Posts Tagged ‘sloppiness’

Read herein below about superfluous words and Too Much Capitalization

Wednesday, December 16th, 2009

ABAJournal.com reports on a judge who has ordered lawyers stop using capitalization with abandon:

A federal bankruptcy judge is fed up with lawyers who use superfluous words and too much capitalization, and he has directed them to stop it.

U.S. Bankruptcy Judge Robert Kressel of Minnesota took a stand against legalese in new guidelines (PDF) for lawyers preparing proposed orders in his court, Legal Blog Watch reports, citing a story by Lawyerist.

Kressel says lawyers should eliminate superfluous words such as “hereby,” “herein” and “heretofore entered in this case.” The phrases “serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish,” he writes. “Compare the meaning of ‘Now, therefore, it may be and is hereby ordered that’ with ‘It is ordered.’ ”

Kressel also observes that “lawyers love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.”

This doesn’t fit in the “Consequences of Sloppiness” category as it is both (1) a preventative action rather than an imposition of consequences in a reaction to sloppy work and (2) addressing an area of document prepartion that does not involve sloppiness. However, the judge go on to admonish lawyers regarding proper use of the English language:

Kressel also says lawyers need to keep their plurals and possessives “straight and consistent,” need to watch verb tense, and need to use the possessive “its” and the contraction “it’s” correctly.

Don’t use “and/or,” he counsels. But do use articles such as “the,” “a,” and “an” as appropriate. Refer to “the debtor,” rather than “debtor,” for example.

The first is a simple matter of proofreading (assuming one knows the correct rules.) While I have often made such mistakes here on this blog, none of the posts are intended to be filed in court!

There are several points to be made here. First, a professional legal document is not a document filled with legal jargon and archaic language. Indeed, as Kressel suggests, the opposite is likely the case. Second, although this order is addressed to attorneys, it is likely paralegals will be charged with compliance. Third, it is necessary to know and practice proper use of the English language, a matter of reality my students, many paralegals and more than a few attorneys seem determined to deny.

The last point is well made in a recent guest post on The Paralegal Mentor blog by Lori Robinett, President of the Mid-Missouri Paralegal Association entitled, “Use of the English Language..” You should read the entire post, but here’s the sound bite:

Preciseness and accuracy are an absolute necessity. And the way you use language is a reflection on you and your employer. Take the time to learn the English language, pay attention to grammar, punctuation, and spelling.

Finally, the ABAJournal.comstory end with Kressel saying,“Write the way you would speak.” Unforunately, based on listening to many, many hours of listening to attorneys arguing motions and in other oral arguments, it seems he may regret the statement if attorneys take him literally!

Give the Judge His Space

Tuesday, November 24th, 2009

Another entry in our “Consequences of Sloppiness” series, but this one seems like more than just sloppiness. ABAJournal.comhas a post entitled, “Judge Warns Lawyers for Blackwater Defendants About Single Spacing.”  Here’s part of it:

A federal judge in Washington, D.C., has put lawyers for five Blackwater Worldwide contractors on notice that their failure to double space won’t be tolerated.

U.S. District Judge Ricardo Urbina wrote in a short notice (PDF) filed on Monday that the lawyers submitted a legal memorandum in single-space type, according to the Washington Post blog The Crime Scene. Urbina said the filing was “an apparent attempt to include more information in their submission than would otherwise be permitted.”

Urbina said the parties are now on notice that any further single-spacing will result in sanctions. The lawyers represent five former security contractors accused of shooting 14 unarmed Iraqi civilians in 2007.

As is often the case, it may appear that this judge has gotten angry over a minor matter, but the rules are the rules and a line must be drawn somewhere. More important here, this does not appear to be a simple matter of a clerical error, but  “an apparent attempt” to gain an advantage by violating the rules.

As yet the judge has not applied any formal consequences, but there are informal consequences associated with this type of thing. Think about it – the lawyers who are representing people accused of violating rules have a problem following rules! Seems that must influence how the defense is perceived.

The (100) Buck(s) Stops at the Lawyer, but…

Wednesday, October 14th, 2009

I’m thinking about starting a new category for reports of consequences resulting from mistakes in documents filed with courts. Today ABAJournal.com reports that a A Wisconsin lawyer has been fined $100 for getting a citation wrong in a brief submitted to the Wisconsin Court of Appeals.

The lawyer cited an unpublished case that supposedly upheld a stipulated damages clause in a vending machines contract. But a search for the case based on the name provided by the lawyer turned up a misrepresentation case brought by newlyweds against a wedding photographer.

The cite wasn’t helpful, either. It was listed as “2005 AP 160,” which sent the appeals court to 2005 WI App 160 and another “dead end,” the footnote said. When the court finally found the real case—which had an entirely different name—it learned “2005 AP 160” was the docket number.

“Different name, different citation, different district (District IV) but, as promised, unpublished,” the court said in the footnote.

The reports source, Legal Blog Watch notes both the viral way in which blog post spread and an interesting note on sloppiness:

OK, now there is a small kicker to this story of a sloppy cite. I learned about it from a post this week at WisBlawg. WisBlawg credited its source as Law Librarian Blog. Law Librarian Blog said it got it from Legal Writing Prof Blog. And Legal Writing Prof Blog identified its source as Lisa Mazzie at Marqette.

At where? Yes, it seems that Legal Writing Prof Blog forgot that u-after-q rule and mangled the name of a major law school. That was not the only error in this short Legal Writing Prof Blog post. It identified its quote of the court’s opinion as taken from footnote 5. It then cited the quote as “2008 WI App 160, ¶ 14 n.4.” Was it footnote four or footnote five?

As professionals we must strive to eliminate sloppiness from everything we do in our professionals lives. I encourage my students and all praticing paralegals to maintain professionalism even in emails and other communications that are done at work or relate to work. We cannot be correct 100% of the time. (I now have one kind hearted reader who proofreads most of my posts and emails me when I need to make a correction. Thanks, Lauren. ) but the standards for court pleadings are high as discussed in previous posts here.

In this case, the consequences could have been higher than $100. Not all courts will track down a citation the way this one did. Many will simply not read the case and discount the argument. Afterall, if the case was not important enough for the legal team to get the citation right, it couldn’t be important enough for the judge and her clerk to spend time searching for it.  If the case was not important to the argument, then one wonders why it was being cited at all!

While the lawyer will pay the court imposed penalty, it is likely that any paralegal working on the brief will also suffer some consequences.

The long-term solution is for the legal team to have an established and enforced procedure for cross-checking all citations, and proofreading all documents submitted to the court, other counsel and clients. This solution requires that the office also have a time-management system in place to ensure that work is completed in time for cross-checking and proofreading. Remember the dance!

Now that I’ve finished this I have decided to make a new category for these legal parables: Consequences of Sloppiness is the working title, but I’m open to suggestions.