Judge Scolds Overwriting Attorneys: Business of Law

Lawyers who don’t write succinctly have been taken to task by another judge.

Judge William Pauley III, who clearly knows how to turn a phrase, said in a March 24 ruling that “a troubling trend toward prolixity in pleading is infecting court dockets in this district and elsewhere.”

The federal judge’s ruling came in a case involving the decision by United Parcel Service Inc. to terminate a franchise owned by Robert and Thomas Hagan.

UPS, Pauley wrote, had a 175-paragraph case with more than 1,400 pages of exhibits. The Hagans filed a 210-page answer with what Pauley described as “voluminous exhibits.” A subsequent filing contained a “breathtaking 1,263 paragraphs, spanning 303 pages.”

The judge, while expressing his frustration in this case, made clear that his concern was widespread.

“As this case illustrates, a growing number of attorneys, from solo practitioners to ‘big law’ partners are ignoring Rule 8 of the Federal Rules of Civil Procedure that require a ‘‘short and plain statement of the claim.’’

Earlier this week, the U.S. Supreme Court dismissed a proposed disciplinary action against a lawyer who had filed a jargon-filled petition written by a client, but only after Williams & Connolly LLP had stepped in to plead the lawyer’s case.

William Brewer, of Bickel & Brewer, last week became co-counsel in the UPS case representing the franchisee contesting their termination.

‘‘The judge did a phenomenal job of sorting out the facts to get to a substantive understanding of the dispute,’’ Brewer said. Pauley was right, he said, to criticize complicated filings with alternative pleadings that might be viewed as inconsistent.

‘‘Judge Pauley did everyone a service.’’ Brewer said. ‘‘Although he picked out one case, it’s clear this has been bothering him. He did all lawyers a favor by reminding us to sharpen both our pencils and our advocacy.’’

Peter Ellis of Reed Smith LLP and Mark McDonald of Morrison & Foerster LLP are listed on court filings as among the lawyers representing UPS. Neither Ellis nor McDonald responded to e-mails seeking comment.

Pauley’s ruling was reported earlier by the ABA Journal.

The case is a reminder, Brewer said, that ‘‘lawyers sometimes forget the difference between having something to say and having something intelligent or important to say.’’

The case is UPS Store Inc. v. Hagan, 1:14-cv-01210, U.S. District Court, Southern District of New York (Manhattan).

California Merchants Can Impose Card Fees After Court Ruling

California merchants may tell customers they’ll pay extra for using credit cards, a federal judge said. The ruling may help businesses fighting to overturn other states’ rules regulating what cashiers or salespeople may tell shoppers.

U.S. District Judge Morrison C. England in Sacramento said Thursday that a state law barring retailers from telling customers they’re being charged more for paying with a credit card violates free-speech protections.

As many as 10 states have laws on the books prohibiting merchants from telling customers they impose surcharges for credit-card use, Deepak Gupta, a lawyer for the merchants, said in a phone interview. Businesses have challenged statutes in New York, Florida and Texas, claiming they illegally regulated how charges can be described. A U.S. judge in New York sided with merchants in 2013 in a case now on appeal.

Fees paid by merchants to process credit-card transactions total as much as $50 billion a year, the U.S. Justice Department has said in an unrelated case. Credit card firms Visa Inc., MasterCard Inc. and American Express Co. have settled suits brought by merchants by allowing some form of surcharging.

Kristin Ford, a spokeswoman for California Attorney General Kamala Harris, said the state is reviewing the ruling.

The case is Italian Colors Restaurant v. Harris, 2:14-cv-00604, U.S. District Court, Eastern District of California (Sacramento).

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NHL Ordered to Face Retired Players’ Concussion Lawsuits

The National Hockey League lost its bid to throw out retired players’ claims it glorified violence and failed to protect them from repeated head injuries and concussions.

Wednesday’s ruling by a federal judge in St. Paul, Minnesota, comes as the National Football League and the National Collegiate Athletic Association struggle to win approval of agreements that would end similar lawsuits against them, Bloomberg’s Andrew Harris reports.

‘‘Plaintiffs have plausibly alleged that they may not have been aware that they had suffered an injury -- or the possibility of injury -- while they were playing in the NHL,” U.S. District Judge Susan Richard Nelson said. She added that the athletes’ claims that the league kept information from them were strong enough to allow the case to proceed.

Bill Daly, deputy commissioner for the New York-based NHL, said in an e-mailed statement that the League will have time to defend the allegations.

“While we would have hoped for a different result on this motion, we understand that the case is at a relatively early stage,” he said.

Skadden, Arps, Slate, Meagher & Flom LLP and Proskauer Rose LLP, along with Faegre Baker Daniels LLP, represent the NHL.

The case is In Re National Hockey League Players’ Concussion Injury Litigation, 14-MD-2551, U.S. District Court, District of Minnesota (St. Paul).

Law Firm News

Tom Furlong joined DLA Piper’s corporate practice in its Silicon Valley and San Francisco offices. Furlong, who earlier in his career was a corporate partner with DLA Piper’s predecessor firm Gray Cary, was most recently a managing director at Granite Ventures, a venture capital firm investing in early-stage technology companies. During his 13-year tenure with Granite, Furlong led numerous investments, and worked as a board member and adviser to portfolio companies, DLA said in a statement.

Michael Taylor has joined Baker & Hostetler LLP as a partner in its litigation group based in Washington. Taylor, the firm said in a statement, will lead efforts to build out the firm’s OSHA practice and will focus solely on representing clients on workplace health and safety matters governed by state regulations and federal Occupational Safety and Health Administration laws and regulations. He previously practiced at Jackson Lewis P.C., and has served as general counsel to the Occupational Safety and Health Review Commission,

(To be sent this column daily, click SALT LAWBIZ. Corrects spelling of judge’s name in fourth paragraph, law firm name in NHL item.)
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