For The Defense, July 2010 - DRI Today

Writers’ Corner, from page 84Cir. 2004) (deciding commercial and bankingissues under provisions of the UniformCommercial Code).The best advocates have a genius formaking the complicated simpler. Theworst advocates, can muddle even themost straightforward topics: “Mediocreminds… move toward muddlement.”Bryan A. Garner, Garner on Language andWriting: Selected Essays and Speeches, 612(ABA 2009). Lawyers argue about the scientificprinciples involved in a challenge toa drug or medical device, the statistical evidencesupporting or refuting a class actionemployment discrimination case, and thecomplexities of market analysis or accountingfor an antitrust or commercial case.Legal disputes turn on principles of engineering,physics, medicine, toxicology, andother bodies of knowledge that are unfamiliarto most of us. Today’s increasinglyspecialized lawyers can advocate poorlyif they forget that the judges before whomthey appear do not have a similar knowledgebase.Simplicity can also clarify and illuminatethe weakness in an opponent’s argument.Hemingway insisted, “If a manwrites clearly enough any one can see ifhe fakes.” Ernest Hemingway, Death in theAfternoon, in Ernest Hemingway on Writing(Larry W. Phillips, ed., Touchstone1999). But advocates file briefs that exhibit“muddlement” all too often. When a briefis badly written, a court may not readilyperceive that the opposing party hasfaked. Fundamental flaws in your opponent’sposition may become obscured in acloud of technical jargon. When an opposingparty writes a confusing or misleadingbrief on unfamiliar and difficult topics, abusy appellate or trial court judge can easilymiss the shortcomings in the argument.An effective advocate clarifies the backgroundconcepts to illuminate their meaningand application in general, and theirrelationship to the issues in a case. Theadvocate translates arcane or esotericterms into common language for a court.Following Einstein’s sage advice, “Makeeverything as simple as possible, but notsimpler,” the advocate must write a briefthat is “as simple as possible, but not simpler.”Albert Einstein, http://www.brainyquote.com/quotes/quotes/a/alberteins103652.html. Ifan advocate does this, a court can quicklyjudge whether one side or the other isfaking an argument—because whetherthe argument is grounded in fact and lawbecomes readily perceptible. It is no longercovered by an impenetrable jungle of denseterminology or buried in a plethora of complicated,scientific or technical concepts.As long as judges remain generalists,the system’s ability to reach correct decisionsdepends on the efficacy of the mechanismthat helps judges acquire necessarytechnical or scientific information as partof their decision- making process. In ouradversarial litigation system, this mechanismis ordinarily the parties’ advocacy.And the advocates can best educate a courtin written briefs. One federal appellatecourt explained that “The aim of the judgesis not to exercise expertise or decide technicalquestions, but simply to gain sufficientbackground orientation.” Ethyl Corp.v. Environmental Protection Agency, 541F.2d 1, 69 (D.C. Cir. 1976).Not everyone is a genius of Einstein’scaliber, but everyone can translate jargonso that a brief will present complicatedand arcane but necessary information intocommon language. Taking the time andeffort to translate key ideas and informationinto ordinary common language canand will help an advocate present a client’scase. It often does more. It helps an advocatesharpen an argument because it forcesthe advocate to think through complexissues in a clear and cogent way. As BryanGarner cautions, advocates should avoid“muddlement.” Take time to translate thecomplex into the simple in every piece ofwriting that you present to a court. Doingso may not earn you the label of “genius,”but it will certainly enhance your likelihoodof success, and your status as an effectivelegal writer. The next time you write abrief, read it at least once to find the technical,scientific, or legal terms of art andtranslate them into common, ordinarylanguage. Make your discussion as simpleas possible. You will have improved yourchances of success—and the judges whoread the brief will thank you for the effort.Think Globally, from page 85may not be accustomed to U.S. regulatoryrequirements. To ensure understanding,a U.S. manufacturer should make sure itcommunicates its production standards toits supply chain partners in a way that isclear and consistent, and we also suggestthat a manufacturer repeat this messageat every opportunity. In some countries,standards may be viewed merely as suggestionsunless the message is brought hometime and again that each product producedmust satisfy a manufacturer’s requirement.3. Test, Test, TestRonald Reagan is known for popularizingthe old Russian saying, “Trust butverify.” That is precisely the position that90 n For The Defense n July 2010U.S. manufacturers should take regardingglobal supply chain partners. While thisdoes not suggest that U.S. manufacturersshould be held liable for manufacturingdefects of supply chain members oversees,we propose a regular practice of testingthe quality of products received from overseassuppliers to verify whether those clearstandards mentioned above are met.4. Plan for the WorstHaving a plan in place when supply chainissues arise can allow manufacturers toquickly regain control of a situation. Thisplan should address the needs of the business,regulatory and compliance issues,and litigation exposure. Just as we practiceda fire drill as school children, a manufacturershould dust off the plan every sooften and walk through it, even if nothinghas occurred, to ensure that it continues tofit current needs.5. Protect YourselfContracting with suppliers offers clientsmultiple opportunities for protection.Along with testing and qualitycontrol requirements, these contractscould also include indemnification agreements,insurance coverage requirements,a choice-of-law provision, or a choice-ofvenueprovision.We hope you have found these tips helpful,and we hope to see you at DRI’s AnnualMeeting in San Diego this October.