The Lawyer's Poor Prose

Good morning, class. I hope you've all been studying, because we're having a pop quiz. It's one multiple-choice question, so don't panic. Ready? Here it is:

Can you get disbarred for bad writing?
Answer:
A. Yes.
B. No.
C. Maybe.
D. Probably not.
E. If you could, half the profession would be in trouble.
F. What jurisdiction are we talking about?
G. Er, how bad?

Pencils down. I have no idea what the right answer is, and you get no points for any of them. I only bring it up because of a recent federal appeals court holding that an attorney's "woefully deficient" briefing raised "serious concerns about his competence to practice before this court." The judge in Stanard v. Nygren (658 F.3d 792 (7th Cir. 2011)) ordered the attorney to "show cause why he should not be suspended from the bar of this court or otherwise disciplined" under Federal Rule of Appellate Procedure 46, which allows the court to suspend or disbar a lawyer for disobeying court rules, or for conduct unbecoming a member of the court's bar.

In the blogosphere, Stanard has been read as a case lost because of Chicago attorney Walter P. Maksym's atrocious writing. Maybe that's true, but as with many appellate decisions, it's easy to read too much into it, particularly because it involved an attorney who'd been in the news for other reasons.

In his 40-year career, Maksym had been before the Seventh Circuit a few times (in published opinions he's won two cases and lost eight) without drawing any public ire from that court. He recently achieved fame, or notoriety, or something, as Drew Peterson's civil attorney. Peterson, as you probably know better than I, is a former police sergeant suspected in the disappearance of his fourth wife, and he was convicted in September 2012 of murdering his third wife. The case has evidently drawn a lot of coverage in the sorts of media that normally escape my attention. But on YouTube, an Internet site that bestows longevity on many fleeting things, you can still find 2009 Fox News interviews with Maksym about attempts to fund Peterson's criminal defense. Maksym also caused a few smirks last year with a cease and desist letter that totally did not dissuade the Lifetime cable network from airing a movie about Peterson.

In Stanard, Maksym represented a rural landowner who built an outdoor stage on his property and complained that the local sheriff had harassed him into hiring off-duty deputy sheriffs for security when he held events there. There's probably some cause of action in those facts, but the trial court couldn't make one out in the complaint of more than 50 pages. It eventually dismissed the case after denying Maksym leave to file his second amended complaint because it violated federal rules requiring a "short and plain statement" of claims in a "simple, concise and direct" pleading. The court's patience was exhausted because the amendments did not address the complaint's deficiencies and because Maksym missed deadlines - one of them, he said, because his computer was damaged when he took it to California to take the July 2008 bar exam (he passed).

The Seventh Circuit said the final version of the complaint "crossed the line from just 'unnecessarily long' to 'unintelligible.' Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency. Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general 'kitchen sink' approach to pleading the case." (Stanard, 658 F.3d at 798.)

Like the trial court, the appellate court quoted a 345-word sentence as an example of the writing. A sentence of that length is considerably longer than the Gettysburg Address (this entire column runs about 1,000 words). But the blogger who wrote "Have you ever seen a 345-word sentence before? Neither have I ... until now" is someone who doesn't look at statutes much. I recently had to look at a subsection of the Real Estate Settlement Procedures Act (specifically 12 U.S.C. § 2607(c)), which consists mostly of a 532-word sentence. Is it intelligible? I think I understood the first half, which is as far as I got before I started nodding off. There are plenty of statutes that could get both houses of Congress disbarred from the Seventh Circuit.

A complaint dismissed for incoherence is not all that rare, even if the judge doesn't actually give incoherence as the reason. On appeal, the appellant's goal is to convince the panel that the complaint can be amended to state a claim. In California courts you can demonstrate a cause of action for the first time on appeal, which is fun for appellate attorneys who get to ride to the rescue. The Seventh Circuit seems to have a similar rule, allowing the appealing plaintiff to elaborate on the complaint's allegations so long as the elaborations are consistent with the original pleading. The one thing you don't want to do is file a rambling, incoherent brief.

Yet the Seventh Circuit complained that, "Maksym failed to file a reasonably coherent brief on appeal. All the deficiencies that plagued the various versions of the complaint also infected his briefs here." Even in his reply brief, "after the defendants had crystallized the issues, Maksym again failed to meaningfully - or even comprehensibly - articulate an argument." (658 F.3d at 801.)

The Stanard opinion mentions Maksym's name 55 times - roughly 55 more times than appellate opinions normally mention counsel's name - leaving no doubt that an angry panel was pointing its finger at him. (Maksym told the Chicago Tribune that his follies were caused by health problems, raising the question of whether he should have been representing the client in the first place.)

The moral of the story is that as low as the bar is set in our profession, there is such a thing as writing so badly that it tries the patience of a judge.

Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters

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