Rhetorical Flourishes and Cutesy Phrases in Legal Documents - Thumbs Down
Professor Volokh has a post at the Volokh Conspiracy asking if a particular bit of rhetorical flourish (humor?) is appropriate in a legal brief. He points to the following language from a brief filed in a case he was uninvolved with four years ago:
In these matters, I think it's wise to heed the advice of Malcolm Gladwell, who in a Slate entry over a decade ago, made one of the best arguments against making extraneous statements ("The Theory of Disqualifying Statements"). I guess this could apply to blogging as well, but that's neither here nor there. There are of course, exceptions to every rule, and here's one classic example (from Randazza, obviously) of where snark turns out to be quite appropriate and effective.
I've also never been a fan of pop culture references or cutesy turns of phrases or "themes" in court opinions. While there are obviously exceptions to this rule, they are few and far between.
Loosely related: Carolyn Elefant laments the vanity footnote in a post here. (I don't necessarily agree with it, but I think it's worth reading and thinking about.)
My answer: why risk it? (The comments to the VC post are worth reading.) It's possible that the lawyer was friends with the judge and knew the judge's sense or humor or personality and knew that he or she would appreciate this language. It's also possible that it rubs the judge, or his or her law clerk (or someone else) the wrong way. Who knows, maybe the case ends up on appeal, and one of the appellate judges doesn't particularly like baseball? Maybe a prospective client happens to read the brief? It's for this same reason that it never (or rarely) makes sense to make a pop culture reference or a political reference in a brief. You never know whether the reference will strike a chord with the ultimate decision-maker and adversely affect the outcome, or will otherwise prejudice you or your client's interests. This is not to say that legal documents should be sterile and free of fun. I'm sure I've thrown in the barbed footnote once or twice. (Actually, I can't recall a specific instance at the moment, so then again, maybe I haven't.)I. DÉJÀ VU
When I curled up in my cozy lounger two weeks ago to enjoy yet another defense motion in the series, this most recent page turner instantly stirs in my mind the astute words of a great American scholar: "It’s déjà vu all over again." [FN: Yogi Berra.] Though masquerading into the Clerk’s Office donning a clever disguise, we encounter an identical defense motion that re-introduces itself to us with an alias. This creature, with a few text substitutions for camouflage, is identical to "Defendants['] ... Motion in Limine" and brief of April 22, 2005. These two defendants, disappointed by the Court’s decision to defer resolution of all motions in limine until the start of trial in February 2006, re-file their Motion with the Clerk with a new name and citing a different court rule to rouse an earlier decision.
In these matters, I think it's wise to heed the advice of Malcolm Gladwell, who in a Slate entry over a decade ago, made one of the best arguments against making extraneous statements ("The Theory of Disqualifying Statements"). I guess this could apply to blogging as well, but that's neither here nor there. There are of course, exceptions to every rule, and here's one classic example (from Randazza, obviously) of where snark turns out to be quite appropriate and effective.
I've also never been a fan of pop culture references or cutesy turns of phrases or "themes" in court opinions. While there are obviously exceptions to this rule, they are few and far between.
Loosely related: Carolyn Elefant laments the vanity footnote in a post here. (I don't necessarily agree with it, but I think it's worth reading and thinking about.)
When I was in college, I took an art class. In that class, I realized that I sucked at art. So, when we had to do a painting, I did an "abstract" painting. Hell, to me it looked like Jackson Pollock's work. To the "real artists," it was obvious that I sucked so I just threw a bunch of shit on the paper and called it "abstract."
A good friend took me aside and said "look, you have to learn the rules before you get to break them."
I quit art. I knew that I would never learn the rules, thus I would never be able to break them.
This story is illustrative of when you use snark or humor in your legal pleadings. As a general rule, one should avoid snark, humor, and other forms of creativity in legal pleadings.
But, once and a while, it is appropriate. In fact, sometimes (as in my Glenn Beck case) it is necessary. But, a lawyer should only pick up that weapon once that lawyer has mastered all of the weapons that come before it in his training.
I believe that the author of "Deja Vu" has not completed his "wax on, wax off" period yet.
Reply to this