• Rob Carty

Promiscuous Dating

We’ve heard the advice a million times: Rid your briefs of inconsequential dates. Yet we lawyers live in perpetual fear that our briefs might omit something important. So we forsake the advice and overinclude.


Curing this affliction isn’t complicated. But for some writers, it may require a leap of faith.


Every time we insert a date into a brief, we tax the reader’s memory and dilute his or her attention. At some point, readers respond either by struggling to keep track of all these dates or by skipping right over them.

If the dates are meaningful (and preferably few), there’s no problem. Dates are important to such issues as limitations, notice, and causation. But if you insist on detailing when every pleading was filed or when every fact occurred, you’ll lose your audience. The reader may have to stop and digest these ultimately pointless dates—perhaps by dividing his or her attention between your brief and a legal pad filled with scribbles. This lack of reader focus is not conducive to advocacy.


Most readers will just give up. They’ll skip right over those dates, including any important ones. They’ll mentally check out. They’ll want to get this unpleasant chore out of the way. This is the opposite of what we want.


So let’s fix this. When reciting facts or procedural history, by all means tell the story in chronological order. But take it easy on dating everything. When tempted, ask yourself whether the date really matters. Are you doing it just for the sake of detail and a veneer of diligence? Unless the date plays a role in your analysis or provides useful context, consider omitting it. And if you must include it, ask yourself whether you really need to specify the precise day; often the year or month alone will get the job done. You can also signal the passage of time by using such phrases as “a week later” or “after two years.”


Some may say that a sequence of dates is a necessary part of a complete factual or procedural summary. Nonsense. Here are two examples of date-free legal writing from well-known appellate judges. The first comes from an opinion that then-Justice Willett wrote while on the Texas Supreme Court:

 

Shana Lenoir received prenatal care at the University of Texas Physicians Clinic in Houston. She was pregnant with twins and was seen by Dr. Leah Anne Gonski, a second-year medical resident. Gonski prescribed weekly progesterone injections, and a nurse gave Shana the first such injection at the clinic. Shana experienced breathing difficulties, and she and her unborn children died. Shana’s mother and the father of Shana’s living child (collectively Lenoir) brought a medical malpractice suit against Gonski and other defendants.


Gonski was in a residency program in obstetrics and gynecology offered by the University of Texas Health Science Center at Houston (UTHSCH). * * * The [University of Texas System Medical] Foundation appointed Gonski to the residency program under a contractual “University of Texas System Medical Foundation Notice of Appointment” that was signed by Gonski and the dean of UTHSCH.


Gonski filed a motion to dismiss under the election-of-remedies provision of the Tort Claims Act, specifically section 101.106(f). She claimed this provision entitled her to dismissal because she was an employee of a governmental unit, namely the Foundation, and met other elements of the provision. The trial court granted the motion. The court of appeals reversed and remanded as to Gonski, concluding that she had not established she was an employee of the Foundation.

 

Marino v. Lenoir, 526 S.W.3d 403, 404-05 (Tex. 2017) (footnotes omitted). Notice how easily we can follow the story, and how prepared we are to confront the issue presented. Dates would have added nothing useful.


The second example is a pithy history from Judge Easterbook of the Seventh Circuit:

 

Two corporations, Craftwood II and Craftwood III, operate hardware businesses in California. They contend in this suit under the Telephone Consumer Protection Act, 47 U.S.C. § 227, that defendants sent them unsolicited fax advertisements.


Defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1), contending that plaintiffs lack standing to sue. The district judge granted that motion—not so much because he found the lack of an injury as because he thought that defendants had substantially (though not technically) met the requirements of a defense in § 227(b)(1)(C). On appeal defendants contend expressly what is only implicit in the district court’s decision: that unless plaintiffs prove injury from a violation of law, the suit must be dismissed for lack of a case or controversy. That proposition contradicts the holding of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), among many other decisions showing that a plaintiff’s failure on the merits does not divest a federal court of jurisdiction.

 

Craftwood II, Inc. v. Generac Power Systems, Inc., 920 F.3d 479, 480-81 (7th Cir. 2019).


Here’s the point: We lawyers add dates reflexively, as if we were engineers documenting every detail of a rocket design. Not only is this unnecessary, but unless a date has a particular function, it creates nothing but a distraction and mental friction. Your readers deserve better, especially if you want them on your side.

Have a question or suggestion? E-mail me: TheHeavyPencil@gmail.com

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