Legal Ease

By Howard Posner
     
It was a constructively dark and substantially stormy night. Rain streamed down and lightning flashed, but the house was dry and my family slept soundly. The stockings were hung by the chimney with care, something the chimney keeps doing no matter how many times I ask it to just leave the socks in the drawers. I sat by the fire, listening to the thunder and reading Harry Potter and the Demurrer of Doom, when the candles flickered and I heard mournful wailing and clanking chains outside. I wondered for a moment why a chain would be so unhappy, then opened the door to find out.
      I gasped at the apparition on my doorstep. It was my old officemate, Jacob Marley, Esq., wrapped in chains and padlocks that bound him to old briefs and contracts he had worked on over the years. He was white as a ghost, and a spectral aura emanated from him.
      "O, woe!" he cried in a wobbly, whining wail that I found really irksome. I was never a Neil Young fan.
      "Dreadful apparition, why do you trouble me?" I started to exclaim, but the words died in my throat because, on second thought, they sounded lame. I've learned not to be too enamored of the first words that pop into my head?wisdom that has served me well when I've had the urge to put on paper some earthy characterization of opposing counsel's argument.
      "Er, hi, Jake," I ventured instead. "Been a long time. Want to come in?"
      "I am the ghost of Jacob Marley!" he wailed again. "I am condemned to walk the earth bound by the weight of the useless detail I put into everything I wrote when I was alive!"
      "You're not Marley's ghost," I said.
      "Yeah, well, you ain't no Charles Dickens yourself."
      "No, I mean you're not dead, Jake. Dead people don't have breath that smells of Tommy's hamburgers." He looked puzzled, then wiped some chili from the corner of his mouth.
      "I warned you for years about all that useless detail," I went on, "so I'm not surprised it's a burden to you now. Bummer about the chains, though. Come in and have some tea. Leave the spectral aura on the porch, if you don't mind." As he clanked across the threshold, I continued my I-told-you-so.
      "I've always said needless detail (or, as we legal types like to say, 'overparticularization') is a serious problem. Any detail not essential to the point you're making is a diversion or a distraction. It leads readers away from important points by making them keep track of unimportant ones. Every inessential detail is another strand of hay in the stack that hides the needle."
      He looked annoyed. "I'm already covered with chains. I don't need more metaphors." He had a point.
      "All right," I conceded. "But anyone who writes should understand that precision means selecting details rather than just amassing them. Look at this one," I said, pulling out a brief, which was unfortunate because the chain holding it was looped around his neck. "You tell the court that in a related proceeding, a corporation 'filed a Voluntary Petition under Chapter 11 (reorganization) of Title 11 of the United States Code ("the Bankruptcy Code").' A judge, or for that matter anyone who can read, knows a party is not going to file its own involuntary petition. And does a judge need to be told where to find Chapter 11? Wouldn't 'filed a Chapter 11 bankruptcy petition' do it? To the reader who knows anything about bankruptcy, it says just as much as what you wrote, and the additional information in your version won't help a bankruptcy-illiterate reader.
      "Or this one: 'Plaintiff owned a present, vested definite community interest in the land.' It's a formula designed to forestall some objection about the status of the plaintiff's interest that may never be made and certainly doesn't need to be anticipated.
      "Or how about this citation to the 'Section Seven of the 1977 Nosebleed Reduction Act, as amended' instead of just citing the code section?
      "And was it really necessary to allege in a complaint that a shareholder 'owns 2,119,673 of 4,109,712 shares of the corporation's issued and outstanding stock,' instead of just saying that she's the majority shareholder, which was the only reason you mentioned it? It's all just dead weight, clutter, and an obstacle to comprehension."
      "But why me?" he moaned, thrusting both arms heavenward and causing the padlocks on his arms to dent the walls. "I'm not the only lawyer who ever made a reader wade through useless facts and explanations. Come on, you know we all do it. Appellate opinions are full of it."
      He pulled out a soggy brief. "Just listen to this quote from Forkner v. Forkner (96 Cal. App. 2d 363 (1950))."
      "Must I?" I muttered, knowing I couldn't stop him.
      "The claim of defendant is now that at the time the interlocutory decree was granted the superior court did not have jurisdiction to make a custody award of the minor child when the child was a resident of a foreign country prior to the commencement of the action and has ever since been and still is a resident thereof."
      I shuddered at the words, especially "thereof."
      "I mean, really," Marley went on, "what the defendant claims now? As if we might worry about some other claim some other time? And 'prior to the commencement of the action' and 'ever since'? Wouldn't 'Defendant argues that the court lacked jurisdiction to award custody of the minor child because the child is a resident of a foreign country' accomplish the same thing?
      "Is it really necessary to tell a Los Angeles judge you're citing the California Civil Code, and not some other civil code? Not to mention all those statements of fact that recite endless details and dates that have nothing to do with the issues."
      "Don't mention them," I cut in. "I already wrote a column about it."
      "Really? When?"
      "August 2001. You can still find it in the back issues at www.dailyjournal.com."
      He looked even more despondent. "I can't use my computer. The last time I reached for the on switch, a padlock hit the screen and broke it. O, woe!"
      With that, he left and disappeared into the night. I've never seen him since. I only hope that he has come to understand the hazards of needless detail, found peace, and freed his soul. Failing that, I hope he found a locksmith.
     
      Howard Posner (howardposner@comcast.net) practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.
     

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