The United States Supreme Court recently threatened to sanction an attorney for filing an unintelligible, jargon-filled petition in a patent case. Also, possible changes to the Federal Rules of Appellate Procedure will require attorneys writing for federal appellate courts to be even more concise. The Supreme Court’s actions and these possible rule changes serve as a reminder for attorneys to write clearly and to use plain terms when crafting legal arguments to courts.
An example of the problematic language that caused the Supreme Court to threaten sanctions in the patent case was in the “Question Presented” section of the petition for writ of certiorari. That section read, in part:
“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,
- require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,
or does the US Constitution for such decisions
- entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
Patent attorney Howard Shipley signed and filed the thirty-seven-page document that contained not only this unique question-presented section, but also numerous symbols and abbreviations.
On the last page of the brief, however, Shipley gave credit to Sigram Schindler, who “should be recognized for significant contributions to this petition.” Dr. Schindler was an inventor and Shipley’s client and insisted on writing the brief himself.
On the same day that it denied the petition, the U.S. Supreme Court issued a show cause order, requiring Shipley “to show cause, within forty days, why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for writ of certiorari.”
To respond to the Supreme Court’s order, Shipley hired Supreme Court advocate Paul Clement. In his brief in defense of Shipley, Clement explained that the “unorthodox petition” was the result of the client’s insistence, “right down to the client’s favored locutions and acronyms employed in his other writings about the patent system” and that the client “insisted on retaining primary control over the substance of the petition.”
Clement explained that Shipley attempted to rewrite the question presented in “a more conventional style” but that Dr. Schindler “insisted that the question presented reflect his favored terminology and locutions.”
Ultimately, the Supreme Court decided not to sanction Shipley. The court did, however, send a message of caution, reminding members of the Supreme Court Bar of the requirement to use “plain terms” and that that responsibility may not be delegated to the client.
In addition to this reminder, attorneys might soon be forced to use plain terms and become more succinct if the Advisory Committee on Appellate Rules’ proposed amendment to Federal Rule of Appellate Procedure 32 is enacted. The proposed rule would limit appellate briefs from 14,000 to 12,500 words and cut reply briefs from 7,000 to 6,250 words.
Many lawyers have opposed the change, arguing that complex cases merit expanded arguments and that litigants must often address multiple causes of action, interactions between state and federal law, and, sometimes, convoluted legislative histories. Attorneys argue that a shorter brief is not always more helpful to the court and that shorter briefs would necessarily constrain the possible arguments made to the appellate court, thereby not giving the court full context of the underlying facts and legal proceedings.
Others argue that the limitation will not hurt litigants. For example, the Eighth Circuit reported that only 15 percent of appellate briefs exceed the 12,500-word count.
The Rules Committee held public hearings, chaired by Judge Steven Colloton of the U.S. Court of Appeals for the Eighth Circuit, on April 1. The Rules Committee has yet to make its decision on the proposed change.
The Supreme Court’s encouragement to use plain terms in legal writing, along with the potential change to Federal Rule of Appellate Procedure 32, should encourage lawyers — regardless of where they practice and to what courts they write — to develop plain-language writing skills to ensure clear, concise, and intelligible briefs.
Bryan Garner recently offered some tips to improve every attorney’s writing style in an October 1, 2014, ABA Journal article. Garner is president of LawProse, Inc., author of many books on legal writing, and editor-in-chief of all current editions of Black’s Law Dictionary. He suggests:
- Be sure to understand your client’s problem. Garner encourages attorneys to ask questions, read all of the relevant documents, and know all relevant facts.
- Don’t rely exclusively on computer research. Garner recommends using indexes, digests, treatises, and the advanced search function of Google Books to look for different possible resources.
- Never turn in a preliminary version of a work in progress. While researchers might be tempted to provide an interim draft to get preliminary feedback, Garner suggests this is usually a bad idea. He says it is better to be a little late than wrong.
- Summarize your conclusions up front. Garner states that the up-front conclusion should provide the principal questions, the answers to those questions, and the reasons for those answers.
- Make your summary understandable to outsiders. Don’t assume that the reader will or can translate any obscurity. Make your summary understandable to anyone.
- Don’t be too tentative in your conclusions, but don’t be too cocksure, either. Garner encourages lawyers not to follow the one-hand-other-hand approach of law school exams.
- Strike the right professional tone: natural but not chatty. Avoiding legalese is not license to flout norms of Standard English.
- Master the approved citation form. Failing to cite authorities appropriately makes the writer appear untrained.
- Cut every unnecessary sentence; then go back and cut every unnecessary word. Too many words clutter writing. Cut whatever is not needed.
- Proofread one more time than you think necessary. Garner suggests reading your brief aloud to catch any spots that need refinement.
Chief Justice John Roberts said, “Language is the central tool of our trade.” As attorneys, we must use language and write in a clear and persuasive way on behalf of our clients. The Supreme Court’s warning in the Shipley matter and the proposed changes to Federal Rule of Appellate Procedure 32 require all attorneys to hone their writing skills to ensure success.
*This article originally appeared in Volume XXX No. 5 Louisiana Advocates (May 2015). Copyright © 2015 Louisiana Association for Justice. All rights reserved. Used with permission.
**Written with assistance from Erica Cicero, a law student and an employee of Whaley Law Firm.