Lousy Legal Writing:

When my kids were small , both took music lessons (and as many of you know, my son Sam is forging ahead with a career as a pianist), and, as a result, I heard an enormous amount of really badly-played music; I probably went to 75 or 100 school-wide recitals and performances, and while they were all immensely delightful and uplifting – there is simply nothing more magical than watching kids make music, no matter what it sounds like – the musical bottom line is that 9 year old kids, even really talented 9 year old kids, can’t be expected to make beautiful music, and by and large they don’t. I realized, though, that I learned an enormous amount about music and music performance from listening to it badly-played, because it helped me to think about, and to appreciate, exactly what it is that is involved in playing music beautifully.

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing):

Judge Greenlights Cell Phone App Copyright Claims
Shannon P. Duffy
The Legal Intelligencer
January 07, 2011

THE TEXT OF THIS ARTICLE HAS BEEN REMOVED, AS A RESULT OF A DMCA TAKEDOWN NOTICE THAT WE RECEIVED FROM AMERICAN LAWYER MEDIA. I’LL POST SOMETHING ABOUT THAT SEPARATELY – IT’S A RIDICULOUS COPYRIGHT INFRINGEMENT CLAIM, IN MY VIEW, BUT I’M NOT WILLING TO HAVE ALM TAKE US TO COURT OVER IT. BUT YOU’LL JUST HAVE TO TAKE MY WORD FOR IT THAT IT’S LOUSY LEGAL WRITING …. SEE BELOW.

So – what makes it lousy legal writing? To begin (and to end) with: I have now read this through 3 or 4 times, and I still can’t figure out what the hell happened here. The first thing Ms. Duffy tells us is that Judge Jones “found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.” Now, I haven’t read Judge Jones’ opinion, but I would bet that this dog-bites-man “finding” – cell phone apps are a burgeoning and lucrative enterprise!! no kidding! — has absolutely nothing to do with the legal issues that he was resolving. So I’m off on the wrong foot at the very start.

There’s a pretty standard formula for writing about legal issues, and it’s a good one: start with the facts, describe the claims the parties made on the basis of those facts and the arguments they made in support of those claims, tell me what the court ruled, and then tell me why it ruled that way. Here, though, I don’t know the basic facts of who did what until paragraph 7, where the apps are described; then I have to go back and re-read the earlier paragraphs to figure out what the claims were; then I have to go forward again, to figure out what the court did, where I’m told that it dismissed Hershey’s counterclaims for infringement, “finding that [Hershey’s] team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.” Aaargh. That doesn’t really help me at all; I can sort of figure out what it means, but you’re making this awfully hard. And then, after that, Ms. Duffy goes on to tell me what arguments the parties made in support of their claims – requiring me to retreat once again and see how this new information helps me understand what the court ruled. It’s all horribly out of order and, as a consequence, it is incredibly difficult for the reader to understand what is, in fact, a very, very simple story. C minus, at best.