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I’ve been working on a couple of big motions lately. You know the drill. Lots of research. Lots of checking opinions to see if they say anything new and different about my points. Lots of frustration to see them all say the same thing over and over again. As a good researcher, you start with the law of your home jurisdiction. The first case you find says, “In Obfuscate v. Bamboozle, this court established that the heightened degree of specificity necessary under Rule 9(q) to plead transparent fenestration of partitioning devices was met by a particularized statement specifiying the device’s degree of opacity in objective units.” The second opinion, written sometime later after the court sharpened its expertise in this rapidly developing area comes out, “A particularized statement specifying the device’s degree of opacity in objective units was established by this Court in Obfuscate v. Bamboozle as meeting the heightened degree of specificity necessary under Rule 9(q) to plead transparent fenestration of partitioning devices.” Recognizing that this statement, though helpful, may not be definitive, you press on looking for law from other states with similar rules. And sure enough, you find it. In your first keyword search, you see the definitive statement from another jurisdiction’s highest court: “In Obfuscate v. Bamboozle, the [fill in your state's] Supreme Court definitively established the principles governing pleading under Rule 9(q) when it reminded pleaders that a particularized statement of the degree of opacity in objective units was necessary. …” By this point in your project, if you’re not reaching for an anti-depressant it only can be because you’ve already lapsed into a coma. Now far be it from me to criticize any court’s views on this vital issue, and indeed so that the record is clear, let me say that I strongly agree as a matter of public policy with the requirement that transparency of fenestration be pleaded with specificity. What bugs me is how boring our expression of this and just about every other important principle is. By way of a little self-confession, I was a law clerk once upon a time back when having a correcting Selectric typewriter was a sure sign of your high status in the judicial bureaucracy. I drafted opinions; in fact, I drafted lots of opinions, almost all of which began, “Now before the Court is. … ” Over the course of a two-year clerkship, I managed to crank out a vivid image or two, but they drowned in a sea of now-before-the-courts. I don’t think I was any worse than average; it’s what “ average” was that still bugs me. All of this is a preface for the proposition that by and large we’ve missed opportunities to improve the science of opinion writing. There certainly are some bright spots. There was an opinion a year or two ago in which Judge Jerry Buchmeyer of the Northern District of Texas disposed of a claim by Lee Ann Rimes in an opinion based upon her own song lyrics. There’s an opinion out of the 9th U.S. Circuit Court of Appeals in which something like 41 movie titles have been worked into the prose. Judge Edward R. Becker of the Eastern District of Pennsylvania once wrote a long opinion in iambic pentameter, and opinions from Judge Samuel B. Kent in Galveston, Texas, regularly turn up in e-mails. It can be done, but mostly it isn’t. SUGGESTED FORMATS So let me suggest some ways we could reinvigorate the fine art of opinion writing. Consider first the noble haiku, long revered in Japan as a pure form of artistic expression. Three lines, 17 syllables divided five-seven-five; a true way to find purity and serenity of expression. Consider this proposal for a major class action case: Wall Street calamity. In board rooms consternation. Judgment for plaintiffs. See what I mean? Doesn’t that bring the stark reality of the adverse result to life? Aren’t you immediately caught up in the situation? Of course you are. Or consider the humble limerick, which would go a long way to smoothing out our problems under the Federal Criminal Sentencing Guidelines. Wouldn’t you prefer to see what follows instead of the incomprehensible missives we presently get? Defendant’s history level is five, For some harder time he can’t strive, At offense level 30, This perp’s really dirty, And he won’t get out of stir alive! OK, so it’s not T.S. Eliot. It’s a darned sight better than what we get now. And that’s just for starters. Dante Alighieri’s “The Inferno” would be a good model for the sentencing order in a major corporate fraud case, and dare I see a black bird perched ominously in an appellate courtroom: Once inside a courtroom dreary, plaintiff argued, weak and weary, Over many a point of trivial and precedential lore, Counsel droned on about error; and suddenly was seized with terror Hearing three judges napping, napping, and starting to snore. While he spoke of a proper ruling, the oldest judge said “Who are you fooling,” And his arguments we did consciously ignore. “This can’t be true,” he muttered, dropping his briefs on the courtroom floor – Said the panel, “It is, you bore.” OK, so I’m never going to be poet laureate. You paid attention, didn’t you? And that’s what it’s about. Forever more. Tom Alleman is a shareholder in the environmental practice group of Winstead Sechrest & Minick in Dallas.

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