A Judge Shows How to Write Like a Lawyer

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U.S. District Judge Bierly has provided an excellent example this weekend of how to write like a lawyer in his Order setting the five year old boy with a bunny ears hat and his father free from ICE detention.

The Order is a tour de force in legal writing,  It draws on the Declaration of Independence, the Fourth Amendment to the U.S. Constitution, and the Magna Carta.  It also quotes Thomas Jefferson, Benjamin Franklin, William Blackstone, and the Bible.

It is set out here in its entirety.

Matthew 19:14: “But Jesus said, Suffer little children, and forbid them not, to come unto me: for of such is the kingdom of heaven.”

John 11:35: “Jesus wept.”

/by James J. Gross

Can My Sister Be on the Call With Us?

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“You did my sister’s divorce,” the caller said. “And she was very happy with the result.  “So now I need you to do mine.”

I put my phone on speaker.  “Ok, I replied turning to my computer to take some notes. “Let me ask you a few questions.”

Then she asked me, “Can my sister be on this call with me?”

The Attorney Client Privilege

Whatever you say to your attorney and whatever advice your attorney gives you is confidential and privileged. You may have seen in the news recently that former Vice President Pence is asserting some similar privileges to keep from testifying against former President Trump. What the privilege means is that your attorney will keep any advice and discussion with you secret and no one can drag it out of us – not opposing counsel, the judge, nor even six white horses.

The Practical Effect

The purpose of the privilege is to allow people to speak freely with their attorneys without fear that their conversations may be made public. This privilege covers you as well as your attorney so you don’t have to answer any questions like, “What did your attorney say?” or “What advice did your attorney give you?”

Attorneys watch for these type of questions. If you hear us say, “Objection!”, stop talking.

Attorney Client Privilege Waiver

The librarian gives the new students a tour of the library on the first day of law school that usually begins, “The laws are on this side of the library, and the exceptions are on the other side.“  The main exception to the attorney client privilege you have to worry about is waiver.

Attorney-client conversations and advice remain confidential and privileged so long as you discuss them only with your attorney  That is why you can expect opposing counsel to ask you fairly early in your deposition if you have discussed the case with anyone else besides your lawyers.

If you have, the next  questions will be “What did you discuss?”  Then, “What did you say and what did  they say?”  If you talk about conversations with your attorney with anyone else, whether in person, by email or otherwise, opposing counsel will claim you are not treating the information as confidential and privileged. And, whether you meant to or not, you will have waived the privilege.

If the judge agrees you have waived the privilege, opposing counsel can ask you what advice your attorney gave you, such as trial strategy, and you will have to answer.

Even Worse

If you waive the privilege for one little confidential fact, the judge can find that to be a global waiver of the privilege for everything in the case.

/by James J. Gross