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"Tearing Down ... Attorneys' Work":

Commenter DJR writes, apropos my criticism of the badly written Supreme Court brief:

I see that your (quasi-associated) firm hasn't filed an amicus brief (at least not as lead counsel) in this case. Even so, don't you find it at least a little bit in poor taste to be tearing down these attorneys' work in such a public way? It's one thing to disagree with the arguments or to think that they should have addressed matters more substantively. It's another thing entirely to make them look foolish on a widely read legal blog.

I'm puzzled by this position. It seems to me that when someone is in businesses offering goods or services to the public, it's perfectly proper to accurately criticize the quality of those goods or services. That's true whether the target is a large corporation or a team of four lawyers, and whether or not the critic is a fellow lawyer.

In fact, I'd think that such public criticism is on balance helpful. First, it might be educational for law students and young lawyers who read the blog — bad examples often are.

Second, it might remind some such law students and young lawyers that their work will be evaluated by outsiders, and might be criticized. This reminder could encourage such readers to be more careful themselves.

Third, to the extent the criticism does affect the reputation of the authors of the brief (which I doubt, since I doubt that many potential consumers of their services read this blog), it seems to me that this will help consumers: If I'm right that these lawyers filed a badly written brief, consumers will benefit from knowing the lawyers' weakness.

Naturally, if my criticism were substantively unfair, then it should be criticized for that; yet that doesn't seem to be the commenter's point. Likewise, perhaps it wouldn't be right for me to publicly criticize a law student's moot court brief, since the student is clearly just learning and should be cut some slack on those grounds.

But these lawyers are filing a brief in the highest court in the land, and representing a real criminal defendant. They are playing in the big leagues. If their play isn't up to what should be big league standards, it seems to me quite proper to publicly note that. Or am I mistaken?

guy in the veal calf office (mail) (www):
...it might remind some such law students and young lawyers that their work will be evaluated by outsiders, and might be criticized. This reminder could encourage such readers to be more careful themselves.


Its interesting that you view this blog as an instructional device for young students and practitioners. Does that hortatory impulse govern other choices with respect to the content and content providers of this blog?
10.23.2007 5:33pm
Alex Blackwell (mail):
LOL. Whether or not the criticism here is a "bit in poor taste" is nothing compared to the pummeling one could expect at oral argument from, say, Scalia, or, worse, in a written opinion that will be forever enshrined in U.S. Reports.
10.23.2007 5:36pm
Mark Field (mail):
From the standpoint of the practitioner, writing a SCOTUS brief is one of the most nerve-wracking jobs in the legal profession. The issue is obviously important and you know you're going to be judged on the quality of the brief. Performance anxiety makes any job more difficult. My guess is that most lawyers' second worst fear is producing a brief which reads like the one in Williams. Their worst fear is that someone else will notice.
10.23.2007 5:39pm
melk (mail):
"[The law] suppresses speech and beliefs that are protected by the First Amendment in an impermissible way."

Give me a break. Imagine the chortling if this howler had been penned by George Bush.
10.23.2007 5:45pm
happylee:
It is sad that one cannot point out errors without being subjected to withering criticism for daring to...point our errors.
10.23.2007 5:47pm
tab (mail):
You're not mistaken, Mr. Volokh. I interned for two different state courts of appeal during law school. Now I am clerking for a state district court judge. I've read a lot of work written by different attorneys. It has been and is quite a valuable learning experience. Thank you for bringing this to our attention.
10.23.2007 5:49pm
Davide:
I agree with DJR.

He's not saying one is precluded from criticism; he's saying it's in poor taste. That seems right.

For example, this blog doesn't seem to make it a habit of criticizing the poor writing of academics. I don't recall seeing an entry along the lines of 'what slipshod writing Prof. X employs here.' Rather, the arguments are substantive in nature and generous with regard to style. One could claim that professors write more lucidly than lawyers do, but that seems a bit of a stretch.

In fact, this blog rarely, if ever, critiques anyone's written work product with regard to how it is written. I don't recall seeing judges being taken to task for poorly written decisions, or even other lawyers being taken to the woodshed for bad brief-writing.

So, in the end, what we have is a relatively unique singling out of a few lawyers for one brief. That seems harsh. If this blog made it a point of picking on lawyers' foibles routinely, maybe it wouldn't stand out so much.

Instead, the entry in question is titled: "What A Bad Supreme Court Brief." That title seems gratuitously insulting. I look forward to the same cold analysis used when the next law review article is examined here.
10.23.2007 5:51pm
Tony Tutins (mail):
No, this is bad by first year legal writing class standards. This brief is egregiously bad; outrageously bad.
10.23.2007 5:55pm
Ilya Somin:
The commenter seems to think that it is somehow wrong for Eugene to publicly criticize a competitor of his firm's Supreme Court practice. I don't see why not. To the contrary, we want market participants to criticize their competitors (at least if they do so accurately), as that provides valuable information to consumers.

If Hertz points out Avis' flaws, that is good. So too if Eugene points out the shortcomings of his rivals.
10.23.2007 6:04pm
CrazyTrain (mail):
[A]m I mistaken?

No. (Well, not about this.)
10.23.2007 6:08pm
Dan Weber (www):
I think I get DJR's point, that it's pretty rough for someone to have their work publicly lambasted.

In my own profession, I've occasionally done "quick-and-dirty" work when the circumstances required it: a customer's network is on fire, and they need something to fix it right now and it doesn't matter how ugly or slipshod the solution is, it just needs to work right now.

I wouldn't like that work to be blasted all over the Internet without the needed context. And have it turn up in Google searches years later.

Now, I realize we're talking about a Supreme Court briefing here, which is hardly a private affair. I could see that the lawyers involved should have realized that it would be public.

But without knowing the circumstances behind their work, this feels a lot like the 300-pound-blog bully beating up on the new kid in school.
10.23.2007 6:09pm
CrazyTrain (mail):
Its interesting that you view this blog as an instructional device for young students and practitioners. Does that hortatory impulse govern other choices with respect to the content and content providers of this blog?

I am trying to figure out what this means.
10.23.2007 6:10pm
PatHMV (mail) (www):
I think it's perfectly appropriate. In addition to the points made by Eugene and Ilya, the fact is that the outcome of cases in the Supreme Court affect all of us in this country, to one degree or another. While the lawyer formally represents only his client, the quality of his argument has the potential to affect the case, which would affect all of our lives. We should be criticizing them when they perform such substandard work.

I'd add one more reason. I don't know if it's too late to file amicus briefs in this case or not, but perhaps wide dissemination of the poor quality of this brief by one of the parties will lead to the filing of amicus briefs by interested organizations which might not otherwise have done so.
10.23.2007 6:12pm
CrazyTrain (mail):
I wouldn't like that work to be blasted all over the Internet without the needed context. And have it turn up in Google searches years later.

I would tend to agree, and it likely would have been mean-spirited had Professor Volokh included the authors' names in the body of the post, but he didn't so the concern you express is not present.
10.23.2007 6:16pm
DJR:
Davide,

To be fair, it seems to me that Eugene does post fairly regularly about writing issues in general, though you correctly surmise my point. "What a bad Supreme Court brief" is insulting. Eugene could make the same points about poor writing without resorting to insults. In fact, he elected to ignore what he thought were the major structural problems and focused instead on the more obvious and therefore more easily mockable errors.

I see this as an example of the decline of civility in the bar. The reason I pointed out that Mayer didn't file a brief in this case is that I would be horrified if one of my colleagues said something like that (true or not) on a case where I was working with or even against the lawyers who wrote the offending brief. If I were a lawyer at Mayer, which practices regularly before the Court, I would be surprised and embarrassed that Eugene had posted this.

Regarding Ilya's point, Hertz and Avis don't aspire to civility in their dealings with one another. Lawyers do, or at least they should.
10.23.2007 6:17pm
Dan Weber (www):
Ah, if it was anonymous, then it's another matter.

It's kind of like the Daily WTF, a site that exposes horrible code and computer situations people run across, but keeps them anonymous.
10.23.2007 6:18pm
Kent Scheidegger (mail) (www):
...perhaps wide dissemination of the poor quality of this brief by one of the parties will lead to the filing of amicus briefs by interested organizations which might not otherwise have done so.

The time to file amicus in support of Williams is long gone. From the docket, it appears he had three amici in support, all of whom filed before he did.
10.23.2007 6:23pm
Federal Dog:
There's nothing wrong or rude about commenting on poor work. I do agree, however, that this is nothing compared to incompetent academic prose regularly produced even at "elite" schools.
10.23.2007 6:24pm
Enoch:
So, in the end, what we have is a relatively unique singling out of a few lawyers for one brief.

So unless they criticize everybody all the time, they are not allowed to criticize one person one time? Pshaw. If the "victim" can't handle criticism of his arguments, he has no business being a lawyer at all, let alone arguing before the Supreme Court.
10.23.2007 6:31pm
PatHMV (mail) (www):
Certainly lawyers should be civil to one another in the course of practice. But we should not adopt some blue wall of silence, refraining from calling attention to the serious errors or flaws of our peers. As lawyers, we are entrusted by society with a fair amount of power and influence over their lives. Openness, not self-protection and ignoring our faults, will best preserve that role.

Had Eugene made such a comment about a lawyer's brief in a case in which he was participating (which I'm certain he would never do), then I would agree it should be considered uncivil and not in accordance with the latest emphasis on "professionalism." But as neither he nor the firm with which he is occasionally associated is a participant in this case, I think there's nothing wrong with his criticisms. They are harsh only because harshness is justified.
10.23.2007 6:31pm
One Man's View:
Well... it isn't well written, that's for sure. But let's be a bit more fair. First, of course, the authors are respondents. That means they won in the 11th Circuit, which is not known as a defendant-friendly, jurisdiction, so they must be doing something right. Second, if I read the record correctly, the respondent's lawyer is a solo or near solo practitioner. I suspect he has this case as a CJA attorney, meaning that he's getting almost no real compensation for his work. The incentives are to spend as little time as possible on such cases since there is actually a cap on compensation. Granted, if I had a CJA case in the Supreme Court, pride and a sense of self would cause me to spend as much time as necessary. But I can certainly see that the contrary incentives would apply for many busy practitioners.
10.23.2007 6:37pm
DJR:
The Supreme Court pays $0 for appointed attorneys. They pay to print the brief and airfare for the oral argument.
10.23.2007 6:39pm
c.f.w. (mail):
EV should do a sabbatical for say 3-4 years where he spends all his time working at say $75 an hour on criminal trials and appeals. Then see if he can find a more constructive way of discussing writing by appointed counsel who get woefully underpaid from when they leave weak law schools where they got weak or non-existent help with writing. Writing skills were not things EV was born with - someone(s) tutored him to where he is now. Others less fortunate in the area of tutors need to be provided tutors, ideally with fair respect for privacy rights (meaning civilized critiques, even if there is no legal duty to respect privacy here).
10.23.2007 6:43pm
Gil Milbauer (mail) (www):
The criticism seems fine to me.

But, on the other hand, Eugene might want to avoid shark-infested waters even more than before.
10.23.2007 6:47pm
Dave N (mail):
I hate to agree with Crazy Train, but he got it right when he noted that it would have been mean spirited to have called out the authors of the brief by name as opposed to just commenting on the poor quality of their product. Since EV did not mention the authors of the brief by name, there was nothing wrong with what he did.
10.23.2007 6:48pm
ejo:
the worst legal writing that one will ever see is that done by judges. they come up with stuff far worse than this. as to the host leaving his job and doing PD/appointed work for 3-4 years, you know that will never happen and it doesn't particularly excuse poor craftmanship on the part of these counsel. I also suspect that, if you shopped around, you could find plenty of competent takers for the task of making the argument simply for the "honor" of appearing in the S. Court.
10.23.2007 6:56pm
PatHMV (mail) (www):
Too busy? Underpaid? This is the SUPREME COURT. Thousands of attorneys would contemplate giving up their first born for a shot at arguing before the Supremes. And this isn't a petition for cert., filed simply to go through the motions of being "effective" for one's appointed client. This is a brief which will be read by the justices of the highest court in the land. I don't care how busy you are, how overworked and underpaid, you don't take that lightly. Frankly, if the writing is bad because they let other work get in the way and didn't spend adequate time on it, that's more embarrassing than if they did the best they could and just aren't particularly capable of writing better.
10.23.2007 7:10pm
Ilya Somin:
Regarding Ilya's point, Hertz and Avis don't aspire to civility in their dealings with one another. Lawyers do, or at least they should.

I don't think civility requires an absence of public criticism of competitors. If it does, then I would have to say that the value of civility is less important than the public interest and consumer welfare. Civility between lawyers is not important enough to trump the broader public and private interest in providing good legal services to clients. The latter is facilitated by public discussion of the strengths and weaknesses of firms and attorneys.
10.23.2007 7:32pm
Ilya Somin:
EV should do a sabbatical for say 3-4 years where he spends all his time working at say $75 an hour on criminal trials and appeals. Then see if he can find a more constructive way of discussing writing by appointed counsel who get woefully underpaid from when they leave weak law schools where they got weak or non-existent help with writing.

If these lawyers were too poor, too busy, or too poorly trained to do a good job on a Supreme Court brief, they should have availed themselves of the services of one of the many topnotch appellate lawyers who would have jumped at the opportunity to do a Supreme Court brief for free.
10.23.2007 7:34pm
MJG:
There is nothing wrong with this. I have read that brief, and it is the single worst brief I've read in a long time, whether it is state court, federal court or land court. Nevermind it was filed with the U.S. Supreme Court.

There's nothing wrong with Eugene's post. Some of the earlier ones about how bad it is can be helpful. But, before anyone criticizes Eugene - read that brief. It will blow you away. "Cannon of construction." I mean, the legal arguments are terrible, but hire a part time proof-reader in college for $15 bucks an hour. Please, something.

So yes. If you file a brief with the U.S. Supreme Court that reads and looks like you accidentally filed a preliminary draft written by chimps, then you cannot be surprised when it shows up on the Volokh conspiracy. Indeed, there are other bloggers who would likely show less restraint than Eugene has here.
10.23.2007 7:38pm
wooga:
So now the "chickenhawk" logical fallacy has come to legal briefs? If you don't file your own amicus brief, you aren't allowed to criticize someone else's briefs?
10.23.2007 7:41pm
Mike& (mail):
A solo got his hand on a Supreme Court case, and rather serving his client's best interest by turning the case over to more capable counsel, he jumped as his only shot to appear before the Supreme Court.

In other words, he's screwing over his client so he can get "bragging rights" about appearing before the Supreme Court. This is very common in criminal cases.

Why should a lawyer who puts his own interest in front of his clients be insulated from criticism?
10.23.2007 7:42pm
Houston Lawyer:
One of the reasons I don't speak at continuing legal education seminars is that I am not the foremost expert in my field. I am competent at what I do, but I harbor no illusions about my knowledge. So I fear criticism by those who eat, breathe and sleep the law.

However, I've noticed that not all speakers at such seminars feel as constrained as I do. I can remember turning around and staring incredulously at a senior member of my firm while listening to one speaker. While he was obviously amused at the incompetence of the speaker (and at my astonishment), most of the rest of the room seemed unfazed.
10.23.2007 7:46pm
wfjag:
Tony Tutins:
"No, this is bad by first year legal writing class standards. This brief is egregiously bad; outrageously bad."

Having taught 1L Legal Research &Writing, I concur.

Some examples:

1. The brief needed to be proof-read, rather than merely relying on Spell Check:

At pe 5 of the brief:

"The language of the Section is unconstitutionally
vague and overboard for several reasons:"

At Pg 9:

"Moreover, the Section can be overboard even if it does not capture protected speech in a substantial way"

"Overboard" is what happens when a Sailor falls off a ship.

2. Making apparently non-responsive responses or a rhetorical response, rather than a substantive one to an opposing party's argument:

At pg 26:

"The Brief Amici Curiae of the National Law Center for Children and Families, Stop Child Predators, the Klaaskids Foundation, the Jessica Marie Lundsford Foundation, and the Joyful Child Foundation initially argues that the Section was “carefully” drawn. The fact that the Section was carefully drawn does not make it valid or cure the unconstitutional infirmity of the language in the Section."

While it is true that "careful" drafting does not cure a constitutional infirmity, I suspect that Amici's argument was more than that. Attacking Amici's argument solely on that basis leaves open questions raised by Amici's other arguments.

3. I also believe that "unconstitutional infirmity" is poor grammar. "[C]onstitutional infirmity" should have been used.

4. Unclear phrasing of the issue:

At pg 26:

"The issue is whether the language used by Congress and the manner in which the Section is currently drafted, poses constitutional offense to the First Amendment."

Does Williams’ attorney mean “violates the First Amendment”? instead of “poses constitutional offense”? If not, what’s the difference?

5. Statements made in the statement of fact that appear to have no relevance to the arguments. Mr. Williams' attorney states that the SA used "SamSpade.com" help identify Mr. Williams. He also described how URLs were used to track Mr. Williams. I kept asking myself why these, and most of the other facts in the statement, were important to the case. Apparently they were not. So, the attorney wasted words. This will mean that readers will be paying less attention when reaching the arguments, and also probably asking the same questions I did -- and wondering why such questions implicitly raised by the statement of facts weren't addressed. The statement of facts should, but didn't, focus the reader on Mr. Williams' arguments.

I believe that most of us understand that appellate judges largely make up their minds based on the briefs. Oral argument is for clarifying obscure points. This brief isn't clearly written. Thus, the Justices are likely to ask questions the attorney should have made clear in the brief, which reduces his time to respond to substantive questions and to make his most compelling arguments. Particularly in a case in which your client is unsympathetic, mistakes such as the ones noted above are very harmful to your client's interests.

DJR:
"I see this as an example of the decline of civility in the bar."

I disagree, particularly since this is a brief to the US Supreme Court in what may be a landmark case. This should be advocacy at its best. It isn't. Warranted criticism is not uncivil. Rather, I believe that failing to expect the best of our profession, and so silently condoning less than excellence in cases at this level, is a worse example of the decline of civility.
10.23.2007 8:02pm
Mike& (mail):

If these lawyers were too poor, too busy, or too poorly trained to do a good job on a Supreme Court brief, they should have availed themselves of the services of one of the many topnotch appellate lawyers who would have jumped at the opportunity to do a Supreme Court brief for free.




This is exactly right. And, quite frankly, should be the end of the discussion (at least on the point addressed).
10.23.2007 8:02pm
Eugene Volokh (www):
I'm certainly a believer in being polite, and I generally support calls for pretty high standards of politeness. But the title "What a Bad Supreme Court Brief," followed by a substantive explanation for why one thinks the brief is bad (consisting in large part of concrete examples of the bad writing in the brief), strikes me as acceptably civil. Harsh, perhaps; not understated; but nonetheless civil.

"If you can't say anything nice about someone, don't say anything at all" is sometimes good advice. But it's not a requirement of civility.
10.23.2007 8:05pm
TerrencePhilip:
I don't know how EV could have given the comment so much credence as to start a whole thread about it. This is professional criticism, not personal. No one bats an eye when he points out poor reasoning, or poor legal writing, by judges or scholars.

It ALWAYS makes SOME difference how good the lawyering is. True, at the SCt level, even if you write a weak merits brief, the clerking and judging is of such quality that you are likely to get a result similar to what you would've gotten if you'd done a good job, so long as you simply point to the relevant issues- in which case, you were nothing but a drag on your client's chances. At most all other courts in the land, it's garbage-in-garbage-out: my first reaction to an opinion with a bad result or weak reasoning is to think the court was wrong; my second is to wonder if the lawyering was all it could have been. (One great way to study recent appellate cases, is to read the opinion AND the briefs- good results often follow good lawyering, and sometimes the quality of briefing makes it clear that one side COULD have gotten a better result had it done better work. I also size up my opposing counsel by reading their filings in other cases they've worked on.)

Look how sloppy this brief is, here is yet another example:


Petitioner argues that the lower court was wrong
in its belief that the government could not regulate non-commercial solicitations, or distribution of, or offers to distribute, illegal contraband except under the narrow
circumstances of imminent incitement. (App. Br. at p. 24)
citing,
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
(finding the constitutional guarantees of free speech and
free press . . .)


Leave aside the weak sentence referring to the lower court's "belief," and note the citation "form." Most briefs will have one or two little typos, at least in lower courts, but this is sloppy, pathetic work from beginning to end. The reasoning, the level of engagement with the issues, the persuasiveness, the general writing quality, even the typing, are at a level I would not tolerate in any court.
10.23.2007 8:14pm
HappyConservative:
This brief is a embarrassing.

More significantly, if you can't take criticism, law is not for you. Go find another profession. You should be able to take even harsh criticism; what Professor Volokh has here is, if anything, excessively mild.

And there is a huge benefit to the criticism here. Hopefully, the lawyer in question will never have a chance to embarrass himself again before the Supreme Court with his complete incompetence. And, just maybe, if society is lucky, the embarrassment from the publicity will cause the brief writer to quit the practice of law altogether. If you can't write, you shouldn't be a lawyer.

Some people suck. The sooner they realize it and get out, the better off we all are. How many more clients must be screwed over by your bad writing? Some people cannot write and never will be able to write. Period.
10.23.2007 8:39pm
Dave Hardy (mail) (www):
1. You file in court, you take your risks of criticism -- certainly of being lambasted by the other side or by the bench, with the only civility being don't use cusswords or "liar."

2. I suspect you can get compensated at the Supremes on an appointed case. I recall reading that that was available as far back as the Miller decision in 1939.

3. I've seen plenty of examples in state appellate court that would make this seem like a Holmes opinion. I remember one death penalty case where the defense filed a 250 page brief that was, well, 10 pages of argument and 240 of whining. The court struck it, gave them 50 pages, and they filed a 50 page brief with 200 pages of end-notes. Lucky they didn't get held in contempt.

4. I quite agree that anything filed in the Supremes ought to be the best that is humanly available. (And to reinforce that point, as I recall they require that if you want to correct a typo, you fly to DC and hand correct it on ALL of the copies). It's not often that you're in a position where a win, or even a loss, may be the high point of your entire career.

5. Congress isn't the best at writing, either. "material or purported
material" -- can't help but wonder what "purported material" might be?
10.23.2007 8:43pm
c.f.w. (mail):
The USSCT gets what it pays for. It offers $5000 flat fee for say $75,000 of work at EV rates, this happens.

Why is it incumbent on appointed counsel to find EV (or an EV clone) when there are already amicus attorneys, the client is not getting a benefit, and time spent hunting up new counsel is unpaid?

If someone like EV had offered to help with the work (say as pro bono co-counsel), and had been turned away, appointed counsel might be subject to criticism.

No such evidence is on the table, and assumptions from folks not in the appointed counsel trenches are questionable.
10.23.2007 9:07pm
HappyConservative:
c.f.w.

With writing this bad, it is clear that he can't write period. This is not just an example of someone who did not have time to edit. This is someone who can't write.

And if you don't think that $5,000 is enough to do the job, don't do it. But, it seems very likely that this is not a matter of someone who could do the job but didn't, this is more likely a matter of someone who can't do the job. No matter how hard they try. Ever. This writing is truly horrendous.
10.23.2007 9:12pm
Dan Weber (www):
The USSCT gets what it pays for. It offers $5000 flat fee for say $75,000 of work at EV rates, this happens.
I'm not a lawyer, but wouldn't lawyers pay to be in this situation?

Having a SCOTUS brief would be a great feather in anyone's resume?
10.23.2007 9:19pm
Mike& (mail):

If someone like EV had offered to help with the work (say as pro bono co-counsel), and had been turned away, appointed counsel might be subject to criticism.



You obviously don't know how the Supreme Court bar operates. Top lawyers trip over themselves calling people up to offer assistance and/or take over the case. I don't have personal knowledge whether such assistance was offered here; but I would be shocked if it wasn't.
10.23.2007 9:47pm
Elmer (mail):
Thanks to this post, if I ever hire a lawyer for courtroom work, I'll read a few briefs before making my choice.
10.23.2007 10:26pm
Truth Seeker:
Thanks to this post, if I ever hire a lawyer for courtroom work, I'll read a few briefs before making my choice.

Courtroom work and brief writing are different talents, which is maybe part of the problem here. A person who is a great actor in the courtroom may be a lousy writer. Don't most trial attorneys turn their appeals over to other firms?
10.23.2007 10:43pm
Elmer (mail):
Ah. Apparently I have a lot more blog reading to do. Since my most probable need for a lawyer will involve patent law, I'm on the wrong blog. Are any patent blogs this entertaining?
10.23.2007 10:48pm
M. Simon (mail) (www):
So in addition to the blue wall of silence there is now a grey flannel wall of silence.

Let me see. Congress is full of lawyers.

You know that couls explain a LOT.
10.23.2007 11:03pm
Bill Dyer (mail) (www):
I'm a big fan of Prof. V's blogging on legal writing style, and suspect him of no malice. But here, while Prof. V's critique is on the mark, to my own taste it's unnecessarily harsh. He may only have used the author(s) to their just deserts, but that leads me to exhort him, as a fellow professional, in this manner:

God's bodkin, man, [use your fellow lawyers] much better! Use every man after his desert, and who shall scape whipping? Use them after your own honor and dignity. The less they deserve, the more merit is in your bounty. Take them in.
10.24.2007 12:02am
Bill Dyer (mail) (www):
That said (I'm arguing with myself in successive comments, which is something of a habit of mine), I do agree with Prof. V that it's entirely appropriate for outsiders, whether lawyers or not, to critique the performance of lawyers practicing in open court. In a recent series of posts on my own blog, I criticized both the strategy and tactics (and in one instance the proof-reading) of Sen. Larry Craig's lawyers; and I also threw a couple of brickbats in the direction of their opponent, prosecutor Chris Renz. That's definitely "Monday morning quarterbacking" on my part. I tried to be "civil," and hope I succeeded. But sometimes bloggers (and blog commenters, and emailers) start off too harsh. It's to Prof. V's credit that he asked for his own readers' reactions here. And my exhortation (from Prince "IANAL but I think" Hamlet) should be self-directed as well as to him and to all of us in the profession.
10.24.2007 12:32am
tvk:
To those who say that the poor underpaid CJA lawyers should be cut slack, would this change your mind: the poor underpaid CJA lawyers almost certainly got offers from the most reputable firms in the land to help write the brief for free, declined those offers because they didn't want to pass up their one chance to argue before the Supreme Court, and, in writing a terrible brief and likely following up with a terrible argument, probably severely undermined their client's best interests by putting their own egos ahead of those interests.

On DJR's point, you are quite right that there is a tradition within every profession, and beyond it, for members to refrain from criticizing each other in too loud terms. Lawyers don't slam other lawyers; doctors don't testify against other doctors; and GM doesn't attack the safety of Ford's cars. Thus, operating within the profession's norms, EV was way out of line. But the profession's norms are a form of CARTELIZATION. Long ago, lawyers figured out that if nobody within the guild criticized each other, clients would be worse off and lawyers could make more money. The breakdown of these norms, EV's critique being an example, is a terrible thing for lawyers but probably all the best for society generally.
10.24.2007 1:00am
c.f.w. (mail):
Assumption that Williams counsel turned away EV or OK or a clone is suspect. Why not have two names on the brief - trial lawyer and EV or OK (or a clone)? If the work was so valuable from a publicity perspective, why was the lawyer's spot not sold? Given the nature of the case, it could well be that no good offers of help came in. I now have been to the USSCT 3 times, once as amicus (with other names), twice with my name plus other names.
10.24.2007 1:38am
Bart S. (mail):

Even so, don't you find it at least a little bit in poor taste to be tearing down these attorneys' work in such a public way?
I find it in much poorer taste that your comment reflects the opinion of many in society today. People who suck perform poorly at something (even their job) are routinely given a free pass because it wouldn't be right to tell them that they suck are bad. They might have self-esteem issues if you tell them that they suck perform poorly at something at which they suck perform poorly.

If I did as poor a job as was done here, I wouldn't have a job. I WOULDN'T EXPECT TO HAVE A JOB But, it's in poor taste to point it out? Give me a break. It's in poor taste to have the audacity to do such a bad job and still have a job.
10.24.2007 1:44am
David M. Nieporent (www):
As others have pointed out, the fact that you didn't mention names is what makes the original post reasonable. Harsh, but reasonable. "Bob Smith sucks as a lawyer" is overboard (and overbroad, perhaps!). No matter how bad this brief is, you don't know if there were extenuating circumstances, so it may indeed be unfair to make that judgment. You don't know if it was an extreme fluke, or if he's the most brilliant oral advocate in history, or the like.

But the brief itself stands on its own; if it's very bad, it's very bad, and it's fair and accurate to say "this brief is very bad." It may be embarrassing or even humiliating to the author to say so, but that's a separate issue.
10.24.2007 7:21am
GMS:
I think Eugene's criticism is perfectly appropriate. The comments section, on the other hand, could be cited as proof of the following proposition: As one's outrage over another's grammar, spelling, or other writing defects increases, the probability that he will demonstrate the exact same defects in his own writing approaches one. I mean, if you're going to say that "If you can't write, you shouldn't be a lawyer," then you shouldn't START your post with "This brief is a embarrassing." (Yes, I mean you, HappyConservative). It's true that "some people suck," but it's good form to make sure that you don't suck when you call them out.
10.24.2007 10:54am
Tony Tutins (mail):
Solos don't have to do everything on their own. Even non-lawyers can proofread and flag anything that seems incorrect. For something as important as a Supreme Court brief a solo could ask his sigificant other to read it. Further, solos commonly hire 2Ls and 3Ls as low wage law clerks. Even if a solo didn't have steady work for a clerk, the lawyer here could have hired a law student (for example, a winner of a "Best Brief" award) just for the hours it would take to review it. The student could have flagged the ambiguities and reworded the arguments.
10.24.2007 11:21am
Eugene Volokh (www):
GMS: I agree that it's a good idea to especially carefully proofread comments criticizing others' writing. But, as I noted on the other thread, errors in off-the-cuff casual writing are far more forgivable than errors in a document that is to be filed with a court, and that one has many weeks to proofread and proofread again.
10.24.2007 11:44am
Dan Weber (www):
I mean, if you're going to say that "If you can't write, you shouldn't be a lawyer," then you shouldn't START your post with "This brief is a embarrassing."

I'm 90% sure that was ironic.
10.24.2007 12:30pm
Gil Milbauer (mail) (www):
I'm 100% sure it was ironic.

I have no idea whether it was intentional, though.
10.24.2007 1:01pm
Shertaugh:
EV:

I'm tuning in late here. But I have a question.

Why is SCOTUS hearing this case if, in light of the defendant's concurrent sentence of 60 months on Count 2, no change in his sentence will result?

Why is there a cert-worthy controversy in this case -- recognizing that the question itself was deemed cert worthy?
10.24.2007 1:19pm
Improvidently Granted:
Shertaugh,

Your question appears to be why this isn't moot, given that the defendant's sentence won't change. The case isn't moot because a defendant has an interest in clearing his name of a crime of which he was improperly convicted, regardless of whether overturning the conviction will have any effect on his sentence. In short, it's worse to be convicted of two crimes than one, so if there is a basis to overturn one he should be allowed to pursue it.
10.24.2007 2:49pm
TerrencePhilip:
Shertaugh, it's cert-worthy in that there is a live issue, with a problematic lower court ruling. But you correctly perceive that the only risk to the defendant is the nominal "loss" that will as a practical matter not really affect his sentence, and the lawyers had less practical incentive. The only real effect of this decision will be on other cases. Too bad the general public can't vote "DIG this" on cert grants . . .
10.24.2007 2:50pm
Nobody Special:
The brief was indeed horrible, and it's instructive for young lawyers to know about it. However, equal time should be given to bad briefs that are filed by big firms. I saw plenty of them in the course of two federal clerkships. Some of them were extremely bad in one way or another -- incoherent, illogical, deceptive, or some combination of vices. Then there were the oral arguments by senior big firm partners who were unprepared and who seemed to expect the Court to be in awe of their presence in the room. One guy 'argued' to a panel by reading from his client's brief, and he couldn't answer any nuanced questions. Good writing isn't the exclusive province of large law firms or even Ivy grads.
10.24.2007 3:20pm
TerrencePhilip:
Good writing isn't the exclusive province of large law firms or even Ivy grads.

agreed, and good lawyers can turn in crappy work; you are only as good as your last brief/argument/trial.
10.24.2007 6:48pm
Mr_Thorne (mail) (www):
RE: "If you can't say anything nice about someone, don't say anything at all" is sometimes good advice. But it's not a requirement of civility."

Let's see. Eugene Volokh teaches law. He teaches students how to write briefs. And so he points to good briefs and bad and says what's good and what's bad about them.

If you think that's impolite, don't go to law school. And if you do go to law school, don't go to THAT law school.
10.27.2007 12:48pm
Peter B. Nordberg (mail) (www):
To me, it's relevant to the civility question that the original post didn't use the brief to illustrate any specific points or principles about how to write well or avoid writing badly. The post simply picked an example of weak prose, put it on national display, and invited readers to respond to it with smug, self-satisfied derision.

For a host of reasons, much legal writing is unspeakably bad. Making egregious examples available on the internet for public mockery may sometimes serve a useful social function. But it also seems a little mean-spirited to me, if no attempt is made to offer constructive criticisms that might help in avoiding the mistakes next time. It's a bit like shooting ducks in a barrel: it may thin the duck population a little, but it's not very sporting.
10.27.2007 3:04pm
Mr_Thorne (mail) (www):
You make it sound like Volokh's criticism of the brief is gratuitous. But he is correct in noting that it suffers from "remarkably shoddy writing."

I'd pick some other portions of it to make that point.

Consider this from Williams' brief:


The Section creates significant risk of suppression of ideas because the only way for a person to avoid a possible violation of the Section, due to the confusing, ambiguous words of same, is more prudent to guard silence than to express one’s ideas.


The assertion fails due to poor grammar (i.e., "only way for a person to avoid a possible violation . . . is more prudent to guard silence . . . .")

If the assertion were properly worded, it would be preposterous, because anyone can easily avoid violating the Section by simply not peddling or seeking:

1. an obscene visual depiction of a minor engaging in sexually explicit conduct; or
2. a visual depiction of an actual minor engaging in sexually explicit conduct.
10.27.2007 6:07pm
Peter B. Nordberg (mail) (www):
Mr. Thorne,

To my understanding, the question on the floor is not whether Prof. Volokh was correct in calling the writing "remarkably shoddy." The question posed, I thought, was more whether there was something unseemly about Prof. Volokh's original post. Part of the reason I think there was is that the post detailed no actual substantive "criticism," but merely presented an unelaborated and undefended negative verdict. That the verdict could be defended and explained I do not doubt. My point is that had the post explicitly done so, I might have been able to see some more benign purpose in it -- e.g., a pedagogical one.

I should add, if it matters, that I greatly respect Prof. Volokh, partly because of his longstanding advocacy of civility in argument. I responded to his question only because he did ask it.
10.27.2007 8:34pm