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!

BREAKING -- Federal JNC is formed (UPDATED with a correction from Sen. Rubio's office)

The South Florida Federal JNC is:

Vivian de las Cuevas-Diaz

Larry Handfield

Retired Judge Ilona Holmes

Eduardo Lacasa

Victoria Mesa-Estrada

Burnadette Norris-Weeks

Retired Justice Barbara Pariente

I've been told that 5 Dem picks, two Rubio picks (update, this is incorrect; see below), and that Scott refused to participate.  These 7 people will make recommendations for federal judges and U.S. Attorney.  More to follow.

Updated with this statement from a spokesperson for Sen. Rubio to the blog:

“Senator Rubio is not a participant in this JNC.  Due to his longtime working relationship with Congresswoman Wasserman Schultz, at her request he provided the names of Republicans who have served on his JNC in the past. However they are not his appointees. As he has done his entire time in the Senate, he will continue to rely on his own bipartisan commission to assist in fulfilling his role in the Senate’s constitutional duty to provide advice and consent on judicial nominees. And as he has done in the previous two Congresses, he will make decisions on U.S. Attorneys and U.S. Marshals directly.” 

Horrific conditions exist in our prisons.

Read the thread below. How do we allow this?

In Texas prisons, food is so bad the staff are finding mold on it. This photo came w/a leaked email a shocked official sent to every unit.

“If there is mold on the bread don’t make a sandwich w/it,” he wrote.

Here’s a THREAD on more internal emails abt the food situation. pic.twitter.com/JyMmUUb7BF

— Keri Blakinger (@keribla) March 3, 2021

New Podcast episode: Abbe Lowell for John Edwards

Typically a federal trial about election law doesn't involve extramarital affairs, the National Enquirer, and a Presidential candidate.  You'll get all of that in today's episode of For The Defense, in which I discuss the John Edwards trial with the great Abbe Lowell.  You can check it out on Apple, Spotify and Google,  All other platforms can be accessed on our website. 

John Edwards and Abbe Lowell
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Previous episodes this Season include : 

• Alan Dershowitz (O.J. Simpson): Dersh discusses the trial of the century and other fascinating legal topics with his former student.  Listen here.
• Jose Baez (Casey Anthony): Jose Baez has become known as one of the go-to trial lawyers, and it was the Casey Anthony case that thrust him onto the national stage. Listen here.
• Ron Sullivan (Aaron Hernandez): All hope was lost for Aaron Hernandez after he lost his first murder trial.  Enter Harvard Law Professor Ron Sullivan who represented Hernandez at murder trial #2 and won against all odds. Listen here.
• Rob Cary (Sen. Ted Stevens):  You would think that prosecutors would be on their best behavior in a case against a sitting U.S. Senator and one of Alaska’s founding fathers, but it took Rob Cary to uncover jaw-dropping and far-reaching prosecutorial misconduct. Listen here.
• Jayne Weintraub (Yahweh Ben Yahweh): Cutting off ears, death angels, and a Temple of Love.  Another day at the office in Miami’s Justice Building where Jayne Weintraub defended who some called a cult-leader and others called a savior.  Listen here.

Coming up on For the Defense:

• David Gerger (Deepwater Horizon): Someone needed to pay for the biggest environmental disaster in U.S. history, and David Gerger made sure the government did not scapegoat his client Robert Kaluza.
• Michael Tigar (Terry Nichols): Who would represent one of the most-hated criminal defendants of all time, accused of blowing up the federal building in Oklahoma City? None other than the dean of the criminal defense bar, Michael Tigar.

It's not too late to catch up on Season 1 if you missed it (which included the following lawyers: Donna Rotunno, Roy Black, Tom Mesereau, Marty Weinberg, H.T. Smith, F. Lee Bailey, and Hank Asbill).  

To receive Florida CLE credit for Season 1, email me at dmarkus@markuslaw.com (Season 2 was recently approved for CLE and we will send the code at the end of the season).

Please send me your feedback -- and of course, subscribe, like and comment!  If you would like to receive these updates, please sign up here. 

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

"What's next for U.S. District Judge Roy Altman?"

 That's the title of this nice piece about Judge Altman in the DBR. Here's a cool shout-out to his grandfather:

And when Altman had one of his last conversations with his grandfather in Caracas, Venezuela, those American historical figures and what they stood for was the basis of a topic of discussion. At the time, his grandfather was dying from cancer. The two men were playing several games of chess on the balcony of his grandfather’s apartment overlooking tens of thousands of protestors.
That afternoon was a few weeks after Hugo Chávez, the president of the island nation in which corruption had become increasingly more widespread, padded the Venezuelan Supreme Court with loyalists in his party so he could seek unlimited terms in office.

Altman expressed to his grandfather his intentions to apply to law school as people took to the streets to protest the “gross violation of their constitutional charter.”
“One of the last things my grandfather said was: ‘This is what happens to a country when good people don’t serve it. When the worst people become public servants. If you’re going to be a lawyer, remember to be the right kind of lawyer that serves its country, so this never happens in America,’ ” Altman recounted. “ I carried those words with me. That story was my essay for my application to Yale Law School.”
And as Altman was nearing graduation from Yale in New Haven, Connecticut, he had no doubt in his mind that he wanted to return to Miami to start his legal career.
“This is the community that brought my family in when we came here from Venezuela,” Altman said. “We built a life here, we built friendships here, and I owed this community, I still do, for taking us in.”

Former U.S. Attorney Willy Ferrer said: “I would not be surprised to seeing Roy sitting on the U.S. Supreme Court,” Ferrer said. “He’s got everything that it takes to be elevated in the U.S. court system.”

Rumpole's Rules of Court (Updated)

 He posts his 10 Rules here, which he says apply via Zoom or in person.  I like them.  Check them out, especially young lawyers.  One quibble with Rule #4 -- are you really standing up during Zoom court?

Updated -- one rule Rumpole should think about adding is that clients shouldn't show up while performing surgery.  This plastic surgeon thought it was a good idea to appear for trial during while his unconscious patient was on the operating table. 

Speaking of Zoom court, I'd like to see the statistics for Zoom sentencings.  Are judges giving more significant downward variances because of the pandemic? Or are sentences higher because it's harder to humanize the client over Zoom?  

My experience has been that most judges recognize the difficulties in presenting arguments during a Zoom sentencing as well as the challenges of custodial sentences.  They have been giving the "Zoom discount." It depends, of course... for some judges, it's business as usual.  But overall, I have seen better (lower) sentences over the past year.  

My hope is that these slightly lower sentences start to become normalized and don't change once the pandemic is over.  If Biden can prioritize judges and appoint some progressives to the bench, we may even start to see real change in sentencing.  Let's see.

What will President Biden do with the Sentencing Commission

 Sentencing Guru Douglas Berman writes about it here.  From his conclusion:

Diverse nominees to the Commission should help ensure this agency pursues an ambitious reform agenda. But President Biden should also expressly request the Commission conduct a comprehensive assessment of the entire federal sentencing system—and perhaps even our whole nation’s many sentencing systems—with a particular focus on modern mass incarceration and mass punishment. The American Law Institute’s recent revision of the Model Penal Code’s sentencing provisions wisely recommends that sentencing commissions regularly “perform an omnibus review of the sentencing system,” which should include “a comparative review of the experiences of other jurisdictions with similar sentencing and corrections systems.” An across-the-board review of the federal sentencing system is long overdue, and the U.S. Sentencing Commission has the staff and resources needed to conduct a systematic, evidence-based nationwide analysis in order to identify those modern sentencing systems and practices that best advance public safety and equitable justice while minimizing the number of persons subject to penal custody and supervision.

Calls for reviving and reorienting the work of the U.S. Sentencing Commission are coming from many quarters: a task force of the Council on Criminal Justice has stressed the need to “reinvigorate the U.S. Sentencing Commission,” for example, and the Biden-Sanders Unity Task Force on Criminal Justice Reform recommended that the Commission be tasked “with conducting a comprehensive review” of federal sentencing law and practices. But even with a chorus of voices and strong political will for significant sentencing reforms, President Biden must prioritize making appointments that can enable the U.S. Sentencing Commission to effectively lead the way.

What will the new SDFLA U.S. Attorney do about prosecutorial misconduct?

 That's a question that should be asked of all potential candidates for U.S. Attorney.  In SDNY, for example, the office has dismissed cases where there is misconduct, even after a conviction (unlike here).  From the WaPo:

Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.

The embarrassing revelations about what many consider the U.S.’ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.

The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.

While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.

The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.

The whole article is worth a read as it details incredible, but not uncommon, misconduct. The New York judge was upset with the government and urged OPR to investigate.  We know what OPR will do.  But at least SDNY dismissed after the jury verdict of guilt.  That's not true in other officers or especially here, where there is a long line of misconduct cases, which the office tries to defend even after misconduct is exposed.  It will be interesting to see if that changes under the new administration.  

So, hopeful U.S. Attorney candidates -- feel free to email me your plan to address prosecutorial misconduct and I will post your answer in full.

In the meantime, we still need judges to check prosecutors when they cross the line.