Category: Civil Practice

Bad Writing Kills Client’s Big Dreams

Angry client comes to lawyer. Angry client had big dreams of holding his own outdoor concert series. He thought it would be epic.  And like Wayne Campbell and Roy Kinsella years before him, he believed that if he built it, they would come.  So he set to work building his concert facility. But alas, the cops shut him down over security concerns, thereby dashing his dreams. 

So he did what people do: He went to a lawyer. Lawyer is moved by angry client’s story. “We will draft such a lengthy and powerful complaint that it will force them to relent!” Lawyer says. “Hoorah!” says angry client. Lawyer then grabs his Dictaphone and sets to work spewing forth every lurid detail. Somebody types it up. Who? We don’t know. The lawyer then files it. But alas (yes, a second alas), he either failed to proofread it or was so jacked on Aerosmith tunes that he must have just plain missed all the typos, punctuation and grammatical errors. The defense moves to dismiss—“What does any of this even mean, your Honor…?” 

But of course, district court judges are loath to kill dreams so easily. The judge gives the dreamers a second chance, and then apparently a third chance to amend. But it seems the story was just too good to leave any of it on the cutting room floor—or at least clean up its punctuation and grammatical errors. The district court tossed it. Enough is enough.  

The dreamers were not done—they never are when it comes to litigation.  They appealed to the Seventh Circuit (Stanard v. Nygren, 658 F.3d 792 (7th Cir. 2011)).  Surely that court would see the merit in their cause.  But the Seventh Circuit was unmoved.  It affirmed the dismissal; calling the third amended complaint nearly incomprehensible, lacking in punctuation, and riddled with grammatical and syntactical errors.  In the process, the court felt compelled to acknowledge (at n.7) “the unfortunate reality that poor writing occurs too often in our profession[.]” The takeaway: Raise the bar, write well, be thorough yet concise, proofread, and then rock on.

The takeaway: Raise the bar, write well, be concise, proofread, and then rock on.

The “Drastic Remedy” Myth

Have you ever received a summary judgment opposition memorandum that warns the trial court that summary judgment is a “drastic remedy,” as if that is a standard the trial court must apply or consider when ruling on the motion?  That language litters opposition memoranda in dockets around the state.  And why not? There is plenty of Utah caselaw that supports it.  See, e.g., Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (“‘Summary judgment procedure is generally considered a drastic remedy,’ and is appropriate only when the facts are clear and undisputed.’”) (quoting Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993)).

This label appears to have taken root in a 1956 Utah Supreme Court opinion, Holland v. Columbia Iron Mining Co., 293 P.2d 700 (Utah 1956).  There, the court explained that summary judgment “is a drastic remedy with great possibility of saving time, but will neither save time or further justice unless granted only where it affirmatively appears that there is no reasonable possibility that the loser could establish a valid claim.” 4 Utah 2d 303, 317 (Utah 1956).  This view was repeated over the years, several times by a single justice—Justice Crockett—who appeared openly hostile to the procedure: 

  • Holland v. Columbia Iron Mining Co., 293 P.2d 700, 311 (Utah 1956) (“It is true, indeed, that a summary judgment is a drastic remedy which the courts are, and should be reluctant to use.”) (Crockett, J., concurring).
  • Richards v. Anderson, 337 P.2d 59 (Utah 1959) (“It is true that summary judgment is a severe measure which courts should be reluctant to use, and that doubts should be resolved in favor of allowing a full trial of the case.”) (Crockett, C.J.) 
  • Welchman v. Wood, 337 P.2d 410, 28 (Utah 1959) (“Summary judgment is a drastic remedy and the courts should be reluctant to deprive litigants of an opportunity to fully present their contentions upon a trial.”)
  • Pender v. Alix, 354 P.2d 1066, 11 Utah 2d 58, 59 (1960) (“It should be kept uppermost in mind that this is a review of a summary judgment; that it is a drastic remedy which deprives the party of the opportunity to present his evidence; and which the court therefore should be extremely reluctant to grant.”) (Crockett, C.J., dissenting)
  • Housley v. Anaconda Co., 427 P.2d 390, 127 (Utah 1967) (“Prior decisions point out that summary judgment is a drastic remedy and should be granted with reluctance.”)
  • Burningham v. Ott, 525 P.2d 620, 624 (Utah 1974) (“A summary judgment … is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue as to any material fact.”) (Crockett, J., dissenting in part).
  • Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993) (“Summary judgment procedure is generally considered a drastic remedy, requiring strict compliance with the rule authorizing it.”)
Continue reading The “Drastic Remedy” Myth

Stay Energized and Focused

If you are doing it right, the law can become an all-consuming drain on you: mentally and physically. Here’s a few tips for staying energized and focused. 

  1. Change the view.  Don’t be a slave to your desk.  Get out of the office.  Change the landscape.  I often find myself doing my best writing and editing while sitting at a downtown St. George park looking at the red rock hills as opposed to the wall in my office with the phone or others interrupting me every 10 minutes. 
  2. Exercise.  Take a break and do something else.  Go throw weights around the gym, go jogging, go biking, join a CrossFit box. Do something to rest the machine that is your mind and to exercise the other machine that is your body. 
  3. Find an outside passion. Find something that you enjoy doing outside the law and make the time to do it. Whether it’s coaching sports, fishing, cooking, painting, or traveling—find something that you are passionate about, put it on the calendar, and immerse yourself in it. That’s how you recharge the batteries.
  4. Remember why you do it.  Remember why you do it: Your family.  Make time for them because you never know how much you have. I have never heard of a lawyer on their deathbed regretting that they did not bill more hours.

The 24 Hour Rule

While in law school, I started my illustrious (or not so much) legal career clerking at the Oklahoma Attorney General’s office. I was helping an attorney on a case and the other side did something that really ticked us off. I don’t remember exactly what, but we were smokin’ hot. I was instructed to write a letter. I did. And it was epic. As I recall, it explained in sufficient detail how wrong the opposition was and how the great State of Oklahoma was about to land on his head like a house thrown from an F5 tornado. I showed it to my supervising attorney. With a smile on his face, he explained that, yes, it accurately reflected everything that occurred and what we would do in response. But we should wait 24 hours before sending it to see if it read as well after the waiting period. Of course, it didn’t. We toned down the official version the next day. This was my introduction to the “24 hour rule.” Anytime you write something while you’re angry or emotional—letter, email, brief, text, memo, whatever—wait 24 hours (or even a longer cool down period) to send or file it. It will often look different to you after the waiting period and you will thank yourself for it.

Know all the facts and law that surround

“Know thoroughly each fact. Don’t believe client witnesses. Examine documents.  Reason; use imagination.  Know bookkeeping—the universal language of business; know persons … know not only specific cases, but the whole subjects.  Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” 

–Louis D. Brandeis

Avoiding Mistakes

Have you ever watched a post-game interview with a coach after a tough loss and heard something like this: “We just made too many mistakes …”  It doesn’t matter the sport. Football, basketball, baseball, whatever.  The turnover. The penalty. The error.  The mental breakdowns. Just one at the wrong time can cost you everything.  Multiple mistakes over the course of a game can add up and be just as costly.  So it is in litigation. It is one thing to get beat because you have bad facts and law, things you can’t change.  But it’s another to beat yourself because of unforced errors and mistakes.  Just as in sports, there are remedies in litigation.  A few tips:

  1. Slow down.  When you’re in a rush you are more mistake prone than if you gave yourself the right amount of time to devote to the task.  Have a schedule and keep to it.  Don’t procrastinate every deadline.  Give yourself enough time to recognize mistakes before they head out the door.  
  2. Be disciplined.  Focus on the task at hand, not all the other distractions around you.  One thing at a time, in order.  Think through it before you do it, file it, serve it, or send it.
  3. Don’t react. Respond.
  4. Finally, don’t get discouraged when things aren’t going your way.  During the life of a case you will likely lose a hearing or motion; your witness will say something stupid during a deposition; and opposing counsel will act like a clown.  If you let it get to you, your work will suffer and you’re more prone to make mistakes.  

Object to the Form

Kate was only 37 minutes into her deposition when attorney Thurston Howell IV lodged his 23rd objection. And they were all the same: “Object as to form,” he would say with monotone arrogance as he doodled on his legal-size legal pad. She had had enough.

“What’s the form objection, counsel?” she asked.

He looked up, somewhat surprised that she asked. “It’s an objection to your question.”

“I get that,” she leaned in, “but what exactly is the problem with the form of the question?”

He looked at her in stunned silence. Was she serious? “Are you asking me to start making improper speaking objections?” He peered at her over the reading glasses perched at the end of his nose. “If so, you may want to take a break and consult the rules because they prohibit such things.”

Kate knew the rule. She graduated from a Big XII law school. “I understand what a speaking objection is, counsel. But the point of a ‘form’ objection is give the examiner a chance to cure the potential defect in the question. If all you can say is ‘object to the form,’ with no effort to explain—in three words or less—what the problem is, I’ll assume that it’s a great question that hurts your case or that you are just trying to interfere with the flow of my examination—“

Howell raised a crooked finger, “Look here—“

Kate wasn’t having it. “I know, I know … you read law at Yale with Blackstone or some other ancient oracle. But this is quite simple. ‘Object, compound.’  That’s a form objection. ‘Object, lacks foundation—also a form objection.  Neither is improperly argumentative or suggestive.”

“Why don’t I make it easy for you,” Howell responded. “Let’s just agree to reserve all objections for the duration of this deposition. Would that satisfy your interpretation of the rules?”

It sounded appealing, but Kate was wise to the plan.  She knew there would be no opportunity to cure the form of a deposition question at trial. “We’re not doing that, Mr. Howell.  As you know, under rule 32, certain objections are reserved because some questions cannot be rephrased to cure any deficiencies.  But a form objection raises an issue with the way the question is phrased and gives the examiner an opportunity to cure it. For example, to clarify a vague question or supply missing foundation. So you’re not reserving form objections. I am going to continue my examination, and if you have a form objection, I ask that you state the basis for it or make no objection at all.”

So who is correct in this situation? There is surely a difference between an objection that is improperly “argumentative” and “suggestive” because it instructs the witness how to answer (or not answer) and one that only points out the claimed defect in the question. To borrow from Kate, one that is three words or less.  And is it ever appropriate to say “object as to form” over and over and over and over, never once giving any indication of what is wrong with the question even when requested?  Would you do that at trial and not expect the court to ask you to be more specific? Surely not. But surprisingly, this debate still goes on.

If you practice in federal court in Utah, the debate is over. Local rule DUCivR 30-1 specifically addresses form objections during depositions.  It provides that “[o]bjections during depositions to the form of the question must specifically identify the basis for the objection.” DUCivR 30-1 (emphasis added). “Objections to the form may include, but are not limited to, these objections:

  • Ambiguous
  • Vague or unintelligible
  • Argumentative
  • Compound
  • Leading
  • Mischaracterizes a witness’s prior testimony
  • Mischaracterizes the evidence
  • Calls for a narrative
  • Calls for speculation
  • Asked and answered
  • Lack of foundation
  • Assumes facts not in evidence

DUCivR 30-1.  And if you are a fan of the Thurston Howell IV method, you’re sunk.  The failure to state the basis for a form objection waives that objection. See id. (“If the basis for objection as to form is not timely made at the time of the question, the objection is waived.”). But keep calm, this is not an invitation to coach the witness. The rule concludes with an admonition: “Objections that state more than the basis of the objection and have the effect of coaching the witness are not permitted and may be sanctionable.”  Id.

Kate takes this debate. What’s the form objection, counsel?

The Meet and Confer

Walt sat down at his desk and began skimming through the opposition’s responses to his discovery. The more he read, the angrier he became. “Objection …. Objection… Objection …” Before the responses could hit the floor, he was hammering away on an email:

Re: meet and confer

Gustavo:

This email serves as my effort to meet and confer under the rules.  I have received and reviewed your objections to my discovery. They are without merit and frivolous.  Please respond by providing all documents and interrogatory answers by tomorrow by 3:52 p.m. or I will file a motion to compel.  Thanks.

Walt

Moments later, Gus glanced at his iPhone and looked to clear that annoying red badge in the corner of his email app icon. Walt’s “meet and confer” email was not well received. Gus was quick to respond:

I got your email. My objections were proper.  It is your discovery requests that were frivolous.  And if you remember, in Utah it’s no longer called a motion to compel, it’s called a statement of discovery issues.  See you in court. Gus

Sent from my iPhone

After this brief exchange, can Walt properly certify that he conferred in good faith with opposing counsel?  Surely not. To meet and confer in good faith takes more.  Under Utah’s federal local rules it requires, “[a]t a minimum, … prompt written communication sent to the opposing party: Continue reading The Meet and Confer