a California-centric collection of comments and resources about complex litigation and class action practice
Complex litigation is primarily written advocacy. Since you are reading a blog about complex litigation topics, you might be interested in the top blogs for writers for 2009. You might find something that speaks to you if you poke around a bit. Keep in mind that these are not legal writing blogs, but legal writing could stand for a regular dose of non-legal writing advice every so often.
The California Supreme Court is promoting a new feature on the California Courts website. Legal briefs for cases on the September Oral Argument calendar can be found on this page. The cases and briefs curently available include:
S149752: Roby v. Mckesson
Petition for review (PDF, 1,712 KB)
Answer brief (PDF, 2,998 KB)
Reply to answer petition for review (PDF, 891 KB)
Opening brief on the merits (PDF, 2,740 KB)
Answer brief on the merits (PDF, 3,733 KB)
Reply brief on the merits (PDF, 2,591 KB)
S163335: Costco Wholesale Corp. v. Superior Court of Los Angeles
Petition for review (PDF, 2,595 KB)
Opening brief on the merits (PDF, 2,623 KB)
Answer brief on the merits (PDF, 1,201 KB)
Reply brief on the merits (PDF, 2,623 KB)
S161385: Schacter v. Citigroup, Inc. et al.
Petition for review (PDF, 1,293 KB)
Opening brief on the merits (PDF, 2,131 KB)
Answer brief on the merits (PDF, 1,904 KB)
Reply brief on the merits (PDF, 1,257 KB)
S166747: Johnson v. Greenelsh
Opening brief on the merits (PDF, 1,211 KB)
Answer brief on the merits (PDF, 2,152 KB)
Reply brief on the merits (PDF, 530 KB)
S158852: People v. Stevens (Lorenzo)
Petition for review (PDF, 2,081 KB)
Opening brief on the merits (PDF, 1,269 KB)
Answer brief on the merits (PDF, 2,461 KB)
Reply brief on the merits (PDF, 866 KB)
S163811: People v. Concha (Reyas) and Hernandez (Julio)
Petition for review (PDF, 2,844 KB)
Petition for review (PDF, 2,970 KB)
Opening brief on the merits (PDF, 1,445 KB)
Opening brief on the merits (PDF, 981 KB)
Answer brief on the merits (PDF, 1,196 KB)
Reply brief on the merits (PDF, 1,070 KB)
Reply brief on the merits (PDF, 762 KB)
This will prove to be an exceptional resource if briefs continue to be made available in this way. An interesting implication of this free public access is whether it in any way resolves the recent copyright controversy about exclusive access to briefs by Westlaw and Lexis.
I'm as guilty of this lazy thought process as the next lawyer. I've always assumed, perhaps incorrectly, that when a brief was filed with a court, it was some sort of public commodity, available for any use. Not so fast. The July 23, 2009 Daily Journal ran a story about Irvine attorney Edmond Connor, who wrote to the California Supreme Court to express concern about the the practice of providing all appellate briefs filed in California to Westlaw and Lexis, free of charge. Paul Lomio, LexisNexis and Weslaw violating copyright? (July 23, 2009) legalresearchplus.com.
The Volokh Conspiracy stepped into the discussion:
The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
Eugene Volokh, Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? (July 23, 2009) volokh.com. Legal Research Plus followed up with a link to the actual letter by Mr. Connor (in which he suggests that a class action could be one way to resolve the issue). The letter is rather persuasive in describing the current system as unfairly favoring two commercial actors at the expense of the copyright holders. I'm going to go out on a limb and say that it sounds like a federal class action waiting to happen if a corrective measure isn't implemented.
Via: @richards1000 (twitter page)
The Opening Brief in Brinker Restaurant v. Superior Court was submitted to the Supreme Court on January 20, 2009. Technically, it wasn't filed, since an application for permission to file an overlong brief accompanied the submission.
You can read a copy of the Opening Brief yourself here [Editor's Note: This is the Petition, not the Brief - the corrected link is below], via Acrobat.com.
CORRECTION: Here is the correct link to the Brief. The link above is the Petition for Review.
CORRECTION 2: Due to a problem with the document, I am unable to post the Opening Brief at this time. I apologize for getting your hopes up. If I receive a corrected document in the future, I will make that available here.
While perusing recent Twitter posts, I was directed to a blog post which asserts, as its central premise, that the use of Twitter will make better writers out of lawyers. (Rex GradelessJosh Camson, Using Twitter to Become a Better Legal Writer (January 19, 2009) socialmedialawstudent.com.) Respectfully, I must disagree.
Before I do, a brief explanation of Twitter is in order. Twitter is a social networking and microblogging service that allows you answer the question, "What are you doing?" by sending short text messages 140 characters in length, called "tweets", to your friends, or "followers." (Tweeternet.com.) If you haven't used Twitter, the most common question has to be, "What can I possibly do with 140 characters?" Evidently quite a bit: 18 Super Useful Ways To Use Twitter.
Back to the blog post on Twitter as a tool for improving writing. Rex said:
“Twitter forces its users to express thoughts in 140 characters or less. Legal professionals who use Twitter are thus required to boil down their thoughts to a short and succinct message. The service does not allow for sloppy word choices and lazy sentence construction.
This analysis does a disservice to the skill that goes into quality legal writing. Effective legal writing must be clear. True. And often, succinct passages are clear passages, or at least more so than a verbose passage of equivalent meaning. But legal writing that is "short and succinct" as its goal misses the point. Legal writing must, before all else, communicate its intended message. If a terse desription of an issue omits important nuance, then the writing is inadequate, irrespective of its "clarity." Twitter's 140 character limit is an artificial restriction that is no substitute for writing with clarity in mind.
The other problem with this premise is that a short sentence only has meaning if it is part of a clear structure. Twitter does nothing to encourage effective paragraph structure or logical organization. I think it is more likely the case that the habits learned on Twitter, if not checked, would infuse legal writing with a sense of discontinuity. Syllogisms are not assembled on one shot sentences. In an effective legal brief, every part contributes to the whole.
Twitter is many things, but it is not the next source of great legal writers. Rather, great legal writers will likely make good use of Twitter.
My advice to aspiring writers would be to have someone proof your work and identify every sentence where they slowed down, reread or got stuck. Eliminate all of those, and your writing is probably clear enough to pull a reader through your points. Use a second pass to remove cliches and repetition for no clear purpose, and you probably have a brief that outshines 90% of what's produced today.
Just so I'm clear, I don't have an axe to grind with RexJosh. But I don't want to see what I consider to be shaky advice dispensed that encourages young lawyers to avoid the hard work that is required to learn how to write effectively. "Oh, I don't need to attend that writing workshop; I use Twitter." Let's let Twitter be what it is, a dynamic social networking tool, and not what it isn't, a Legal Writing Instructor.
Rex Gradeless, who directed my attention to this article, is @Rex7 on Twitter. You can find my occasional Twitter posts under @hsleviant.
At Legalwriting.net, Wayne Schiess discusses the abuse heaped upon the English language when lawyers use nouns that wanted to be verbs. What are "nouns that wanted to be verbs?" Wayne explains:
Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs. I've even heard them called smothered verbs. What you call them is not important. What is important is that you learn to recognize when you've got nouns that could be verbs and train yourself to return them to their preferred state.
(Wayne Schiess, When verbs become nouns (May 9, 2008) www.utexas.edu/law/faculty/wschiess/legalwriting/.) Wayne then provides examples of nominalizations in common legal use:
For example, this sentence contains two nouns that wanted to be verbs:
- My expectation was that counsel would make an objection.
If we return these nouns to their verb forms, the sentence improves:
- I expected counsel to object.
(Ibid.) The best part of the article is the list of common nominalizations. Take a look at the list and check off all the ones that you think you've used in your own writing. It's painful to see how predictable we are as writers.
In my experience, class action and other complex cases depend more heavily upon written submissions to the court. I spend more time writing joint status conference statements, supplemental briefs after hearings, oppositions to demurrers to eighth amended complaints, and so on, and so forth. I don't necessarily mind the emphasis on writing - I like writing. But I am ever more keenly aware that as the briefing and other written submissions rise in importance, the quality of the written message must also rise. There isn't enough time in the day to make every brief the ideal brief. We simply endeavor to make each brief better than what is required to accomplish the goal of the brief.
In my own efforts to improve my writing, I am always interested in sound advice and constructive criticism. I recently found the blog of Wayne Schiess, a legal writing instructor at the University of Texas. Surprisingly named Wayne Schiess's legal-writing blog, Mr. Schiess provides interesting advice about writing, advice with which I find myself often in agreement. The blog doesn't link to each post on its primary page, so Mr. Schiess's blog is more suited to occasional browsing.
[Thanks to The California Blog of Appeal for suggesting the site.]
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
