Category Archives: lawyers as people

Lex gibberish

I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and – above all – repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes – and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same – wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives – and our jobs – would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try – for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

What is our job?

The Windypundit, in an effort to get a fellow Chicago blogger blawging, asks indirectly whether our job is to protect people’s rights or to help criminals “get away with it”:

Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:

I can’t help anyone “get away with murder.” No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn’t cheat. That’s not the same as helping you get away with murder.

It is to me, if I’m a murderer.

I don’t think Rob means what he wrote (at least not the way I’m taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don’t do what I’ve always thought they do, because I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.

Pretty much every defense attorney has been asked that question and most of us have fine-tuned our stock responses. They’re variations of the same “I’m defending the Constitution, asshole” meme. But is that what it really is? Losses sting in our business. We see clients sent to jail for decades and we never forget those cases. So wins do mean something. Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

On the law

From Fred Rodell:

The Law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind. In medicine, in mathematics, in sociology, in psychology – in every other one of the physical and social sciences – the accepted aim is to look ahead and then move ahead to new truths, new techniques, new usefulness. Only The Law, inexorably devoted to all its most ancient principles and precedents, makes a vice of innovation and a virtue of hoariness. Only The Law resists and resents the notion that it should ever change its antiquated ways to meet the challenge of a changing world.

More about Rodell here. H/T: f/k/a

I is gud riter?

Okay, so perhaps not as pronounced as in the title (and certainly not bad spelling), but as this National Law Journal article points out, lawyers are getting worse at legal writing.

Like other writing coaches, Garner sees the influence of technology in attorney writing, and, in many ways, he is not amused.

“They are losing concentration with what they’re writing about,” said Garner, who also is co-author with U.S. Supreme Court Justice Antonin Scalia of Making Your Case: The Art of Persuading Judges, which was released last month.

This piece spends a considerable amount of time explaining how advances in technology serve to interrupt the “flow” of a writer’s thoughts and create distractions. These distractions prevent us from writing in a coherent and simple manner.

“It’s a problem of distraction,” said Jennifer Murphy Romig, a legal writing and research instructor at Emory University School of Law and a writing coach to law firms.

She notes that interference with writing has always been present. A few years ago, it was computer solitaire, she said, and before that it was the old-fashioned crossword puzzle. But she describes today’s distractions — including texting, e-mail on a desktop computer, Blackberry messages and online news alerts — as “more aggressive.”

In addition, most of those distractions involve human communication, which makes them all the more attractive to attend to rather than drafting a brief on, say, jurisdiction.

My problem with writing is slightly different. As my readers (and co-workers) will surely attest, I often don’t know when to stop or how to get where I want to go. I’m not ashamed of it. I’m always learning, trying to get better.

I write (for work) like I think: mostly meandering. It’s not that there isn’t a (to me) logical sequence. There is. I just leave it out and expect the reader to follow. And then there are the times when I’ve had enough. I’ve spent 5 pages setting up the law and the facts and started making the argument and I think to myself: Well, that’s pretty clear. So I move on.

Like this.

Technological innovations also have an up-side, as anyone who has used spell-check will know.

Word processing basics, such as spell-check, passive-voice detection and subject-verb disagreement prompters can make more time for “what’s really hard about writing,” she said.

Advances in legal research also have improved writing, she said. Before online research, Shepardizing a case, for example, required a trip to the library to page through creaky volumes.

But the use of electronic research can create problems, especially for beginners, she said. All cases in electronic form look basically alike, she said.

That last line is a lead-in to a bizarre theory that if you don’t hold the book in your hand, you’re likely to miss that a case is from a non-binding jurisdiction or from the 1920s.

Or it could just be a cover-up for inattentiveness. I’m just saying.

I think these “problems” are not confined to legal writing. The same could be said of trial lawyering, communication, negotiation. We are a constantly distracted society and either you have it in you to focus and push everything else aside, or you don’t. In which case, you better learn how to multi-task well.  In the end, all that matters is the client and how effectively you represent him/her.

See? What the heck did that last paragraph have to do with anything? Come join the joyride!

(PS: Obviously, my work is vetted before I turn it in [for the most part], so don’t run around thinking my briefs are awful. They’re not.)


Now enjoy the Joyride:

The courtroom as assembly line

The criminal justice system is a heavy volume business. There are hundreds of thousands of individuals being processed through the system on a yearly basis. Hundreds get sentenced on a daily basis, there are even more that have short court-appearances. Add to that pre-trial hearings, trials and other motions and arguments, it is clear that it can get monotonous, repetitive and boring.

Yet to allow it to become so is, in my opinion, doing a disservice to the system and to the individuals caught up in it. Western Justice, a prosecutor authoring a self-titled blog, describes a day in court and how his (or her) mind wanders during routine pleas. His mind wanders in and out of the proceedings, sometimes distracted by the upcoming weekend, sometimes by other cases and at other times by ethanol. He relates that he snaps back to reality just enough to mumble some responses to the court’s questions.

While I can understand how this would happen, I’m just a little disturbed that it does happen. Sure, things get repetitive, but are we really that self-centered that we forget the significance of what is occurring in our presence? There are people charged with crimes who might be deprived of their liberty for a significant period of time, their families, people who have been victimized and traumatized and their families. The criminal justice system is not a joke, people. (Well, I don’t mean that kind of joke.) Even the smallest of infractions have consequences in this day and age and we must take our jobs seriously for others to take the system seriously.

Western Justice provides the following quote:

For you non-criminal lawyers and non-lawyers, you have to understand, there are times in any court proceeding where your attention need not be undivided. These usually come at times like advisements, reading of one’s rights, or the reading of twenty plus jury instructions at a jury trial.

Wrong, wrong and wrong. You best pay attention during a plea canvass and you need to quit your job if you’re not paying attention during jury instructions.


Yadda, yadda, yadda. Although they won’t admit it to your face, most prosecutors AND defense counsel are saying to themselves: “Who cares about the Constitution? I’ve got places to go, things to see, cases to prepare, let’s move it along here!…..”

I sincerely hope that defense counsel are not saying to themselves: “who cares about the Constitution?” If they are, the answer is very simple. The man (or woman) standing next to you, and for his or her sake, you better care too.

The only participant in the system that can justifiably drift off is the defendant. It has been my experience that defendants drift off during pleas and sentencing, not because they are unmindful of the gravity of the situation, but rather because they are all too mindful of the consequences. Some are thinking about their families, some are thinking ahead to life in prison and some are cursing the day the committed the act. That I understand and have no problem with.

But it is incumbent upon us to pay rapt attention to what the court is saying. Whatever the judge says at that time can have significant consequences down the road. Another public defender once told me of a case he had where at the time of sentencing, the judge imposed a period of probation in addition to a jail term. Had he not been paying attention, he may not have remembered that the defendant did not actually plead guilty to a sentence that included a period of probation. The matter was immediately rectified, but it may not have been had he not been attentive.

This is what we are paid to do. We are paid to stand by a citizen accused of a crime. That is a serious job that demands our best. We should give nothing less. That includes paying attention in court.

The real cause of prison overcrowding: public defenders

Well, they’re at it again. The law firm that can’t seem to sell itself without dumping on public defenders has another post up [Update: I just noticed that their post is actually dated April 10, 2008. Heh]. This post actually makes some valid points and seems more like a blog post than a marketing advert. At least until you get to the middle, that is:

A vast majority of the people that end up in prison are represented by the public defenders offices throughout the state. In many cases, to know fault of their own the public defender cannot provide the level of legal defense that should be received by anyone facing jail time. Thus the jails are full of poor people, mostly minority who could not find the funds to retain private counsel.

There are so many things wrong with that paragraph, least of all the spelling.

The implication here is that if you’re poor, you’ll go to jail. If you’re rich (or have money to hire this particular law firm), you won’t. Doesn’t matter whether the State has a strong case; wave some greenbacks in the prosecutor’s face and he’ll go straight to his knees.

This also seems like false advertising to me. They’re promising things they can’t deliver. Are they really saying that prison overcrowding would not be a problem if everyone was represented by private counsel (or perhaps just their firm)? They seem to be implying that every case is winnable, if you have the money to hire a lawyer.

Does anyone know how good this firm is? Anyone heard of them? Any readers from the West Coast? Why do they keep doing this? Did one of them get fired from the PDs office?

In a similar vein, see recent posts from Norm and Scott.

In other news, public defenders are also the cause of black holes, crop circles and Dick Cheney’s sneery disposition.

One by one they steal my sanity

No wonder we’re all alcoholics. Researchers in Australia studied 50 criminal lawyers and 50 non-criminal lawyers and found that those engaged in the practice of criminal law are more likely to require therapy and turn to alcoholism. This is because of the nature of our jobs. Those engaged in the practice of criminal law (prosecutors and defenders both) deal with some rather unsavory facets of human nature and the seedy underbelly of society. We see pain, fear, anger, sadness and loss on a daily basis. Yet we have to be above it. We cannot let it affect us or cloud our judgment. We cannot dwell on it, for fear of getting lost in it. So we march on, perhaps repressing these emotions. What level of impact will that have on us?

Another part of the reason for this, the study reasons, is that the profession is such that it attracts a certain type of person – the perfectionist – and there really is no accepted was to discuss these issues with peers. The emotional stress of our jobs is not a frequent topic of conversation in our offices and hallways of courthouses.

“It’s about becoming aware. Everyone is upset by this type of work. It’s a normal response, and if you can talk about it and address it, you won’t develop full-blown vicarious trauma or post-traumatic stress disorder. Once you’re aware, you can start taking more positive steps — maybe playing some sport, or looking at your case load and saying ‘I’ve had five sexual assault cases in a row, maybe I need a break’.”

So how do you unwind after a hard day’s work? What are your distractions? Things that keep you sane. How do you cope with it after 10, 20, 30 years in this field of law?

Me? I’ve got all of you.