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Harry Cassin
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Richard L. Cassin
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Editor Emeritus

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Thomas Fox
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Judge blasts wordy lawyers, we listen

Lawyers for the UPS Store launched what a federal judge called “relatively stratighforward claims” with a 175-page complaint and more than 1,400 pages of exhibits.

“The initial pleading,” Judge William Pauley said, “masquerading as a summary judgment motion, may have been intended by UPS to overwhelm the defendants.”

“It brims with irrelevant and redundant allegations,” Judge Pauley said.

The defendants didn’t fold. “They retaliated with a 210-page, 1,020-paragraph Answer asserting twelve counterclaim and attaching voluminous exhibits,” Judge Pauley said.

He gave the defendants time to trim the pleading. Instead they “enlarged it to a breathtaking 1,263 paragraphs, spanning 303 pages,” the judge said.

Reed Smith lawyers in New York and Chicago are listed on the complaint. It alleges breach of contract and trademark infringement by former franchisees.

Stephen J. Savva, Esq. of Stephen J. Savva, P.C. in New York City is listed as the defendants’ lawyer on the Answer.

Rule 8 of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim . . . [that is] simple, concise, and direct.”

Judge Pauley ordered both parties to file amended pleadings “stripped of [their] surplusage and exhibits.” 

“Failure to comply may result in sanctions,” Judge Pauley said.

He explained his reasoning:

Voluminous pleading is self-defeating. It chokes the docket and obscures otherwise meritorious claims and defenses. . . . Lawyers should think twice about the burden they impose on judges to wade through surfeit pleadings, let along “labyrinthian prolixity of unrelated and vituperative charges that def[y] comprehension.” Prezzi v. Schelter, 469 F.2d 691, 692 (2nd Cir. 1972) . . . . They should also think about their clients who presumably come to court “to secure the just, speedy, and inexpensive determination’ of their claims.” Fed. R. Civ. P. 1.

Judge Pauley’s March 24, 2015 Memorandum & Order is here (pdf).

*     *     *

Sensitive to Judge Pauley’s warnings, we used 293 words up to now. The guidelines for posts on the FCPA Blog, by the way, call for 300 to 500 words. Fewer words are OK and sometimes more are needed. The guidelines also call for an informal tone and structure (no footnotes please but links are good), and we have no deadlines.

Where did our guideline come from?

The Gettysburg Address is 272 words. They’re carved in stone on the south wall of the Lincoln Memorial in Washington, D.C.

Eric Hoffer, the late longshoreman and writer, said, “There is not an idea that cannot be expressed in 200 words. But the writer must know precisely what he wants to say. If you have nothing to say and want badly to say it, then all the words in all the dictionaries will not suffice.” In 1970, he established the Lili Fabilli and Eric Hoffer Essay Prize at UC Berkeley. It’s awarded annually for the best essays of 500 words or fewer.

In his 1946 essay, “Politics and the English Language,” George Orwell listed these rules of writing:

Never use a metaphor, simile, or other figure of speech which you are used to seeing in print. Never use a long word where a short one will do. If it is possible to cut a word out, always cut it out. Never use the passive where you can use the active. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent. Break any of these rules sooner than say anything outright barbarous.

There’s William Strunk’s advice in The Elements of Style. “Vigorous writing is concise,” he said. “A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subjects only in outline, but that every word tell.”

William Zinsser, author of On Writing Well, died last week at 92. His tips for writing included these: Avoid jargon and big words. And don’t worry about producing the definitive work: “Decide what corner of your subject you’re going to bite off, and be content to cover it well and stop.”

Finally, as Judge Pauley said, “The ‘short and plain’ statement requirement of Rule 8 serves many salutary purposes. It focuses litigants and judges on the real issues in dispute. It also aids the public in understanding the judicial process. Disregarding it only spawns mischief.”


Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.

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  1. Professor William J. Martz told me in 1978 that brevity is the best way of getting to understanding. He was talking about writing a paper for his Shakespeare course. Since that time, I have taken his statement to heart when writing. The judge was correct in his case. Often you're repeating the same claims and issues in pleadings which sometime confuses exactly what the dispute is about. So make it short, sweet and to the point!!

  2. Yea!!! Eric Hoffer and George Orwell still live … all is not lost. The FCPA Blog has forever cemented a connection to my "being" for having someone (even so the Publisher) who has read and has the inclination to quote Hoffer. Salute!!!

    So here's my quote that is appropo to the "core" of FCPA and to the gentlemen/women who are both "inside" and "outside" the law.

    “A little thieving is a dangerous art,
    But thieving largely is a noble part;
    Tis' vile to rob a hen-roost of a hen,
    But thieving largely makes us gentlemen.”
    The Democratic Speaker’s Handbook (1868)

  3. Hope that many Judges will see this article and follow this lead!

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