In-House Counsel, Litigators

Easy Writer (Or: An Analogue To Pile-O'-Crap Syndrome)

Many court rules are designed largely to hedge against inept litigators heaping piles o’ crap on the court, according to veteran litigator Mark Herrmann.

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I’ve written before (but that was four years ago, so maybe you’ve forgotten) about pile-o’-crap syndrome. You’ll observe that syndrome in the associate who delivers an undifferentiated mass of 8,000 documents to the partner, accompanied only by a note that says, “Here are the documents you need for the upcoming deposition.” No outline, no explanation, no highlights or tabs — just a pile o’ crap, conveying the implicit message: “I can’t be bothered. Figure it out for yourself.”

As I noted four years ago, pile-o’-crap syndrome also shows up in written work. The syndrome manifests itself in your email box as a chain of emails. The first email says only: “Can you help with this?” This leaves the reader to sort through the attached 42 emails to figure out what the issue is and in what way the reader might help. In short: “Here’s a pile o’ crap. I can’t be bothered. Figure it out for yourself.”

It recently struck me (upon reading an opponent’s brief) that litigators often suffer from pile-o’-crap syndrome when they write briefs. Litigators can make life easy for the judge. For example: “The parties agreed on this point when they negotiated the contract. As Smith (of BigCo) wrote to Jones (of LittleCo): ‘On your second issue, we’re convinced. We agree to this point.’ Exh. 3 at 4.”

Alternatively, litigators can inflict a small pile o’ crap on the judge: “The parties agreed on this point when they negotiated the contract. See Exh. 3.” This leaves the judge to search through exhibit 3 to try to find the relevant language.

Or litigators can inflict the mother of all piles o’ crap on the judge: “The record makes clear that the parties agreed on this point when they negotiated the contract.” Which really means: “Here’s a pile o’ crap. I can’t be bothered. Search the entire record for yourself.” (In this last example, the words might actually reflect something worse than mere lack of consideration for the judge. The words might mean: “I couldn’t find anything in the record that remotely suggested that the parties agreed on this point during negotiations, but it would sure help my case if they had, so I’m asserting this to be true despite the lack of evidentiary support.”).

String cites (without accompanying parentheticals) are another fine example of a litigator’s pile o’ crap. A bad litigator would write: “The laws of many other states are in accord. See, e.g., Cite; cite; cite; ad nauseum.” In other words: “Maybe the other states’ laws agree; maybe they don’t. I can’t be bothered; you figure it out.”

On the other hand, an intelligent litigator, if she uses string cites at all, at least supplies parenthetical quotations to make the cites more convincing and to ease the reader’s burden. Thus: “The laws of many other states are in accord. Cite at 123 (“New York has adopted the Restatement Third.”); Cite at 456 (“We hereby adopt the Restatement Third in Illinois.”); Cite at 789 (“The California Supreme Court adopted the Restatement Third more than a decade ago.”); etc.” In other words: “Many states laws really are in accord. Allow me to prove this to you conclusively and spare you the effort of having to do any research.”

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If you think about it, many court rules are designed largely to hedge against inept litigators heaping piles o’ crap on the court. Why do appellate rules often require that statements of fact contain cites to the page of the record that supports each factual proposition? Because otherwise some moron wouldn’t cite to the record at all. Or he’d start by asserting that, “The record demonstrates the following facts,” and then provide no specific cites. This would force the appellate court to fight through the entire record to make sense of the case. Appellate court rules try to avoid the usual pile o’ crap: The litigator couldn’t be bothered; let the court figure it out.

Like these appellate rules, many trial courts have rules requiring that summary judgment motions be accompanied by separate statements of undisputed facts. If those separate statements weren’t required, one party would move for summary judgment. In response, all bad litigators (and, in the right circumstances, some good ones) would fling an undifferentiated pile o’ crap at the court, figuring that there must be a disputed issue of material fact in there someplace. Let the court figure it out.

As a hedge against that tactic, courts require the movant to specify, in numbered paragraphs and with citations to the record, the facts that are claimed to be undisputed. The respondent must then explain which of these facts are disputed or what other disputed issue of material fact precludes entering summary judgment (all supported by citations to the evidence that creates the dispute). The court rules hope to keep judges from being buried under piles o’ crap and instead force the litigants to present useful information in an intelligent way.

So there you have the litigators’ analogue to pile-o’-crap syndrome.

The cure to the analogue is the same as the cure to the original condition: Think about everything from the other guy’s perspective. If you care about the other guy (and, when he’s a judge, you should), then do whatever you can to make his life easy. Present materials in the easiest, most useful way. Provide specific citations to the record or cases, to save the judge (or his clerk) trouble. If specific language matters, quote it. As between doing the work and forcing the other guy to do the work, you do it.

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It’s common sense, and common courtesy, and the path to victory.

Earlier: Inside Straight: A Disquisition On Pile-O’-Crap Syndrome

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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