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WRITING IT RIGHT
How Not to Seek an Award
of Attorney’s Fees
By Douglas E. Abrams
In 2007, lawyer Brian M. Puricelli
won his client a $150,000 jury verdict
against a Philadelphia police officer
for false arrest during a street celebration following the division championship victory that put the Philadelphia
Eagles in the Super Bowl two years
earlier.1 Shortly after entry of judgment in McKenna v. City of Philadelphia, Puricelli filed a petition seeking
more than $180,000 in attorney’s fees
for his work in the federal civil rights
action. In a published decision reported nationally, internationally and
locally, U.S. District Judge J. William Ditter, Jr. awarded fees of only
$26,000 because, among other reasons
for reduction, the lawyer’s request
came in written submissions that the
court found “slip-shod.”2
“SLIP-SHOD
SUBMISSIONS”
Judge Ditter lambasted the Puricelli
fees petition for its caption, which
omitted one word and misspelled
another (“interets”), but that was only
the beginning.3
The court also quoted verbatim the
petition’s opening sentence, complete
with its nine misspelled words and two
citation errors, quite an array before
the judge’s eyes even reached the
argument’s first period:
“Plaintf [sic] for the facts and argument [sic] of law made in the mocong
[sic] papers and supporting memorandum of law for an award of counsel
fees, award of litgation [sic] costs,
36
delay damages and post judgemnt [sic]
interest under Fed. Rule of Civil Pro.
59(e), 42 USC [sic] 988 and 28 USC
[sic] 1920, submits the proposed order
shouold [sic] be entered as the Court’s
order; and in support of same, plainitff
[sic] im [sic] McKenna though [sic]
counsel says: . . .”4
The fee petition’s remaining 20
paragraphs, and its Wherefore clause,
were laden with more misspellings, including these: “withint,” “Philadehia,”
“attoreys,” “Ubited States,” “Pensylvania,” “reasonbale,” “achived,” and
“Bargining Agreemnt.”5 Judge Ditter
also referenced the petition’s “punctuation miscues”6 and its “misquotations
as well as errors of omission, commission, and abbreviation.”7
Thanks to careless cutting-andpasting from a proposed order Puricelli had filed in an unrelated case,
the McKenna petition’s proposed
order (with still-uncorrected misspellings) recited “the wrong amount of
[the plaintiff ’s] judgment and orders
three strangers to this action to pay
attorneys’ fees and costs.”8 In another cut-and paste job gone awry, the
memorandum of law supporting the
McKenna fees petition repeated the
same typographical errors, “the same
bungled case citations,” and the “same
case-name errors” found in a memorandum that Puricelli had submitted
to the court in yet another unrelated
action.9
Judge Ditter did acknowledge that
three days after filing the first McKenna fees petition, lawyer Puricelli filed
an amended petition which “corrected
most of the original’s misspellings,”
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and thus was “better but not good.”10
By that time, Puricelli was likely on a
short judicial leash for having overlooked the adage that a person gets
only one chance to make a good first
impression. According to the court, he
had commenced the McKenna lawsuit
with a “verbose . . . repetitive” complaint that contained 56 misnumbered
paragraphs “replete with misspellings,
errors of grammar, and punctuation
lapses.”11 Near the end of the trial,
the plaintiff’s proposed jury instructions provided an apt denouement,
described by Judge Ditter as a “mishmash of misdirections, misnomers,
and mistakes.”12
MISSING THE LESSON
Evidently lawyer Puricelli had not
learned his lesson, because the same
court had publicly rebuked him for
similarly deficient written submissions in a civil rights action four years
earlier. In Devore v. City of Philadelphia in 2004, he won a $430,000 jury
verdict for a police officer who had
been harassed and later terminated in
retaliation for reporting that his partner
had stolen a cell phone from a neighborhood juvenile.13
When the Devore defendants cited
deficient writing in the complaint and
later filings as a ground for reducing
the award of attorney’s fees, Puricelli’s
written response dug the hole deeper:
“As for there being typos, yes there
have been typos, but these errors have
not detracted from the arguments or
results, and the rule in this case was a
victory for Mr. Devore. Further, had
the Defendants not tired [sic] to paper
WRITING IT RIGHT
Plaintiff’s counsel to death, some
type [sic] would not have occurred.
Furthermore, there have been omissions by the Defendants, thus they
should not case [sic] stones.”14 “If
these mistakes were purposeful,” the
magistrate judge concluded in Devore, “they would be brilliant.”15
Puricelli’s courtroom performance
in Devore impressed the court,
which found that the lawyer was
“well prepared, his witnesses were
prepped, and his case proceeded quite
artfully and smoothly.”16 The magistrate judge concluded, however, that
Puricelli’s “complete lack of care
in his written product shows disrespect for the court.”17 Finding that
the plaintiff’s filings were marked
by an “epidemic” of misspellings
interspersed in “vague, ambiguous,
unintelligible, verbose and repetitive”
passages, the court approved fees at a
dual rate, $300 an hour for courtroom
work, but only $150 an hour (a rate
the court found “generous” under the
circumstances) for written work.18
MAKING SENSE OF THIS
SAGA
This unfortunate tale yields six
lessons useful even to lawyers whose
writing would not descend to lawyer
Puricelli’s levels.
1. Law is indeed a literary profession. If the Devore opinion is any
indication, Brian Puricelli could argue
effectively in the courtroom, though
his written submissions did neither
him nor his client any good.
Lawyering depends on spoken and
written expression, and lawyers act at
their peril when they give short shrift
to either. When I was in law school,
Professor Louis Lusky would tell his
classes that “a lawyer who can stand
up and speak effectively before a tri-
bunal will never go hungry.” He did
not mean to limit his advice to future
litigators because, he told us, effective client representation demands
versatility. Indeed,
we law
professors
sometimes
justify our
classroom
use of the
potentially
intimidating Socratic Method
as a way
to help train our students to communicate in public about legal issues,
whether as advocates or counselors.
Writing is also central to the
lawyer’s professional repertoire. In
my first “Writing It Right” article, I
surveyed the vast universe of writing
regularly done by lawyers: “Briefs,
motion papers and transactional documents dominate client representation;
judges speak through written opinions; and lawyers draft legislation,
administrative regulations and other
government documents. Lawyers and
judges write treatises, law journal
articles, and continuing legal education materials. Lawyers also discuss
important policy questions in magazine articles, newspaper columns and
Internet postings. . . .”19
Lawyers frequently write under
time pressure imposed by tight,
inflexible deadlines. An occasional
typo in written submissions is understandable because lawyers, like other
people, may strive for perfection but
rarely achieve it.20 Despite their busy
schedules, however, lawyers need to
guard against overtly deficient writing, even when the deficiency would
likely not arouse the public attention
drawn by McKenna and Devore.
2. Careless writing can unreasonably burden the court and adversaries. In
Devore, the
magistrate
judge reduced Puricelli’s fees
award partly
because the
lawyer’s
“lack of care
caused the
court, and . . .
defense counsel, to expend an inordinate amount
of time deciphering the arguments
and responding, accordingly.”21 Time
remains a precious commodity for
courts and counsel, who cannot afford
the luxury of confidently skimming
over inarticulate papers strewn with
rhetorical roadblocks.
In trial and appellate courts alike,
advocates need to consider the professional “responsibility (and, indeed,
the opportunity) to assist the court
. . . by making the reading easier and
more manageable.”22 Even outside the
courtroom, however, written communication marked by proper grammar, syntax and spelling is a bare
minimum expected from the men
and women who practice our literary
profession.
3. There is no substitute for careful editing. Judge Ditter found that
any pre-submission editing of the
McKenna complaint by Brian Puricelli’s co-counsel was “shamefully
inadequate.”23 The same could have
been said about any editing that might
have been done on the lawyer’s other
written submissions in that case and
Devore.
”[W]ritten communication
marked by proper grammar,
syntax and spelling is a
bare minimum expected
from the men and women
who practice our literary
profession.”
Precedent Summer 2009
37
WRITING IT RIGHT
Editing begins with the writer,
whose own proofreading is essential
to any document destined to reach
an audience large or small. Lawyers
remain ultimately responsible for
their own written work, so (to quote
President Harry S Truman) the buck
stops with them. Because lawyer
Puricelli knew that he would sign his
filings and advance them as his own,
he had no basis for the understatement, shortly after the McKenna court
slashed his fees request, that “sometimes I don’t proofread enough.”24
At some point, however, even talented writers lose capacity to improve
the draft by themselves. A strong
finish depends on enlisting input from
others who review and critique the
draft for substance and style. In the
Spring 2008 issue of Precedent, I advanced six basic guidelines to direct
a writer’s quest for productive editing
by others.25 “[N]o one,” I wrote, “has
ever edited my work and made it
worse.”26 With the slightest reflection,
any lawyer could say the same thing.
Editing by others remains doubly
important to lawyers who hold misgivings about the quality of their written expression, as Puricelli certainly
should have held before he filed the
McKenna complaint. In a law firm
of any size, lawyers seeking editorial assistance may consider enlisting
partners, associates, administrative
assistants, or even student law clerks
or interns. Each of these people has
different capacities to provide substantive or stylistic support, but any
could easily have improved Puricelli’s documents before he filed them.
4. Beware of “spell-check.” In
an interview with The Legal Intelligencer shortly after Judge Ditter
slashed his fees request, lawyer Puricelli acknowledged that he relies too
38
heavily on spell-checking software.27
Dependence on spell-check actually
does not appear to be the root of his
problems in McKenna and Devore,
however, because even relatively
quick use would have caught many of
the misspellings. Because other misspellings would have escaped detection, however, Puricelli’s predicament
provides opportunity for cautionary
words about this software, whose limitations should come as no surprise to
any careful writer familiar with it.
Like so many other “labor saving”
devices that affect our daily lives,
spell-checking software can exact a
heavy price. The software (and grammar-checking software in programs
that have it) is actually quite porous.
Spell-check does not detect a misspelled word when the writer inadvertently spells another word correctly
(in Devore, for example, “tried” and
“tired,” or “cast” and “case”).
Spell-check alerts me to problems
as I type. Near the end of a project,
I sometimes pay closer attention
to spell-check before I do my own
proofreading, sometimes after. Whatever the preference, spell-check is a
tool and not a crutch, useful indeed
but not a short-cut or substitute for
good old-fashioned proofreading.
Close proofreading is hard work, but
writing is itself hard work, whether
an impending deadline looms, or
whether the writer has greater time
for reflection.
As Benjamin Franklin wrote and as
sports coaches still regularly repeat
to instill a work ethic in their athletes, “[t]here are no gains, without
pains.”28 The federal judges’ acid reactions to lawyer Puricelli’s submissions also summon the admonition of
eighteenth-century British author and
lexicographer Samuel Johnson that
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“[w]hat is written without effort is in
general read without pleasure.”29
5. Cutting-and-pasting can be
dangerous. Judge Ditter cited careless
cutting-and-pasting as grounds for
reducing the McKenna fees request.
Form books can be found in most
law libraries, and internal form files
have long been staples in private law
firms and public agencies. Like spellchecking and grammar-checking
software, however, forms can be
tantalizing invitations to laziness and
corner-cutting. Forms that appear
grammatically correct and structurally
sound might win high grades in a law
school drafting seminar, but in actual
law practice they may carry unintended pitfalls for failing to reflect the
unique circumstances the lawyer and
client now confront.
On the one hand, a lawyer carefully using all or part of a form can
avoid wasteful efforts to “reinvent the
wheel.” The lawyer can profit from
prior wisdom while saving valuable
professional time, and thus presumably also unnecessary cost to clients.
Forms remain useful, however,
only when the lawyer adapts them
to suit the present matter. Lawyer
Puricelli learned the hard way, for
example, that passages quickly lifted
or marked-up can inadvertently
preserve former names, dates and
circumstances. Opponents snicker,
and the billed client feels slighted by
the lawyer’s failure to recite its name
or cause properly.
In hard nosed-negotiations, inadvertence can also weaken the
lawyer’s hand, and thus the client’s
position, by evincing a lack of thoroughness that might lead opposing
lawyers to “smell blood” and seek to
take advantage. As Judge Ditter demonstrated in McKenna, carelessness
WRITING IT RIGHT
can diminish the court’s confidence in
the lawyer’s advocacy.
The form may also have emerged
from a context quite different from
today’s context, though the difference is unlikely to appear on the face
of the form months or years after its
deposit in the form book or internal
form file. The form, for example, may
have been finalized under the law of
a jurisdiction other than the one that
would govern today’s proceeding,
particularly where the form appears
in a national form book. Even within
a particular jurisdiction, the operative
law may have changed in the interim.
Today’s parties may also have backgrounds, needs, desires and anticipated
future courses of dealings different
from those that motivated the parties
responsible for the form.
Forms frequently contain language
and passages that emerged after negotiations, and perhaps tedious give-andtake and ultimate compromise, that
reflected the relative bargaining power
of the prior parties. Parroting weaker
form language, for example, disserves
a client that is now in the stronger position. The buyer’s counsel may have
written the first draft of the form, but
tutes for good old-fashioned analysis,
interpretation, reasoning and negotiation based on counsel’s informed
understanding of the client’s needs and
circumstances today.
6. Electronic submissions require
special care. Lawyer Puricelli told
The Legal Intelligencer that, using
the McKenna court’s electronic filing
system, he had accidentally first filed
a draft that had not been proofread.30
The lawyer’s dismal track record
makes this explanation hard to swallow, but the explanation nonetheless
presents another opportunity for cautionary words: Technology provides
no excuse for abandoning the good,
old-fashioned care required when lawyers mail or hand-deliver their papers
to the courthouse and the other parties.
It is too easy sometimes to press a key
on the computer and then have “sender’s regret” once it is too late.
CONCLUSION: THE
LAWYER’S MOST VALUABLE
ASSET
Shortly after Judge Ditter’s decision
on his fees request, lawyer Puricelli
charged that he is now “singled out”
by judges and opponents because
his public
”Lawyers rightly tagged with a
chastisement
Devore had
reputation for work that falls below in
attracted such
accepted levels of competence
attention four
years earlier.31 “I
have no one to blame but
think,” Puricelli
complained
themselves. Word gets around.”
to The Legal
Intelligencer, that
“they say: ‘We’re going to scrutinize
today’s first draft might be the seller’s
this guy because he’s been told about
responsibility.
this before.’”32
Like spell-check, a good form is a
Lawyers rightly tagged with a
tool and not a crutch. Forms are useful
reputation for work that falls below
indeed, but are not short-cuts or substiacceptable levels of competence have
Precedent Summer 2009
no one to blame but themselves. Word
gets around. In cities, suburbs and
outstate areas alike, the practicing
bar usually reduces itself to a
relatively discrete group bound by
bar association memberships, other
mutual relationships, word of mouth,
recollections, and past experiences.
The specialization that characterizes
much of contemporary law practice
may constrict the circle still further.
For good or bad, lawyers size up their
peers and should expect to be sized up
by them.
Lawyers can size up a peer’s writing
any time they face, or collaborate
with, the peer in a private or public
matter. In many private-law matters,
scrutiny of a lawyer’s writing may not
extend beyond parties and counsel.
Even where written submissions do
become public records technically
available to all, deficient writing
usually does not lead to rebuke in
the published reports, or in national
and local newspapers and journals.
When the sort of public exposure
experienced by lawyer Puricelli does
occur, however, the deficiencies
become a permanent open book
readily available to any other lawyer
who follows the advance sheets or
the professional and popular media.
Westlaw, Lexis and other electronic
research sources have opened the book
even wider in recent years.
Private scrutiny or public exposure
can affect not only the lawyer’s
self-esteem, but also the lawyer’s
livelihood. Brian’s Puricelli’s stumbles
in McKenna and Devore, for example,
likely cast doubt in the minds of other
bar members and past clients who
might contemplate new relationships
with him, including whether to send
referrals his way.33
Lawyers concerned for their private
or public reputation for competent
39
WRITING IT RIGHT
writing can turn for advice to
prominent voices steeped in the law.
Judge Hugh R. Jones of the New York
Court of Appeals was fond of saying
that “a lawyer’s reputation is his
principal asset,”34 a truism that should
cause lawyers no quarrel. Reputation
for competence, like reputation for
integrity, is part of the lawyer’s
package.
One private or public stumble may
be enough. A lawyer’s reputation,
wrote Chief Judge Benjamin N.
Cardozo when he sat on the New York
Court of Appeals, “is a plant of tender
growth, and its bloom, once lost, is
not easily restored.”35 Or as Benjamin
Franklin taught more pointedly, “It
takes many good deeds to build a good
reputation, and only one bad one to
lose it.”36
ENDNOTES
1 2008 WL 4435939, No. 07-110 (E.D. Pa.
Sept. 30, 2008).
2 Id. at *14. See, e.g., Typos Prove Costly
For Pennsylvania Attorney, available at
http://www.cbsnews.com/stories/2008/10/8/
ap/strange/main4510305.shtml (Oct. 8,
2008); Shannon P. Duffy, Typos and Errors Lead to Slashed Fees For Attorney, The
Legal Intelligencer, available at http://
www.law.com/jsp/pa/PubArticleFriendlyPA.
jsp?id=1202425106317 (Oct. 8, 2008); Michael
Kesterton, A Daily Miscellany of Information,
The Globe and Mail (Canada), Oct. 10, 2008,
at L6; Debra Cassens Weiss, Irate Judge Blasts
Typos and Errors in Filing, Slashes Fees by
$154K, A.B.A. J., Law News Now (Oct. 8,
40
2008).
3 2008 WL 4435939, No. 07-110 *1 (E.D.
Pa. Sept. 30, 2008).
4 Id.
5 Id. at *1-2.
6 Id. at *1.
7 Id.
8 Id.
9 Id. at *7.
10 Id. at *2 n.4.
11 Id. at *3.
12 Id. at *6.
13 Devore, 2004 WL 414085, No. Civ.A.
00-3598 (E.D. Pa. Feb. 20, 2004) (magistrate judge’s opinion). See also Shannon
P. Duffy, Judge Slashes Lawyer’s Rate for
Typos, Careless Writing, available at http://
www.law.com/jsp/law/LawArticleFriendly.
jsp?id=900005538112 (Feb. 25, 2004).
14 Devore, supra note 13, at *2-3.
15 Id. at *3.
16 Id.
17 Id.
18 Id. at *2-3.
19 Douglas E. Abrams, The Right to a
Reader, 1 Precedent 38, 38 (Winter 2007).
20 See, e.g., Glenn Bradford, Pursuing
Perfection in the Practice of Law: An Imperfect
Essay by an Imperfect Lawyer, 65 J. Mo. Bar
120 (May-June 2009).
21 Devore, supra note 13, at * 2.
22 Judge Hugh R. Jones, Appellate Advocacy, Written and Oral, 47 J. Mo. Bar. 297,
298 (June 1991). See also ABA Model Rules of
Prof’l Conduct, R. 1.1 (“A lawyer shall provide
competent representation to a client. . . .”).
23 2008 WL 4435939, No. 07-110 *4 (E.D.
Pa. Sept. 30, 2008).
24 Shannon P. Duffy, supra note 2.
25 Douglas E. Abrams, We Are the Products
of Editing, 2 Precedent 12 (Spring 2008).
26 Id.
27 Shannon P. Duffy, supra note 2.
28 Benjamin Franklin, The Way to Wealth
Precedent Summer 2009
2 (1758), available at http://www.bfranklin.
edu/johnhibbs/WayToWealth.pdf.
29 Anecdotes by William Seward, in 2 Johnsonian Miscellanies (George Birkbeck Hill
ed., 1897).
30 Shannon P. Duffy, supra note 2.
31 Id.
32 Id.
33 See, e.g., Stephen Daniels & Joanne Martin, “It’s Darwinism – Survival of the Fittest:”
How Markets and Reputations Shape the Way
in Which Plaintiffs’ Lawyers Obtain Clients, 21
Law & Pol’y 377, 384-87 (1999) (a lawyer’s
reputation among peers determines the type
and number of referrals the lawyer receives).
34 Stephen P. Younger, Reflections on the
Life and Work of the Honorable Hugh R. Jones,
65 Alb. L. Rev. 13, 13 (2001). See also, e.g.,
Harlyn Sales Corp. Profit Sharing Plan v.
Kemper Fin. Servs., 9 F.3d 1263, 1269 (7th
Cir. 1993) (“A lawyer’s reputation for integrity,
thoroughness and competence is his or her
bread and butter.”).
35 People ex rel. Karlin v. Culkin, 162 N.E.
487, 492 (N.Y. 1928).
36 Recovery and Reinvestment Spending: Implementing a Bold Oversight Strategy,
Hearing Before the S. Homeland Security and
Govt’l Affairs Comm., 110th Cong., 1st Sess.
(2008) (testimony by Sen. Joseph I. Lieberman) (quoting Franklin).
Douglas E. Abrams, a law
professor at the University
of Missouri, has written or
co-authored five books.
Four U.S. Supreme Court
decisions have cited his
law review articles.