In January, Gerard Wall sued a business in New York for allegedly overcharging his credit card. The complaint is roughly 15 pages long, but I think I've successfully condensed it by selecting just the following eight sentences from various parts of the document:
On Friday, December 12, 2008, Plaintiff WALL entered the premises at about 8:30 p.m.
At the aforementioned time and place, he was approached by a dancer who invited him to have a private lap dance in a separate room from the bar area.
At no time did Plaintiff willfully submit his Discover card to the Defendant.
Plaintiff has no recollection of what transpired after he was led from the bar area into the private room.
[and again a couple of pages later:] Plaintiff has absolutely no recollection of what transpired once he left the bar area and entered the private room.
[Plaintiff's credit cards were] charged an aggregate amount of $21,620.60.
Plaintiff did not receive Twenty One Thousand Six Hundred Twenty Dollars and Sixty Cents ($21,620.60) worth of alcoholic beverages and/or other services throughout the evening.
By way of the foregoing, Defendant has been and continues to be unjustly enriched.
I realize that could have been shortened by at least one sentence, but it appears that Plaintiff wishes to emphasize that he has no recollection of what transpired once he entered the private room, and so I've sought to preserve that.
I hope that since April 26 you have been able to spend some time contemplating the stupendous ginormitude of the one sentence that comprises the Mittal Steel Point order, each of its 538 words so carefully chosen and placed with care to convey exactly the meaning intended. If so, you will be in a better position to cope with this even longer sentence a reader submitted a couple of days later, which I understand is the first paragraph of the Massachusetts Payment of Wages Act. It provides:
Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him to within six days of the termination of the pay period during which the wages were earned if employed for five or six days in a calendar week, or to within seven days of the termination of the pay period during which the wages were earned if such employee is employed seven days in a calendar week, or in the case of an employee who has worked for a period of less than five days, hereinafter called a casual employee, shall, within seven days after the termination of such period, pay the wages earned by such casual employee during such period, but any employee leaving his employment shall be paid in full on the following regular pay day, and, in the absence of a regular pay day, on the following Saturday; and any employee discharged from such employment shall be paid in full on the day of his discharge, or in Boston as soon as the laws requiring pay rolls, bills and accounts to be certified shall have been complied with; and the commonwealth, its departments, officers, boards and commissions shall so pay every mechanic, workman and laborer employed by it or them, and every person employed in any other capacity by it or them in any penal or charitable institution, and every county and city shall so pay every employee engaged in its business the wages or salary earned by him, unless such mechanic, workman, laborer or employee requests in writing to be paid in a different manner; and every town shall so pay each employee engaged in its business if so required by him; but an employee absent from his regular place of labor at a time fixed for payment shall be paid thereafter on demand; provided, however, that the department of telecommunications and energy, after hearing, may authorize a railroad corporation or a parlor or sleeping car corporation to pay the wages of any of its employees less frequently than weekly, if such employees prefer less frequent payments, and if their interests and the interests of the public will not suffer thereby; and provided, further, that employees engaged in a bona fide executive, administrative or professional capacity as determined by the attorney general and employees whose salaries are regularly paid on a weekly basis or at a weekly rate for a work week of substantially the same number of hours from week to week may be paid bi-weekly or semi-monthly unless such employee elects at his own option to be paid monthly; and provided, further, that employees engaged in agricultural work may be paid their wages monthly; in either case, however, failure by a railroad corporation or a parlor or sleeping car corporation to pay its employees their wages as authorized by the said department, or by an employer of employees engaged in agricultural work to pay monthly the wages of his or her employees, shall be deemed a violation of this section; and provided, further, that an employer may make payment of wages prior to the time that they are required to be paid under the provisions of this section, and such wages together with any wages already earned and due under this section, if any, may be paid weekly, bi-weekly, or semi-monthly to a salaried employee, but in no event shall wages remain unpaid by an employer for more than six days from the termination of the pay period in which such wages were earned by the employee.
Word count: 598. [Correction: 593. I either counted wrong, or the state legislature is quietly taking words out one at a time, hoping to avoid further embarrassment.] That is about ten percent longer than the previous record-holder, but it is much more heinous, because instead of being a one-time order in one particular case, it is a statute that must be read and applied over and over again. Truly, a gift that keeps on giving.
Again, if anyone knows of or happens across a sentence even longer than this one (in a legal document -William Faulkner is somebody else's problem), please let me know.
Your assignment for this week is to diagram the following sentence, which appeared in a recent order issued by the U.S. Court of International Trade:
The U.S. Court of Appeals for the Federal Circuit (“CAFC”) having misread this court’s opinion herein sub nom. Caribbean Ispat Ltd. v. United States, 29 CIT 329, 366 F.Supp.2d 1300 (2005), to the effect that it “prohibited” the defendant International Trade Commission (“ITC”) from “considering the effects of LTFV imports of non-CBERA countries when it assessed imports from Trinidad and Tobago” [Caribbean Ispat Ltd. v. United States, 450 F.3d 1336, 1341 (Fed.Cir. 2006)] and having thereupon vacated this court’s judgment of dismissal and remanded the matter for the ITC to “make a specific causation determination and in that connection . . . directly address whether [other LTFV imports and/or fairly traded imports] would have replaced [Trinidad and Tobago’s] imports without any beneficial effect on domestic producers”, id., quoting from Bratsk Aluminum Smelter v. United States, 444 F.3d 1369, 1373 (Fed.Cir. 2006); and this court having entered an order of remand in haec verba, 30 CIT 1519 (2006); and the ITC in compliance with that order having determined that an industry in the United States is not materially injured or threatened with material injury by reason of imports of certain wire rod from Trinidad and Tobago that is sold in the United States at less than fair value; and this court having affirmed that determination sub nom. Mittal Steel Point Lisas Ltd. v. United States, 31 CIT 1041, 495 F.Supp.2d 1374 (2007), and entered an amended final judgment of dismissal; and the intervenor defendants having appealed therefrom and induced the CAFC to opine, among other things, Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867, 877 (Fed.Cir. 2008), that it does
not regard the decision in Bratsk as requiring the Commission to presume that producers of non-subject goods would have replaced the subject goods if the subject goods had been removed from the market. Although we stated there, and reaffirm here, that the Commission has the responsibility to consider the causal relation between the subject imports and the injury to the domestic injury, that responsibility does not translate into a presumption of replacement without benefit to the domestic industry[]
and also that the “problem may stem from a lack of sufficient clarity in [its] prior opinion”, 542 F.3d at 879; and the CAFC having determined to vacate yet again this court’s judgment of dismissal, notwithstanding the ITC’s “scrupulous attention to the terms of this court’s remand instructions”, id., and remand the matter yet again “for further consideration of the material injury issue in light of [it]s opinion” and also “for further proceedings with respect to the threat of material injury”, id.; and the mandate of the CAFC having issued in regard thereto; and the Clerk of this court having reopened this matter on March 24, 2010; Now therefore, after due deliberation, it is ORDERED that this matter be, and it hereby is, remanded to the defendant International Trade Commission, which may have until June 25, 2010 to attempt to comply with the CAFC’s reasoning, as set forth in its foregoing, more recent opinion, and to report to this court any results of this mandated remand; and it is further hereby ORDERED that the other parties hereto have until July 30, 2010 to file comments on any such results.
My mistake -- that sentence (of 538 words) didn't appear in the order, it was the order.
If you are aware of, or happen across, a sentence longer than this in any legal document, please let me know so it can be dealt with appropriately.
My latest article, "A Year of Lowering the Bar," appears in the most recent version of The Green Bag's yearly almanac & reader, or to use its full title, the "Almanac of Useful and Entertaining Tidbits for Lawyers for the Year to Come and Reader of Exemplary Legal Writing from the Year Just Passed."
I provide tidbits.
You may recognize many of them, depending on how often you read Lowering the Bar, because all of them originated here (well, I guess they originated somewhere else and then I wrote about them all here). The article is basically a summary of selected events for a 12-month period starting around Halloween 2008, beginning with the "who gets to do oral argument" dramedy of Carcieri v. Kempthorne and ending with the Washington Supreme Court's decision to hear a case about whether horn-honking can be protected speech. It was a pretty good year.
The Almanac itself I think is available only to subscribers, but you can download a reprint of the article at the link below. It would probably look great on your new iPad, although I guess you could also read it on regular old paper. Thanks again to The Green Bag, the most entertaining law review you will ever read.
In February, the Ninth Circuit ruled that police have qualified immunity from civil-rights claims based on a department policy of strip-searching all arrestees (not convicts, just arrestees) who will be put into "general population." Bull v. City and County of San Francisco, 2010 WL 431790 (9th Cir. Feb. 9, 2010). The court held individualized suspicion was not required because of the "legitimate penological interests" in keeping contraband out of jails. (There is, of course, the obligatory list of items found and confiscated during such strip searches, a list that is partly amusing and partly terrifying.)
The lower court had ruled that a blanket arrestee-strip-search policy was unconstitutional, apparently harking back to those enchanting days of yore when many Americans actually had constitutional rights. The Ninth Circuit used to feel the same way about such policies, but in Bull it reversed itself. The lower court had held that certain groups of people could not be strip-searched, namely those not arrested for crimes involving weapons, controlled substances, or "violence." Chief Judge Alex Kozinski concurred in the opinion striking this down, writing separately to argue that only the Supreme Court can carve out sub-classes of individuals entitled to preferred treatment. Courts have trouble agreeing on such classifications, he said, citing cases showing they are all over the map as to what is a "crime of violence":
[Courts] often disagree. See, e.g., United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (escape is a crime of violence); United States v. Piccolo, 441 F.3d 1084, 1088 (9th Cir. 2006) (no it’s not); United States v. Asberry, 394 F.3d 712, 715-16 (9th Cir. 2005) (statutory rape is a crime of violence); id. at 722 (Bea, J., concurring) (no way); United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003) (burglary is not a crime of violence); id. at 977 (Wallace, J., dissenting) (is too); United States v. Johnson, 448 F.3d 1017, 1018 (8th Cir. 2006) (grand theft auto is); Von Don Nguyen v. Holder, 571 F.3d 524, 525 (6th Cir. 2009) (au contraire); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007) (stalking isn’t); id. at 1088 (Duffy, J., dissenting) (“I respectfully dissent.”); United States v. Saavedra-Velazquez, 578 F.3d 1103, 1110 (9th Cir. 2009) (Reinhardt, J.) (attempted robbery is); id. (Reinhardt, J., specially concurring) (or is it?); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (drunk-driving-resulting-in-bodily-injury is a gentle crime); id. at 1147 (Kozinski, J., dissenting) (Bull!).
It is so rare to see a string cite with any life in it at all, let alone any humor, that I thought I should pass this on, at least for that reason.
On reflection, though, it also seems important to know that if arrested you can be strip-searched for any reason, or no reason, really, depending on where the police decide to put you between the arrest and when you are booked and released. If their decision would bring you into contact with general population, it's cavity-search time, whether or not police can articulate any other reason why your cavities might need inspection. Yet another reason to rethink drinking and driving.
On Monday, blogger Eric Turkewitz was rightfully horrified by two sentences in a decision by a New York appellate court. Here's the first sentence from Dockery v. Sprecher:
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered July 10, 2008, as, upon the granting of that branch of the motion of the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., and Peninsula Hospital Center pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, upon a jury verdict finding the defendants M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C., 45% at fault, and nonparties Philip Howard Gutin, and Memorial Sloan Kettering Cancer Center 55% at fault for the injuries sustained by the plaintiff Thomas Dockery, and that the plaintiff Thomas Dockery sustained damages in the principal sums of $10,000,000 for past pain and suffering, $27,750,000 for future pain and suffering, $370,000 for past loss of earnings, $80,000 for future loss of earnings over a period of 28 years, and $21,636 for loss of Social Security income, and that the plaintiff Karen Dockery sustained damages in the principal sum of $18,000,000 for past loss of services, and $48,700,000 for future loss of services, and upon so much of an order of the same court entered December 3, 2007, as granted, after the jury verdict, that branch of the motion of the defendants M. Chris Overby and Levine Overby Hollis, M.D.s, P.C., pursuant to CPLR 4401, made at the close of the plaintiffs' case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them, dismissed the complaint insofar as asserted against the defendants Stanley Sprecher, Peninsula Radiology Associates, P.C., Peninsula Hospital Center, M. Chris Overby, and Levine Overby Hollis, M.D.s, P.C.
Wow. Does that suck. Yes, but not as hard as the second sentence, which was over ten percent longer. The one above is 303 words long; the second contained 343 words. I'm not going to reprint the second one because (1) there is some question as to whether it is actually a single sentence, because it has semicolons, and (2) it's already been posted and I don't want to be responsible for the Internet exploding.
Eric, who practices in New York, bravely and respectfully criticized the court's work and expressed the hope that it could do better. I, who do not practice in New York, am going to be more of a smartass about it. What possible excuse could there be for that horrible train-wreck of a sentence? It isn't just that it's long, although that is a very bad sign. It's also so recursively complicated that it is impossible to figure out the meaning of the first part without reading to the end, by which time you have forgotten what the first part said. The writer uses the full name of every party every time. The facts aren't in chronological order. It uses Latin. I have to stop now because this is giving me a nosebleed.
As Eric also points out, this is not just about style, it's about meaning. I felt obligated to see if I could do better, and after about 20 minutes of reading that one sentence, I think this is what it means:
Karen and Thomas Dockery sued several defendants after Thomas was allegedly injured by medical malpractice. At trial, the jury found two of the defendants (Dr. Chris Overby and Dr. Levine Overby Hollis) 45% at fault, assigning the remaining 55% to nonparties. It awarded Thomas more than $38 million in damages, and awarded Karen over $66 million for loss of services. After the verdict, however, the judge granted motions for judgment as a matter of law that defendants had filed at the close of plaintiffs' case, and dismissed the claims against all defendants. Plaintiffs appealed.
I'm honestly not sure if that's accurate, though, because of the extreme badness of the court's original language. And as Eric points out, it would be better if the law were not so hard to understand.
A long sentence every once in a while is not a bad thing, if done right. In this article, Gerald Lebovits cites the example of a "famous 202-word sentence" by Justice Scalia -- it's long, but is long for a reason, and is still readable because of parallelism and the use of other techniques to break it up into shorter units. None of which applies to the Faulknerian monster above. According to experts like Bryan Garner, most mortals should stick to an average of 15-20 words per sentence.
Maybe statutes are different -- or maybe not. One commentator has stated that 42 U.S.C. § 1396a, a multi-part, but single-sentence, Medicare statute that sets forth what state plans for medical assistance must provide, "is generally regarded as the longest sentence in the English language." I could not get an accurate word count of this monster, but it was somewhere north of 11,600 words.
It's long, but I'm not sure it's fair to call it "English."
Sacha Baron Cohen, who was repeatedly sued by people who were unhappy with the way he depicted them in "Borat" (a group that includes most people who were depicted in "Borat"), has now been sued by someone unhappy with his depiction in the followup, "Brüno." In a lawsuit filed on December 2, Ayman Abu Aita alleges that the film defamed him by claiming he is a terrorist.
In the film, as part of Brüno's quest to become famous he goes to the Middle East (he calls it "Middle Earth") to try to either make peace or get taken hostage. He arranges to talk with Abu Aita, whose name appears onscreen along with the label "terrorist group leader[,] al-aqsa martyrs brigade." Brüno tells Abu Aita that he wants to be kidnapped by "the best," and gives some fashion advice, suggesting that "you guys" should "lose the beards" because, for example, "your King Osama looks kind of like a dirty wizard or homeless Santa." Abu Aita still seems confused about that part, but he knows he isn't happy about having been called a terrorist.
Not only is he not a Muslim terrorist group leader, he claims, he's a Greek Orthodox grocery store owner who is a board member of the "Holy Land Trust," a "charitable organization committed to promoting peace and reconciliation." I wasn't able to find any independent information on the Trust, but news reports on this story have not yet raised any questions about it, at least, and this one in the Jerusalem Post does refer to Abu Aita as a "well-known peace activist." Maybe so.
He also doesn't have a beard, as the clip shows:
The lawsuit also names (among other defendants) David Letterman and NBC. Letterman is involved because of Aita's allegations he was further defamed when Baron Cohen appeared on The Late Show to promote the movie. In that interview, he claimed that he had set up the interview by going through a "CIA contact" to find a town that had a terrorist in it, and then asking around. He said the interview had been set up at a secret location and that he could not find bodyguards willing to guarantee his safety there. According to this TIME.com report, though, the "secret location" is a popular tourist spot 50 meters from an Israeli checkpoint in Bethlehem, and was rented in advance by the film crew.
On December 7, Abu Aita's attorneys, including Joseph Peter Drennan, held a news conference at the National Press Club in Washington. Abu Aita was also there, which will be a little embarrassing for Homeland Security if he does turn out to be a terrorist. Drennan said in his statement that the fact his client had gotten a visa to come to the U.S. was "proof positive" that he could not be a terrorist. That does seem like pretty good evidence, but since we're talking about Homeland Security here I would bring some other evidence along too. Drennan also repeatedly used words like "malign" and "calumnious," which makes me pretty confident he drafted the complaint, which begins like this:
COMES NOW, before this Honorable Court, your plaintiff in the above-encaptioned cause, AYMAN ABU AITA, by and through his undersigned attorneys and counsellors, viz., Joseph Peter Drennan and Sam W. Burgan, respectfully, to lodge his Complaint for Damages and for Injunctive relief, by showing unto this Honorable Court as follows, viz.:
Like the use of all caps, this introductory language is something you just can't get lawyers to stop doing, though I've never seen it this bad. Why don't people just write, "Ayman Abu Aita alleges as follows," or better yet, just start alleging things? What do they think will happen if they don't include this stuff? It's like "Abracadabra" for lawyers -- it doesn't actually have any effect, and it makes your whole performance seem kind of cheeseball.
"Perhaps unlike many of those who were maligned by Mr. Sacha Baron Cohen," Drennan said in his statement, "Mr. Ayman Abu Aita is fighting back." Actually, Baron Cohen was sued over a dozen times for "Borat" and most of those cases were ultimately dismissed. He might have some more trouble with this one, though -- if Abu Aita is who he says he is, calling him a terrorist actually might hurt his reputation, even in the West Bank. Drennan, not surprisingly, seems confident he has a case, and is ready to fight for justice with all the stentorious verbiage he can muster. "Ladies and gentlemen," he concluded, "let the battle be joined."
One of the bad habits that lawyers have trouble breaking is using all capital letters, especially in the headings of legal documents. (Okay, not nearly as interesting as the bad habits Tiger Woods has trouble breaking, but I think enough people are covering that story already.)
This bugs me (all caps, not people following Tiger), because it is so hard to get people to quit doing it. I guess they are afraid they will one day have to explain an order that says, "The Court finds that the arguments set out in the motion are persuasive, but the movant has failed to observe the long-standing practice that only capital letters shall be employed in headings. MOTION DENIED." The difficulty of explaining that to a client should be balanced against the fact that it is not going to happen during the time that remains in the life of the universe. (Pictured: The Sun, which will go out before anyone gets in trouble for NOT using all caps.)
Especially when there is a very good reason not to use all caps: PEOPLE HATE IT. It is difficult to read, and for whatever reason it has (OMG!) come to signify yelling. There is plenty of evidence to support this, and here's some more: at least one person has been fired for doing it. Of course, as the workers' compensation agency recently found, firing someone for this is stupid, but the point remains that it clearly bugs people.
Vicki Walker was a financial controller with ProCare Health until the fateful day when she sent an email telling her colleagues how to file claim forms, including a deadline highlighted in bold AND red, and an even more imperious sentence highlighted in bold AND blue AND using all capital letters:
A newspaper added the picture -- had Walker included it herself, I assume she would have been staring right at the recipients, probably dressed up in a German prison-camp matron's uniform and giving them all the stinkeye. (Yes, TypePad, please do add "stinkeye" to my spell-check dictionary. Why is it not already included?)
While there may have been other problems behind the scenes, ProCare told the Employment Relations Authority that Walker was fired for causing "disharmony in the workplace" by using block capitals, bold typeface and red text in what it called "confrontational" emails. The agency found that while she had contributed to "disharmony," she had been a competent employee and the extent of any disharmony did not justify firing her without warning. It awarded her $17,500.
A spokesperson for the agency also said that ProCare did not have a style or etiquette guide for employees using email, so that it may not have been clear what was and was not unacceptable. And maybe it was the combination of factors, not just the block capitals, that put Walker over the edge. Still, use them at your own risk.
A while back, I made fun of a brief that was filed on behalf of Jeffrey Skilling (of Enron fame, or infamy), not because it was bad but because it was 239 pages long. At the time, I thought that was a lot of pages.
On October 9, the California Court of Appeal ruled in a case involving what it described as "what may well be the most oppressive motion ever presented to a superior court," an eye-catching statement given all the oppression associated with superior courts anyway. The oppressiveness in Nazir v. United Airlines was not due to the kind of arguments made, just the sheer number of pages involved. Counting the required separate statements and appendices and other attachments as well as the briefs themselves, the parties apparently submitted 5,415 pieces of paper to the court for just this one summary judgment motion.
The briefs themselves were not the most remarkable thing about this. While they were all way too long -- the opening brief, opposition, and reply were 85, 57, and 76 pages respectively -- all three put together still would not equal the incomparable monster brief filed in the Skilling appeal, which as I pointed out before was half the length of Huckleberry Finn. But because summary judgment motions involve battles about the facts, they often involve lengthy attachments of exhibits and so forth. "Lengthy" generally means maybe a couple hundred pages, though, not well over five thousand. Depending on what kind of paper was being used and how many tabs there were, the stack of papers related to this one motion could have approached three feet in height.
It is especially odd for the defendants (who filed the motion) to have contributed so much to this pile, since the point of filing a summary judgment motion is to show that there are no genuinely disputed issues of fact that have to go to a jury. The fewer facts you bring up, the better, so the fewer pages, the better (always a good rule anyway). But here, the defendants' first set of papers was 1056 pages long, and (after more than 2000 pages from the plaintiff) they filed even more in reply (1150). It was, the court said, "a record the likes of which we have never seen."
Not surprisingly, the court reversed most of the judgment, managing to find some disputed facts in the ginormous mass of paper that had been dumped into the record. It managed also to criticize the trial judge, though, noting that "what apparently happened is that the trial court did not read all the papers." No kidding?
