Legal Research & Writing

Judge Posner retires

Judge Posner of the Seventh Circuit is retiring. Has retired. Most would probably characterize him as a conservative. That is troubling and superficial because he was simply a good and conscientious judge. And that is the highest praise for any judge. http://chicagolawbulletin.com/Articles/2017/09/01/retirement-9-1-17 http://www.law.com/sites/almstaff/2017/09/04/a-judge-who-speaks-his-mind-richard-posners-greatest-quips/?et=editorial&bu=Law.com&cn=20170905&src=EMC-Email&pt=ALM%20Morning%20Minute

The characterization of judges as liberal or conservative is timely with me because I am hosting a meet-and-greet this week for a friend who is running for a Nashville judgeship. Judicial elections make me – and probably most lawyers – cringe. When voting for a legislative or executive candidate, I want a person who will advocate for issues that are important to me. Unfortunately, we often fall back of the labels – “liberal” or “conservative” – rather than doing the hard work of addressing specific issues. Nonetheless, the point is that I expect legislative and executive candidates to tell me their positions on issues during the campaign. I use that information about positions they would take in the future as grounds to decide how to vote.

Switch over to judicial elections and I almost want something opposite. I don’t want a candidate who states his or her position on legal issues during a campaign. I want a candidate who is smart and respectful and willing to take the time and do the hard work to consider the issues as they are presented. Not tell me how they will rule before the case even comes before them.

In anticipation of my meet-and-greet party, I have been trying to come up with a list of qualifications or qualities that I want to see in a judicial candidate. Here is a first stab at that list. They are not in any particular order of importance. But they all boil down to an environment in which everyone feels like they get a fair shake on a level playing field.

Works hard. Judges may have better hours than lawyers in law firms, but they still have work to do and deadlines to meet. I want judges who will read the briefs and listen to the evidence and do any additional research (or assign that research to a clerk) necessary to reach a decision. I want judges who will spend just as much time and attention on deciding a case as that judge did writing briefs in private practice.
Respects the lawyers. This is a little personal. The last time I was in court, I had to ask a judge to revise one of my jury instructions that he had previously approved. I had thought about the other side’s objections and decided the instruction should be changed to avoid problems on appeal. The judge said he had already given me the instruction I requested and I should “stop beating a dead horse.” Well, I had to keep beating that dead horse to protect my clients’ interests, so I did. Lawyers have jobs to do, and, within reason, judges need to let the lawyers do their jobs.
Respect everybody’s time. Courtroom time is so expensive! I really appreciate judges who work to minimize the time that lawyers sit in a courtroom with nothing to do. Remember the old days of docket calls? It was a great time for lawyers to socialize, but many clients could not afford to support that social time at today’s hourly rates.
Respects the rule of law. My friend is running for a trial court judgeship, where she generally will be applying existing law, not making new law. When trial court judges deviate from existing law and apply what they think the law should be, they waste everyone’s time with unnecessary appeals. This is where the “liberal” or “conservative” labels are especially inappropriate for trial court judgeships. If you want to push a liberal or conservative agenda, do it in another branch of government.
Understands litigants’ interests. Every litigant thinks he or she has a good case and is looking to the court to make things right. At the same time, at least one litigant in every case is going to be disappointed. The trial court can’t fix that, but can render rulings that lawyers can explain to their clients. This also goes back to those labels; if a judge is labeled as “liberal” or “conservative,” litigants (and, unfortunately, their lawyers) may blame that label for losing the case, without focusing on the merits or lack thereof. That leads to a feeling that the judicial system is not a level playing field at all.
Has litigation experience – good and bad cases, good and bad opponents, good and bad judges. Cases they won and should have lost as well as cases they lost that they should have won. Litigation experience necessarily requires time, so judicial candidates with the requisite experience may not be spring chickens. While youth may be important in a legislative to executive branch election, youth generally does not make a good judge. This experience is critical to my other required qualities for a judicial candidate.

Studies show . . .

This headline in the WSJ grabbed my attention: “Studies are Usually Bunk, Study Shows.” My favorite line in the article says that “Hands down, the two most dangerous words in the English language today are ‘studies show.’” https://www.wsj.com/articles/studies-are-usually-bunk-study-shows-1502660991?mod=e2fb

I did a little research myself, with emphasis on the “little.” I googled “studies show.” Based solely on the first Google headlines in my search results, here is what I learned

Restraints may be a major creativity boost.
Yoga can help treat depression.
Cannabis treats migraines better than pharmaceuticals.
Pigs are more intelligent than dogs.
Interrupted sleep may lead to Alzheimer’s disease.
Drinking more coffee may lead to a longer life [Note to self: but what if it interrupts my sleep?]
Sweet drinks may damage the brain.
Some foods may be as addictive as heroin.

On one level, this is amusing. I just listed the headlines because that is all I read. I’m not, however, going to rely on the headlines and, for example, trade in my dog for a pig.

I wish I could say that I always base my decisions on more than a headline or the headnotes of a case or an unspecified study. But I don’t. In a world with so much information, why do we study so little of it? Our lack of attention to available information may be the reason that “fake news” can flourish. We either get the “correct news” wrong because we only read the headline. Or the propagators of “fake news” know that most of us won’t dig behind the headline or the unspecified “study.”

Resolutions for the post-eclipse 2017 – Read the whole article. Question the sources. Use a little common sense.

IKEA and pronouns

What is wrong with me? Not me personally, but “me” the pronoun? Where did we get the idea that “I” is better than “me”? “Me” is a perfectly fine pronoun.

I’m fired up about the pronoun issue because I just heard the IKEA dorm commercial. IKEA, I love you, and I’m thrilled that you are opening a store in Nashville. But let’s use pronouns correctly.

In the commercial, a mother narrates a video of her daughter in her college dorm. A boy enters the room, and they both sit on the bed. The mother says: “You never told your dad and I about any . . .” I cringe and really don’t care what the daughter and the boy do.
Even though I criticize IKEA, this pronoun issue is very common. The misuse is usually an effort to sound right or to hypercorrect, not to make grammarians cringe.

Dictionary.com defines hypercorrection like this:

the substitution, in an inappropriate context, of a pronunciation, grammatical form, or usage thought by the speaker or writer to be appropriate, resulting usually from overgeneralizing in an effort to replace seemingly incorrect forms with correct ones, as the substitution of between you and I for between you and me, by analogy with you and I as the subject of a sentence.

We all are guilty of hypercorrection at times because we want to be correct, to sound smart. At least with respect to the use of “me” and “I,” revisiting the rules can help. Otherwise, hypercorrection can make you look hyperwrong.

Pronouns come in three cases: subjective, objective, and possessive. A subjective pronoun is one that is used as a subject. Subjective pronouns include I, he, she, and they. Objective pronouns are used as objects, not subject. Objective pronouns include me, him, her, and them. Possessive pronouns are for another day.

When searching for the correct pronoun to be the subject of a sentence, we use a subjective pronoun, not an objective one. “I am a lawyer,” not “Me am a lawyer.” “I told my mother,” not “Me told my mother.”

The use of pronouns as the object should be just as easy. If the pronoun is not the subject, then it (usually) is the object. In the sentence “I told my mother,” “I” is correct because that is the subject of the sentence. “Mother” is the object of what is being done in the sentence; that is, “Mother’ is the person being told. So if you want to substitute “Mother” with a pronoun, you should use the objective pronoun. “I told her.” “I told she” is not correct.

Now to the IKEA commercial. “You never told your dad and I.” What is the subject? “You” is the subject, a pronoun that can be objective or subjective, so that is correct. Now to the next pronoun, “I.” The phrase “your dad and I” is the object of what was not told; hence, you need an objective pronoun, not a subjective one. So it should be “You never told your dad and me.” Play with the sentence. Would you say “You never told I” or “You never told he” or “You never told they,” or “You never told we”? I hope not.

Some people think that correct grammar is or should be intuitive based on hearing correct grammar every day. But we are flooded with bad grammar (e.g., some television commercials!) so our intuition may get mixed up. So what to do? When in doubt, play with the sentence. While “You never told your dad and I” might momentarily sound correct, test yourself by substituting another pronoun. Another option is to avoid the problem altogether by not using pronouns. “You never told your mother and father.” If you are speaking or writing to a group of self-righteous hypercorrecters, that may be the best move.

That is all from me (not I) today.

Smelly

Now that I am writing a blog, I am reading more blogs. It is very nice to have a business reason to do something that I find so enjoyable.

Scott Greenfield wrote on his blog, Simple Justice, about the importance of good hygiene. He counsels: “Hygiene matters for a great many reasons. But most of them won’t occur to you until you’re older, when you suffer for your youthful indiscretions. So someone has to tell you. Someone who is willing to say the words you need to hear but no one will risk for fear of your wrath. You smell. Deal with it.”

I taught eighth grade Language Arts for a year, and this is definitely a post that many of my students needed to read. If I ever teach again, I would like for my students to read this post and then write a reflection on their reading. Body odor would definitely be more interesting to them than many of the required reading materials.

But I want to add something else to Scott’s comments on body odor. The same applies to applied body fragrances. I attended a very crowded funeral this weekend. The woman sitting next to me wore some perfume that was probably very popular and expensive. But when she fanned herself as the sanctuary grew warmer, the fragrance wafted over to me and was not pleasant. When uninvited or overwhelming, something that is expensive and called a “fragrance” can become as irritating as body odor.

George Cochran

I think we all had that one law professor who motivated us. And every law school has the one law professor who is the subject of great stories, stories that get bigger and better as time goes on. For me and my law school, that professor was George Cochran, and he died this morning.

George was assigned to be my advisor. I went to his office to ask about assignments before classes started. I don’t remember his answer, but I know it involved cursing, so much that I started to re-think this law school plan. When I turned in my first project, he threw it back at me and said that I was smarter than that and could do better. A life changing moment. I was smarter than that; I could do better. And I did.

In George’s constitutional law class, we had to memorize case names, dates, and holdings. I remember that it was about 2000 cases, but that is probably high. My love of index cards started with that class. Anyway, half of the points on the exam came from those memorized cases – name the case from the holding, or summarize the holding from the case name. To this day, I can give you the name of a case on almost any constitutional issue. It’s been quite a few years since I memorized those cases, but I have a starting point for any constitutional law research.

John Grisham graduated from Ole Miss a year before I started, and George was his professor, too. You may think that John made up those descriptions of the quirky law professors, but, no, they are all George. He chewed rubber bands when he was trying to quit smoking. His shirt tail was never tucked in. As you read stories about George in the media in the next few days, you will read about the trash can. I was there. Back in the days when people smoked in classes, George put his cigarettes out by mashing them against the edge of the nearest trash can. One cigarette started smoldering. Without stopping his lecture, George took the trash can and put it outside in the hall. The trash can was not flaming, but someone did call the fire department. We just continued learning constitutional law.

Thanks George. I can do better and I will.

comma?

A friend recently asked me to proofread/edit a brochure for a nonprofit. Most of the changes that I made involved the serial comma. To refresh, a serial comma is the comma used after the last item in a list of three or more items. Think “eats, shoots, and leaves” vs. “eats shoots and leaves.” The serial comma is sometimes called the “Oxford comma” or “Harvard comma.”

In the most recent of judicial opinions that have turned on the presence or absence of a serial comma, the First Circuit has weighed in. One of the categories of exempt employees in a Maine statute was described this way:

The canning, processing, preserving,

freezing, drying, marketing, storing,

packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

How does that work? Does it refer to packing as a single ground for exemption, regardless whether the packing is for shipment or distribution? Or does it refer to two grounds of exemption – one for packing for shipment and a separate one for distribution? The distinction was critical because delivery drivers are involved in distribution, but not in packing for distribution.

The First Circuit first analyzed the grammatical composition of the statute. That include a provision in the state legislation drafting manual against use of a serial comma. Then the court turned to the legislative purpose of the statute. Still unable to resolve the ambiguity, the court looked to the default construction principle to “liberally constru[] to further the beneficent purposes for which they are enacted.” To that end, Maine has declared public policy “that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.” On that ground, the court sided with the drivers.

A couple of points.

When I was teaching eighth graders about gerunds and infinitives and participles, I wish I could have shown them this opinion. Yes, you will use knowledge of gerunds when you grow up, even if you grow up to be a federal judge.
The opinion is a good reminder of many of the rules applicable to ambiguous language in a statute. I will keep it in a folder to remind me when I next have a case addressing ambiguities.
This is not the only time that discussion of the serial comma has been used to determine the meaning of a text. The consistent use of a serial comma seems to me to be a very good way to avoid the dreaded ambiguity. Yet everyone does not agree. The Associated Press and other publications omit the serial comma unless necessary to avoid confusion. http://apvschicago.com/2011/03/commas-in-series.html Any use that is not consistent, however, seems to invite disagreement on meaning. Even though that keeps lawyers in business, I still prefer the serial comma, consistently.

Hysteria?

I read the Trump campaign advisor Jason Miller called Senator Kamala Harris “hysterical.” http://www.cnn.com/2017/06/13/politics/powers-miller-kamala-harris-hysterical-sessions-hearing-ac360-cnntv/index.html

Let’s look at that word. “Hysterical” means “feeling or showing extreme and unrestrained emotion.” https://www.merriam-webster.com/dictionary/hysterical I watched the hearing, and I did not see Senator Harris or any other Senator show extreme or unrestrained emotion. So I disagree, but that is not my point.

The words “hysterical” and “hysteria” derive from Greek and Latin words referring to the womb. Our English word “uterus” derives from those same Greek and Latin words. Why the connection? Because “hysteria” was for centuries a mental illness attributable solely to women because they were women. The presence of a womb was used to explain the physiology and psychology of women. That is, this uniquely female organ was the basis for characterizing women as weak and easily influenced and emotional. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3480686/ Because men did not have wombs, they were not subject to weakness and influence and emotion. Fast forward to the recognition that men also could exhibit extreme emotions. But it wasn’t until 1980 when the DSM changed “hysterical neurosis” to “conversion disorder,” a condition that can affect both men and women.

My point is that the origin of the word “hysteria” unquestionably degrades women: because women have uteruses, they must be irrational. I doubt, however, that people today are referring to a woman’s uterus when they say that someone is “hysterical.” But does that make these words any more palatable?

This could be an example of a variation on what Bryan Garner calls “skunked terms.” This is what he says:

When a word undergoes a marked change from one use to another — a phase that might take ten years or a hundred — it’s likely to be the subject of dispute. Some people (Group 1) insist on the traditional use; others (Group 2) embrace the new use, even if it originated purely as the result of word-swapping or slipshod extension. Group 1 comprises various members of the literati, ranging from language aficionados to hard-core purists; Group 2 comprises linguistic liberals and those who don’t concern themselves much with language. As time goes by, Group 1 dwindles; meanwhile, Group 2 swells (even without an increase among the linguistic liberals).

http://www.lawprose.org/garners-usage-tip-of-the-day-skunked-terms/

Here, the original use of hysteria is offensive and wrong. At what point, however, is the original meaning skunked out? Is it acceptable to refer to a joke as “hysterical” or to describe the Predators fans at the final game of the Stanley Cup as “hysterical?” Probably so. But keep in mind that there are still some of us who know the origins of the words, so be wary about using any form of the word in connection with women.

Forum shopping?

As a lawyer who spends most of my working time reading cases, I have read a lot of cases. I generally read cases that I have found because they relate to a particular issue that I am researching. Something new this week. I changed my research service to Westlaw, so I’ve been taking some time to find and read random cases as a way to practice using Westlaw.

That is how I found BNSF Railway Co. v. Tyrrell, 2017 WL 2322834 (U.S. May 30, 2017). Very enjoyable reading. The issue is whether 45 U.S.C. § 56 addresses personal jurisdiction over railroads. The plaintiffs in the two consolidated cases were neither residents of nor injured in Montana, but they sued BNSF Railway in that state any way.

If you do a general web search to read reviews of this case, you will often see the term “forum shopping.” Writers have characterized the opinion as a roadblock on “forum shopping” or strongly discouraging “forum shopping.” You would think that “forum shopping” was the equivalent of some disgusting crime that threatens the democracy and our court system.

The truth is that “forum selection” is a critical consideration in every case, always for plaintiffs and often for defendants. Yes, defendants. I represented plaintiffs in a case where we carefully chose our forum, knowing that the defendants had a very strong argument for removal. The defendants never removed, however, and we got to keep our preferred forum. And yes, I think it made a difference.

Before filing any suit, plaintiffs’ counsel should consider where to file that complaint. Sometimes the answer is simple because a statute or case law very clearly limits the forum. But you often have a choice. Here are some factors to weigh, with the ultimate decision being based on the best interest of the client.

What is the substantive law in the available forums? This can be a complicated question because there are multiple legal rules in every case. For examples, one forum may allow for punitive damages. That sounds favorable, but that same forum may also allow the defendant broader defenses to liability. This factor requires thoughtful and thorough analysis of the substantive law of both forums.
How strong is your argument that each forum is proper under applicable law? The risk here can be significant; a bad or wrong choice can result in sanctions, extra fees and expenses, as well as lost time.
Do you have a statute of limitations issue? If the claim is barred in one forum, this may be a determinative factor.
How long will it likely take to conclude the case in each jurisdiction? This is a hard question, but there are some jurisdictions that report their disposition times.
Are you (the lawyer) authorized to practice in both forums? Do you need local counsel?
What can you (the lawyer) contribute in each of the forums? If the preferred forum is one in which you are not licensed or is far away, will the client be better served by referring that client to a local lawyer?
What are the different costs of litigation in the two districts? For example, the client pays for travel expenses (either directly or as a contingency). Is that expense worth the difference? Yes, I would love for a client to pay for me to go to New York (where I could also see Hello Dolly), but does it serve the client better to litigate here in Nashville.

In the end, attention to “forum shopping” or “forum selection” – choosing the place in which to file – is a legitimate and proper consideration for any lawyer. But it is just one of the many elements of the analysis that is required before filing any suit.

Welcome!

I’m back! What does that mean? I blogged about legal issues, particularly legal writing and research, about ten years ago. Most of you likely don’t remember, but that’s OK because I’m back!

I can’t remember why I quit blogging. It was probably a combination of personal and professional commitments. When I started that old blog, I thought it would generate legal business for me. For almost twenty years, I have had a solo law practice that is limited to legal research and writing for other lawyers. I had a small following for my blog, but it did not generate the kind of work that I do and like.

This time around, I don’t expect my blog to generate work. So why am I doing this? Writing a blog combines two passions – legal research and writing. I enjoy following news about litigation and other matters, and I enjoy writing. Writing a blog gives me a “reason” to spend time following the news as well as needed practice in writing and thinking.

This blog will also include my added perspective as a former Language Arts teacher. Yes, I went back to school to get a teaching certificate and taught eighth grade Language Arts. The teacher at a nearby school retired six weeks into the school year, and I was hired to take her place. No doubt, the hardest job I have ever had. It was like being lead counsel in a trial for eight months. I prepared every morning and evening, and presented to the jury (the eighth graders) for eight hours every day. And I didn’t have co-counsel. And I only had twenty-five minutes to get my students to and from the cafeteria, go to the bathroom, and eat my peanut butter sandwich at lunch. Through it all, however, I never thought about quitting, and I started every day with joy and anticipation.

As a lawyer, I thought about teaching government or social studies, a class that would draw on my work experience, all those facts I know about how government and courts work. I learned, however, that Language Arts draws on my work experience even more – the experience in reading and thinking and understanding. For example, I had to teach active and passive voice. Questions about voice may be on some standardized test. But the more important part was teaching or helping students understand how they can use their knowledge of active and passive voice. Think about these two sentences: “The defendant stole the car” and “The car was stolen.” In writing or speaking, how would you choose which form to use? If you read the second sentence, what alarm should go off in your head?

See the difference in teaching facts (the rules about active and passive voice) and teaching thinking (what messages that active and passive voice send)? I doubt I got the thinking points across very well or very often in my class. I hope, however, that I planted some little seeds that will grow. (In case you have forgotten the details of active and passive voice, check out this video that we used in class: https://www.youtube.com/watch?v=ARaEpSAD-ng)

So what to look for in this blog? More legal research and writing, especially in the context of legal news. But also some focus on thinking about how we can use those issues to be better lawyers, better citizens, better people. Enjoy!