Good writing. I took a seminar yesterday in appellate practice, which featured several sessions on brief-writing, accompanied by the usual bemoaning of the lack of quality writing among lawyers. I agree with that criticism, although my own take is that one of the reasons lawyers don't write better is because they spend so much time reading judicial opinions, which one commentator termed "the largest body of poorly written literature ever created by the human race." I found especially interesting some of the "do's" and "don't's": minimize use of the passive tense, use plain English, don't spend a lot of time telling judges law that they already know, like what the standard is for determining insufficiency of the evidence. The 8th District used to be notorious for issuing opinions which devoted paragraph upon paragraph to setting forth the law on insufficiency or ineffective assistance of counsel, although they've gotten much better about that; compare this opinion from last year, which devotes six paragraphs and the better part of two pages to the law on insufficiency, with these two -- here and here -- from last week, which happily dispense with all that legal mumbo-jumbo in a mere sentence.
Of course, then you have judges who go off the deep end in the other direction, as demonstrated by the opinion described in this article, which begins,
Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here.
That's a bit over the top. Then you have judges who think it's cool to insert pop cultural references in their opinion, like this opinion by the Texas Supreme Court, which quoted from Star Trek II: The Wrath of Khan. If it's the Beatles or Bob Dylan, that's one thing, but you have to wonder if a hundred years from now some law students are going to be poring over an opinion and wondering, "Who the hell was Garth Brooks?"
And there certainly are times when judges can successfully venture outside the normal boundaries of judicial writing, such as the opinion in a custody case described in this article, where a Canadian judge spent 31 pages ridiculing the parents for using their 13-year-old daughter as cannon fodder in their continuing war against each other. Blasting both sides -- the father possessed "a near-empty parenting tool box," while the mother gave the child "advanced animosity-tutoring" -- the judge noted that he'd continued the trial for four months in the forlorn hope that the parties could resolve their problems through mediation, and concluded, "It is touching how a trial judge can retain his naivete even after 15 years on the bench."
A mind is a terrible thing, wasted or not. Here's how mine works. I come across a story about a 6th Circuit decision which held that... Well, the first paragraph of the opinion pretty much says it all:
The primary issue in this case is whether the appellee Premier Integrity Solutions Inc. (“Premier”) subjected the appellant Norman Norris to an unreasonable search in violation of the Fourth Amendment when it required him to provide a urine sample (for a drug testing) while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier’s method of obtaining the urine sample did not constitute an unreasonable search in violation of the Fourth Amendment. We affirm.
Did I respond to this by engaging in the "individual interest in freedom/interests of society" analysis generally required for all rights? Did I apply my own understanding of the 4th Amendment zone of privacy concepts? No; my first thought was, "Gosh, what if you have trouble urinating when people are staring at you?"
There's a name for this. Lots of them, actually, from "bashful bladder" to "pee fright." It's classified as a social phobia in the Diagnostic and Statistical Manual of Mental Disorders used by psychologists, but then again, so is breathing. The actual medical term for it is paruresis. (Tidbit for today: Howard Stern suffers from it, but my guess is that, on the list of things that are wrong with him, that's somewhere in the middle of page 2.) So how does that fit in with drug testing? Well, since 2005 Britain's rules relating to the testing of those on probation explicitly cite paruresis as a valid reason for inability to produce a sample which is not to be construed as a refusal.
And this is where he ties it all together. I got a lot of the information about paruresis from Wikipedia. But here's a brief-writing tip: don't use that as a source, especially an unattributed one, in your briefs. Courtesy of Legal Blogwatch, we're directed to the recent opinion in US v. Sypher, which contains the following footnote:
The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.
See you on Monday.