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October 06, 2010
Writing for Clients, Judges, and other Humans.
Insane Lawyer Posse? Lawyers, including some judges, have a certain way of talking to each other on paper which (1) really isn't needed and just alienates the rest of the thinking and semi-lucid world, and (b) even makes it think we are talking to ourselves dementedly and self-absorbedly like mental patients on third-rate time-released crank. For example, from the first line of an actual federal district court complaint (with changes made only to protect the lame):
COMPLAINTCOMES NOW, the plaintiff, Upstart Corporation, by and through its attorneys, Adams, Bones & Carson, LLC, brings this cause of action against GiantMart, Inc. for violations of the Lanham Act, and for its reasons, files with this Honorable Court the herein Complaint, the following of which is a statement of its averments and allegations:
Why not instead just:
COMPLAINTPlaintiff, Upstart Corporation, states:
Is it just me?
Posted by Holden Oliver (Kitzbühel Desk) at October 6, 2010 12:00 AM
Comments
You're not the only one:
"As part of a 1987 survey of judges (and lawyers) in Michigan, readers were asked to mark their preference between these two
sentences:
1. Now comes the above-named John Smith, plaintiff herein, by and through Darrow & Holmes, his attorneys of record, and
shows unto this honorable Court as follows:
2. For his complaint, plaintiff says:
-Michigan judges preferred version 2 by 84% to 16%.(1) When the same survey was sent to Florida judges, 88% preferred the simpler version. (2) Judges in Louisiana and Texas have also replied to the same survey; again, about 75% preferred the simpler version in court documents.(3)"
From: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1654020
And that was back in the 80s!
Posted by: Keith Lee at October 6, 2010 08:50 AM
these polls are meaningless
the judges are just giving the answer they expect the pollster wants to hear. Beckwith covers this issue very well in several of his books. Scalia and Thomas take great pride in telling people how open minded their closed minds really are
If you want to convince a judge, use the first paragraph.
legal writing should, more than anything, follow Franklin's counsel and appeal to the interest and bias of the judge. Instead of being good writing, draw on Munger's psychology of human misjudgment and Dan Ariely's Predictably Irrational.
The second opening, not being familiar, will get a pavlovian response. Every human being responds, first, to every stimulus in a pavlovian manner.
The judge reading the second opening says to herself, this is a bright lawyer who is going to try to manipulate me and there you have lost the case in the first paragraph.
If possible your brief should have smudges and dust from the old law books used as your only citations.
If you doubt me, remember that most state courts still don't understand, for example, that Barwick v. English Joint Stock Bank (1867) was mostly dicta and they loath following Gleason v. Seaboard Air Line (1929 (in cases involving fraud by an agent) which states the correct rule
Posted by: John Davidson at October 7, 2010 12:44 PM