When can Jargon Hurt Your Case?
Lawyers aren't often known for their clarity and concision -- we paid good money to learn our Latin phrases, after all. We have also been known to fall for the specificity, if not clarity, of a few extra words every now and then. But, pair the somewhat obscure language of legal writing with the in-speak of certain professions, and you can end up with a virtually indecipherable mess.
Put more plainly, your writing will suck.
So much in fact, it's almost enough to get you sanctioned. After filing a jargon-laden petition for cert, a BigLaw partner narrowly avoided that fate last week. Just how far did he have to go to nearly receive the wrath of a High Court's sanction?
And English Teachers Everywhere Wept
Howard Shipley, a partner with Foley and Lardner, filed a petition for cert in a patent case which was, by all accounts, virtually indecipherable. The first part of the question presented, asked whether the Constitution "requires instantly avoiding the inevitable legal errors in construing claim constructions ... by construing for them the complete/concise refined claim constructions of the Supreme Court's ... line of unanimous precedents framework."
Shakespeare it is not.
Ah, and let's not overlook the petition's novel invention of new words and phrases. If an extra syllable could be added to an otherwise straightforward word, it was! For example, the petition repeatedly mentions "innovativity." According to the filing, one does not prolong a problem, but is "prolongating" it. There's also the section which begins, "every patent practitioner feels immediately stimulated to rapidly familiarize with practicing the much higher level..." and that's just the first third of the sentence.
Keep it Simple
Shipley's excuse? He didn't write it. According to the lawyer, his client insisted on writing the petition and did not give Shipley enough time to responsibly withdraw from the case. That was a good enough explanation for the Supreme Court, which did not sanction the lawyer, but reminded him that Supreme Court Rules require petitions for certiorari be stated "in plain terms."
There's long been a push for clearer, more understandable legal writing. In a further sign that the law may be moving farther from the Latin Mass of legaese and toward more accessible writing, Justice Kagan, in an opinion on securities fraud issued last week, noted that a petitioner "way overstates" their case, the first time 'way' has been used as an adverb in a Supreme Court decision.
Related Resources:
- BigLaw Partner Won't be Sanctioned for Jargon-Filled SCOTUS Petition; Others are Forewarned (ABA Journal)
- 10 Words Misused by Lawyers (and What They Really Mean) (FindLaw's Strategist)
- 5 of the Creepiest Business Cliches (FindLaw's Free Enterprise)
- Judge Silberman Annoyed at Overuse of Acronyms (FindLaw's D.C. Circuit Blog)
