February 22, 2008
A Word Without Context: kerfuffle
Well, dear readers, it seems I have a favorite word that I cannot find in a court opinion, at least on the free resources! (I feel as if I should get extra credit for such a discovery, like we would get for successfully stumping our third grade science teacher with scientific questions.) In the last five years in state and federal courts and in Supreme Court cases from 1781, no judge (not even Judge Selya!) has employed the delightful word “kerfuffle.” A kerfuffle is a sort of disturbance, of which factual recitations would seem to provide plenty of opportunities for use (“After observing the kerfuffle in the parking lot, the officers approached the defendant . . . .”). Any clerks out there with limitless Lexis or Westlaw abilities care to extend the search? This word has been a favorite since I learned it from a friend’s page-a-day calendar a few years back. I thought kerfuffle would surely have wound its way into an opinion in the last few years. Let this post effectively throw down the gauntlet to the lurking clerking readers out there!
February 19, 2008
Word in Context: insouciance
Here is a short one from Judge Posner: “The parties, illustrating lawyers’ typical insouciance about quantification, have not told us what the retired pilots’ unsecured claims are likely to be worth.” In re UAL Corp., 468 F.3d 456 (7th Cir. 2006). Insouciance means characterized by a nonchalant or cheerful lack of concern.
As an aside, I challenge our readers to begin using “chalant” as a word; if one can be nonchalant, one should certainly be able to be chalant.
February 11, 2008
Word in Context: stochastic
This one again comes from the pen (keyboard) of Chief Judge Easterbrook in a concurrence to an opinion drafted by then-Chief Judge Flaum. The majority opinion (joined by Judge Bauer) upheld a line of cases in the Seventh Circuit allowing district courts to deny an award of costs to the prevailing party based on the other party’s indigence, but remanded the case for the district court to make clearer findings regarding the indigence of this particular losing party (including her future inability to pay). Judge Easterbrook would rather award costs automatically, and leave issues of indigence to the bankruptcy courts. He concurred, however, because he considered the issue best left to the Supreme Court to resolve because of a circuit split. He explains:
Making the award of costs routine has three additional benefits: (a) It avoids the expense of suit-by-suit inquiries into indigence, which as this case shows may be complex. Why replicate a bankruptcy proceeding just to decide on an award of costs? (b) It avoids false positives. Some people who claim to be indigent aren’t. Indeed, the very assertion “I’m indigent, so please excuse me” implies solvency. Why seek to avoid an award that, if you are destitute, cannot harm you? (A pauper who fears that the award could be collected from future income may have it discharged in bankruptcy.) (c) It avoids disparate treatment of identically situated litigants. District judges differ substantially in how they use the discretion this court’s decisions give them. Some regularly excuse costs for indigents; some never do; some draw hard-to-articulate lines. Rights measured by the chancellor’s foot are not “rights” of any kind, and such a stochastic process is not the administration of justice. We need rules that apply in an even-handed fashion.
Rivera v. City of Chicago, 469 F.3d 631 (7th Cir. 2006) (Easterbrook, J. concurring). Stochastic means characterized by randomness or conjecture and the term is used in statistics. The Chancellor’s foot seems to originate from this quote from English jurist John Seldon (1584-1654):
Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’T is all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’T is the same thing in the Chancellor’s conscience.
To paraphrase in the words of Dr. Seuss (which I read a lot of lately . . . ): “How many different feet you meet!”
February 3, 2008
Word in Context: cavil
This one comes from Judge Posner:
A motion to alter or amend a judgment is deemed filed under Rule 59(e) of the civil rules, which tolls the time for filing an appeal from the judgment, if the motion is filed within 10 days after entry of the judgment, which means after the Rule 58 judgment order has been docketed. Fed. R. Civ. P. 58(b)(2); Laborers’ Pension Fund v. A & C Environmental, Inc., 301 F.3d 768, 775 n. 5 (7th Cir. 2002), Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 92 (2d Cir. 2003). It is deemed filed under Rule 59(e) even if, as in this case, the motion is not labeled a Rule 59(e) motion and, again as in this case, does not say “alter or amend” (the language of Rule 59(e)), but instead uses a synonym, such as “vacate” or “reconsider.” Curry v. United States, 307 F.3d 664, 666 (7th Cir. 2002); Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986); Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 136-37 (2d Cir. 2000), Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir. 1986)(en banc).
But we and most other courts do not cavil if, as also in this case, the motion is filed before the Rule 58 judgment order has been docketed or even before there is a Rule 58 judgment, provided that a final judgment has been rendered. E.g., Dunn v. Truck World, Inc., 929 F.2d 311 (7th Cir. 1991); Havird Oil Co. v. Marathon Oil Co., 149 F.3d 283, 288 (4th Cir. 1998); Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485 n. 7 (1st Cir. 1993); cf. Fed. R. App. P. 4(a)(2); FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991); Chicago United Industries, Ltd. v. City of Chicago, 445 F.3d 940, 943 (7th Cir. 2006).
Borrero v. City of Chicago, 456 f.3d 698 (7th Cir. 2006). Cavil, which functions as both a noun and a verb, means to raise objections, but not just any objections! The word conveys that the objections are trivial or annoying. Perhaps aggravated law clerks or judges out there may appreciate employing this word to vent some frustration civilly and subtly against a caviling litigant.
January 29, 2008
Word in Context: fulgurous
Here’s a nice selection from Judge Ferdinand Fernandez’s collection. (Judge Fernandez is a Bush I appointee, whom I had not known of before noticing this selection.)
We do have to give deference to counsel’s choices and determinations, but our ultimate decision will depend upon the facts and circumstances of the particular case before us. In the constellation of refusals to have mitigating evidence presented, however, this case is surely a bright star. No other case could illuminate the state of the client’s mind and the nature of counsel’s dilemma quite as brightly as this one. No flashes of insight could be more fulgurous than those which this record supplies. Landrigan was not willing to merely express his opinions to counsel and, once having given those indications about his feelings, recede into comparative silence as counsel went about the business of conducting the proceeding. Quite the contrary; Landrigan took an actively aggressive posture, which ensured that counsel’s attempts to place mitigating factors before the sentencing court would come a cropper. Each of counsel’s feints in the mitigation direction brought a statement from Landrigan that painted an even bleaker picture and made matters even worse.
Landrigan v. Stewart, 272 F.3d 1221 (9th Cir. 2001). Fulgurous comes from the Latin fulgur for lightning, and accordingly means characteristic of or resembling lightning. I also note the phrase “come a cropper” is an idiomatic expression meaning to fail (or to fall from a horse). Finally, for those legal beagles out there, I note that the Ninth Circuit vacated this opinion, reheard it en banc, and reversed in part. The Supreme Court then reversed the en banc panel, and following the mandate the Ninth Circuit vacated its en banc opinion.
For a description of a fulgurous field, see the post below.
January 11, 2008
Words in Context: imbroglio, snit, and kowtow
A fun paragraph follows, again authored by Judge Easterbrook.
One senses from this prolonged silence, and the tenor of the SEC’s brief and oral argument, that the agency (or its senior staff) is in a snit because Presto declined to do what many other firms with excess liquid assets have done—apply to the agency for an exemption. See 15 U.S.C. § 80a-3(b)(2). (Microsoft, for example, holds more than 40% of its assets in the form of investment securities but received permission to operate outside the 1940 Act.) The agency’s counsel implied at oral argument that an exemption would have been forthcoming if sought. Yet a firm’s refusal to kowtow to an agency is not a good reason to force its investors to bear unnecessary costs—for it is the investors who must pay to recreate the financial statements, though they did not contribute to this imbroglio—and keep a firm inappropriately registered, as Presto now is. Why is the SEC bent on grinding down a corporation that it appears to acknowledge would not mislead or otherwise injure investors by using the governance and reporting devices appropriate to an operating company?
SEC v. Nat’l Presto Indus., Inc., No. 05-4612 (7th Cir. May 15, 2007). Given my preference for verbs, kowtow scores as my favorite word in the paragraph, although snit is fun (a bit informal?), and imbroglio is the one that sent me to double check the meaning. An imbroglio is an intricate or complicated dispute.
January 1, 2008
Word in Context: sockdolager
In honor of Judge Selya, here is a find from a recent opinion:
The completeness and the transparency of this explanation ensured that the appellant, well before the court accepted his changed plea, had come to comprehend the full extent of his sentencing exposure.
The sockdolager is that the appellant proceeded to acknowledge as much. The final aspect of the relevant exchange tells the tale:Jimenez: I understand what you’re saying now, right. For instance, I plead guilty now, so what you’re saying [is] a ten year minimum, right? The ten year minimum?
The Court: I have to inform you that you could be facing a ten year mandatory minimum. Now whether you are or not subject to the ten year mandatory minimum, I don’t know. I’m telling you that’s a possibility. . . .A defendant’s acknowledgment, during a change-of-plea proceeding, that he understands a lucid explanation of his potential sentencing exposure is powerful evidence of the knowing nature of his guilty plea. See Jiminez, 498 F.3d at 86.
United States v. Jimenez, No. 06-1553 (1st Cir. Dec. 27, 2007). Sockdolager is a decisive blow or a conclusive argument, a clincher.
December 18, 2007
Word in Context: amerce
Legal writing benefits from the use of precise verbs. The best advocates, in my opinion, convey their argument through action words, instead of resorting to adjectives or adverbs. (As a simple example, compare “the defendants are wrong in arguing . . . ” to “the defendants err by . . . “) Often using adjectives or adverbs to describe an opponent results in a brief that seems petulent rather than persuasive. Since I like interesting verbs, I am often on the lookout for them. Here is one from Judge Easterbrook’s collection.
“Five months after its answer to the complaint had been due, EGA filed a motion to vacate the default, see Fed. R. Civ. P. 55(c), blaming Meadowbrook for the earlier inaction. The magistrate judge recommended that this motion be denied, observing that the best way to give Meadowbrook an incentive to take care is to amerce EGA, which could shift the expense to Meadowbrook. But the district judge concluded that the injury attributable to Meadowbrook’s neglect is much less than $31 million, making the proposed award disproportionate to the wrong. In the judge’s view, the lack of correspondence between EGA’s limited fault and the $31 million award was “good cause” for reopening the case. The judge thus set aside the default, while holding open the possibility that a more appropriate sanction might be in order.” Sims v. EGA Prods., No. 06-1057 (7th Cir. Jan. 24 2007).
Amerce means to punish in a discretionary (as opposed to a statutory) manner. I find it a wonderfully specialized verb. Its obscurity (well, at least I had never seen it used before, necessitating a peek at the dictionary!) might render it ill suited for briefing without a doublet (amerce and sanction them all!), but wonderful for law clerks and judges.
December 12, 2007
Word in Context: skullduggery
This one, by Judge Posner, speaks for itself.
“The complaint is a hideous sprawling mess, 40 pages in length with 221 paragraphs of allegations. We have found it difficult and in many instances impossible to ascertain the nature of the charges. It would have been better had the defendants deferred their motion, and the district judge his ruling, until either the defendants served contention interrogatories designed to smoke out what exactly the plaintiffs are charging, or better, because quicker and cheaper, the judge told the plaintiffs to specify the acts of the defendants that they are complaining about so that he could decide how much of the complaint was preempted. Still, the defendants can hardly be blamed for wanting to strangle the monster in its crib. . . .
The first 19 pages of the 40-page complaint accuse Ocwen of a variety of skullduggery, but do not indicate which bad acts are being charged as a violation of federal law and which as a violation of state law.” In re Ocwen Servicing, LLC, Mortgage Servicing Litigation, No. 06-3132 (7th Cir. June 22, 2007).
Skullduggery is deception or trickery. Although the origin is apparently Scottish, it sounds pure pirate to me.
December 11, 2007
Word in Context: piffle
In an interesting opinion dismissing a case for lack of subject matter jurisdiction, Judge Easterbrook wrote: “plaintiffs lack a serious claim under the Constitution whether or not the schedule for step increases creates a ‘property right.’ Normally failure on the merits leads to judgment in defendants’ favor rather than to dismissal for lack of jurisdiction. See Bell v. Hood, 327 U.S. 678 (1946). But some theories are such piffle that they fail even to make out claims arising under federal law, and these must be dismissed for want of jurisdiction.” Goros v. County of Cook, No. 06-3880 (7th Cir. June 11, 2007) (citations omitted) [again, it is a published opinion but I do not have the F.3d citation].
Piffle is nonsense or a trivial or insignificant idea. Constitutional piffle is insufficient to create a federal question. A great principle and a fun word, especially for any district court law clerks lurking out there.
The Write Bailiwick 