Friday, March 05, 2021

Debate with Rumpole about using archaic legalese in motions

COMES NOW Defendant Cross-Plaintiff David Markus (hereinafter referred to as “Defendant” or “Cross-Plaintiff” or “Mr. Markus”), by and through undersigned counsel, who hereby files this motion for summary judgment (the “motion” or “MSJ” or “summary judgment” ) pursuant to Federal Rules of Civil Procedure (hereinafter “the Rules”) and states as follows. 

Oy vey.  Did that introduction help in any way to persuade you of anything? Of course not. But Rumpole laps up the legalese in this post over at his blog, which is usually wonderful, but is very wrong on this point.

We no longer write motions on a typewriter with carbon paper.  We don’t rent videos from Blockbuster.  We don’t take film to a camera store to be developed.  We don’t use curled up paper in a fax machine.  Or even a fax machine at all.  

Likewise, we don’t need words like COMES NOW, hereby, herein, aforementioned, inter alia, heretofore, know all men by these premises, and so on. If the goal of legal writing is to persuade, we should do away with archaic legalese.  Plain and easy to understand English is the way to go.  Phrases like COMES NOW do not add anything to a motion.  They are not persuasive.  They are meaningless. 

Bryan Garner, the legal writing authority, says the term COMES NOW should be banned and asks whether lawyers who use such terms “think that the phrase made them sound more thunderous and authoritative?” Justice Scalia started this plain English trend at the Supreme Court.  And it has taken root with the best legal writers across the courts.  From Robin Rosenbaum and William Pryor in the Eleventh Circuit to Alex Kozinski, former Chief Judge of the Ninth Circuit.  

Rumpole wants to stick to tradition, but this is a tradition that needs to be abandoned.  Lawyers also used to wear wigs to court.  Saying things like: I’ve received the your blog argument and “ hereby acknowledge same” doesn’t sound lawyerly.  It sounds like you’re a wanna-be lawyer.

Rumpole, PLEASE GOVERN YOURSELF ACCORDINGLY.  

Okay, don’t use that one either!

10 comments:

Robert Kuntz said...

You are correct. Rumpole is wrong.

There. I’ve stated my position in six words.

If my aim is merely to state my position, no additional words are needed or useful. (Indeed, I might have more compactly written: “You’re right; Rumpole’s wrong.” That saves a third of the words and half the sentences. But let’s fight the fight over contractions in legal writing another day.)

Should my aim be to PERSUADE a judge that you are right and Rumpole is wrong, that certainly is a greater exercise and I’ll need more words than six. But that writing ought to be undertaken with precisely the same dedication to clarity and economy.
In poetry or fiction, lush language is often some or all of the very purpose for the work. And well it may be, because poetry and novels are art. Legal writing, though, is craft. It is a creation with a job to do. It is a cabinet, not a sculpture. While it can and should be elegant and pleasurable to behold and use, archaic fripperies that get in the way of the work is has to do are a useless indulgence by the writer, inimical to the very reason for the writing.

Rumpole said...

Yes Mr Kunitz. Let’s do an appeal against each other. You can write “I’m right. The contract was not signed. “. I in turn will write a discourse on the parole evidence rule. Let’s see who wins.

Anonymous said...

Kozinsky is a creep; surely you could think of other legal writers to praise instead of him.

Robert Kuntz said...

Rumpole, you utterly -- and, I suspect, intentionally -- misread what I wrote.

"Should my aim be to PERSUADE a judge that you are right and Rumpole is wrong, that certainly is a greater exercise and I’ll need more words than six. But that writing ought to be undertaken with precisely the same dedication to clarity and economy."

Rumpole said...

Of course I mischaracterized what you wrote. it is the ancient art of litigation- wrongly rephrasing your opponent's argument and then explaining why it is wrong. It's ye olde strategy- called a strawman argument- the kind of archaic stuff you and Mr M despise.

BTW Hemmingway wrong precisely and he was boring as all get out. Read Steinbeck and understand the differences.
Wherefore, I am outta here.

and 9:16 what's wrong with an appellate judge who like porno?

Robert Kuntz said...

Rumpole, you've made my point for me.*

Hemingway wasn't writing a motion to enjoin the bull, he was describing what it felt its breath and blood felt like on the bullfighter's face. Steinbeck wasn't writing petition to subject Lennie to guardianship, he was using the tale of two men on the road to evoke a nation lost.

Sculptors. Not cabinet-makers.

Me, I'm a lowly cabinet-maker when I write for the court. If my product has so many fancy finials, jaunty gimcracks, and superfluous knobs and bobs, how can the court tell where the ideas and arguments are to be found?

Now my novel, on the other hand. . .


*Also, as for the strawman tactic, it really only works (if at ever) where the other side is denied a reply brief and cannot point it out. So here, where DOM allows replies, and sur-replies, and sur-sur-replies ad infinitum. . . not so much.

Anonymous said...

LESLIE ROTHENBERG IS TRYING TO GET ON THE FLA BOARD BAR OF GOVERNORS.
VOTE AGAINST HER.
SHE HAS BEEN PUBLICLY ANTI-GAY AND ANTI-ABORTION.

SEE: https://www.miaminewtimes.com/news/judge-not-6342447

SHE WAS ENTIRELY ENDS-ORIENTED ON THE 3D DCA AND REVILED BY APPELLATE PRACTITIONERS AND HER COLLEAGUES ON THE BENCH.

SHE CLAIMS ON HER BAR ADVERTISEMENT THAT SHE WAS "Honored by Israeli government for service during the Gulf War." THIS IS UTTERLY MISLEADING. SHE NEVER SERVED IN THE MILITARY. NOT FOR THE USA. NOT FOR ISRAEL. NOT FOR ANYONE.

Stephen said...

I disagree respecting "inter alia." There is occasionally a suggestion that the phrase be replaced with "among others" or "among other things." The problem with this suggestion is that, while it is plain English, it is unfamiliar phrasing which is not used in lay writing and thus remains awkward in the tongue both as to lay readers (if any) and attorneys. "Inter alia," while still jargon, remains a well known turn of phrase among the primary audience of legal documents. Doing away with "inter alia" in favor of "among others," would be akin to doing away with "consideration" in contracts law in favor of "price" or "benefits."

Rumpole said...

See Robert, I am a sculptor. David doesn't toot his own horn, and I've seen his briefs and he does use plain language but very effectively. Recently on a matter that was tragic he simply wrote "this is a very sad case". David and his wife are sculptors who write briefs that get reversals and new trials, new sentences, or cases dismissed. This isn't about writing simply in a brief that a case is very sad. It is about respect for tradition. When David writes a brief, I am assuming when he does OA he starts out "May it please the court" as a sign of respect.

Another example- David and I both strenuously agree that in closing arguments a lawyer has no need to spend the first five minutes, or even a minute thanking the jury. You lose them. The first words as a lawyer stands up in closing should be the theme of the case "John was afraid for his life when he fired his gun into the dark...."
I am not talking about using big words instead of small. What I am talking about is preserving the traditions of our field. That defendants enter "pleas" of not guilty, not just "says he didn't do it". That we have wherefore clauses and we stand when a judge enters a courtroom not for the current batch of mostly nitwits, but to honor the tradition of judging so very ably done by Justice Kogan who just passed away. I've called three judges "your honor" in my lifetime, and Kogan was one of them. The rest I just address as "judge". It is my private rating of judges.

I don't want wordy briefs. But I want our traditions preserved because it reminds us how important our job is.

Kindly act accordingly.

Anonymous said...

Inter alia is the price we pay to keep out all the alia. And we need to respect a lawyer who leaves out the alia.