The 7 deadly sins of legal writing

Writers can be their own worst enemies.

Writers of poor prose risk being derided, unpublished, and their work involuntary submitted to the Bulwer-Lytton Fiction Contest, which honors, if that is the right word, those who write "atrocious opening sentences to hypothetical bad novels." At 37 words, including a gratuitous detour into a barely relevant side topic, that last sentence may qualify for submission.

Lawyers writing advocacy pieces in representing their clients risk more dire consequences than other wordsmiths, ranging from judicial tongue-lashing to terminating and monetary sanctions.

In this author's view, there are seven types of bad legal writing -- seven deadly sins, if you will. A pleading, motion, or brief is badly written if it is false, late, noncompliant, unsupported, unpersuasive, unfocused or boring.

A case for the ages

Every so often a judicial opinion comes along that recognizes an author whose work merits recognition, in the Bulwer-Lytton sense, for being "bad" in most of the above meanings. Though I usually focus on California cases, one such opinion was published by the 7th U.S. Circuit Court of Appeals on Nov. 7, 2019, in McCurry v. Kenco Logistics Services, LLC, et al., 18-3206 (7th Cir. 2019).

The self-represented plaintiff in McCurry claimed employment discrimination and related torts. She committed six of the seven transgressions, all except "boring," in opposing the defendants' summary judgment motion and on appeal. Though represented by counsel during the appeal, the 7th Circuit described her appeal as "utterly frivolous, and McCurry's monstrosity of an appellate brief is incoherent[.]" The court ordered the attorney, whom we will leave nameless, to show cause why he should not be sanctioned or otherwise disciplined.

Kenco operated a warehouse for Mars, Inc. in Illinois. The contract terminated in 2015, causing Kenco to lay off its employees including McCurry. She accused both companies of discriminating against her on the basis of race, sex, age and disability, and conspiring to violate her civil rights. She filed two largely redundant lawsuits in the Central District of Illinois, one of 77 pages, the other 89.

Mars and Kenco filed a summary judgment motion. McCurry responded, though she didn't comply with several mandatory court rules about the contents and organization required in opposing a summary judgment motion. Her "arguments were scattered randomly throughout her 62-page response." (The page limit on summary judgment oppositions was 15 pages.) She did not respond to each numbered fact in the moving party's motion, which, under the local rules, "will be deemed an admission of the fact.

The S7th Circuit panel noted, "we have repeatedly held that district judges may strictly enforce local summary judgment rules [citation omitted], and the judge reasonably did so here." "Charitably working its way through each claim, the judge concluded that the evidence was insufficient to support liability for any form of employment discrimination or conspiracy."

McCurry sought reconsideration, but failed to follow another local rule requiring that such motions be based on newly discovered evidence.

On appeal, the 7th Circuit re-examined each of McCurry's claims. The court was constrained to the facts properly stated and supported by the defendants, plaintiff having provided none, and did not properly contest those the defendants submitted.

The appellate court commented, "This appeal represents a shameful waste of judicial resources. ... [The] district judges may require strict compliance with local summary-judgment rules. [Citation omitted]." "McCurry's appeal rests on factual assertions that were excluded from consideration below because McCurry disregarded several provisions in the local summary judgment rule.... Her appellate arguments are insubstantial to the point of incoherence and have no chance of prevailing in this court."

"The patently frivolous nature of this appeal isn't the only thing that troubles us. The hopelessness of McCurry's cause didn't deter her lawyer [name omitted] from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in a law." (The court noted in a footnote that the brief was signed on behalf of a different client, not McCurry.)

The brief asserted res judicata, collateral estoppel, and judicial estoppel, "none of which apply, none of which were asserted below, and all of which are therefore waived." The brief included a section titled "GAMESMANSHIP," which contains the following assertion: "Defendants have been 'gaming' the system. There is nothing else in the 'gamesmanship' section."

The court footnoted other oddities in the brief: "The term 'brief' ... seems inapt here. [Definition omitted] The brief is also a typographical nightmare. It uses five different fonts and various font sizes, including three different fonts in one sentence, and capitalizes words seeming at random."

"Bad writing does not normally warrant sanctions, but we draw the line at gibberish." The court ordered the attorney to show cause why he should not be sanctioned, and ordered the clerk to send its opinion to the Illinois Attorney Registration and Disciplinary Commission.

In the later hearing on sanctions (document 45 in the appellate record, dated Dec. 16, 2019), the attorney apologized to the court, explaining "he did not have time to write an appellate brief, review the district court's order, or examine the record." As a result, he did not recognize that this "was a hopeless case." He confessed that he allowed McCurry to submit an appellate brief that she prepared herself, authorizing her to use his name, electronic signature, and CM/ECF electronic-filing credentials. He acknowledged that "these were all grave errors in judgment," apologized to the court, and promised that he "will never allow this occur [sic] again."

The circuit court ordered the attorney to pay the defendants' reasonable attorney fees incurred in the appeal, plus double costs.

Applying the "sins" to the case

Let us examine the seven deadly sins, aided by the 7th Circuit's comments in McCurry.

False: The facts asserted by McCurry and adopted on appeal by her lawyer may have been true, for all we readers know, but without admissible evidence to support them neither we nor the court had a basis to give them credence. Some of plaintiff's legal assertions were "false" in another way: not correctly stating the law. A prime example: asserting "obstruction of justice" in a civil case.

Late: The court's opinion does not rest on untimeliness of the "bizarre" brief. Score one point for McCurry.

Noncompliant: This deadly sin was McCurry's and counsel's unpardonable offense: omitting required sections in the summary judgment opposition and brief, asserting new claims on appeal, blowing the doors off page limits, and generally treating the court's local rules as suggestions.

An article on Forbes' website commenting on McCurry finds the outcome unjust. "It is not a surprise that a former clerical worker failed to obey an obscure local procedural rule adopted by a U.S. District Court to supplement the national Federal Rules of Civil Procedure." P. Barnes, "A Maze Of Obtuse Federal Court Rules Yields Injustice For Self-Represented Litigants," Forbes.com (Nov. 8, 2018).

Local rules in federal courts aren't hidden in musty legal tomes. They're on the courts' websites, no more obtuse than a court's street address. In California, they are vetted by the circuit court before they take effect. They do not express a single judge's preferences, but enforceable standards, without which federal trial and appellate courts would be buried under mountains of meshugas.

Pro se parties are not, and should not be, exempted from local court rules. Many courts now refer to pro se parties as "self-represented litigants" to highlight this point. Legal aid societies, law school advocacy programs to assist indigent parties, and pro bono programs are available to help parties who cannot afford to hire counsel. Moreover, if a third of McCurry's allegations are true, her case would be a tempting one for a contingency fee. She didn't have to go it alone.

Unsupported: Civil obstruction of justice? Res judicata when there was no prior lawsuit between the parties? A claim for relief based on gamesmanship? These earn high points for creativity, but nothing else. Moreover, the rule deeming as true the unopposed facts in the defendants' summary judgment statement gave the trial court no admissible record to support McCurry's claims that were based in real law.

Unpersuasive: "Gibberish" says it all.

Unfocused: Legal papers that wander aimlessly through, around and between topic headings obscure the writer's points in a clutter of concepts, leading the reader through a not-so-merry chase in search of a directly-stated claim. The plaintiff's two complaints in McCurry contained 809 paragraphs, the second "even more rambling that the first," as the appellate opinion chided.

Unfocused legal writing is not limited to court filings. Reports to clients that discuss the plaintiff's damages under the heading "Liability" are as sinful. "Stay on target," as Luke Skywalker was advised.

Boring: Boredom is not measured only by the length of written work, though needlessly long pieces are more likely to bore the reader. Writing, regardless of length, can bore a reader by taking the action out of sentences by using the passive voice ("the ball was thrown by the pitcher"), using "filler" words and phrases ("for the purpose of" instead of "to"), or by long, dense paragraphs. Dickens could get away with a 119-word opening sentence ("It was the best of times..."). We can't.

"...and sin no more"

Complying with court rules is only the beginning of well-written advocacy. We err when our writing creates a barrier between us and our reader, whether or not he or she wears a black robe.

Be concise. Be clear. Self-edit. Make your writing easy to read. Give the reader what he or she wants. It sounds simple, but takes more effort than writing a monstrosity. 