Tax Day has nothing on this goof

Spencer Farris, The Levison Group

Some days, it just doesn’t pay to get out of bed in the afternoon. Or at least, to drive to the office. Today was one of those days.

I arrived at the Levison Towers and saw Skip Harvey, our maintenance man, with a look of concern on his face. While spring to most of us means an opportunity to ditch our overcoats, for Skip it is a constant guessing game as to whether we will need the furnace or the air conditioner on any given day. I had only come to the office to avoid making this same decision at my house. Since today was Saturday, Skip was barely concerned. Rather than guess, he turned off both systems and went home. Nonplussed, I grabbed a jacket and a pair of shorts from my car and went upstairs.

As I’ve mentioned in these pages previously, I’ve been briefing legal issues in every Court of Appeals in my home state. I openly wished for an interesting opinion, not a win or a loss. The first appellate court to rebuff my request did so with language that forces yet another appeal, but more disappointingly, not in iambic pentameter.

 My promise to my client to pursue every avenue for her means that even the slightest cracked open door must be tested. While it may be futile, this first appeal left me with a tiny sliver of hope for my client.

Thomas Edison once said that “I have not failed. I just found 10,000 ways that don’t work.” Edison was not a trial attorney, because if he was, he would’ve failed at some point. One thing that separates trial attorneys from inventors is that we know when our quest is over — a jury or an appellate court (or two) will tell us. If Edison had operated within the same rules, you would be reading this in the dark today. Luckily, Edison was not a writer, either.

As an English major, I enjoy good writing. I’m not often guilty of committing it but I know it when I see it. Appellate court judges occasionally recognize good writing as well. Some will even let lawyers know when they have not achieved that mark. While corresponding with opposing counsel recently, I mentioned that I would have to sharpen my crayon for a new round of briefs in our appeal. She put me on to this gem — Bradshaw v. Unity Marine Corp.

Describing this case to you would not do it justice. What is readily apparent is that the appellate court was not taken with the writing skills of the two advocates:

 “The Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.”

I am no stranger to judicial rebuff. I’ve had eyes rolled in my direction. I’ve had a magazine for which I am the editor held up in open court and used against me. I’ve been told that the court agreed with everything except for my legal analysis and conclusion. I’ve even been asked if I was on medication. I have not, however, had my writing criticized in this manner. Yet.
All of this is little more than a prelude to my column today, Gentle Reader. It seems that in the hustle and bustle of preparing appellate briefs, I have misplaced my most recent “Under Analysis” musings. While I hope that my notes are somewhere on my desk or better yet, lost forever, I fear that somewhere in the appendix of a court file is my diary of life in the Levison Towers. In other words, an “Under Analysis” column. I know for sure that it is neither in the pocket of the Bermuda shorts or tweed jacket that I’m wearing. Other than that, I can’t be certain.

I don’t often worry, and when I do it is very taxing. Searching for my lost notes has left me more than a bit frazzled and I am headed home. If you happen to find my notes and you are not the law clerk for an appellate court, kindly slip them into an envelope and return them to me. No questions asked. Otherwise, I will “upgrade to a nice shiny No. 2 pencil or at least sharpen what is left of the stubs of my crayons for what remains of this heartstopping, spine-tingling action.”

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Under Analysis is a nationally syndicated column of the Levison Group. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St. Louis, Missouri. Comments or criticisms about this column may be sent to this newspaper or directly to the Levison Group via e-mail at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.

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