You do not want to miss this.
Coming Friday the world's best legal blogger...and Mr. Markus square off on each of our respective blogs for a battle over the very heart of our legal practice- CUSTOM. He wins a few cases and appeals with the rare "reversed with instructions to discharge the defendant" and all of the sudden he knows everything. Or so he thinks.
Query: The use of "Comes Now" in pleadings, along with other customary sayings in documents are archaic and should no longer be used- what say you all? Yea or nay?
This is the topic that will be settled on Friday. It is nothing less than the battle for the soul of our profession.
Kindly act accordingly.
7 comments:
So should any compound word beginning with "here" (e.g., heretofore, herewith, etc.).
We are all about archaic things in this profession. Using brains? Resolving disputes peacefully and fairly? Actually figuring out facts and truth? Archaic. The modern way is cartoon lizards and violence.
Choose the middle path. "COMES NOW," "WHEREAS," "WHEREFORE," latin phrases, etc. are archaic and should be forgotten. But that folksy style used by the likes of Judge Goodman with pop culture references and attempts at humor go too far in the other direction. Lawyers and judges should use plain, straightforward, and unadorned language that doesn't get in the way of the substance. Effective legal writing is short, clear, and to the point. Elements of Strunk and White's The Elements of Style should be law.
Of course they should be discarded! If they are useless, clunky, and detract from a plain reading of what you're writing. Which is most often the case. There are so many examples. Think about how when people answer complaints, they'll deny something and write "and demand strict proof thereof." That saying has no legal effect whatsoever, imposes no obligation on the plaintiff, and isn't one of the things the rules say you can say in response to an allegation. Yet people insist on it.
Also in contracts. The "Whereas" clauses drive me nuts. They make the recitals maddening to read. Just title the section "Recitals," and list a series of numbered sentences that each end in a period.
Also, just Stop Capitalizing every Other Word for No reason, or worse, rendering words in ALL CAPS for no reason.
As for "COMES NOW"....I actually think the entire customary opening paragraph should be dispensed with. You write a motion for summary judgment and title it as such. So, a simple glance at the caption of the case and the title of the motion tells the reader who's who, and what the motion is. So it's redundant and silly to open the motion with a clunky paragraph that goes: "Defendant, Corporation Corp. ("Corp."), hereby files this motion for summary judgment against Plaintiff, John Jones ("Jones"), and in support thereof states as follows." That whole paragraph, which you just wasted a quarter or a half a page writing, tells the reader no more information than the reader already knew from the caption and the title.
Some lawyers are still using Courier typeface and carbon paper, too.
Thanks to pornography, "COMES NOW" has other meanings today.
Use this form in your rule to show cause the next time a witness repeatedly and contumaciously fails to appear for deposition after being properly served with a validly issued subpoena by a duly certified and appointed deputy sheriff according to the requirements and procedures enacted by the Florida Legislature in Chapter 48 of the Florida Statutes:
"YOU ARE HEREBY COMMANDED to be and appear before the Honorable ____________________, one of the Judges of the above-styled Court, in Courtroom ___ of the Richard E. Gerstein Justice Building, 1351 Northwest Twelfth Street, Miami, Florida, 33125 on the ____ day of ____________, 202_, at 9:00 o'clock in the forenoon and, then and there, SHOW CAUSE (if any there be) why you should not be adjudged in CONTEMPT of the Authority of this Court for your Acts and Doings as specified in the Suggestion and Petition for Rule to Show Cause filed with the Clerk of Courts in this cause, a true copy whereof is attached hereto and made a part hereof, and which therein contains certain and various recitals that suggest to the Court that on the _____ day of _______________, 202_, you failed to comply with a certain Subpoena commanding you to appear at a duly noticed deposition to testify and the truth to speak regarding your knowledge and remembrances of a certain matter, as of yet pending and undetermined, wherein the State of Florida is the Plaintiff and ________________ is the Defendant. And this, you shall in no wise omit. HEREIN FAIL NOT UNDER PENALTY OF LAW.
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