Notes of the tautological type

I have kept the notes to a minimum, and avoided the tautological type entirely (“This is the name of a sage,” “Here the hymn switches from the singular to the plural”), for these seem to me mere automatic reflexes and conventions into which translators often lapse, like hosts showing their guests a new house (“This is the kitchen,” “This is the bedroom”).

–Wendy Doniger, introduction to The Rig Veda: An Anthology

… Legal writing has its own “automatic reflexes and conventions.”

  • When you’ve written out “Nine Thousand Dollars,” is it really necessary to add “($9,000.00)”–given that the written-out words would likely control if the two conflicted?
  • When you’re appealing an administrative order by the Department of Bureaucracy, must you add “(hereinafter ‘The Department’)” after you first name it in your brief, as if the court were going to be confused what department had aggrieved your client?

Other examples are left to you to post in comments.

Bystander liability in Mississippi: the Court splits 5-4 (plus: election contest & gay divorce)

Justice Pierce’s opinion for the MSSC today on bystander liability provides a glimpse into the internal back-and-forth of the Court’s opinion-writing. The issue has been the proper application of the “Dillon/Entex” factors adopted by the MSSC some time ago from California jurisprudence.

¶21. The dissent next calls us out for spending the first seven pages of our analysis relying principally on California caselaw to point out why the dissent is wrong instead of analyzing the case at hand. Here is why we did so. Prior to the dissent, our opinion began by thoroughly analyzing this case under the Dillon factors adopted by Entex (see supra and infra). The dissent, however, realizing that the undisputed facts of this case do not ascribe to the plain language of the Dillon/Entex factors, responded by contending that we had misinterpreted Entex. According to the dissent, because the Entex Court favorably quoted from Dillon, where the Dillon Court stated that courts should “take into account” the three Dillon factors when evaluating whether a bystander was a foreseeable plaintiff, we were wrong to treat these factors as prerequisites. And, according to the dissent, “a jury should decide whether the unique aspects of this burn injury should entitle Acey to relief.” In response, we posed a number of questions that we had hoped the dissent would take into consideration, as California ultimately was forced to do. The dissent’s response: “I simply am not concerned with post-Dillon jurisprudence in California. My concern is [Mississippi’s] bystander liability jurisprudence, and [that] this Court never has said–until today–that the Dillon factors are ‘mandatory requirements.’”
¶22. We failed. Rather than offer any legal explanation (or–rather–reasoning) why or how someone who was neither at or near the scene of the accident when it occurred, nor experienced a sensory or contemporaneous observation of the accident, may constitute a foreseeable plaintiff for bystander recovery under the Entex standards, the dissent stresses that Entex instructs that the Dillon factors need only be taken “into account.” The only conclusion this logic yields is that Entex provides no standard at all. We do not so interpret Entex.

The case is an interlocutory appeal by Entergy from denial of summary judgment where a child was electrocuted and the mother viewed the horrible injuries upon her later arrival. Five justices agree that summary judgment should have been granted for Entergy; Justice Lamar writes for the dissenters. “My response to the majority’s statement that I am overlooking ‘all the Mississippi caselaw that plainly rejects’ my position is simple: ‘What law?’ “

… The Court also decides an election contest. No, not the one you’re thinking of.

… The gay-marriage suit filed in S.D. Miss. got some attention earlier this week, but as an order in today’s handdowns reminds us, an appeal from DeSoto Chancery continues to unfold: Lauren Beth Czekala-Chatham was married in California and wants a divorce in Mississippi court, but can’t get one because it won’t recognize her marriage. The Court ruled 8-1 to allow the ACLU to enter an untimely amicus brief.

Police-on-police brutality?

The sheriff of Panola County, Miss. was sued for excessive force, wrongful arrest, and related wrongs. I don’t know whether that’s unusual for the Panola sheriff, but the suit is certainly unusual in being brought by a police chief and assistant police chief, who claim to have been the victims.

District judge Mike Mills denied summary judgment to the defendants. It’s nine pages – Burdette v Darby SJ order – and defies easy summary.

What happened in the Como police station is disputed, and the audio tape is far from clear. The events at the center of this lawsuit seem to be the result of a seething personal conflict and an internecine power struggle between the Panola County sheriff’s department and the Como police department. Mace and handcuffs elevated picayunish strife into a federal law suit.

(The town of Picayune, Miss., probably would vehemently disagree with that characterization.) Also includes the judicious sentence, “The question becomes whether the statement ‘I’ll kick your goddamn ass,’ rises to the level of probable cause to arrest Chief Burdette for simple assault.” Read the whole thing, and drive carefully through Panola County, particularly if you’re in a Como police car.

For those still pining after easy summary, there are various news items, including this one. White sheriff, black chief, for those keeping up with such things.

Fall meeting for Mississippi judges

Mississippi judges are holding their fall meeting. TBA has obtained a copy of the morning agenda:

9:00 – meeting begins
9:24 – judges actually enter room
9:25 – Pledge of Allegiance, led by Judge Littlejohn (MANDATORY)
9:30 – Panel: Rule 56 – what is it even for? Led by Judges Kidd and Bowen; response by Judge Weill
10:20 – Panel: Social media behind the bench – the judge’s best way to stay awake? Led by @Justiss123 and @lifewithoutparole4ever
11:10 – Panel: Can we hold gays in contempt for even entering our courthouse? Led by Judges Grant and Fairly
12:00 – LUNCH

Anyone seen the afternoon agenda? Post excerpts in comments!

All the rest have thirty-one (do they not teach that in law school?)

A harsh but correct ruling at the COA is reported on by intrepid court-watcher Jane:

a final judgment was entered on January 28, 2013. On February 28, 2013, Rodwell filed a notice of appeal. “Our review of the record reflects Rodwell indeed filed his notice of appeal thirty-one days after the trial court denied his motion for reconsideration, and therefore, Rodwell filed an untimely notice of appeal.”

Mississippi, not unlike some other jurisdictions, gives you 30 days to appeal. Not “one month.” January, as that helpful little rhyme reminds us, is not one of the 30-day months. You think “February 28″ and then you subtract one for the extra day in January.

They actually make little cardboard wheels that can be used for computing the more lengthy deadlines (mine came from a court reporting firm). Or one can choose to rely on The Deadline Calculator. I’ve been known to just count squares on the calendar, though, because I’m not sure how to explain to a court “well, that wheel thingy gave me the wrong date.”

Regardless, my lawyering friends: beware the 31.

… An afterthought: if you’re going to dismiss the appeal like that, do you need 17 paragraphs of facts about the details that you’re not going to consider? I wonder if the judge/clerk wrote an op and then was all like “oh man, this appeal wasn’t even timely.” Did that myself on a 54(b) once (no final judgment as to all issues/parties, hence not appealable); gave me a lifelong appreciation for that rule.

“Deep in Word’s arcane Platonism”

Here’s poor pitiful me trying to work my way into the labyrinth of Microsoft Word, and no less a figure than Edward Mendelson shows up at NYRB to tell me I’m wrong to renounce WordPerfect:

The word processor that most of the world uses every day, Microsoft Word, is a work of genius that’s almost always wrong as an instrument for writing prose. Almost-forgotten WordPerfect—once the most popular word-processing program, still used in a few law offices and government agencies, and here and there by some writers who remain loyal to it—is a mediocrity that’s almost always right. * * *

The original design of Microsoft Word, in the early 1980s, was a work of clarifying genius, but it had nothing to do with the way writing gets done. * * *

When I work in Word, for all its luxuriant menus and dazzling prowess, I can’t escape a faint sense of having entered a closed, rule-bound society. When I write in WordPerfect, with all its scruffy, low-tech simplicity, the world seems more open, a place where endings can’t be predicted, where freedom might be real.

This is all more profound than the sole notion I’d formed thus far, which is that Word seems like a publisher’s idea of how a writer works. A publisher has to think about chapters, sections, title pages, indices, etc., and may therefore think of the work as a set of boxes. But publishers start with a text that a writer has brought to them; they don’t try to compose the document that way. Writers just want to write.

And you thought Rehnquist’s stripes were bad

The Supreme Court of Pennsylvania is getting some unwanted attention, as a judicial coup results in the suspension of one justice for sending a great many NSFW emails on his work account—and, more pertinently we think, allegedly threatening to blackmail a fellow justice. The suspended justice blames, among others, his alleged blackmail victim and the chief justice, whose concurring opinion in the suspension suggests that his suspended colleague is a “sociopath” and says that “Justice McCaffery is correct in one of his allegations against me. I have been attempting to remove Justice McCaffery from this Court.”

But is all that the real problem with the court? I think not. Here is the real problem with the court:

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Ya gotta be kidding me. Is this graduation?