To the eyes of anyone other than another lawyer, legal writing is the ugly, hated illegitimate child of good prose. The only thing worse than legal writing are efforts by lawyers to produce writing that doesn’t sound like legal writing. Unless you believe the 7th Circuit’s condemnation of Walter Maksym in Stanard v. Nygren.
We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym’s persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge’s decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission.
Clear, comprehensible writing is a tool of the trade for lawyers. Note that this doesn’t mean good writing, but rather writing that’s sufficient to make the point. Clearly, the 7th Circuit didn’t find Marksym’s writing persuasive. From the ABA Journal :
The appeals court included a 345-word sentence by Maksym to illustrate. At least 23 sentences contained 100 or more words. “Much of the writing is little more than gibberish,” the appeals court said.
Yeah, not good writing. Got it. But the court not only affirmed dismissal of the complaint, but referred the matter to the disciplinary commission and ordered Maksym to show cause why he shouldn’t be suspected from practice in the circuit and otherwise disciplined.
Was Maksym’s writing so bad as to justify such a harsh reaction by the court? Perhaps. Stringing together 345 words surely won’t win the brevity award for being the “soul of wit.” But incomprehensible writing abounds. And courts aren’t immune any more than lawyers. We’ve all read decisions that leave us scratching our head as to what a string of words with no seeming connection means in a decision.
But let’s take this a step to the side. The worst Marksym’s “incomprehensible gibberish” could do is get his client’s complaint tossed and himself in trouble. Not good for the client or Maksym, but hardly an institutional disaster. The rest of the legal system goes on.
What of the “incomprehensible gibberish” that constitutes complaints and indictments? The 7th Circuit’s chief complaint of Marksym’s writing is that it “mak[es] it impossible for the defendants to know what wrongs they were accused of committing.” That’s a problem in a civil action. And yet the court isn’t troubled in criminal matters when the entirety of notice consists of tracking prolix statutory language with some generic detail tossed in?
The Circuit’s need to hold Maksym out as the poster boy for incompetent legal writing would carry far more meaning if they ever gave similar consideration to prosecutors in criminal cases. While it may not necessarily involve 345-word sentences, it commonly involves paragraphs of disconnected sentences followed by string cites with parentheticals that eventually wind down to either irrelevant recitations of law or conclusions unsupported by even the headnotes if not the text of decisions. Happens all the time, but I’ve never seen a court take note of it, no less disparage a prosecutor for it.
The bane of a defendant’s ability to defend is that wholesale meaningless of accusatory instruments, leaving defendants to wonder what factual allegations could possibly support the official language of the law that accuses them of grievous wrongs. Attempts to get a court to compel the prosecution to say something real, substantive, are met with the response that provision of actual facts would “prejudice the Government.” Facts prejudice the government? It must be so, because courts never make the government give them up.
In a letter posted by Mark Bennett the other day, the government argued against the defense having the names of jurors in advance so they could research their online information:
If the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in-court voir dire, the Court’s supervisory control over the jury selection process would, as a practical matter, be obliterated.
I’ve read this sentence a dozen times and have no clue what it means. And it’s only 45 words long. It’s not that I can’t interpret it, read between the lines, surmise the point, but if we’re going to castigate lawyers for bad writing, why not start here?
When a prosecutor submits incomprehensible gibberish to a court, it’s usually characterized as “artfully crafted,” giving at most the appearance of substance while disclosing absolutely nothing of value. Has any court referred a prosecutor to the disciplinary committee for this? Has any court admonished a prosecutor for presenting gibberish that denies the defendant his right to know what wrongs he is accused of committing?
I’m all for better legal writing, by lawyers and by courts. But if judges are going to start holding lawyers up to public ridicule for their bad stuff, let’s spread the love around a bit more. We’re up to our eyeballs in meaningless, incomprehensible writing, and as the 7th Circuit rightly acknowledges, defendants deserve better. Even criminal defendants.
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You write good. Me appreciate.
You are two kind.
Last year, I applied to join the bar in another circuit. The clerk sent me my certificate of membership and a copy of Strunk & White. I always wondered if it was the way I answered some of the questions in the application . . .
Only slightly related to the topic at hand here…
I was disappointed to discover that diagramming sentences was no longer taught at my daughter’s school. (I taught her myself because you never know when a masked man in an elevator is going to point a gun at you, hand you a sentence, and say, “Diagram this!”)
Perhaps we could make lawyers, judges, and – even better – congressmen diagram their sentences before they are unleased on the public.
I still have my first dog-eared copy of Strunk & White. I remember crying at the end.
I remember when “whole language” was the new, cool, in-thang for education.
Effective communications are only as lengthy and complicated as necessary. I’m sure that there have been many times when an attorney has written an effective sentence having more than a hundred words or an effective brief so dense that other lawyers have difficulty digesting it. If arguments cannot be adequately expressed another way, they must be expressed in lengthy or complicated terms. I don’t read your criticism as one of long or complicated writing in itself; rather, the problem is (again) one of professional competence — lengthy, complicated legal writing being used to mask poor lawyering or being used unnecessarily and ineffectively for sake of appearances.
I’m sure Maksym was singled-out not just because he was a bad writer but because his bad writing was something which objectively demonstrated his inadequacy before the court. That he was held up as a poster child for bad writing might indicate that he’s the most egregious example, that he was the straw which broke the court’s back on this issue, or that his bad writing was characteristic of his inadequate performance generally.
Is he really the worst? Almost certainly not. He’s a fine example, though, of our profession’s unwillingness to communicate clearly. Many practitioners have come to the conclusion that it’s somehow shameful to write in plain terms, to submit a brief which isn’t within a page or two of the court’s limit, or to address something without wrapping it in a blanket of extraneous legal argument. The concern seems to be that a simple answer or a concise brief may be appropriate and effective, but these don’t necessarily carry sufficient gravitas to clients, courts, and one another.
Though better lawyers sometimes worry about appearances, poorer ones are obsessed by them because they have not much more to offer their clients. At least until this court issued its smack-down (or perhaps even after), Maksym’s client was probably impressed with his lawyer’s writing. It was ineffective — even counter-productive — but he had no way of appreciating that until the court published its rant. He didn’t understand it at all, but any writing that verbose and impenetrable must be good and, moreover, it justified a higher bill than a shorter brief would have. If a case is lost, it’s a rare decision which identifies overlong, overly-complex writing as a principal cause for that failure. In this, Maksym is most remarkable for his tremendous bad luck in having his ineffective writing highlighted as it has been.
TL;dr
Yes, I deserved that. Thank you for “tl;dr”ing rather than “Cool story, Bro”ing me.
No prob. That’s just the kinda guy I am.
I have seen plenty of multi-page conspiracy theory, aluminum hat “filings” that make no sense. Frankly, they are a waste of everyone’s time, especially the court’s. I once saw one that was written in a Caesar cypher.
They’re sad when they’re pro se, and some poor soul really thinks someone has taken over his microwave. But when a licensed lawyer signs onto this garbage, the other side actually has to deal with it, which is even worse. Maybe that’s what happened here?
Nutjobs (I call them the tin foil hat crowd, but you have a better class wearing aluminum hats) are a different story entirely. Note Mark Bennett’s post today on his new best friends, the Weckmanns, who believe in “Redemption Theory.”
WTF, Send this guy back to “Adult” school!
I am a little concerned because I think I comprehend this “sentence.” I don’t agree with it, but I do think I comprehend it. What am I doing wrong?
I have the same problem but I am more than concerned because it is not a good sign when you think you comprehend the incomprehensible.
Recognizing the problem is the first step to getting appropriate meds.