Justice Scalia on Good Writing

Justice Scalia recently gave writing and oral argument tips to the Richmond Virginia Bar.  Check out this article from the Richmond Times-Dispatch for the details. But here's a snippet to whet your appetite:

Back to the effective use of English, Scalia advised not to use banal legalese. "The test is, if you talk that way at a cocktail party, would people look at you funny? And they would if you used … 'aforesaid' and all of that garbage." Among his pet peeves are phrases such as " 'fatally flawed.' Nothing is 'wrong' anymore. Nothing is 'flawed.' It is always 'fatally flawed.' Get rid of it. It's hackneyed."

It also isn't a good idea to use "empower" or "impact" as verbs around Scalia.

Other tips include:

"Don't be playing on heartstrings. Don't give a jury argument to a judge because if he's a good judge, he is not swayed by emotion and if he is a bad judge who is swayed by emotions, he doesn't want to look like a bad judge," he said. "Reason is paramount."

"Be scrupulously accurate." Judges on appeals court presume you know more about the case being argued than they do. "Once it appears to me that you know less about the case than I do, you have lost a whole lot," he warned. That happens, he said, if you are inaccurate or exaggerate.

In oral arguments, make your big point first. "Why? Because you may never get off it," he said. "In my court, where you go depends on the questions you get and you may get so many questions on your first point, which is not your major point, you never get to your big point. You don't want that to happen."

The manner of your presentation is important. "I want a respectful manner, but neither an obsequiousness manner nor — this is even worse — a professorial manner," Scalia said. "If you're a good lawyer, speak like a good lawyer."

Read the whole thing.

Insightful Article About Justice Clarence Thomas

If you want to know more about Justice Thomas then you usually hear in the media, but don't want to take the time to read his autobiography, then you could do worse than this this article by Jeffrey Toobin in the New Yorker. I recommend reading it not because I agree or disagree with either Toobin or Thomas, but rather because Toobin does a very good job of tracing Thomas's jurisprudence over the last 20 years.

American Hero Passes On

William Stetson Kennedy, whose radical opposition to Jim Crow racial segregation made him a pariah in his hometown early in life and an honored elder statesman late in life, died Saturday near his home in Jacksonville, Florida. He was 94.

Read more at Jacksonville.com: http://jacksonville.com/news/florida/2011-08-25/story/jacksonville-author-civil-rights-activist-stetson-kennedy-dead-94#ixzz1WK8O9GIQ

Mr. Kennedy wrote “The Klan Unmasked,” filled with incidents uncovered when he and another man began infiltrating meetings of the Klan and another Georgia hate group, the Columbians. 

He also wrote “The Jim Crow Guide to the U.S.A.”  I have read this book and think it is a book all Americans should read.  The book reminds us that institutionalized racism was a very concrete and everyday part of this country not that long ago.  It makes history come alive in a way that school history classes generally do not.  And of course it makes sure we don't forget.

God bless Stetson Kennedy.  Recquiat in pace.

Limiting the Media's Access to Evidence in the Hadley Case

The Stuart News reports today the latest in the St. Lucie parent murders case. According to the article, the state and the defense are tussling over the public's access to evidence in the case.  The trial judge's decision to limit the public's access is not unusual; it will be interesting to see if local media outlets challenge the court's decisions on this topic as the case progresses.

Leave to Amend Sought at Summary Judgment Hearing

If discovery has shown you that a new cause of action better or alternatively makes your case than the counts in your present complaint, keep in mind that you should seek to amend the complaint. And don't think it's too late just because a summary judgment hearing is scheduled. As the Fourth DCA explained to us last week:

The denial of a motion to amend is reviewed for abuse of discretion.

See Noble v. Martin Mem’l Hosp. Ass’n, 710 So. 2d 567, 568 (Fla. 4th DCA 1997). Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be given freely when justice so requires. In addition, courts “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So. 3d 883, 885 (Fla. 4th DCA 2009)(quoting Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003))(emphasis added).

Hutson v. Plantation Open MRI, LLC, No. 4D10-775 at 3 (Fla. 4th DCA Aug. 3, 2011).