The quality of your attorney’s writing can strongly affect your case’s outcome. In extreme situations, cases have been dismissed due to poor writing.
Admonishments and dismissals
A recent Minnesota Court of Appeals decision on the topic of poor writing set off a lengthy discussion on the Minnesota State Bar Association’s Solo/Small Firm listserve. The Court admonished, “[t]he phrase ‘and/or’ is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. . . . It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the ‘and’ and the ‘or’ in the context of the subject matter.” Carley Foundry, Inc. v. Cbiz Bvkt, LLC., 2010 WL 1286836, Minn. Ct. App., 2010.
In 2008, Senior U.S. District Judge J. William Ditter Jr. reduced an attorney’s fees by $31,450.00 because of the attorney’s poor writing. (E.D. PA).
More severely, in September 2009, Judge Gregory A. Presnell dismissed a motion (albeit without prejudice) solely because of the lawyer’s poorly written memorandum. Case No. 6:09-cv-1229-Orl-31GJK (C. D. Fl.).
And a bankruptcy judge in Texas dismissed “Defendant’s Motion to Discharge Response to Plaintiff’s Response Opposing Objection to Discharge,” basing its decision on the court’s inability to “determine the substance, if any, of the Defendant’s legal argument, nor c[ould] the court even ascertain the relief that the Defendant’s motion is requesting.” Therefore, the court wrote, “[t]he Defendant’s motion is accordingly denied for being incomprehensible.” 2006 WL 581256 (W.D. Tex.).
Paying more and waiting longer
Certainly a case being dismissed or denied for the attorney’s poor writing is extreme. But, even when dismissed “without prejudice,” such actions prejudice the client who, at a minimum has to pay more for hourly representation and has to wait longer for adjudication on the merits.
At best, entertainment value
All of that said, generally poor legal writing, other than “wast[ing] valuable chamber staff time,” is merely amusing.
While clerking in Hennepin County, Minnesota, I received a Memorandum in Support of a Motion for Summery Judgment, which, I was forced to point out, even black robes cannot cause (especially in Minnesota).
Better yet: M. L. Sandler, an attorney in Miami, Florida moved for a continuance because he was recovering from “dick surgery,” rendering him “unable to sit for long periods of time.” The attached exhibit from Mr. Sandler’s doctor clarified that counsel was recovering from surgery on his back — that is, disk surgery.
Pay attention to writing
If you are an attorney, take the time to look up rules of grammar and punctuation, have someone proof read your work, or look up the individual rules as they come up. If you are looking for an attorney, pay attention to how well the attorney writes. Your case may depend on it.
Leave a Reply