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up. That’s a pretty shrewd practice.

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind. Put yourself in the judge’s shoes: Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.

The principle is not limited to financial statements. I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each. To this day, I have no idea what the witness was talking about. Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client. How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at. That’s like sending the poor client into a knife fight without a knife.

The same principles apply to a jury. For example, it makes sense to have an exhibit projected onto a screen for the jury to see as the witness talks about it.

In any case regardless of your jurisdiction, check out the blog at this link: http://chancery12.wordpress.com/2010/08/02/judging-in-the-blind/. It is a great resource for basics such as checklists and for more subtle insight into trial preparation from the viewpoint of the bench.

Another Facebook Faux Pas

Monday, May 17th, 2010

A fairly frequent topic here is the danger posed by social media and the use of the internet in general. Obviously I’m a big fan of the internet – tough to blog without some good feeling about the internet. But any legal professional needs be mindful of the dangers of the internet. In essence, a professional must be professional on the internet because the line separating professional and personal lives hardly exists there. Lynne Devenney of Practical Paralegalismprovides today’s lesson in this regard. As always, Lynne adds to the lesson with words of wisdom. I have a lot of writing to do tonight, so I’ll not say more.

Click here to get the lowdown from Lynne: How to Get Fired on Facebook 101.