Owning Precedent

Aside from being today's model of bad writing, Peralta v. Heights Medical Center comes in a line of CivPro reading about dismissing cases (Rules 55 and 41). The reading raises the question:

Who "owns" the judgment of a court? In legal systems in which the judges do the primary investigation of cases (as is true in most civil law systems), the question seems to have a clear answer: The court does. In a system like that of the United States, in which the parties do most of the work involved in presenting evidence and arguing law, do they thereby gain a moral claim to "ownership" of the ensuing judgment? .... The opinion in Bonner Mall rejects such a view, quoting from a dissent of Justice Stevens, in which he contended that "precedents . . . are presumptively correct and valuable to the legal community as a whole. They are not merely the property of the private litigants. . . ." One coudl think of this statement in a number of ways. One would be as a matter of cost accounting: Court "costs" paid by litigants do not come close to paying the expense of operating the judicial system, which is heavily subsidized by tax dollars. What if they did? Should it matter that the parties offer to compensate the system for the full costs of adjudication? Stephen C. Yeazell, Civil Procedure, 5th ed. 601-602, Aspen Publishers, 2000.

What an intriguing set of questions. We already live in a society where an individual or corporation can copyright or trademark a word or phrase, how far are we from private ownership/control over legal precedents? When or if such a thing became possible, it would likely be only a matter of time before huge new corporations sprung up to buy and control as many precedents as they could, licensing them for use at extortionate prices that would increase the costs of litigation by orders of magnitude. Can't you just see this as the basis of some great dystopian sci-fi novel? Blade Runner meets The Firm?

Posted 07:11 AM | Comments (1) | law school

Passive Voice Be Damned!

An open plea to everyone who writes, but especially judges writing decisions and lawyers writing briefs and memos: Please write in an active voice!

Here's just a small sample of the kind of obtuse and just plain sloppy writing law students and lawyers have to read every day, with my increasingly disgruntled questions for the writer (Justice White) in brackets:

In June 1984, appellant began a bill of review proceeding in the Texas courts to set aside the default judgment and obtain the relief. In the second amended petition, it was alleged [by whom?] that the return of service itself showed a defective service and that appellant in fact had not been personally served [by whom?] at all. ... It was also alleged [by whom!?] that the judgment was abstracted and recorded [by whom!?] in the county real property records, thereby creating a cloud on appellant's title, that a writ of attachment was issued [by whom!?], and that, unbeknownst to him, his real property was sold [for great sakes, by whom?] to satisfy the judgment and for much more than its true value. Peralta v. Heights Medical Center, 485 U.S. 80 (1988).

In some cases it's hard for a writer to determine who is responsible for an action, but then, part of your job as a writer is to make yourself clear, and if that means rewriting or doing a little more research to figure out exactly who did what, then that's what you should do. But no, not judges and attorneys. Instead, they just resort to endless strings of passive voice that get so tangled up and knotted that frustrated readers have no recourse other than to throw up their hands and beg for mercy.

I'm begging, but not for mercy, just a some subjects to go along with these verbs, please. Subject, verb, object. Spot is running. Peralta alleged. Heights Medical did not serve Peralta at all. Peralta also alleged. The Texas court (I assume, but I'm guessing) abstracted and recorded the judgment. The Texas court issued a writ of attachment and the sheriff sold Peralta's real property to satisfy the judgment.

It's really not that hard, plus it makes you look smart and clear and precise so that all your readers will love and praise you through the ages. And really, what more could a legal writer want?

Note: Like Three Years of Hell, I'm well into that tired and cranky point of the semester, so if this sounds overly harsh, a slight lack of sleep and generally low levels of patience would be why. Still, please write in an active voice! Thank you.

Posted 06:31 AM | Comments (3) | law school