Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.
Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.
When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.
Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.
Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.
A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.
On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.
Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.
This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.
To no avail.
We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”
No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”
Up to that point, the fault is the partner’s. But then I personally make two mistakes….
Last week’s vote was extremely close, but 51% of our readers thought that the Bluebook should be abolished. With the fall semester drawing to a close and brief deadlines approaching, we think that law students definitely had a hand in the outcome.
This week, we turn to a question of grammar. Have you been using the word “irregardless” instead of “regardless”?
In last week’s Grammer Pole, 60 percent of you supported forming the singular possessive of a noun ending in “s” by adding an apostrophe followed by an additional “s” — e.g., “Kansas’s statute” rather than “Kansas’ statute.” In this debate, you sided with Justice Souter over Justice Thomas (based on their dueling approaches in Kansas v. Marsh).
Today we call upon you to choose between nationalities instead of Supreme Court justices. When it comes to the placement of punctuation marks in relation to quotation marks, do you favor the British approach or the American approach?
Last week, we found out that 52% of our readers thought it was acceptable to end a sentence with a preposition, but with the caveat that it should be avoided if possible. That’s pretty wishy-washy, folks.
This week, we’re going to focus on an issue with a supreme split in authority, and you’re going to have to choose one side or the other. You’re going to pick Clarence Thomas’ side (you’ll soon see why we wrote it that way), or you’re going to pick David Souter’s side, but that’s it. Ooh, that’s a little possessive….
In last week’s Grammer Pole, you voted to overwhelmingly approve the use of split infinitives. Fifty-three percent of Above the Law readers said that splitting infinitives is acceptable, even if it should be done sparingly. An additional forty percent said, “Yes. It’s great to liberally split infinitives!”
This suggests to me that ATL readers are a pragmatic bunch when it comes to language. You’re not hung up on hoary rules that don’t serve a practical purpose in communication.
I think I can guess, then, what you think of the injunction against ending a sentence with a preposition….
In an event I did a few years ago at the University of Chicago with Judge Richard Posner (check out the podcasthere), Judge Posner tossed out a delicious little blind item. He mentioned a federal judge in Chicago who would fire law clerks for what she viewed as a very grave offense: splitting infinitives in written work product.
In Feeling the Kumbaya (Part I), we looked at how different the perspectives of business clients and in-house lawyers can be. Below are a few techniques that have helped me and my clients to feel the Kumbaya for each other (or at least have helped them to not think I’m only a total loser who has nothing better to do than change all of the commas in a list after a colon to semicolons).
Prioritize. I used to suspect that there was something about going in-house that made perfectly good law firm attorneys develop permanent amnesia when it came to good drafting. It was the strangest thing. Even my husband, a supposedly respectable corporate law firm attorney, after going in-house, suddenly started to let minor errors appear in his emails. My judgment of him was quick and deliberate. He would sometimes mistakenly use “there” instead of “their,” for God’s sakes! What lawyer does that?
Hey, have you read Above the Law for like one single minute in the past month? If so, you probably know that we’re having this big blogger conference on March 14th at the Yale Club. Yeah, the Yale Club. You’ll be able to recognize me: I’ll be the only big… blogger guy surreptitiously holding a can of crimson spray-paint.
Speaking of coming, you should come. We’ve got CLE and all that. Click here to buy tickets to get CLE credit for listening to bloggers scream about stuff on the internet.
To refresh your memory, details on the panel that I’m moderating — almost entirely sober, mind you — follow.
My panel is called Blogs as Agents of Change, and we’re going to talk about whether all of these spilled pixels are actually making a difference. You know my view… just ask Lawrence Mitchell, but here are the panelists:
So you spent a considerable amount of time courting, selling and maybe even doing some friendly stalking of that attractive lateral partner candidate with a sizable book. After he or she ignored your emails and didn’t return your calls, a few weeks go by and you read a press release in the legal media announcing the recent move to a competing firm.
Rats. Another one got away from you. You cringe when you consider how much time was spent in meetings that did not bear fruit. Your heart aches when recall how you were led to believe this was a marriage made in heaven.
You have been rejected.
The sting of rejection is painful, even for fancy law firms. But you need to find a way that you can turn this disappointment into a legitimate learning experience.
No, this isn’t a pre-party before we come back next fall for the real thing. This IS the real thing. Quinn Emanuel is pushing the envelope on recruiting. The party is now. This is when you meet the partners and associates face to face. This is when we begin the dance that could land you an offer for your second summer BEFORE school starts in the fall.
First: You come to the party. Second: If you like us, you send your resume after June 1, 2014. Third: If we like each other, you get an offer.
We’re not waiting for fall. We’re not doing the twenty minute thing. This party is the real thing!
We hope you’ll join us, and look forward to meeting you.
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