Summary
The United States Court of Appeals in the 5th Circuit recently issued an opinion (July 13, 2011) in Samantha Sanches v. Carrolton-Farmers Branch Independent School District, No. 10-10325. The 5th Circuit affirmed a summary judgment ruling in which the trial court had dismissed the plaintiff’s claims in Samantha Sanches v. Carrollton-Farmers Branch Independent School District. The Court wrote, “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”
While that is the most important part of opinion, the Court spent considerable time in its opinion criticizing the “technical and grammatical errors” that were “so egregious and obvious that an average fourth grader would have avoided most of them.” Additionally, the Court felt that the brief, as written, could be perceived as an “unjustified attack” on U.S. Magistrate Judge Paul Stickney, the trial judge in Sanches.
Why are Words so Important?
They are important because the law is based on words and language that must be properly interpreted in order to be effective. Brief writing is an art, appellate brief writing even more so; and there can be unintended consequences when mistakes are made and proper editing procedures are not included as part of brief writing process. Perfection is rarely attained, but it should always be aspired to. Sloppy writing and the lack of comprehensive editing appear to be the result of our increasing reliance on the technology of spell check features and our need for speed. Clearly spell check can not take the place of quality editing. Some examples from the brief were highlighted by the Court in their criticism that should provide a roadmap to help other appellate writers avoid the same type of problems.
Examples
Judge Smith was joined by Senior Judge Harold DeMoss and Judge Priscilla Owen in writing the opinion. They started by quoting a particularly troubling passage from the brief in their opinion. The following is the verbatim quote from the brief.
“The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [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.”
The Judges made the following observations about the passage in footnote 13 of the opinion:
• Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge”.
• The word ‘vacatur’ is misspelled as ‘vacateur’
• The word ‘principals’ should have been ‘principles.’
• The subject and verb are not in agreement in one of the sentences, which has a singular subject ‘incompetence’ and a plural verb ‘are’, making it difficult to decipher the true meaning of the sentence. They further stated the sentence “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.”
In the body of the opinion, the 5th Circuit also made note of what they felt was an “unjustified attack” on U.S. Magistrate Judge Paul Stickney, the trial judge in Sanches, based on what the court felt was the “dissatisfaction with the magistrate judge’s decision, and not an “extraordinary circumstance”. The following is what the opinion stated:
“These sentences are so poorly written that it is difficult to decipher with 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.”
Words have meanings, definitions and consequences. Appellate lawyers need to pay particular attention to what they write, how they write it and what they mean in order to have the courts understand their point of view. Being an “advocate” on behalf of your client may require linguistic restraint, but it appears that restraint may be the best policy. Editing is an extremely important part of the appellate brief writing process and should not be glossed over due to time constraints.
Comments