Ten, 20, or even 100 judges who look at the same evidence will all reach the same conclusion about the True Facts of a case, right?

No?

Why not?

The reasons may include, per Linda Greenhouse's latest column, that Their Honors actually "don't know" all the info they need in order to reach the right outcome.

Ms. Greenhouse cites recent Supreme Court rulings in which the majority seems to have made a faulty assumption that may have prompted an incorrect result. But Blawgletter thinks she has a More Telling point, as her choice of an ending quotation — of Seventh Circuit Judge Richard Posner — suggests:

By self-awareness and discipline, a judge can learn not to allow his sympathies or antipathies to influence his judicial votes — unduly. But the qualification in "unduly" needs to be emphasized. Many judges would say that nothing "outside the law," in the narrow sense that confines the word to the texts of formal legal documents, influences their judicial votes at all. Some of them are speaking for public consumption, and know better. Those who are speaking sincerely are fooling themselves.

We suspect that the phenomenon of which Judge Posner speaks plays its Widest Role where judges attempt to explain what the evidence before them proves. As the Court urged not long ago, judging "what [the evidence] prove[s] is no more a question of fact than what our opinions hold." Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1434 n.5 (2013).

Really?

What do you think?

The American jury makes a profound contribution to the very structure and fabric of American law, Ciulla v. Rigny, 89 F. Supp. 2d 97, 98 (D. Mass. 2000), and so it is here. Indeed, this particular case would be of little interest to anyone other than the litigants were it not for the remarkable role of the American jury. According to this federal jury, a broker-dealer who fails to disclose his poor forex trading record to clients, where knowledge of such a record may influence whether they choose to invest in forex with him managing that investment, violates his fiduciary duties and the Exchange Act. Since this jury determined that a broker-dealer who fraudulently has failed to disclose his poor forex trading record has violated the Exchange Act, other broker-dealers should now be on notice that such a failure by them could lead to the same finding. This important jury finding is as much “the law” as it would be were this Court to have made the same finding in a jury-waived case. No longer can the securities industry simply advance the SEC’s equivocation or its own internal procedures as the standard against which its conduct should be measured. Why? An American jury has said so.

SEC v. EagleEye Asset Mgmt., LLC, No. 11-11576-WGY (D. Mass. Oct. 4, 2013) (Young, D.J.). 

The Ninth Circuit held today that due process allowed a 125,000 to one ratio between punitive and actual damages in a sexual harassment case. Arizona v. ASARCO LLC, No. 11-17484 (9th Cir. Oct. 24, 2013).

The panel cut district court's $300,000 award to $125,000 on the ground that due process would not permit the extra $175,000.

A jury had found ASARCO liable to employee Angela Aguilar under Title VII and awarded her $868,750 in punitive damages but only $1 in actuals. The district court cut the punitives to the statutory maximum of $300,000.

A concurring judge said the $300,000 cap met due process standards and would have affirmed the district court's award in that amount.

Blawgletter not too long ago got one of those machines that heats water and then blasts it through a canister of coffee essence to make — voila! — a steaming cup of joe.

These devices come from a Wide Range of sources, but many of them appear to spring from people who make the coffee-essence-canisters (CECs) — your Starbucks, your Nespressos, your LaVazzas, and your Keurigs.

We learned today that Keurig took out patents on its method for brewing mud right there in your kitchen with CECs. We also found out that Keurig sued a not-Keurig that made CECs you could use in Keurig devices.

Did Keurig win? No. The sale of its coffee-maker, the Federal Circuit ruled, "exhausted" Keurig's patent rights. Keurig thus couldn't collect damages for the sale of not-Keurig CECs.

We suspect the razor-blade people might have the same kind of problem.

Blawgletter once wrote Barnett's Notes on Commercial Litigation on a more-or-less monthly basis. But guess what? Each issue took at least a couple of days to compose. Which time at $875 an hour adds up.

So now we blog, or blawg, on Blawgletter. So much time is saved!

Which brings us to a topic we adore — passive voice. The item you'll see below inspired our friend and world-class column-writer for Bloomberg, Jonathan Weil, to use it to teach his students just what stuff of which the awful, terrible, and despicable "passive voice" consists.

From the May 2006 issue of Barnett's Notes on Commercial Litigation:

A dear client in a hard case once took to assuring our trial team of victory by telling us that "we will kill them."  An Italian by birth, upbringing, and temperament, the client rendered "kill" as "keel", which made his assurance more, well, assuring.  It worked for us.

In the years since, I've comforted other clients by telling them the same thing — even saying it the same way that my friend Alberto Lombardi did.  They love to hear me say we will keel them!

I've said we will keel them so many times now that people in my office use it to make fun of my near-obsessive distaste for passive voice.   My colleagues taunt me with they will be killed by us.  Ouch. 

I don't like passive voice.  I don't like it one bit.  Not even a tiny bit is it liked by me.

In my view, passive voice reveals either of three unflattering things about the writer — cowardice, fuzziness of thinking, or slothful ways.  Cowardice in this context means that the writer doesn't have the guts to identify the actor or wants to hide his identity ("mistakes were made" instead of "I made mistakes").  By fuzzy thinking I mean that the author doesn't have the wattage to fix the imprecision of his writing ("mistakes were made" seems perfectly fine to this dullard).   Slothfulness  suggests that the author could take the time to connect the actor to the action but chooses not to do the work or to do it in a loopy way ("mistakes were made by me").

A judge who reads passive voice in a brief should extend the magisterial antennae of skepticism.  Alarms should go off.  Red flags ought to billow.  The writer either wants to hide something, doesn't know what to say, or rates his time as more valuable than yours.

All this adds up to one thing:  passive voice in legal writing shows disrespect to the reader.  It lengthens, complicates, and obstructs writing; it forces the reader to remember too much, to fill too many gaps, to work too durn hard. 

The audience — your audience — deserves better.

Active voice propels the reader forward.  It holds interest.  It makes reading easier, more fun, and maybe irresistible.  It can even save writers from writing nonsense because it forces them to think through exactly what they mean.

Please use active voice always.  Or consequences will be suffered.  By you.

Blawgletter's old friend Bryan Garner has taken to writing for the ABA Journal. We love his monthly column, "Bryan Garner on Words".

If you've ever sampled Bryan's oeuvre — which ranges from Making Your Case (with Justice Antonin Scalia) and Black's Law Dictionary to Rules of Golf in Plain English – you may have deduced that Bryan has not only a vast supply of words but also quite a lot of the showman.

The B.G.O.W. column in the September 2013 Journal highlights what we mean. Bryan there goes to town on "useful words that lawyers ought to know." What does he have in mind by "useful"?

Worth money.

Thus Bryan tells us:

If I were to hazard a fairly educated guess, I’d say that American lawyers’ vocabularies range roughly from 45,000 to 135,000 words. Further, I’d guess that those who know 100,000 to 135,000 words have, on average, at least double the income of those who know only 45,000 to 70,000 words. I would also guess that there are many more lawyers at the lower end of the scale than at the higher end.

Perhaps you’re aware of E.D. Hirsch’s influential new essay, “A Wealth of Words,” in which Hirsch makes several important arguments, including these three:

• “Vocabulary size is a convenient proxy for a whole range of educational attainments and abilities—not just skill in reading, writing, listening and speaking but also general knowledge of science, history and the arts.”

• “Correlations between vocabulary size and life chances are as firm as any correlations in educational research.”

• “Between 1962 and the present, a big segment of the American population began knowing fewer words, getting less smart and becoming demonstrably less able to earn a high income.”013 BGOW as a for-instance. Bryan there goes to town on "useful words that lawyers ought to know." But we soon learn that "useful" means "worth money".

We agree that knowing precise and pleasing but rare words implies that you have smarts, and using deipnosophist, rhabdomancy, defenestrate, or even ulotrichous or calipygian at just the right moment can do you a lot of good with brainy judges or Ph.D. clients.

But nothing works nearly so well, in all phases of law practice, as having a knack for making complex things simple. Leonardo da Vinci said "simplicity is the ultimate sophistication."

By all means, get yourself a fab vocab. But use it to make the hard easy.

The head of CME Group — the Chicago Mercantile Exchange – writes for the today's WSJ op-ed page:

In 2008, Harvard sent 28% of its graduating class to firms where they would become bankers, traders or investors. By 2010, Harvard was sending just 17% of its graduating class. Yale graduates entering the finance business fell to 14% from 26% during the same period. Even Princeton, traditionally the most finance-friendly school, fell to 35.5% from 40%.

Where have these young people gone? Alas, the author says, "more graduates with 'quant' skills are choosing tech over finance."

Sad, right? Who wants to live in a world that sends a dwindling share of HYP's "most promising college graduates" into high finance! One in which more super-smart people head for a place that doesn't involve credit-default swaps and the like! Oh, the humanity!

The writer thinks the problem arises from "lost trust".

Blawgletter suspects it has a to do with the post-financial-crisis refusal to allow Wall Street to make crazy bets with taxpayer money.

Same thing.

Blawgletter spent half a day this week on a Windy City panel — lawyers and law firm Chief Pricing Officers — that talked about the “Anatomy of a Fixed-Fee Negotiation”.

We learned that firms have funny names for not charging by the hour. Sobriquets ranged from “alternative” fee arrangements to “appropriate”, “tailored”, and “preferred” ones.

We also learned that not many people think about the role of risk when they think about fixing a fee up-front.

Our view: nothing else matters.

The sorts of risk we have in mind fall into two groups — the Risk of Scope Error group and the Risk of Failure group.

Outside lawyers and clients tend to focus on the Scope Error thing. Why? Because they fear that they’ll guess wrong about how many billable hours will need to go into the work that the fixed-fee deal covers. The in-house folks worry about paying for more hours than the law firm will in fact devote to the work, and the law firms live in dread of maybe having to work their fingers to the bone on half-pay or worse.

You can do things to reduce the Risk of Scope Error. (Chief Pricing Officers, we suppose, do little else.) You can, for instance, study “metrics” of the Practice of Law in Our Time (“PLOT”). These measures of PLOT, we hear, include “leverage”, “utilization”, and “realization”.

But the Risk of Scope Error will seldom make or break a law firm or GC. If the client ends up paying more than the same work would have cost on an hourly basis, she can still pat herself on the back for fixing her company’s legal costs. The law firm can point to the money that came in and congratulate itself for at least keeping the lights on.

By far the bigger issue, in our view, concerns the Risk of Failure. What will the client lose if the case or transaction (or portfolio of cases or transactions) turns out badly? Will the client have to file for bankruptcy? Will the GC lose his job? Will the law firm have to dissolve? Will lawyers suffer deep personal embarrassment and loss of professional prestige?

Talks around fixing fees should, in our view, put these Risks at the forefront. Lawyers ought to think and talk with clients about how much Risk of Scope Error they can stand — and how much they should charge for sharing part of that Risk with clients.

Lawyers and clients must also spend think-about-it time on the Risk of Failure. You could sort the work into Low, Medium, or High Risk of Failure slots — or, a la ObamaCare, into Bronze, Silver, Gold, and Platinum. In any event, the pay for sharing the Risk of Failure should go up as the cost of failing rises.

Does the ability to manage both kinds of Risk often reside in the same law firm or lawyer? Does it need to for the PLOT? We’ll take a look at that in another post. Bye for now.

You'd really prefer not to see an opinion that starts like this, in a case you argued:

There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's argument here.

Uh-oh.

The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." Big Dipper Entm't, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011).

Dang.

But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

Bam!

Which explains why we prefer to understate. As did the court in Bennett v. State Farm Mut. Aubomobile Ins. Co., No. 13-3047, slip op. 1 (6th Cir. Sept. 24, 2013) (reversing summary judgment for insurer whose policy defined "occupant" as including a person "on" the vehicle) (Kethledge, J.).

The Tenth Circuit has ruled that Microsoft didn't kill WordPerfect. The market did.

Or at least that, if Microsoft did commit software-icide, it didn't lose money doing it and therefore Did Nothing Wrong. Novell, Inc. v. Microsoft Corp., No. 12-4143 (10th Cir. Sept. 23, 2013).

For other instances of antitrust-icide in the Tenth Circuit, see here and here.