Ironic echoic fragments
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There's a hip/ironic rhetorical technique that involves mocking a statement by repeating bits of it as phrasal fragments. I was surprised to see this technique employed extensively in the "Plaintiffs' response in opposition to defendant Donald J. Trump's motion for summary judgment, or in the alternative partial summary judgment":
Donald Trump is too busy to be honest. So says Trump himself, who explains that he reviewed his own promises about his Trump University (“TU”) only “very quickly.” And therefore, he deserves summary judgment. Because he was too busy. To be honest. In addition, Trump explains that he was incapable of being honest because he “is not a lawyer.” And therefore, he deserves summary judgment. Because he was incapable of being honest. Due to not being a lawyer. Due to his integrity infirmities, Trump explains that he resorted to “marketing BS” to induce students to enroll in his Trump University. And therefore, he deserves summary judgment. Because he resorted to “marketing BS.” To induce students to enroll in his illegal “Trump University.”
Trump denies operating and managing the “fraudulent marketing scheme” alleged here because he only starred in the marketing materials; signed the marketing materials; corrected the marketing materials; and approved the marketing materials. And therefore, he deserves summary judgment. Because he did not operate and manage the Trump University “fraudulent marketing scheme.” He only starred in the marketing materials. Signed them. Corrected them. And approved them.
Trump wrote his motion for summary judgment for a District Court in Bizarro World. In this District Court, however, it is wholly without merit. Plaintiff respectfully requests that the Court deny Trump’s motion and set this case for trial as quickly as possible. On earth. In the Southern District of California.
Perhaps some of the lawyers among our readers can comment on whether this document is as unusual as it seems to me to be.
[h/t David Wessel]
Jon W said,
June 29, 2016 @ 12:08 pm
Legal advocacy is all about effectiveness: to what degree will this document lead the decision-maker to see things your way? This text doesn't strike me as effective, so I wouldn't have advised the authors to use it. That said, it's just a three-paragraph introduction preceding about 25 pages of more conventional argument.
Rube said,
June 29, 2016 @ 12:13 pm
I haven't drafted pleadings in like 30 years, and in a different country, but it makes my jaw drop. I like it, though, as an introduction — it has the effect of characterizing the motion for summary judgment as ridiculous right from the get-go.
Chris C. said,
June 29, 2016 @ 12:53 pm
I'm a little surprised this one hasn't been covered over at Lowering the Bar, but I understand Mr. Underhill has been a tad busy with real work recently.
Bob Ladd said,
June 29, 2016 @ 12:56 pm
The repetition of "and therefore he deserves summary judgment" reminds me of the repetition of "and Brutus is an honourable man" in Mark Antony's funeral oration in Shakespeare's Julius Caesar.
[(myl) Good point.]
J.W. Brewer said,
June 29, 2016 @ 1:19 pm
There's more variation in register in written legal advocacy in the U.S. than some might think. This is very much at the colloquial end of the spectrum and one would, I think, need to have a pretty good sense of the likely reaction of your specific audience (here, the specific judge) before deciding to go with it. But it might be effective if the context was correctly judged by the author. Also, this lawsuit has been going on for a while and sometimes when a given lawyer has an out-of-the-ordinary writing style and sticks to it consistently everyone else in the particular case (including the judge) gets habituated to it over time even if it is not well-calculated to be effective if encountered cold.
I would think the Trump side's lawyers would have used the stock legalese phrase "mere puffery" rather than the more colloquial synonym "marketing BS," but perhaps that's something Mr. Trump himself said in deposition rather than something his lawyers said in their motion papers submitted on his behalf.
Lay readers (and even non-lay readers w/o experience in the specific area) may not be aware that "operate and manage" is a crucial concept in civil RICO litigation and as such may have deviated over time as the case law has developed from a non-specialist common-sense understanding of that phrase.
[(myl) Apparently the phrase "marketing BS" does come from one of Donald Trump's depositions — at least it's quoted as such in this document on p. 7 line 22. But I don't see it in this set of transcripts.]
Jon W said,
June 29, 2016 @ 2:04 pm
Re "marketing BS": not exactly. The citation in plaintiff's brief refers to a reference in defendants' summary judgment brief, which in term cites an exhibit I can't find online, but which *seems* to be a deposition statement made by a Trump University customer that s/he had understood Trump's reference to "secrets" to be mere "marketing BS," not as a literal promise to disclose his secrets. See https://assets.documentcloud.org/documents/2811574/CohenvTrump.pdf
leoboiko said,
June 29, 2016 @ 2:10 pm
If we can have an amicus brief full of klingon words and proverbs (complete in pIqaD writing), I don't see why not a rhetorical flourish of exasperation.
Dave Cutler said,
June 29, 2016 @ 2:51 pm
I particularly enjoyed, in this era when superhero comics aren't just for children anymore, the appearance of Bizarro World.
john burke said,
June 29, 2016 @ 3:44 pm
I knew a lawyer (I'm not one) who recommended that, instead of starting with boilerplate ("At all times referenced in this complaint, defendants and each of them were residents in the County of bla bla"), the complaint should assert the substance–the specific tort complained of–and append the boilerplate to it. The boilerplate is necessary but as far as I know there's no rule that says it has to precede the non-boilerplate, and this lawyer believed doing it out of the usual sequence was a good way to get the attention of a bored judge.
Tom said,
June 29, 2016 @ 6:28 pm
There's strong echoes of Trump's own oratorial style in the writing here, which may be part of the point.
ohwilleke said,
June 29, 2016 @ 6:40 pm
This is unusual, but not unprecedented in either legal briefing or in judicial opinions, and in this particular example, probably not "out of bounds."
The fact that the judge in question has been publicly attacked based upon his national origin by Trump also likely makes the audience more receptive than he might have been.
John Burke is quite right that while there is a tendency to drone on for a few pages of boilerplate before getting to the substance of a legal document, that an effective, clear non-boilerplate summary of the gist of the dispute. preceding the details analysis can be very effective and that not boring the judge is a constant worry in legal writing.
It is actually very hard to write this kind of summary, even without the stylistic liberties that were taken. You have to distill a huge amount of material to its very core without the false but intense worry and instinct that it is dishonest to sum up an argument without stating every fine detail of it. To do that, you have to build up credibility with the judge, in prior filings and in the rest of the document, that your bare summary will bear out to be true.
Guy said,
June 29, 2016 @ 7:25 pm
@ohwilleke
The judge, who was born in the United States, wasn't attacked on the basis of his national origin. He was attacked on the basis of his ancestry.
AntC said,
June 29, 2016 @ 7:28 pm
I'm no lawyer (although I have been an expert advisor in drafting contracts and in contract dispute — one being written under the laws of Florida). But my jaw is well through the floor.
Given all sorts of duplicitous behaviour up to and around the GFC, the bar on Company officials acting responsibly and taking due diligence is constantly rising.
I can imagine it: President Trump is too busy to be honest. He resorted to marketing BS in negotiations with North Korea. So the people of the Western seaboard do not deserve to be nuked to smithereens by Pyongyang — pleease.
The electorate of the (allegedly) world's greatest democracy deserve everything they vote for. The rest of the world has no vote. But we're going to be the ones suffering the consequences. Can we build a wall round America to keep Trump in? At his expense of course.
J.W. Brewer said,
June 29, 2016 @ 8:25 pm
FWIW, in American legalese "national origin" often covers not only personal origin as an immigrant but also actual-or-perceived national origin of ancestors, which is approximately equal to ethnicity. This is in part because the federal anti-discrimination laws tend not to specify ethnicity-as-such, instead prohibiting discrimination e.g. "because of such individual's race, color, religion, sex, or national origin." So in order to get at ethnicity-based discrimination that can't be plausibly characterized as involving race or color, "national origin" is what you have to work with.
I would suggest to AntC that he at least consider the possibility that the quoted brief is a work of advocacy which should not necessarily be assumed to be a fair and neutral summary of the arguments made by Trump's lawyers on his behalf.
I have now skimmed the rest of the brief. Most of it is written pretty far toward the colloquial end of the range of styles I've encountered in briefs over the course of my career. In some stretches I think it's actually pretty effective; in others I think it's not and comes off at best as the sort of handwaving people engage in when they're trying to distract the reader from a boring technical issue that's maybe actually a problem for their case. Also the brief consistently violates one of my own strongly-held pet peeves concerning this genre of writing — either italicize words for emphasis or boldface them, but do not do both simultaneously, because it makes you come off like the sort of crazy person whose internet comments frequently lapse into ALLCAPS. But some of the law firms on the plaintiffs' side have been quite successful in high-profile/high-stakes cases before, so I unfortunately can't claim that failure to comply with my pet peeves is a career-destroying mistake.
Noscitur a sociis said,
June 29, 2016 @ 10:34 pm
I am a lawyer, and I guess my answer depends on how unusual you think it seems to be. I would say that most lawyers probably wouldn't write like that, so it's unusual in that sense — but I'd call it common enough that I don't think I'd find it particularly noteworthy if the lawsuit itself weren't already a matter of public interest. It certainly wouldn't disturb the equilibrium of my jaw.
Mary Kuhner said,
June 30, 2016 @ 2:09 am
I was more surprised when a pretty standard legal argument on whether a company (I think it was AT&T) could be said to have "personal secrets" and a right to privacy with regard to them, ended with a standard statement that no, companies don't have personal secrets, and then the final sentence:
"We trust that AT&T will not take it personally."
Just wasn't expecting that one–excellent delivery!
Hans Adler said,
June 30, 2016 @ 4:17 am
This seems to be calculated for maximal political damage by becoming viral. Which seems fair to me, given that the defendant tried to use politics to intimidate the judge.
Brett Dunbar said,
June 30, 2016 @ 5:33 am
In other English language legal systems race tends to be interpreted much more broadly as including any kind of ethnic or national group, without any requirement that they be visibly different. For example Irish Travellers are recognised as a racial group under the Race Relations Act 1976 and the Equalities Act 2010.
L said,
June 30, 2016 @ 8:18 am
I am a lawyer, and a writing lawyer at that.
I find this style unusual, but not out-of-bounds. I think there is a trend toward a more conversational, colloquial style, and a definite push to move away from stuffy legalese. I don't know if I've seen a brief take it this far.
But it's worth noting that this is in the "Introduction" portion of the brief, where I think the drafter can be a little more free in terms of style. I don't see the same style in the "Argument" portion. Personally, I would not use this device in an argument or an introduction, but again, I don't think it's out of bounds.
BUT – before using a device like this, I think the attorney has to be very very very sure that his opponent's arguments are as ridiculous as the attorney thinks they are. There was an opinion out of the Sixth Circuit a few years ago that discussed this a little — I can't find a link to the thing, but it began:
"There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct."
Whoops. Link: http://volokh.com/2013/09/24/ridiculous-argument-correct/
J.W. Brewer said,
June 30, 2016 @ 9:17 am
@Brett Dunbar: my impression is that the semantic scope of "race" in AmEng has shifted over time, so that in the 19th century it would have been much more common to talk about the "Irish race" (or at least the "Celtic race") whereas that would have sounded much odder by the mid/late-20th century. The relevance of this to American legalese is that we have two different strata of important federal civil rights statutes, one set enacted shortly after the end of the Civil War in 1865 (and thus written in what may have become slightly archaic language) and the other set enacted approximately a century later. The 1860's ones don't tend to mention "national origin" and I believe at least some courts have taken "race" in those earlier statutes to cover e.g. "Irish ethnicity" whereas the same courts would be more comfortable treating Irish ethnicity as "national origin" when interpreting one of the more recent statutes.
J.W. Brewer said,
June 30, 2016 @ 11:10 am
One additional factor here is that *if* the judge is going to deny Trump's motion he has every incentive to do so (given the high profile the case has taken) in a way that appears to be bending over backwards to be fair to Trump, giving his lawyers' arguments careful and thorough consideration before rejecting them, etc. The professional ethos of the judiciary is generally that you must be in theory (and can be in practice) capable of remaining dispassionate even when faced with obnoxious behavior that might provoke an ordinary person to lose their temper. So the plaintiffs ought to want to give the judge all of the raw material he might need to rule in their favor in a way that appears to have given Trump every benefit of the doubt. The breezy/colloquial/dismissive style doesn't mean they haven't done that as to substance, of course.
Bloix said,
June 30, 2016 @ 5:38 pm
Ridicule is common in American legal writing. For many years, citations to Alice in Wonderland were popular, but that seems to be out of fashion. I haven't seen this particular rhetorical style before now in a brief. It may rub the judge the wrong way but the law clerk will laugh his or her head off.
The only problem with it I see is that "too busy to be honest" is treated as if it were a direct quote ("so says Trump himself") and I don't see that it is. And I doubt he said anything so incriminating. If Trump said, "I was too busy, to be honest" and they're twisting the meaning, I would say, that's borderline, but if he didn't say it at all, the lawyer is coming awfully close to misrepresenting the testimony.
David Lloyd said,
June 30, 2016 @ 8:43 pm
To answer the direct question very directly, this form of writing is highly unusual in legal writing (yes, I'm a lawyer who writes a volume of briefs). Legal briefs most often use complete sentences, string together sentences into paragraphs, and follow rules such as no-split-infinitives. The writer of this brief is taking a "huge" risk that the judge will appreciate the forcefulness of the writing and overlook the dramatic departure from the standard–unless the particular judge hearing the case is known to appreciate this kind of innovation.
Ray said,
June 30, 2016 @ 9:41 pm
this seems written for the court of public opinion rather than the court of law. like, how calvin and hobbs, or doonesbury, or al capp would appear in the pages of a respectable newspaper still clinging to the notion of journalistic impartiality. as that lady said in one of those hannibal lecter movies, "hannibal, confess. what IS this divine-looking amuse bouche?"
Bloix said,
July 1, 2016 @ 5:28 pm
I don't think plaintiff's lawyer is taking a risk. Trump is moving for summary judgment, which is granted only where the moving party shows that there are "no genuinely disputed issues of material fact" – ie, there are no facts for the jury to decide and the issues of law, which are the province of the judge to decide, must be decided in the moving party's favor. (That is, either the parties agree on what the facts are, or one side's alleged "facts" aren't supported by any evidence.) In such a case, there would be nothing for the jury to do, and the court can grant judgment in a "summary" manner – without a trial.
In this case, the parties don't agree on the facts and it's plain as day that the facts alleged by the plaintiff are supported by evidence. Therefore, there's no chance that Trump's motion for summary judgment can be granted. His lawyers are merely delaying. Even if the judge doesn't like the style, he's going to deny the motion, and he'll be more annoyed with Trump for wasting his time than with the plaintiff for the snarky brief.