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Tuesday, September 25, 2012

On the Virtues of Brevity

" . . . [B]revity is the soul of wit,/And tediousness the limbs and outward flourishes . . ."- William Shakespeare, Hamlet, act 2, sc. 2
The capital defendant convicted in the American state of Georgia was up in the 11th Circuit federal court of appeals. One circuit judge--Ed Carnes-- wrote a 105-page opinion holding that although trial counsel's performance was deficient-- his lead defense lawyer drank a quart of vodka every night of the trial while also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds-- that deficient performance did not produce an unjust result, and the conviction and sentence should be upheld. Another circuit judge on the panel--Rosemary Barkett--dissented: trial counsel's performance was so bad, the defendant was entitled to a do-over.
But what is most interesting in this case for our purposes is that the third circuit judge--senior judge and former chief judge Mr. J.L. Edmondson (a photo of Chief Circuit Judge Edmondson is above, with the other chief  judges of the other federal circuits, etc. of the federal courts)-- concurred with Carnes instead of joining the longer opinion because 105 was just too damned many pages, and likely would lead to confusion about which parts of the opinion were binding precedent and which parts non-binding dicta and further might have error hidden in its near-interminableness.
In defense of Circuit Judge Carnes, to determine whether or not trial counsel's performance fell so low that it was practically the same as no representation at all is a fact-specific determination to be made on the record as a whole. If that's the case, the advocates and the opinion writer seem to need to go through the whole record page by page and line by line.
However, the story of this case is a cautionary tale about the unpersuasiveness of long, legal documents, and, probably more importantly, the unlikelihood that they will be read (For the amount of time suitable for the preparation of a blog post, even I, leisured as I am, will not take the time to read the whole long opinion I am writing about here.). As to the relationship between unpersuasiveness and length, there are some documents of which great length in itself belies the argument within it. The classic examples are: a motion for summary judgment and a response to a motion for summary judgment. I have seen motions for summary judgment that are more than a hundred pages long, but think about it. A motion for summary judgment states that there is some point that has been established as a matter of law or some necessary point that, after reasonable time for discovery, has had no evidence at all adduced in its favor. Surely, one could state the elements of the cause of action, state which one is proved or utterly lacks evidentiary support and ask for judgment. If it takes a hundred pages to make such a claim, then it is highly likely that the point about which the motion is made is undecided and must be tried. A response works the same way, in mirror image. A respondent shows how the point in the motion is controversial or unproved. As to most motions, shortness is better even where it may not be absolutely required. Edmondson's comment shows that a long document is inherently suspicious--the longer it is, the more likely it is to hide mischief. A short motion or response is welcome in the hand and leaves the reader confident that, if it is correct, the reader will be able to find that out, just by examining it.
OK, but what is a writer to do when faced with briefs or motions or opinions as to the record as whole or balancing tests which appear to require copious scribation? It's tough, but there are a few tricks to help. I'll talk about one here and that is the use of tables or lists. In the case of this opinion, it might take too long to manageably list all the acts or omissions that might constitute ineffective assistance of counsel, in which case one would make up different short lists for each part of the trial, in a format that brings together alleged acts or omissions that:
  1.  were, in fact, not wrong; or
  2. did not cause an improper verdict or judgment.
At the end, one would have to write about the trial as a whole, but that's probably not more than a single paragraph.

Remember Matthew 6:7: "But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking." For about 2000 years, it's been known that long-windedness is bad advocacy whether addressing God or judges who are subject to the temptation to think that the power they wield is divine.
The case is Robert Wayne Holsey v. Warden, Georgia Diagnostic Prison,  No. 09-14257, (11th Cir. Sept. 13, 2012, no cert. h.).
This case was originally reported on by Bill Rankin of the Atlanta Journal-Constitution, which was in turn spotted in by Howard J. Bashman in his How Appealing blog, which was, in turn, picked up by Debra Cassens Weiss in the electronic version of the American Bar Association Journal.

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