Sept 23 (Reuters) – In castigating lawyers for President Donald Trump last week for filing a “florid” and unfocused 85-page defamation complaint against the New York Times, Senior U.S. District Judge Steven Merryday showed by example how to do legal writing right.
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Most court opinions are workmanlike. But Merryday strikes me as the rare jurist who, both by example and occasional censure, pushes to strip the “redundancy, verbosity, and legalism,” as he once put it, out of legal writing.
For that I say huzzah — and thank you.
“As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary,” Merryday wrote, describing the filing as bogged down by “often repetitive, and laudatory (toward President Trump) but superfluous allegations.”
A White House spokesperson referred me to Trump’s personal lawyers in the case — Daniel Epstein of Epstein & Co LLC, Edward Andrew Paltzik of Taylor Dykema and Alejandro Brito of Brito, PLLC — who did not respond to requests for comment.
Nominated to the bench by President George H.W. Bush, Merryday was confirmed in 1992 at age 41. He declined to be interviewed for this column, but his work over the years speaks for itself.
Merryday struck the filing, writing that “a modicum of informed editorial revision easily reduces the motion to twenty-five pages without a reduction in substance.”
Then he proved it, pasting the first paragraph of the document, a flabby 125-word intro, along with his line edits, reducing it to a taut 47 words.
The lawyers started off with, “Plaintiffs, ZACHARY BELLI, BENJAMIN PETERSON, ERIC KINSLEY, and LARRY JOHNSON, (hereinafter referred to as ‘Plaintiffs’), individually and on behalf of all others similarly situated (‘Class members’), by and through the undersigned counsel and pursuant to the Fair Labor Standards Act of 1938, (the ‘FLSA’), 29 U.S.C. § 216(b) file this motion seeking an order (1) conditionally certifying this case as a collective.”
Merryday trimmed it down to “Plaintiffs move (1) to conditionally certify a collective action.”
Catharine Du Bois, who clerked for Merryday from 2004 to 2006 and is now interim director of legal practice at New York Law School, where she teaches legal analysis and writing, told me she uses that order as an example of do’s and don’ts in writing an introduction.
From Merryday, she said, she learned that good writing is about more than just style. “It’s asking, ‘Why is this sentence better? What is its purpose? Is it leading the reader in the right direction?’”
Still, the judge isn’t a mere humorless grammarian. Some of his orders showcase what strikes me as a delightful mix of erudition and wit.
Consider his response to a request in 2017 by an assistant U.S. attorney to postpone a trial because a key witness, an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives, had booked a trip to view a solar eclipse.
(No pop culture lightweight, he also nodded to eclipse references by the poet Wordsworth, Borodin in his opera “Prince Igor” and the ancient historian Herodotus.)
Citing the time and resources that go into scheduling a trial, Merryday denied the request.
His final paragraph is a doozy: “When an indispensable participant, knowing that a trial is imminent, pre-pays for some personal indulgence, that participant, in effect, lays in a bet,” Merryday wrote. “This time, unlike Carly Simon’s former suitor, whose ‘horse, naturally, won,’ this bettor’s horse has — naturally — lost.”
Zing.
A similar denial had a happier ending, when a defense lawyer in 2012 asked to suspend one day of an upcoming murder-for-hire trial to participate in an Ernest Hemingway look-alike contest in Key West.
Merryday said no – with a riff on the final line of “The Sun Also Rises.”
The lawyer, Frank Louderback, told me he got to participate in the contest anyway, after his client took a plea deal before trial.
“Steven Merryday is one of, if not the most, intelligent judge I have ever appeared before in my fifty years of criminal trial practice,” he said via email, adding that Merryday “does not put up with foolishness or lack of candor and expects complete adherence to the local rules and rules of procedure.”
As for the Hemingway contest, Louderback said, “I ended up becoming a semi-finalist and, as I like to say, I tied for sixth place.”
Reporting by Jenna Greene
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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com