A Warning to Law Students and Young Lawyers

You don't want to explain to your clients why a court would say something like this in its opinion.

|The Volokh Conspiracy |

From Judge Andrew Guilford in M.B. v. Huntington Beach City School Dist., 2019 WL 3064485 (C.D. Cal. Apr. 15):

This case is about two elementary school students who were prevented from passing out religious flyers at school during school hours. Plaintiffs M.B. and N.B. attend John R. Peterson Elementary School in Huntington Beach, California. As part of "Bring Your Bible to School Day", Plaintiffs wanted to pass out religious flyers to classmates during lunch and recess. But school officials told Plaintiffs they could only pass out flyers before and after school. So Plaintiffs filed this lawsuit, asserting claims based on the First Amendment's Free Speech and Free Exercise Clauses, and the Fourteenth Amendment's Equal Protection and Due Process Clauses. [Substantive analysis, which is pretty straightforward, omitted; but here's what particularly struck me:]

Defendants argue that it's unclear whether Polhemus is being sued in her official or individual capacity (or both) for each of Plaintiffs' claims. (Mot. to Dismiss at 7.) The Court agrees. The complaint's caption says Polhemus is being sued in her individual and official capacity. So does paragraph thirteen of the complaint. (See Compl. at ¶ 13.) But elsewhere in Plaintiffs' complaint, Plaintiffs say they're suing Polhemus in her individual capacity only. (See id. at ¶¶ 75, 83; see also id. at Prayer for Relief ¶¶ 6, 7.) And to make matters worse, Plaintiffs also seem to say they're suing the District in its individual capacity, which would be a legal impossibility. (See id. at Prayer for Relief ¶¶ 6, 7 ("Additionally Plaintiffs are entitled to nominal damages arising from the unconstitutional actions of Defendants and each of them, sued herein in their individual capacities …." (emphasis added)).) …

Though Plaintiffs vaguely request injunctive relief in their complaint, they fail to specify which Defendant is subject to such relief. (See Compl. at ¶¶ 3, 4, 58, 75, 79, 83.) And confusingly, at least one of Plaintiffs' requests for injunctive relief asks the Court to "restrain[ ] enforcement of the security fee policy." (Id. at ¶ 83.) What security fee policy? …

One last thing. The Court is concerned Plaintiffs' complaint, as it's currently drafted, lacks precision and likely proofreading. Perhaps this is best illustrated by the complaints numerous references to events that are entirely unrelated to this dispute, including references to Colorado and Ohio. (See id. at ¶ 6 (referencing "Ashtabla County, Ohio"); see also id. at ¶ 85 (referencing "the State of Colorado").) But it's clear that important constitutional issues are at stake. So if Plaintiffs' choose to amend their complaint, the Court urges them do so with care.

Of course, for every opinion like this in which a judge admonishes lawyers for carelessness, there are likely dozens of cases where a judge thinks ill of the lawyers for that but doesn't bother making the matter public. And if a judge thinks your work is sloppy, whether he thinks so quietly or openly, that won't help your credibility either in this case or in future ones.

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  1. One last thing. The Court is concerned Plaintiffs’ complaint, as it’s currently drafted, lacks precision and likely proofreading. Perhaps this is best illustrated by the complaints numerous references to events that are entirely unrelated to this dispute, including references to Colorado and Ohio.

    Muphry’s Law in action.

  2. Much to my surprise, the judge seems to have identified each of the paragraphs he took issue with by number. Who was the judge?

    Not all of us has WestLaw at our fingertips.

    1. Looks like the Hon. Andrew J. Guilford.

      1. I added the judge’s name to the post.

  3. What’s that apostrophe doing after “Plaintiffs” in the final sentence of the quotation from the court’s opinion? In this opinion, at least, the court should not itself have been sloppy.

    1. [Sic] the dogs on them.

  4. “What’s that apostrophe doing after ‘Plaintiffs’ in the final sentence of the quotation from the court’s opinion?”

    It’s a possessive, and used correctly. To indicate possessive, one adds an apostrophe and an s, unless the word already ends with an s, in which case just the apostrophe is appended. This is like tenth-grade English.

    1. Exactly, but I’m pretty sure they missed the apostrophe in this one, three lines higher!

      “Perhaps this is best illustrated by the complaints numerous references…”

      Possessive of “complaint.”

      1. I agree that the court should be 1000% sure of its own grammar, spelling, and punctuation if it will be lecturing one of the lawyers’ proofreading.

        But it isn’t my job to do the proofreading.

    2. And after further reading… the plaintiffs’ use is not possessive, it’s plural, which does not get an apostrophe.

    3. Just noticed, there are TWO instances of “plaintiffs'” in the final paragraph (and several others prior). The first one is correct, the second is not.

    4. I was taught that an apostrophe s also goes on the end of single nouns that end in an s. The possessive of Charles is Charles’s. The possessive of Dickens is Dickens’s. There are exceptions. Triple sibilants (three s sounds) are to be avoided. So, it’s Jesus’ not Jesus’s. Was I taught wrong?

  5. In a case like this which is probably partly designed to get publicity one sometimes sees speechifying in the Complaint and references to other events (maybe that explains the Ashtabula etc references). The idea is to get the press to quote the language.

    As to imprecision as to who is being sued for what, that is common in my experience. Defendants are lumped together and allegations are vague. Sometimes that is the result of carelessness and sometimes it is intentional (one wants to have all bases covered depending how the facts develop).

  6. Meh, one quick press release decrying the biases of the Obvious Obama Judge and the attorney’s reputation will remain intact.

  7. Prof. Volokh, why is this a warning just for law students and new lawyers? Shouldn’t it be taken to heart by ALL the lawyers who submit pleadings to court review?

    1. Indeed. I’ve read absolute dreck written by very experienced lawyers.

  8. Ouch. I always warn new lawyers that your credibility with a judge can be destroyed by one disingenuous argument or one piece of sloppy work. Always be honest with the court, and always proofread more times than you think you need to!

  9. Obviously a cut and paste job. Plaintiffs’ lawyers frequently borrow allegations from another complaint (their own or just one they found on the street) and plug them into whatever stirring quest for justice they are filing, but can’t be bothered to check things like the number or genders of the plaintiffs, the locations where things allegedly occurred, etc. Then if they ever ask for fees they’ll say they are worth $750/hr.

    1. It’s always very persuasive to me when I see references to, e.g., “plaintiff(s)” in a pleading or brief. If you don’t even know how many people you represent, or are too lazy to customize the pleading for the actual case you’re litigating, you’re not exactly sending the signal that you’re a competent lawyer.

  10. Sad to say, I’ve seen worse. The individual/official capacity thing gets messed up all the time. It’s sloppy and makes a bad impression, but even though it is substantively important in the end, it usually doesn’t matter if the plaintiff sues in both capacities at the outset. Unless there is something else wrong with the complaint, it isn’t worth making an issue of. The course of proceedings will clear up what claims can be asserted against whom in what capacity.

  11. Unfortunately, something like this happens more and more. Although, maybe it’s just that I often come across such news most often … When I studied at a lawyer in Canada university, we often held implausible court sessions to practice our skills and understand how everything really happens. Often, for such tasks, we took more info here and I must say that it was a very exciting process for which many of us paid for research paper. Since in this way we could better prepare and get not only good grades but also a good opportunity to put our knowledge into practice.

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