Let’s ditch unnecessary procedural detail

by Joseph Kimble

Spring 2018 | Volume 102 Number 1 | Download PDF Version of Article
Redlines

This Redlines column looks different from the previous ones. For one thing, it doesn’t have any redlines — but rather a simple before and after. Our writing guru, Joseph Kimble, explains: time after time in opinions, you’ll see mechanical recitations of procedure that are as useless and unnecessary as two heads on a hammer. Most of the procedural details here — including the blizzard of dates, parentheticals (like “hereinafter the ‘Complaint’”), and ECF numbers — do nothing but distract; they are irrelevant to the substance of this opinion. Space prohibits including all those details, but this will give you an idea: with the omitted parts, the “before” version is about 465 words; the “after” version is about 275. Which would you rather read?

Before

Pending before the Court is Plaintiff’s Motion for Class Certification and Related Relief . . . . A default was entered against Defendant following service of the motion and the withdrawal of defense counsel. Defendant has failed to respond to the motion. Upon review, the Court determines that the Plaintiff’s well-presented motion is properly granted.

Background

[A paragraph describes the nature of the lawsuit.]

On February 26, 2016, Plaintiff commenced this Class Action Complaint (hereinafter the “Complaint”) against Defendant (ECF No. 1). On June 30, 2016, Defendant filed an Answer to the Complaint (ECF No. 13), and an Amended Answer on July 21, 2016 (ECF No. 15). On September 22, 2016, the Court entered a Case Management Order (ECF No. 20).

[A paragraph notes, with the date and ECF numbers (as above), the filing of the motion for class certification and proposed order granting it, and the parties’ discussion about class size and putative class members.]

[A paragraph notes, again with dates and ECF numbers, defense counsel’s motion to withdraw, the order granting it, and other procedural matters.]

On March 17, 2017, Plaintiff filed for entry for default against Defendant (ECF No. 37), which was entered on March 20, 2017 (ECF No. 39). The motion for class certification is now before the Court as a matter preliminary to proceeding with a default judgment.

After

Pending before the Court is Plaintiff’s motion for class certification and related relief . . . . A default was entered against Defendant following service of the motion and the withdrawal of defense counsel. Defendant has failed to respond to the motion. Upon review, the Court determines that Plaintiff’s well-presented motion is properly granted.

Background

[Keep the paragraph describing the nature of the lawsuit.]

After filing his complaint, Plaintiff moved for class certification. Defense counsel then moved to withdraw. The Court granted the motion to withdraw, ordered Defendant to secure new counsel, and permitted Plaintiff to file for entry of default and default judgment. Defendant has since failed to secure new counsel or respond to Plaintiff’s motion for class certification. Plaintiff has filed for entry of default, and the motion for class certification is now before the Court because it must be decided before the Court may proceed with default judgment.

 

About Joseph Kimble

Joseph Kimble is an emeritus professor at WMU–Cooley Law School. He is senior editor of The Scribes Journal of Legal Writing, the editor of the Plain Language column in the Michigan Bar Journal, and the author of three books and many articles on legal writing (not to mention a children’s book). He served as drafting consultant on the projects to restyle the Federal Rules of Civil Procedure and Federal Rules of Evidence. Follow him on Twitter @ProfJoeKimble.