Civil Procedure
Judge Labels Lawyer’s Motion Nearly Incomprehensible, Marks Up Errors
Posted Sep 22, 2009 7:01 AM CST
By Debra Cassens Weiss
A federal judge irked at grammatical and typographical errors in a motion for dismissal has blasted the Florida lawyer who filed it and ordered him to copy his client on the criticism.
U.S. District Judge Gregory Presnell denied the motion to dismiss without prejudice, saying that it was “riddled with unprofessional grammatical and typographical errors that nearly render the entire motion incomprehensible.” The judge also attached a copy of the motion that drew his ire, complete with red markings pointing out the errors. Above the Law has the story.
Presnell's order (PDF) also criticized the lawyer, David W. Glasser of Daytona, Fla., for failing to obtain a stipulation of dismissal from the defendant as required by procedural rules and ordered the lawyer to re-read both the local and federal rules in their entirety.
The judge’s marked-up version of Glasser’s motion pointed out these problems:
• Several examples of excess spacing.
• Incorrect use of apostrophes.
• Typographical errors (using the word “this” instead of “thus” and the word “full” instead of “for”).
• Incorrect placement of periods and commas outside of quotation marks.
• Incorrect capitalization.
• Wrong word use (using the phrase the plaintiff “had attended on filing” this action, instead of saying the plaintiff had “intended” to file an action).
• One very long sentence.
Here is an example of some of the problems: “A review counsel’s file subsequent to the court order indicates that for some reason full which counsel is unaware, the defendant named in the complaint was changed to the current defendant. Counsel believes this was changed by counsel’s prior assistant it was no longer with counsel’s firm.”
Glasser did not immediately return a phone call from the ABA Journal seeking comment.
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Comments
B. McLeod
Sep 22, 2009 7:29 AM CST
Now I feel better about some of my past typos. It really does seem that no matter how many times I review for errors, some still get through. (I also see the same with frequency in filings by colleagues, and even documents generated by the courts). Few, however, rival the example in this story.
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Matt
Sep 22, 2009 7:46 AM CST
Would this meet the level of malpractice? Quite honestly, I’m not sure, because I’ve never seen so many errors in one document.
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D
Sep 22, 2009 8:54 AM CST
The filing has its share of errors, and I make no excuses for its author. But the judge has overreached here. There is no reason to capitalize words like “order” and “motion” and “dismiss” unless they were established as defined terms earlier in the filing. Here, they were not. Too many in our profession capitalize words that do not warrant that treatment, and Judge Presnell seems to have fallen prey to that habit.
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joe
Sep 22, 2009 9:04 AM CST
Isn’t the judge obligated to rule on the law in a motion. A brief can have 100 typos and spelling errors. A judge can’t throw it out becase of that. He can rip it to shreds but the law still trumps.
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William Stanley Daniel
Sep 22, 2009 10:03 AM CST
Proofread, proofread, proofread!
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DB
Sep 22, 2009 10:08 AM CST
Its clear that Glasser dictated the motion to a not very good secretary and then failed to read it before sending it to the court. You can see where the assistant tried to guess or typed Glasser repeating himself.
More importantly, no one has commented on the substance of the motion, which seems to be that Glasser is seeking to dismiss the action because he screwed up and named the wrong defendant!
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Walt Fricke
Sep 22, 2009 10:47 AM CST
Maybe this is an example of a voice recognition program (instead of a secretary) combined with a failure to read before signing?
Mr. Glasser must have done something else to provoke such judicial ire. Though leaving a person mistakenly (?) named as a defendant in the case for even a minute longer seems unfair to that person.
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Matt
Sep 22, 2009 11:16 AM CST
#4 - I assume that’s why the judge dismissed the motion without prejudice.
#5 and #6 - I think it’s clear that the main failure lies with the person who put his signature on the document. I would never sign my name to something that I haven’t gone over with a fine-toothed comb for errors.
As it stands, however, the subject matter of the document is not quite as amusing as the lack of attention to common grammar - at least, not to me.
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Esq.
Sep 22, 2009 1:47 PM CST
I think the Judge went a little overboard in pointing out that the period belongs inside of the quotation marks, or that “See” should be either underlined or italicized.
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tim
Sep 22, 2009 1:48 PM CST
I’m not an English guru by any stretch but it would be funny if someone could find an error in the opinion that the judge wrote.
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Sandy
Sep 22, 2009 8:39 PM CST
While I agree with Judge Presnell that Strunk & White (“Elements of Style”), along with virtually every English grammatician requires that the “,” and “.” be within the quotation marks, I would argue that that rule creates unnecessary ambiguity. Consequently, I include only the quoted passage within the quotation marks. I may be wrong in that practice, but, at least my writing lacks unnecessary ambiguity.
With respect to the other issues, I applaud Judge Presnell for taking the initiative of “marking up” the pleading and requiring that it be served on the client.
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zekethewonderdog
Sep 22, 2009 8:48 PM CST
The quality (or lack thereof) of young lawyers today is astounding. I have experienced first hand some of the jibberish Judge Presnell is talking about. It is amazing to me that these folks are (1) law school graduates and (2) have passed a bar exam somewhere.
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Virginia
Sep 23, 2009 5:29 AM CST
Agree with you Sandy (#10) about quotation mark use. You are using British practice, which I think Americans should adopt. BTW, I also think they should adopt our spelling.
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No Proofing
Sep 23, 2009 6:10 AM CST
It appears that Mr. Glasser used dictation software directly to the word processor, then, being in a hurry, forgot to proof.
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A. L. DeWitt
Sep 23, 2009 8:08 AM CST
Someone should take a look at the last 20 opinions penned by the judge and examine them for grammatical insufficiencies. Sorry, but the errors are likely artifact from dictating pleadings. If you type your own stuff, you rarely have this issue.
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Allyson
Sep 23, 2009 9:28 AM CST
Zeke (#11): Glasser was admitted to practice in 1988. After 21 years in practice, I’d hardly classify Glasser as a “young lawyer.” Unfortunately, a lack of knowledge concerning, or willful disregard for, basic grammar concepts and Bluebook/style rules isn’t the exclusive province of young attorneys.
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Legal Assistant
Sep 23, 2009 2:48 PM CST
It is eggregious that a very educated person presents such a manuscript to a court and signs his name to it. I’ll bet that this attorney was born and raised in this country. I was raised in an Italian-speaking household and had to learn English before entering elementary school. I’ll stack my command of the English language up against this lawyer any day!
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Carlene
Sep 23, 2009 3:58 PM CST
I honestly feel badly (is that grammatically correct? probably not) for this attorney. I imagine he was up against a deadline and had to crank out this document - perhaps, as mentioned in other comments - via dictation that was not proofed due to time constrainsts. I endeavor to be very accurate in all the communications I prepare, including e-mails, yet too often, I will later spot a dropped word or letter which I did not see and which was not caught by spell checking. I cannot throw stones here. Continuing to disparage this attorney’s writing is not kind and it accomplishes nothing. The Judge has handed out plenty of punishment already.
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Abby Spice
Sep 23, 2009 5:17 PM CST
Hey, Legal Assistant/#16? “Egregious” only has two “g’s”, and they are not next to each other. I guess you’re not “a very educated person”.
Also, I believe you mean “up against this lawyer’s”, unless you are actually stacking your command against the lawyer himself.
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BMF
Sep 25, 2009 2:35 AM CST
I notice that many of the words that are misused begin with the same letter as the correct word. While this could be attributed to faulty dictation—coupled with a heavy southern accent, it also may be due to that annoying spellcheck function that autocorrects typos to the closest word in its lexicon. When you know what you want a brief to say, and you’re pressed for time, if the misspelled/misused word doesn’t have that little red line under it, it’s easy to miss it.
By the way 16, I grew up in a multilingual environment. This has neither hindered nor helped improve my basic keybaording skills. And for many older attorneys who have arthritis, it is difficult to type with accuracy.
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DCD
Sep 25, 2009 3:45 AM CST
I have a Master’s Degree in Professional Writing and a Juris Doctorate as well. I previously taught college writing courses. I now write briefs, motions, letters, etc. for a living. It does not matter how many times I proofread a document, some mistakes will inevitably slip through. I was embarrassed to find 2 spelling errors in a U.S. Supreme Court brief I drafted, but I have come to realize that they are the minutiae which attend voluminous amounts of writing under tight deadlines.
This document was an extreme case, but it did not require that vindictive critique from the Judge. If the Motion were not sufficiently clear, the Judge could have taken a less-drastic step of simply requiring resubmission.
On this point, I have had ethics charges filed against me by at least one (State) appellate court for an “insolent” footnote. In that note, I pointed out a pattern of prior rulings by this particular circuit and questioned the strict adherence to a particularly insignificant sub-subsection of the appellate rules. I was honestly just trying to convey a fair point, but the “delicate” judges found my critique of the court too tart for their sensibilities. So, I got to spend seven hours crafting a response to an ethical misconduct allegation. After that experience, I tend to cut my fellow practitioners considerable slack. Unless the lawyer assails the court or its members, s/he should not be faced with public ridicule for innocent and/or dumb mistakes.
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Barry
Sep 25, 2009 4:36 AM CST
I am guessing he used voice dictation software and didn’t proof read.
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Milton
Sep 25, 2009 5:16 AM CST
You ain’t saw mark-ups ‘til ya saw J. Murphy’s on Atlanta bankrtpcy panal.
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Clarence
Sep 25, 2009 5:39 AM CST
Joe, the judge did rule on it.
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James
Sep 25, 2009 5:53 AM CST
I have not looked at a Blue Book in years, but I did not think that “court” was capitalized in the circumstances noted by the Judge in the motion.
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opponent
Sep 25, 2009 6:06 AM CST
I’ve actually run up against Glasser on several occasions. He’s American, and doesn’t have any language barrier preventing his proper application of grammar and spelling. He’s also a one man operation, and I can guarantee that there was no “voice dictation software” used. This is just the caliber of his pleadings, and he’s sued the wrong people on a number of occasions. He’s based out of the Middle District, so chances are he stumbles across these particular federal judges, particularly in Orlando, on a regular basis, and they’re probably tired of his shoddy pleadings.
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Tracy
Sep 25, 2009 6:17 AM CST
As a judicial law clerk to a judge on Florida’s Second District Court of Appeals, I can tell you that we routinely see briefs filed with these sorts of errors from lawyers at every level - BigLaw included. Often it is clear that the lawyer has not opened a Blue Book since his or her first year of law school and has not seen a Gregg’s or Strunk & White in years, if ever. While typos, poor word choice, and Blue Book errors do not go to the substance of the lawyer’s arguments, they certainly impact the lawyer’s perceived credibility as well as the perceived quality of his or her research. The perception is that if you are sloppy with your writing, you are equally sloppy about the facts and the law.
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philosopher
Sep 25, 2009 6:31 AM CST
So I can’t put the following in my motions?
When a wrinkled garbage can is ridiculously feline, we find that another chess board over a self-loathing industrial complex graduates from a highly paid carpet tack in the beginning of February. Now and then, the mortician for the garbage can grudgingly shares a shower with a false fire hydrant. When an orbiting buzzard trembles, a wheelbarrow hides and the hummingbird buries a moronic baseball card. Sometimes the barely canine paycheck flies into a rage, but the elusive roller coaster always dictates that fungus grows under a Tiffany pencil. The surly cargo bay requires assistance from a linguistic power drill living with a lover! A non-chalantly incinerated insurance agent related to a vacuum cleaner throws a thoroughly impromptu bullfrog at a steam engine. However, an infected wedding dress generally finds subtle faults with a crispy traffic light.
Wow. That sounds discriminatory. Everyone understands the import of these divine truths, right?
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Robert
Sep 25, 2009 6:32 AM CST
I agree with Tracy. I was a judicial law clerk in Florida for 10 years and now I am a Hearing Officer, and this problem in common. I don’t believe it has anything to do with the number of years the attorney has practiced. I believe this practice results from a lack of overall preparation and attention to the case. I know that when I was in private practice, I often failed to catch typos myself, but my paralegal or secretary would catch them. Additionally, when I submitted something to a federal judge, I would review it even more because it was my belief that the federal judges really did read everything that was submitted.
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Sam
Sep 25, 2009 6:56 AM CST
I have a few observations. Reasonable people can disagree on which words should or should not be capitalized, but we all should agree that internal consistency within a single document is required.
This is not an example of a handful of typos in a 50 page brief. Neither is it a document where the meaning and intent of the author is always clear and the nature of the mistakes obvious to the reader. The ratio of mistakes to words here is astoundlingly high and would not be acceptable in 5th grade.
Digressing, my all-time favorite lawyer blunder was a brief filed by opposing counsel in a 2nd Amendment case in which “militia” was spelled correctly only once (in the direct quotation of the amendment) and was otherwise spelled “melisha” throughout the document.
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Older Guy
Sep 25, 2009 7:01 AM CST
#27—legal Mad Libs?
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B. McLeod
Sep 25, 2009 7:11 AM CST
@ 29, are you sure counsel didn’t mean his sweetheart, “Melisha”? Maybe she packs a LadySmith (or a little Derringer, like Nancy Reagan carried).
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mainelawyer
Sep 25, 2009 7:22 AM CST
At least one of the judge’s mark-ups is clearly in error - on the first page of the motion.
When you end a sentence with quoted text from another source, but the original text does not end in a period, the period that ends your own sentence should be placed outside of the closing quotation marks, not inside. Judge Presnell gets this backward, by circling an instance of correct usage in the brief.
Glasser’s brief is pretty bad, but I’ve read plenty of court opinions that were even more cryptic.
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Traditionalist
Sep 25, 2009 7:24 AM CST
Good for the judge! If we can’t write any better than our clients, or care enough to proof what we submit to a judge on their behalf, what distinguishes us from non-professionals?
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DK
Sep 25, 2009 7:32 AM CST
Where judges really need to take this sort of drastic action is not with respect to typos and obvious sloppiness (a simple returning of the paper for resubmission would have sufficed), but rather with respect to the numerous papers they see every day in which counsel (a) exaggerates the evidence (if any) that backs his or her assertions, (b) fails to provide support for his or her assertions, (c) insinuates facts he or she knows are untrue; and/or (d) uses various forms of colorful, emotional-seeking rhetoric or subtle word choices often designed to inflame or smear, and to cause the court to render emotional-based (“good guy” versus “bad guy”) decisions versus law-based decisions.
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BirdSmack
Sep 25, 2009 7:50 AM CST
No. 2 - “Legal malpractice” requires damages and from the article is does not appear that Mr. Glasser’s client suffered any.
No. 4 - Joe, you tell an Article III judge that only the law matters and see how far it gets you.
No. 16 - Unless you’re talking about a bad egg, “eggregious” is actually spelled “egregious.”
A much more amusing order was entered by Judge Kent in the Southern District of Texas in Bradshaw v. Unity Marine. I don’t have the cite handy, but it makes me laugh everytime I read it. About once a year, I pull it out, laugh, and distribute it to the firm as a reminder.
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flalaw2003
Sep 25, 2009 7:51 AM CST
I agree with the judge. His opposing counsel would be required to perform one heck of a mental dance to grasp the pointg of the motion. There is no excuse when law students and college students with law school aspirations would have jumped at the chance to assist and hopefully gain some experience.
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Richard Hunt
Sep 25, 2009 7:51 AM CST
The judge’s action fails to address the real problem, which is not that the lawyer is a sloppy writer, but that he is a sloppy lawyer. Bad writing is just a symptom of the disease, which should have been treated by referral to the local disciplinary committee or by an order requiring the lawyer to demonstrate understanding of his ethical obligations to his client and the courts as a condition to further practice in the local federal bar. Humiliation is pointless—what is required is discipline.
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Andy
Sep 25, 2009 7:52 AM CST
Only an appointed Federal Judge would be pompous enough to do this. It could have been handled much better and with more professionalism and compassion by the judge. I can understand if the attorney, time in and out, submits documents that have not been proof read. If this was an isolated instance then shame on the judge for such ridiculous and otherwise undeserved punitive comments. Absent recurring problems by the same attorney, there is no excuse for such measures…it should have been handled privately——with the attorney warned. (Sorry if the last was too long!!!)
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kasey
Sep 25, 2009 7:52 AM CST
As a young associate I was taught that a brief or pleading that is riddled with errors not only shows dsrespect for the court but also shows a disrespect and lack of interest in your client’s cause. It conveys laziness if not a lack of zealousness in your representation.
Also, when I read this motion it was unintelligible in various spots.
Interesting that the judge ordered the attorney to show this to his client. If I were the client, I would be thinking long and hard about whether this attorney should be representing me.
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Sam
Sep 25, 2009 7:56 AM CST
What is a blue book? The only thing a cite needs is to be accurate. I write my briefs in plain english and copy my cites directly off Lexis (copy and paste). Are they in conformity with Blue Book, who knows and who cares!
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Hadley V. Baxendale
Sep 25, 2009 7:56 AM CST
When I was in law school and Lexis was brand new, a classmate was corrected by a professor for a misspelled word in a paper. He ran a word search for the misspelled word in all SCOTUS opinions and it came up dozens of times; he posted his results on the wall outside the classroom.
I saw a pleading once where the author apparently decided at the last minute to change “bank” to “lender” so he used the search and replace. Thus the pleading was styled as filed in the United States Lenderruptcy Court, because the party was lenderrupt. Actually, the new word has some appeal.
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Matt
Sep 25, 2009 8:31 AM CST
BirdSmack:
I figured that the “without prejudice” language would probably preclude any finding of damages, so you have a point.
As for Bradshaw v. Unity Marine - I loved that opinion. Obviously the judge was simply upset about not being included in the “hats, handshakes and cryptic words” club.
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john
Sep 25, 2009 8:31 AM CST
I can’t believe this poor, overworked and underpaid federal judge even had the time to edit such a brief. Oh well, back to chambers to work on the novel.
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Matt
Sep 25, 2009 8:33 AM CST
And for all those interested, the citation is 147 F. Supp. 2d 668.
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Joe
Sep 25, 2009 8:37 AM CST
I don’t know what the blue book says but please footnote your citations. I hate reading briefs with them included in the text.
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William A. Wheatley
Sep 25, 2009 8:42 AM CST
I just hate it when typergraphicle errers creep into my typeing. A little profreadnig goes a long way.
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you
Sep 25, 2009 8:45 AM CST
When I read this headline I knew the article would be about a Florida lawyer. If I had a dollar for every every complaint, discovery response or motion I read that would make you laugh, well, I’d be making more money. The plaintiff slipped and fell on “unreasonably dangerous payment” is my most recent favorite. Florida is a great place to live practice, if you can stand to deal with half-literate attorneys that don’t actually care about the quality of their work product. It never ceases to amaze me.
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Jeff
Sep 25, 2009 8:50 AM CST
#27 - I’m pretty sure that was a Phish song.
#18 - well done.
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Earl
Sep 25, 2009 8:51 AM CST
Didn’t the Judge make his own “typo” in citing FED. R. CIV. 41(a)(ii)? Shouldn’t it be FED. R. CIV. 41(a)(1)(A)(ii)?
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