April 2018 Books
Seeing Through Legalese: More Essays on Plain Language
by Joseph Kimble
Reviewed by Craig Lewis
In the preface to his third book on legal writing, and his second collection of essays on the topic, Seeing Through Legalese: More Essays on Plain Language, Joseph Kimble — professor emeritus at Western Michigan University’s Cooley Law School — tells readers that he hopes we enjoy the book, learn something from it, agree with some of its ideas, and smile from time to time reading it. Check, check, check, and check. The collection is what the author wants all writing, and legal writing in particular, to be: well written (which is to say written and organized so that it can be easily understood), informative, and appropriately light.
Professor Kimble champions using plain language in legal writing. So it’s fitting that this work — compiled from essays he’s written since 2006 — is laid out in a logical and easy-to-understand fashion. It is divided into three parts. The first part is a collection of essays discussing the Advisory Committee on the Federal Rules’ work editing the Federal Rules of Civil Procedure and the Federal Rules of Evidence for style. It contains side-by-side comparisons of previously existing rules and suggested style edits along with the rationale for adopting plain language over legalese: ‘shall’ can signal any of ‘must,’ ‘may,’ ‘is,’ or something else, and organizing ideas into numbered or bulleted lists makes the ideas easier to understand, to name two.
The second part presents some of Professor Kimble’s essays on legal writing generally (it’s called “On Legal Writing Generally,” so we can all follow along). Professor Kimble responds to criticisms of plain language in legal writing (most of those criticisms seem like they should be communicated by chiseling them into stone tablets or delivering them by carrier pigeon at this point), sets forth some good recommendations for writing well — and some rules to follow if you don’t want to write well — and has some fun with arcane release language many lawyers cling to. My favorite recommendation (and if he were alive, comedian Mitch Hedberg’s, too, I’d wager): Avoid clichés like the plague. Professor Kimble even provides us a law review article discussing editing law review articles, complete with some actual edits to that law review article. Who says writing in plain language is less sophisticated?
Part three collects some of Professor Kimble’s interviews and other statements he’s made about plain language’s place in legal writing. After that, there is a handy index.
To those who support using plain language in legal writing: This book is for you, and I recommend you read it as soon as possible. To those who are against using plain language: You hereby covenant and agree that the undersigned editor shall not be held responsible for the failure of the reader of this review to hereinafter adopt, follow, or comply with the undersigned’s recommendation; and you are advised that time is of the essence. Please govern yourself accordingly.
Craig Lewis is a member of The Florida Bar.
Business and Commercial Litigation in Federal Courts: Fourth Edition
Edited byRobert L. Haig
Reviewed by Edward Comey
Imagine being given an $80 million budget to hire top lawyers and judges from around the country to prepare a survey on the latest topics facing business litigators. Robert L. Haig boasts that he basically did just that with the fourth edition of Business and Commercial Litigation in Federal Courts.
First published in 1998, and later updated in 2005, 2011, and most recently in 2016, Business and Commercial Litigation compiles the work of nearly 300 principal authors. Twenty-seven are judges: five circuit court of appeal judges, 19 district judges, one bankruptcy judge, and two state court judges. The remaining authors — top commercial litigators — come from the most respected firms in the country. Haig estimates that if you totaled the number of hours the authors invested in Business and Commercial Litigation (at their regular hourly rate), the dollar value of that investment would easily exceed $80 million.
The end result? A 14-volume treatise that Haig says is unique because it is the only one that “combines in-depth treatment of federal civil procedure with substantive law in the areas most commonly encountered by commercial litigators.”
So how does Business and Commercial Litigation hold up to Haig’s claim that it is one-of-a-kind in legal literature? Quite well, actually.
Business and Commercial Litigation is nothing short of breathtaking in scope. In all, the treatise comprises 153 chapters. The topics range from the more substantive (antitrust, securities, medical malpractice, copyright, aviation, and white-collar crime, to name a few), to the more procedural (federal court removal, parties, third-party practice, etc.), to the more practical (case evaluation, investigation of the case, discovery strategy and privileges, motion practice, effective trial performance, etc.).
To be sure, readers could find more in-depth treatment of any one of the substantive or procedural topics elsewhere. A lawyer researching a procedural question, for instance, would find a more comprehensive discussion of the Federal Rules of Civil Procedure in Moore’s Federal Practice. But where else can you find nearly 80 substantive topics in one place? Besides, in-depth discussion of substantive topics, alone isn’t Business and Commercial Litigation’s calling card.
While its treatment of substantive legal topics is quite good, Business and Commercial Litigation really carves out a niche by combining its comprehensive treatment of substantive topics with a procedural discussion. A prime example is the chapter on bankruptcy.
Rather than provide an exhaustive discussion of plan confirmation, for example, the bankruptcy chapter examines the overlapping jurisdiction of bankruptcy and district courts. After disposing of some common misconceptions about bankruptcy courts and bankruptcy judges, the bankruptcy chapter primarily focuses on the effect of the automatic stay on pending district court litigation — a minefield for nonbankruptcy practitioners. There is also a useful discussion of another minefield: the authority of bankruptcy courts to hear purely state-law causes of action after the Supreme Court’s landmark decision in Stern v. Marshal. This type of discussion can’t be found in the leading bankruptcy treatises.
Where Business and Commercial Litigation distinguishes itself is the practical insights and practice aids it provides. The checklists at the end of each chapter are simply outstanding, and the forms at the end of each chapter are equally good.
Take the chapter on drafting complaints by Alan Mansfield. At the risk of overstating it, the chapter on drafting complaints is a tour de force. It begins with a thorough discussion of strategic considerations and preliminary concerns that go into drafting a complaint. Perhaps the best part is Mansfield’s explanation of the factors favoring notice pleading versus those favoring factually detailed pleading. A close second is his tips for drafting a complaint that will survive a motion to dismiss. Next, Mansfield succinctly discusses the Twombly and Iqbal pleading rules. Finally, the chapter concludes with a checklist for drafting complaints, as well as a sample three-count complaint that litigators should strive to emulate. Simply put, the chapter on drafting complaints should be required reading for new and experienced lawyers alike.
When I was a young lawyer at a big firm, I routinely knocked on doors of more senior lawyers to obtain their input on the seemingly endless issues I faced as a commercial litigator. Why not draw on that experience and wisdom? It was invaluable. With Business and Commercial Litigation in Federal Courts, that wisdom and experience sits a mere arm’s length away on a bookshelf. And the best part? It won’t cost $80 million of billable time.
Edward Comey is a member of The Florida Bar.
The Rooster Bar
by John Grisham
Reviewed by Robert M. Jarvis
John Grisham, the criminal lawyer-turned-novelist, likes writing about law students in trouble. In The Firm (1991), Mitch McDeere, a Harvard University law student, nearly lost his life after discovering his new employer was a mob front. In The Pelican Brief (1992), Darby Shaw, a Tulane University law student, was forced to go on the run after she figured out who killed two U.S. Supreme Court justices. In The Rainmaker (1995), University of Memphis law student Rudy Baylor had his only job offer rescinded just before graduation, leaving him no choice but to work as an ambulance chaser. And in The Associate (2009), Kyle McAvoy, a Yale University law student, was blackmailed into stealing confidential information.
Thus, it should come as no surprise that the protagonists in The Rooster Bar (2017), Grisham’s 25th novel, are three down-and-out law students: Mark Frazier, Todd Lucero, and Zola Maal. The trio are classmates at Foggy Bottom Law School (FBLS), a for-profit law school in Washington, D.C., owned by a rapacious investor, Hinds Rackley. FBLS is one of seven for-profit law schools that Rackley controls, and he uses them to generate huge profits by convincing naive students to take out crushing student loans.
When Gordon Tanner, another FBLS student, realizes he will never earn enough as a lawyer to pay off his debts, he kills himself. To avenge their friend’s death, Frazier, Lucero, and Maal decide to blackmail Rackley. They also drop out of FBLS, despite being just a few months from graduation, and begin practicing law using assumed names.
Grisham got the idea for The Rooster Bar (the bar over which Frazier, Lucero, and Maal set up their fake law firm) from a September 2014 article in The Atlantic, “The Law School Scam,” by University of Colorado law professor Paul F. Campos. The article described the enormous profits being made by Sterling Partners, a hedge fund that at the time owned three for-profit law schools. Grisham also weaves into his tale the Wells Fargo bank account scandal. In addition to FBLS, Rackley owns Swift Bank, which is the defendant in a class action lawsuit that accuses it of charging customers for products they did not request. Frazier, Lucero, and Maal use this fact to gain leverage over Rackley.
As with Grisham’s other books, The Rooster Bar becomes increasingly far-fetched as the story barrels toward its not completely convincing conclusion (which finds the trio running a bar in Senegal, Maal’s homeland). Along the way, readers get a good sense of some of the problems facing legal education and a reminder that despite the reforms enacted after the Great Recession (many of which now are being undone), Wall Street continues to make money by preying on average Americans.
Robert M. Jarvis is a professor of law at Nova Southeastern University in Ft. Lauderdale.