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On Names, Pronouns, and Paragraphing

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Fall/Winter 2020–21 | Volume 104 Number 3 | Download PDF Version of Article

Lawsuits involve people. And rather than turn them into a disembodied “Plaintiff” and “Defendant,” opinions might better use their names. The opinions will be more direct and more human. (Of course, this won’t work if a person and an entity are aligned on one side.)

Opinions would also benefit from greater use of pronouns. Constantly repeating “Plaintiff,” for instance, gives the writing a stiff, unnatural feel. You would not do it in conversation or in a story, and there is no good reason why opinions should not aim for a more conversational style than they usually do. I realize that personal pronouns can’t always be assumed these days, but opinion-writers can take their cue from the briefs or transcript or oral argument.

As for paragraphing, have you ever read the scroll version of Kerouac’s On the Road? No paragraphs. I couldn’t get through it. Give your reader a break: as a guideline (only), keep most paragraphs under six sentences. Or try for an average of 100–125 words. Naturally, though, you will vary the length.

The original paragraph below contains 303 words in seven sentences, most of them long. The plaintiff is referred to in some places (but not enough places) as “her.” I have changed the names, making the plaintiff “Turner.” I have also struck through some excess words in the original. In the revised version, I have highlighted the plaintiff’s name and the new pronouns in bold. For context, the photograph at issue was the “money ball” photo on Instagram.

Original

It further cannot be disputed that the Facebook photograph could have been discovered before trial through the exercise of reasonable diligence. This photograph was posted on both Instagram and Facebook by Plaintiff herself in 2013. In light of Plaintiff’s assertion in another portion of her brief in support of this motion that “all other references [except the “money ball” photograph on Instagram] to Plaintiff’s presence on social media throughout the entire course of these proceedings pertained to her Facebook page” (Doc. 450, at 13), it is apparent that Plaintiff’s counsel were not unaware of Plaintiff’s Facebook page or unable to access its contents, whether by themselves or through Plaintiff. Nonetheless, even affording Plaintiff every benefit and taking as true that counsel was unaware that the Instagram photograph would be used on cross-examination, and therefore assuming that Plaintiff’s counsel had no reason to search for this photograph on Facebook or other social media site, Plaintiff’s counsel had ample time to discover the Facebook photograph during the course of the trial and to discuss the Instagram photograph and Facebook photograph with their client. Attorney Franklin’s cross-examination of Turner wherein he first referred to the “money ball” photograph, occurred on Wednesday, February 1, 2017, during Plaintiff’s case-in-chief. At the conclusion of Defendants’ cases, on Monday, February 6, 2017, the Court asked Plaintiff’s counsel whether they “have any rebuttal evidence”, to which Plaintiff’s counsel responded “[w]e do not, Your Honor.” (See Trial Tr., February 6, 2017, at 62.) By that time, Plaintiff’s counsel had sufficient time to “research the photo’s origins and/or discuss it with their client” and could have called Turner on rebuttal to attempt to further explain the photograph at issue and introduce the photograph on Facebook that Plaintiff now asserts proves the Instagram “money ball” photograph was only about golf, and not the lawsuit.

Revised

It further cannot be disputed that the Facebook photograph could have been discovered before trial through reasonable diligence. Turner herself posted it on both Instagram and Facebook in 2013. And she asserted in her brief that “all other references [except the “money ball” photograph on Instagram] to Plaintiff’s presence on social media throughout . . . these proceedings pertained to her Facebook page” (Doc. 450, at 13), it’s apparent that her counsel knew about her Facebook page and could access it, either through her or by themselves.

Nonetheless, suppose that we afford Turner every benefit of the doubt. Suppose we take as true that counsel didn’t know that the Instagram photograph would be used on cross-examination and therefore assume that her counsel had no reason to search for this photograph on Facebook or any other social-media site. Even then, her counsel had ample time to discover the Facebook photograph during the trial and to discuss both photographs with her.

Defense attorney Franklin’s cross-examination of Turner, in which he first referred to the “money ball” photograph, occurred on Wednesday, February 1, 2017, during her case-in-chief. At the end of Defendants’ cases, on Monday, February 6, the Court asked her counsel whether they “have any rebuttal evidence,” to which they responded, “We do not, Your Honor.” (Trial Tr., February 6, 2017, at 62.) By then, they had had enough time to “research the photo’s origins . . . or discuss it with their client.” And they could have called Turner on rebuttal to further explain the photograph at issue and introduce the Facebook photograph that Turner now asserts proves that the Instagram “money ball” photograph was only about golf, not the lawsuit.

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.