Wednesday, October 27, 2010

Wherein A Blog Post Was Written In Order To Demolish Texas

This filing is making the rounds. It is purportedly an emergency motion to extend a case management conference that is scheduled for this afternoon...right around the time of the World Series, Game 1.  It's only mildly amusing from my perspective, and honestly, if I was the judge, I'd be very angry. 

I also think the motion is a great example of some terrible legal writing.  So, to all the future lawyers, particularly the 1Ls, here's how NOT to write.  Ever.

1.  Passive voice.  For example, paragraph 5 is chock full of sentences that make me cringe.  "was discovered..." "was sold..."  Blah.  Terrible writing.

2.  I don't know what to call this, but it drives me nuts when lawyers write:  "love of the Rangers that has gone generally unrequited for thirty-eight (38) years."  Huh?  What moron doesn't understand what thirty-eight means?  Or 38 for that matter.  Pick one or the other and stick with it.  It's not too hard.

3.  Verbiage.  Case in point:  "They acquired the greatest post-season pitcher in baseball today in the person of Cliff Lee."  Hmm.  How about, "They acquired Cliff Lee, the greatest post-season pitcher in baseball today."  When you are facing strict page limits, lots of facts, and lots of arguments, then every character counts.  Plus, less is more.  The same goes for this whole motion.  The reason I would rule against this guy as a judge is because he's trying to be cute.  The whole thing can be written in one paragraph:
This Court has presently scheduled a case management conference for October 27, 2010, at 1 pm CDT.  As a life-long fan of the Texas Rangers, who are representing the American League in the World Series, counsel arranged to attend the first game of the World Series in San Francisco without realizing the conflicting time with the Court's scheduled case management conference.  See Declaration of Counsel.  Counsel is mindful of the Court's burdened docket; canceling the current travel arrangements, however, would impose a substantial financial burden on Counsel.  Id.   Therefore, Counsel respectfully requests that the Court grant this unopposed motion to reschedule the case management conference in this matter. 
Of course, who knows what the motion would look like if it were filed in the Northern District.



Blogger Toney said...

Speaking of grammar snarks, at my firm, I'm supposed to write my descriptions for billed time in the present tense. This is hard for me (not to do, but to stomach), since everything I've billed is, you know, in the past.

Example: "compose overview and system architecture for xyz invention" vs. "composed same".

Thoughts? I've been told it's what the clients want to see, so I of course will go along with it, but Uggh.

10/27/2010 1:54 PM  
Anonymous Anonymous said...

Armen, you make fair points, but lighten up a little.

plus, who knows -- maybe this lawyer knows the judge is also a lifelong Rangers fan, and the cutesy motion is more likely to get granted.

10/27/2010 1:55 PM  
Blogger Patrick said...

I agree completely – I am not sure why legal blogs are tripping over each other to repost this, but Armen said it: if I were the judge, I would be angry.

Here are a few supplements to Armen's list:

1. Microsoft Word has a passive voice feature in grammar check. Turn it on. Put another way, “there is no excuse.”

2. I agree, but do not pick one or the other. Spell it out of the number is a whole number less than 11, and use numerals otherwise. If the sentence contains a mix, use numerals for all. (Please.)

3. Yeah!

10/27/2010 1:56 PM  
Blogger Armen said...

Yet you have no problems with the "third-person" problem introduced by Facebook?

As for time sheets, I lie to myself and assume it contains words that are not there. For example:

0.5 Research case law...


I spent 0.5 hours to research case law...

10/27/2010 1:57 PM  
Blogger Slam Master A said...

An order granting this motion would be far from the craziest thing coming out of a Texas courtroom:

10/27/2010 2:26 PM  
Anonymous David said...

What bothers me more about the use of the passive voice is people up in arms about the use of the passive voice (so, really, I don't care about the passive voice). If one were to research the matter (which as an aforementioned user of the passive-voice I have done), the complete, utter hysteria over the passive voice is baseless. It's good grammer. In fact, some of our most laudable literature uses the passive voice. Seriously, try going through a day without using the word "was".

We should be more worried about boring writing than using the passive voice.

As for the motion, I assume the lawyer and the judge know each other. The judge is probably a baseball fan as well. If the SF criminal courts are at all the same, it's all baseball all the time.

My vote, the law needs more levity.

10/27/2010 2:37 PM  
Blogger Armen said...

Lots of things are good grammar and even pervasive in common speech. Maybe they even remind you of Catcher in the Rye for all I care. It doesn't make it good for formal writing. Maybe DTF and GTL become as much a part of the English language as "I could care less," it doesn't mean you should use it in persuasive writing.

Did you miss the lesson on don't write like you talk?

10/27/2010 2:47 PM  
Blogger L'Alex said...


I agree that the law needs more levity! Beyond that though...

I think there's alot of sense in an overall rule against passive voice. Most people aren't writers of great literature. They are writers of crap memos that some poor partner or judge has to read, crying bitter tears over their 60-yr aged whiskey nightcap because a stubborn-ass kid didn't want to learn proper grammar.

Not as a personal attack or anything, but judging from the word choice and syntax of your comment, I'd place you in the category of people who shouldn't "play jazz" with grammar. Take it as friendly advice - kick passive voice to the curb.

10/27/2010 2:51 PM  
Anonymous Anonymous said...

David said: "In fact, some of our most laudable literature uses the passive voice."

to which Armen responded: "Did you miss the lesson on don't write like you talk?"

Armen, literature is not spoken word. David is absolutely correct in his claim that there is nothing inherently "bad" about the passive voice; I would add that there's not even anything inherently unpersuasive about the passive voice. L'Alex is also correct that most people suck at using it, so I'm okay with the demand that it not be used in legal writing. However, that does not indicate some kind of absolute evil represented by the passive voice.


10/27/2010 2:57 PM  
Blogger Armen said...

Actually, that was a response to trying not to use "was" in speech. The snark about The Catcher in the Rye was the response to the statement in question. (Note the effective use of the passive voice in the previous sentence. But as L'Alex said, most people don't use it effectively. They write crap like paragraph 5 of the brief in the OP).

10/27/2010 3:01 PM  
Blogger Armen said...

And as a substantive matter, WTF do great works of literature have anything to do with anything? Just because Shakespeare wrote sonnets doesn't mean your brief should only be 14 lines. Same with colloquialism. Whether spoken or appearing in a book, it's colloquialism and has no place in your writing. If you want to write well, then I suggested reading top newspapers frequently. Daily Cal is decidedly excluded.

10/27/2010 3:09 PM  
Anonymous Anonymous said...

For the sake of argument, let's say it's true that many lawyers should not try to play jazz. That still doesn't mean that good writing consists solely of writing that mechanically applies a few (extremely suspect) rules. The passive voice, for example, is sometimes appropriate, and sometimes even necessary. The Texas brief is a good example of appropriate use, since the identity of the discoverers and the seller mattered not one whit; the point was who was discovered, who was sold.

Being hidebound about rules is particularly suspect when the rules one proposes arise solely from personal preference. Which is to say, the gripe about numerals is incoherent, arbitrary, and faintly ridiculous, in that it is a pet peeve masquerading as a rule of general application. But suppose one of the court's local rules requires the construction the writer used, or that this judge has a well-known preference for it. My point is that there are plenty of good reasons, along with plenty of bad ones, to opt for the construction the Texas brief writer chose. Guess which category "it drives me nuts" falls into.

As for the criticism about verbiage, well, yes, "every character counts," but there is more than one way to count: persuasiveness sometimes depends as much on rhetoric as literal content. The Texas filing is clearly one such case. The proposed rewrite of the Cliff Lee sentence is not just tone-deaf; it is *purposely* tone-deaf. I can't decide whether that's more or less tragic.

10/27/2010 3:52 PM  
Blogger Patrick said...

3:52 is right. Passive voice, which occurs when the writer makes the object of an action into the subject of a sentence, is a great tool for disguising the subject. So, if your client is the killer and you must discuss how a bullet went from a gun to the victim, then yeah: use the passive voice.

The problem is that most legal writes are inadvertent in their use of the device. They don't know what the hell they are doing. To play off 3:52's example, it is no that lawyers should not play jazz. It's that laywers should not go around playing jazz by accident.

The rule that I am advocating is not "don't use passive voice." It is "use passive voice deliberately." Few people do that, which is why most legal writing is crap.

10/27/2010 4:02 PM  
Anonymous Anonymous said...

"The snark about The Catcher in the Rye was the response to the statement in question. (Note the effective use of the passive voice in the previous sentence."

am i crazy? armen, that wasn't passive just because it was the form "x was y," to be passive it has to be like "x was y'd by z," so that the order becomes object-verb-subject.

in response to the person up there who said "try not to use 'was,'" the sentence "i was angry" is not passive.

10/27/2010 4:21 PM  
Blogger Armen said...

4:21, you're not crazy, you're just the only one who gives a sh*t about the rules. [Read: tip of the hat to 4:21 for catching my laziness].

10/27/2010 4:23 PM  
Anonymous Anonymous said...

4:21 here.

patrick's right. passive is fine for many uses. you can hide responsibility with the silent passive ("mistakes were made . . .") you can put the object first in the sentence, to grab attention. you can use it for variety, so you don't sound like Hemmingway. you can put the subject last, to grab attention.

10/27/2010 4:26 PM  
Anonymous Anonymous said...

I agree with 3:52. As a general rule, lawyers should avoid the passive voice or verbiage in legal writing, but that's only because they usually strive for clarity.

Here, Darrell's goal is to be as cute as possible. It's not like he's trying to clearly articulate a legal rule that will excuse his presence--he doesn't have one. All he has is his charisma. To that end, I think he's smart to write as he did. It's a tall order to ask someone to be cute while using the active voice (and being concise). Concision quickly becomes terseness.

Of course, it's totally valid to deride attempts at cuteness. But that's a different argument entirely.

10/27/2010 5:22 PM  
Anonymous Anonymous said...

Are we really having a debate about whether passive sentences are weak?

10/27/2010 5:33 PM  
Anonymous Anonymous said...

i hate law school

10/27/2010 5:50 PM  
Anonymous Anonymous said...

Passive was spoken of.

10/27/2010 5:59 PM  
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10/27/2010 10:35 PM  
Blogger DannyZ said...

A good Halloween costume is needed. It would be most appreciated if I could be inspired by someone on here. Time is being made scarce. If only there were a way to be dressed as "passive voice."

10/27/2010 10:51 PM  
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10/28/2010 2:45 AM  
Blogger caley said...

As a Giants fan stuck in Philly right now, I completely and totally feel for this guy.

10/28/2010 5:55 AM  
Anonymous Anonymous said...

Caley, you are a giant ass hat. Stop posting.

10/28/2010 7:42 AM  
Blogger caley said...

Wow, 7:42 AM, you totally convinced me. I'll stop posting right now.

10/28/2010 8:23 AM  
Blogger caley said...


10/28/2010 8:23 AM  
Blogger McTwo said...

The motion, passive voice included, was granted.

10/28/2010 3:37 PM  
Anonymous Anonymous said...

Speaking of the Giants and the passive voice, while watching them score 11 runs against Cliff Lee & co., I was amused by recalling Armen's pathetic attempt to predict their demise in his post "go rays"

10/28/2010 3:44 PM  
Blogger Armen said...

True. But raise your hand if two weeks ago you thought the Giants would be the offensive juggernaut they are today.

10/28/2010 3:50 PM  
Blogger caley said...

I wouldn't even have believed you if you said the Giants were going to score 20 runs in the entire series. Of course, maybe that's just because I'm a giant ass hat.

10/29/2010 11:01 AM  

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