Dictum vs. Holding

Back when I started practice, I attended a seminar at which a judge described a common problem with briefs submitted by lawyers who came of age in the era of Lexis and WestLaw: They would punch keywords into the search box, hit enter, find language in cases that supported their arguments, then quite that language without bothering to determine if they were citing the holding of the case - the court's binding decision - or dictum, statements not directly bearing on the issue before the court and thus not binding.

So I find it interesting that a law professor is excited about a column by a reporter (who studied law at Yale) that references and quotes as its sole legal authority a quote taken from a legal opinion in which the judge, as dictum, quoted dictum. For goodness sake.

Please, all you law profs, stop bringing back this sort of memory of law school. Some things, I would prefer to forget.

Thinking Like A Lawyer, Take 568

Ann Althouse demonstrates how to deal with adverse arguments:

What a jerk you are insulting me when you're entirely missing my sarcasm! I'm characterizing the idiocy of the plaintiffs' lawyer. Get a clue.

* * *

You are an idiot too. Did I say Katie Couric should sue Dan Rather? Did I say that what the AutoAdmit kids wrote about the plaintiffs was just swell? Learn to read, loser.

I can't wait to incorporate these sophisticated rhetorical techniques into my next legal brief or oral argument. Application of the "learn to read, loser" technique should make my motions for reconsideration considerably shorter.

Oh, don't get me wrong. I used to use some techniques not far removed from Prof. Althouse's when playing in online forums. But I moved away from that approach during law school. I guess I'll never learn.

Fighting Plain English

I was making revisions to another lawyer's work today, and was reminded of the proliferation of articles and practice guides which encourage the use of plain language when drafting legal documents. While many lawyers write clearly enough... stepping into character:

In the instant case, were said lawyer referencing an biographical article about Professor Edward Said, said lawyer might be inclined to reference said article with, "Said article on Said said clearly what Said said about said circumstances."

And he wouldn't see a problem with that.

Pet Peeves

David Brooks quotes Harriet Miers as writing for the Texas Bar Journal,

More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.

* * *

An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.

The article at issue reminds me of medical reports I have read, annotated "dictated but not read", or perhaps something automatically generated with this.

Spell-Checking Only Goes So Far....

The New York Times describes a federal magistrate's displeasure with a lawyer's pleadings, a sample of which follows:

Had the defendants not tired to paper plaintiff's counsel to death, some type would not have occurred. Furthermore, there have been omissions by the defendants, thus they should not case stones.

The magistrate reduced the lawyer's request for fees on the basis of the errors.

In one letter, Mr. Puricelli had given the magistrate's first name as Jacon, not Jacob.

"I appreciate the elevation to what sounds like a character in `The Lord of the Rings,' " Magistrate Hart wrote, "but, alas, I am only a judge."

Almost simultaneously, according to the same article, a federal appeals judge scolded a lawyer for his composition skills:

"While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief," Judge Orme continued. "It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"

But at $150 or more per hour, what can you really expect.... (Seriously, though, some of us lawyer types write pretty well.)

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