Ernie the Attorney : searching for truth & justice (in an unjust world)
Updated: 6/5/2003; 10:32:44 PM.


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Sunday, April 07, 2002

Do more Rights mean less Freedom?

That's what Philip Howard, author "The Death of Common Sense," believes and he makes a strong case that the proliferation of personal rights is strangling our collective freedom.  The following excerpt from the Atlantic Online sets the scene:

"By exalting the "right" of any angry individual to haul just about anybody into court for just about anything, we have all become less free to do what we think is right and focus on the common good, Howard asserts. So wary are we of subjective value judgments by people in authority (ranging from kindergarten teachers to mayors), and so enamored are we of supposedly neutral decision-making based on "proof" of the unprovable, that the rulebooks become ever-thicker and more incomprehensible, the bureaucracies become ever-vaster and more impersonal, and due process runs amok, smothering the discretion of teachers, principals, police officers, environmental regulators, judges, and others to follow their best instincts and get things done."  [Story Link]

I agree strongly with Howard's view and recommend his books to anyone who is concerned about the amount of yeast in our litigation system.  It amazes me when people act as if the ever increasing number of bizarre claims are simply a necessary feature of an open legal system, which necessarily carries with it a little bit of mayhem. And I always love it when the beneficiaries of this mayhem claim to be champions of the "little guy."   We're all the "little guys" and we all pay the price, which unfortunately is difficult to quantify.  But it's not an insignificant number, that's for sure.

8:06:51 PM    

Would you like to receive local TV news from New York?

Well, you can't unless you live in New York.  Existing laws prohibit Americans from watching local news and information originating from other areas of the country.  However, the satellite broadcast company EchoStar is challenging that law before the United States Supreme Court, arguing that the law violates the First Amendment. 

If you can read the New York Times in California, why shouldn't you be able to watch local New York news in the same way? That's the marketing plan for EchoStar, which has already committed to offer local TV channels in all 210 television markets in the United States, including Alaska and Hawaii. [Story Link]

7:16:23 PM    

Law & Humor - go together like...a fish and a bicycle

Back in the mid-1980's when I went to law school I read a short, humorous book written by Daniel White called "The Official Lawyer's Handbook."  Among, the gems of wisdom in the book was the following: "There are no funny lawyers; only funny people that have made the wrong career choice."

Apparently, Andrew McGlurg made a wrong turn somewhere.  He is a lawyer, or more precisely a law professor, and he teaches at the University of Arkansas at Little Rock.  He also writes regularly for the ABA Journal, and has a website.  Check it out.

5:48:17 PM    

Judicial Profiles

Thanks to Denise for this link to a site that profiles judges in California.  I was able to learn that Justice Bedsworth (a judge who has a very interesting blog, which I learned about from Denise's site) was born on the same day (but not year) as I was. 

5:05:23 PM    

Lawyers - The Great Communicators.

If you have limited time to make a point (and capture your audience's attention) how would you begin?  How about with boilerplate language that no one reads?   That obviously doesn't make sense...and yet that's how most lawyers write.

Here for you lay persons in the audience is a typcial introduction to a motion for summary judgment (and this is a benign example):

NOW INTO COURT, through undersigned counsel comes ABC Corporation (hereinafter referred to as "ABC Corp."), and moves pursuant to F.R.C.P. 56 for a summary judgment dismissing all claims against defendant XYZ Corporation (hereinafter referrred to as "XYZ Corp.") for the reasons set forth below.

This sort of thing is commonplace in papers filed with courts.  It is also commonplace for judges and law clerks to completely ignore it.  In fact, if you wanted to bury a bad fact that you needed to reveal (or confess to a heinous crime), this would be the place to bury it.  No one reads this section.  But after decades of being exposed to this section, and knowing that it is simply a boilerplate section, would it occur to lawyers to put this section in plain English?  No.  The assumption is that one should begin their persuasive briefs with a section that is at once unpersuasive, uninteresting, and unreadable.

Plain language.  It's a strange concept for many lawyers.  In fact, many lawyers would be afraid to write in plain language.  It's almost as if they believe that if they wrote in simple prose they wouldn't be taken seriously. It is ironic that, in a profession where the practitioners are supposed to question assumptions, no one questions the assumption that boilerplate language is completely ignored.  Some lawyers probably take pride in their ability to add to the galaxy of boilerplate phrases.  In fact, I have a friend who worked for an insurance defense lawyer who once created a three page affidavit to explain that he sent a letter return receipt requested and it was returned to sender.  Almost one full page was devoted to a legalistic description of the "stamp with the pointing finger" that the post office puts on letters that have to be returned to sender.  That three page affidavit was clearly a labor of love.  

Mark Twain once wrote a letter that ended with the apology "I'm sorry that my letter was so long; I didn't have the time to make it shorter."  Even when it was verbose, at least his writing was enjoyable to read.  But I guess that was his objective. 

4:49:13 PM    

© Copyright 2003 Ernest Svenson.

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