Lowering the Bar

"Confusion Flakes" Cited As Grounds for Reversal

Here's something I came across the other day while doing some research.  After he was found liable for fraud, among other things, John Ryan appealed but presented little in the way of legal arguments or authority in his appellate briefing.  Instead, the briefs were written in what the Court of Appeal described as "overblown" language that tended to resemble "poor melodrama."  For example, the court cited this gem as to Ryan's argument that he was denied a fair trial because the jury was confused by the instructions and verdict forms:

Ryan's entire argument in support of the proposition that the jurors were confused is as follows:

"If page 2269 of the reporter's transcript is held face down and shaken, thoursands of confusion flakes will drift to the ground like snowflakes falling on a snowy winter's day.  That one page alone shows without doubt that the jury, by its own admissions, was extremely confused . . . ."

The court did not think the instructions were very good, but found no basis for concluding that they were so confusing as to generate thousands of confusion flakes drifting to the ground like snowflakes falling on a snowy winter's day.  And, despite some evidence Ryan appealed only for purposes of delay, the court refused to sanction him, saying that at least "some substance lurked beneath the overblown verbiage."

Cite: Ciolino v. Ryan, 2005 WL 2065302 (Cal. App. 1 Dist.  Aug. 29, 2005) (unpublished decision).

Book Review: "Lawyer Boy" by Rick Lax

Rick Lax sent me a pre-publication copy of his new book, "Lawyer Boy," which was released today (July 8).  After reading it, I first considered hunting him down in order to eliminate further competition in the legal-humor department, but decided instead to post a review of the book.

Hunting people down can be really tiring (unless they are elderly, which this guy is not), and it's expensive to have someone else do it.

This is a very funny book, and that starts with its premise, which is pretty much summarized in the book's first sentence:  "I always wanted to be a magician, but my father, a tax lawyer, never considered magic a 'viable career path.'"  Neither was political science, which Lax had studied in college.  So, really, what other option is there in that situation but law school?

I also majored in "political science" -- which, Lax notes, really doesn't exist -- with a focus on the Soviet Union, which now definitely doesn't exist.  My other major was in ancient history, which by definition is the study of things that no longer exist.  So, while I was never a magician, my options other than law school were also pretty illusory.  Why this kind of background might lead people to legal-humor writing is beyond the scope of this piece, which after all is supposed to be a goddamn book review.

"Lawyer Boy" is, more or less, a memoir of Lax's first year in law school at DePaul University in Chicago.  It's a lot more entertaining than that might sound, though, even if you are not a lawyer, because the writing is clear and funny, frequently laugh-out-loud funny.  No, not eyebrow-lift or even appreciative-nod funny, but the laugh-out-loud kind.

There are also diagrams, comic strips, and other asides like bogus law-school-admission-denial letters and numerous comical footnotes explaining various legal concepts that have no business being funny.  (You can also learn at least three magic tricks, although it is possible that the instructions are set up so that you will fail in some comical fashion.)  This is all mixed with highly entertaining stories about Rick, his friends (or friend-composites), and his relationship problems (or relationship-problem composites).

The book also shows how law school can result in legal thinking slowly and insidiously creeping into every aspect of your life, including (as related in the book) your internal dialogues, relationships with non-lawyers, and possibly even incidents involving the homeless.  This is something that every new lawyer must struggle with, and it can be a real challenge to keep it from swamping the personality (if any) that you had before you went to law school.  And then the law itself can be a stressful pursuit that frequently is not funny at all.  I hope this blog shows that that's not always the case.  I know this book does.

You should buy it.

Link:  Buy a Copy of "Lawyer Boy" at Amazon.com
Link:  Rick's Blog

Rule 8 Invoked Against 465-Page Complaint

Rarely granted is the Motion for More Definite Statement under Federal Rule 8(a), which requires complaints to contain "a short and plain statement of the claim" being made.  But now we know it is appropriate at least where a plaintiff has used more than 450 pages to assert 54 separate claims.

The title alone was eight pages long.

Judge Ronald Leighton of the Western District of Washington is the hero of this story.  "The Court," he wrote, "recognizes the tension between Rule 8(a), which requires a "short and plain statement," and Rule 9(b), which requires the party [to] state his [fraud] claim with particularity.  The issue before the Court is whether Plaintiff's 465 page complaint correctly balances this tension."  He found it did not.

In addition to the eight-page title, the complaint spent 18 pages listing the defendants, which the court noted was somewhat repetitive given that there were only six defendants.  The facts were finally reached at page 30, followed by 87 pages of general allegations, "including a 37 page pit-stop to quote emails."  The balance of the complaint (341 pages) was an "odyssey" through all of plaintiff's claims for relief.

The judge only needed 3 pages for his order, which concluded this way:

III.  Conclusion

Plaintiff has a great deal to say,
But it seems he skipped Rule 8(a),
His Complaint is too long,
Which renders it wrong,
Please re-write and re-file today.

Motion granted.

Link: WSJ Law Blog
LinK: How Appealing

Police Stop of Ax-Wielding Bike Rider Found Justified

In a classic opinion of which I have just learned, the California Court of Appeal ruled in 1998 that police were in fact justified in detaining a man they saw on a bicycle at 3:00 in the morning, primarily because they noticed he was also carrying a large ax at the time.

Not only are the facts good, but the opinion in People v. Foranyic was written by Justice William Bedsworth, who was profiled in the Daily Journal on February 21 and who is the author of the long-running humor column, A Criminal Waste of Space.  Definitely worth reading.

Unsurprisingly, the appeal arose from the denial of a motion to suppress evidence.  Mr. Foranyic was found to be carrying methamphetamine, along with the ax, but he argued that there had been no "suspicious circumstances" justifying the stop under Terry v. Ohio.  "Thus are we called upon," wrote Justice Bedsworth, "to decide whether police may detain a man with an ax riding a bicycle at 3 a.m."

Answer: yes.

We conclude that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at 3 in the morning. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent “ax crime” had been reported.

For while Foranyic insists there was nothing about him which suggested criminal activity, he is unable to suggest, and we cannot conceive of, much in the way of noncriminal activity which is accomplished with an ax in the dead of night. The officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in.

* * *

[T]here is some activity which is so unusual, so far removed from everyday experience that it cries out for investigation. Such activity will justify a detention even when there is no specific crime to which it seems to relate.  We view this as such conduct. While it is true that there are many legitimate uses for an ax, they are generally daylight activities.

Emphasis in original.  This is quality judicial work that, especially given the fact pattern, fully justifies an addition to Lowering the Bar's Case Law Hall of Fame.

Link: People v. Foranyic, 64 Cal. App. 4th 186 (1998).

Ninth Circuit Applies "Slubby Mass" Rule to Dismiss Appeal

On November 29, the Ninth Circuit again applied the Slubby Mass Rule to reject an appellant's brief and dismiss the appeal.  In case you did not learn this one in law school, this rule provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected.  See, e.g., N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997).  The Slubby Mass Rule is apparently a corollary to Federal Rule of Appellate Procedure 28, which governs briefing requirements, and the corresponding Ninth Circuit rules.

The court was considering the appellant's brief in Sekiya v. Gates, a disability-discrimination case originally filed in Hawaii.  And that seems to have been about all the court could glean about the case from Sekiya's brief, which:

• made "virtually no legal arguments" (not a good start);
• did not state the applicable standard of review;
• did not include a table of contents;
• did not include a table of authorities -- not that surprising since it
• did not cite any authority;
• did not include accurate citations to the record; and
• didn't explain why Sekiya thought she should win.  (She did say she "disagree[d]" with the lower court's ruling, but the court was looking for something more.)

Each of those violates a specific part of FRAP 28, but the court also invoked the Slubby Mass Rule.  In the N/S Corp. case, in which the Rule was developed, the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief."  N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough").  The rule was next applied five years later.  See In re O'Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible").  In all three cases the court proceeded to address the merits of the case, to the extent it could tell what they were, but ruled against the appellant anyway.  It published its opinions "as a reminder that [crappy legal work] undermine[s] the administration of justice and cannot be tolerated."

The remaining question you may have is "what the hell does 'slubby' mean?"  And you are right to ask.  The only other report I've seen try to answer this question first speculated that "slubby" was a combination of "sloppy" and "stubby," but found through further research that a "slub" is a "lump or thick place in yarn or thread."  The only problem with these definitions is that they make no sense.  Since you read Lowering the Bar, you don't need to bother with that pointless trivia because here you get accurate pointless trivia.  A "slub" is also defined as "thick sludgy mud; mire, ooze," as in:

1610 W. FOLKINGHAM Art of Survey I. x. 24 Ouer-flowing them with Fords or Land-flouds, affording a fatte and slimie substance or slubbe.

Similarly, something that is "slubby" is "muddy; sticky or slippery with mud."  So, a "slubby mass of words" is a thick, muddy, sludgy, fatte, slimie mass of words that is difficult to trudge through and instead should be avoided; for if one is on the "slub . . . his situation is not to be envied."

Link: "Slub, n.," Oxford English Dictionary Online
Link: Sekiya v. Gates, 2007 WL 4198172 (9th Cir. Nov. 29, 2007).