I had just agreed to give a talk on legal writing when I came across this post on the Appellate Record, discussing the Fifth Circuit’s recent opinion in Sanches v. Carrollton Farmers Branch Independent School District.
Sanches is a gem for two reasons.
First, it’s a completely absurd case. In a fact pattern that probably only makes sense in the Lone Star State, a complaint over failing to make the cheerleading team somehow festered into a Title IX/Section1983 action.
Second, as discussed below, Sanches single-handedly covers about half of the points for my presentation.
Here’s to God, and football, and Texas forever.
Sanches lost on summary judgment, then appealed to the Fifth Circuit. In her appellate brief, she (or, more specifically, her lawyers) wrote:
The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacteur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.
Yikes. On the plus side, at least she didn’t say that the magistrate judge lacked the guts to handle the issue. But her swipe at him was still a bad idea for a variety of reasons–some professional, others tactical.
How did the Fifth Circuit react? About how you’d expect:
These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible.
That alone qualifies as what Joe Flom used to call an “ambiguous answer,” but Judge Smith is just getting warmed up. He drops a footnote after “reprehensible” that reads:
Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.
As you may have guessed. Sanches did not prevail on appeal. What lessons can we draw from her misfortune?
- Keep your eye on the ball. A brief is a persuasive document. If done well, it will be a resource for the judges and their clerks, and will help them get to the correct answer. The goals is to be helpful to the judge. Showing the appellate court how and why the lower court was wrong (in clear–and temperate–language) is helpful. It gives the court law and analysis it can use in framing its opinion. Just telling the court that the lower court was wrong is much less helpful. The court knows your stance on that point from the cover of your brief. And calling anyone names is distracting and affirmatively unhelpful. It erodes your credibility and wastes precious words.
- It pays to proofread. Kendall’s take on Sanches focuses on the importance of professionalism, grammar, and proofreading. He’s dead on. Ultimately, you are trying to persuade the judge. Your personal credibility is central to that effort. Making glaring, basic mistakes does not establish your authority as a careful thinker.
- Words not to use. I had a fun conversation with a SCV justice a few years ago about words that you should just never use in legal writing. These include disingenuous, pretext, egregious, thinly veiled, and basically anything that sounds like a fancy way of calling your opponent a liar. Some judges interpret these cheap shots as an implicit admission that you don’t have much to say about the substance of the issues; other just do their best to ignore them. Either way, you are burning up words without advancing your position. In the wake of Sanches, I will be adding “incompetent” and “egregious” to my list of words not to use. The Rule of Never-Use, of course, goes double or triple when you are talking about a judge.
- Don’t take liberties with the caselaw. The language quoted above comes at the end of the opinion. But before we even get to that point, Sanches has riled the court up through a discussion of caselaw that includes “a profound mischaracterization and understatement” of the facts of one case, and a discussion of other cases involving harassment that was “nothing like” the conduct she alleges. You will never trick the court about the law. The judges have clerks, and they will check up on you. Your best bet is to treat the law fairly, and address the ways it helps and hurts your argument. Your goal is to build credibility with the court. The only way to do that is through scrupulous accuracy. Don’t try to hide the bad stuff from the court; identify it, then explain why it doesn’t matter.
- Don’t wind up on Above the Law. It’s bad for business development.