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Brief writing is so hemmed in with picayune rules, it's no wonder lawyers want to bust loose now and then. Required sections, word limits, margin width and font size -- not much is left to the imagination.
Perhaps fed up with all the rules, some lawyers have gotten creative. In 2011, appellate lawyer David Holman of the Holman Law Firm filed a motion asking the Texas Supreme Court to rehear its denial of a petition for review in Mabon Ltd. v. Afri-Carib Enterprises Inc. Confronting the problem facing all such movants -- the first effort at persuasion fell flat -- Holman devised a novel solution.
Ditching the usual, dry recapitulation of legal arguments, Holman created a fictional dialogue between an editor and reporter at the invented Corporate Counsel Quarterly.
"So you tell me that you have a story brewing in Texas?" the editor asked.
"I think so. It could be really bad for defendants in civil litigation," the reporter replied.
They go back and forth like this as the fake-but-dogged reporter lays out what's wrong with the lower court decision. The state Supreme Court granted the petition and reversed in 2012.
This recent ingenuity isn't limited to the written word. In litigation between ownership groups of the Dallas Mavericks, Tom Melsheimer of Fish & Richardson drafted a summary judgment motion disputing the plaintiffs' claim that Mark Cuban had mismanaged the team. Filed days after the Mavericks won the 2011 NBA Championship, the brief ran only 10 sentences but featured an enlarged photo of players jubilantly hoisting the championship trophy.
"Under Cuban's stewardship the Mavericks have become one of the league's most successful teams and are now NBA champions," Melsheimer wrote.
The court ruled for Cuban, and legal journal The Green Bag named the brief one of the best examples of legal writing in 2011.
One more recent example is "the illustrated amicus brief." According to a September 5, 2012, article on the legal website abovethelaw.com, a district court limited Bob Kohn, appearing as amicus in a major price-fixing case, to five pages for his objection to the parties' settlement. What to do?
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Avon
Looks like judges can get away with a helluva lot more than lawyers can.
The rhyming holding doesn't rhyme; the limerick opinion stumbles in rhythm.
And a couple of Circuit Judge Posner's idiotic illustrations (like a "photo" of a lawyer playing ostrich, head deep in the sand) simply demean and ridicule the author.
Judges face few or no adverse consequences for getting nutty or lame. But we do.
We have to be ten times as good as that to be thought half as clever by the Bench.
I'll settle for simply making sure "The Court should deny defendants' motion because ..." appears on Page 1. That alone is novel and refreshing enough to break the ice anyway.
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