24 August 2005

The Pudding

As in, "that's where the proof is."1 A couple of days ago, I remarked:

The single most important class you're going to have in first year is Legal Research and Writing. It's the only class that every lawyer is guaranteed to need every day. That said, if it's graded on a pass/fail basis at your school, you should put greater "marginal effort" into graded classes—but, whatever you do, don't blow it off. It's a sad truth that this profession, which lives and dies by the written word, as a rule can't write a coherent shopping list. The better your writing (and research) skills, the better a lawyer you will be.

I can almost hear it now—"That arrogant jerk doesn't know what he's talking about! I can write a coherent list anytime!" Well, no, you (as in "the profession as a whole") can't. Here's a lawyer's shopping list from the relatively recent past:

Whether, and to what extent, a court of appeals may review the sufficiency of evidence supporting a civil verdict where the party requesting review made a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure before submitting the case to the jury, but neither renewed that motion under Rule 50(b) after the jury's verdict nor moved for a new trial under Rule 59?2

That's not a question. To begin with, it has no predicate. I don't begin questions with "whether"; I suspect that you don't either. Except, perhaps, in legal writing. Then, too, is there any real reason to force all of this into one question, let alone one sentence? Let's try this, instead:

After the close of the evidence, the defendant moved for judgment as a matter of law under Rule 50(a). The motion was denied. After the jury returned a verdict against the defendant, the defendant appealed without either renewing its motion for judgment as a matter of law under Rule 50(b) or moving for a new trial under Rule 59.

1. May a court of appeals review at all the sufficiency of the evidence supporting a jury verdict when the defendant does not make post-trial motions to set the verdict aside or retry the case?

2. May a court of appeals review the sufficiency of the evidence under these circumstances de novo?

OK, maybe I randomly selected a pretty awful example. Maybe cases turning on civil procedure have more-awkward questions presented for review.

I wish. Here's another (random) example from those cases granted certiorari for the 2005 Term:

Whether the Florida Supreme Court erred by holding, consistent with the Alabama Supreme Court but in direct conflict with six federal courts of appeals, that the Federal Arbitration Act allows a party to avoid arbitration by claiming that the underlying contract containing an arbitration clause (but not the arbitration clause itself) is void for illegality?3

Gag. Quickly: What is at issue? No, it's not contract law: It's the appropriate reach of the Federal Arbitration Act. Yes, kids, this is a disguised federalism case! So, then, try this:

May a state court allow a party to avoid arbitration by declaring that state law makes the entire contract (but not specifically the arbitration clause) illegal, even though six federal courts of appeals have held that the Federal Arbitration Act requires arbitration unless the arbitration clause itself is illegal?

Of the thirty-six cases granted certiorari for the 2005 Term, only a third (twelve) even put their "questions presented for review" in the form of a question. Since the questions presented for review are an appellate lawyer's shopping list—they're what we want to get from the court—I think I've made my point. Whether it's "traditional" or not, it's still bad writing.

  1. Of course, that's not what the phrase means; but that's part of the point of this little screed.
  2. Question presented in Unitherm Food Systems, Inc., v. Swift Eckrich, Inc., dba ConAgra Refrigerated Foods, et al., No. 04–597 (to be argued in the 2005 Term).
  3. Question presented in Buckeye Check Cashing, Inc. v. Cardegna, John, et al., No. 04–1264 (to be argued in the 2005 Term). And yes, I really did choose these two cases at random from the list of those thus far granted certiorari.