Red Flags

by David L. Lee

The Inspector was discussing the case with the consulting detective from London.

"Is there any point to which you would wish to draw my attention?", the Inspector asked.

"To the curious incident of the dog in the night-time."

"The dog did nothing in the night-time."

"That was the curious incident," remarked Sherlock Holmes.

To one with the observing skills and reasoning powers of Sherlock Holmes, the absence of something that should have been present is a red flag. In the story "Silver Blaze", the absence of barking by a guard dog that was present was the red flag that led Sherlock Holmes to realize the police theory about the case was wrong. As legal writers, we don't get to be Sherlock Holmes -- hell, we don't even get to be Perry Mason -- but we too can and should look for the absence of things that should be present. And, like Holmes, when we realize that something that should have been present is not, we can use that absence to test our and our opponent's theories.

This is not a new insight for lawyers, of course. Trial practice abounds with both law and war stories concerning the red flags raised by that which should have been present, but was not -- the absent document, the absent witness, the absent party, etc. Yet, when lawyers put on their legal-writing hat, they often don't realize that red flags are still important. Red flags not only enable us to test our and our opponent's theories, but, going beyond Holmes, they also give us powerful arguments to make to the court.

Sometimes, we become aware of red flags because a sixth sense tells us that something is wrong with a piece of legal writing. Perhaps you're reading a brief, and the argument sounds good, but something you can't put your finger on just seems a little off. Chances are that your lawyerly subconscious has picked up on a red flag. Other times, like Holmes, we explicitly search for red flags by analyzing what should be present but isn't. But whether you use your subconscious, your analytical skill, or a combination of both, you should be alert for the following common red flags:

Important statutory or contractual words that are not quoted. Most legal writing is about words -- statutes, contracts, testimony, precedents, etc. Sometimes, as with statutes or contracts, the words used take on technical importance. Nevertheless, experience and observation show that a large proportion of arguments about the interpretation of a statute, a contract, or other pieces of technical writing avoid quoting the words at issue. Since we can't read minds, we can never be certain why the legal writer chose to avoid quoting the actual words, but, since the actual words would seem to be against the legal writer about 50% of the time, the writer may have deliberately or unconsciously chosen to draft his or her argument to avoid them. Thus, in a case in which the interpretation of a statute, contract, etc., is at issue, any failure to quote the actual words in the argument is a major red flag.

This red flag can be well-hidden by skillful argumentation. If, for example, you're reading a argument about the interpretation of a statute or contract and, as discussed above, can't put your finger on what is wrong, it may be that you're picking up on the red flag of the statutory or contractual language not being quoted. Go back and check the argument. Is the crucial language being quoted or is it just being characterized?

This red flag of avoiding technical language is intensified when the legal writer is making the increasingly-popular "plain language" argument. If the plain language supports the legal writer's position, then that plain language should be emphasized, not avoided. Similarly, if a conclusion about the language used is clear or obvious, that conclusion can be better demonstrated by using the words of the statute than be saying "clearly" or "obviously".
Non- or quasi-technical language -- such as precedents or testimony -- that is characterized. This red flag is similar to, but perhaps somewhat less glaring than, the previous one. Just as legal writers avoid technical language that is against them, they also avoid non-technical or quasi-technical language that is against them. Precedents and testimony, for example, are often characterized rather than quoted. Of course, legal writing that was nothing but an endless parade of block quotes would be unreadable. Nevertheless, if a piece of legal writing seems heavy on characterizing testimony and precedents and light on quoting them, go back and check. The author may be writing around a problem.
Important cases that are discussed without any factual context. In much legal writing these days, important precedents are treated as propositions of law rather than as sets of facts on which the courts reached certain results. Among the reasons for this phenomenon, as we discussed in the column on "Analogizing Your Case to a Precedent", are that the case-method teaches law students that cases stand for propositions of law and that divining those propositions is a lawyer's basic skill, that most legal-research tools are great devices for discovering propositions of law, but poor devices for discovering the facts of the case, and that thinking about analogies between cases is hard work.

For purposes of our present discussion, however, a legal writer's discussing important precedents as pure propositions of law, without any factual context, may be the result of the legal writer trying to write around the problem that the facts of the precedent differ wildly from the facts of the writer's case. Such running from the facts of the precedent is a major red flag that is always worth investigating.
Ellipses or brackets in quotes. Do the quotes your reading seem to have those enigmatic dots (".....") or brackets ("[]")? The legal writer may just be making the grammar of the quote fit the text or omitting a citation or excising something that is clearly irrelevant, but then again, who knows? All quotes are worth double-checking, of course, but ellipses and bracket are more -- they are red flags that something may have been altered or that something is being kept from yours and the judge's attention. Even if the ellipsis is just an omitted citation, it may be that that cite was omitted not for readability, but to keep something from the reader's eyes.
A trend or a majority supported by a single citation. A statement like "most courts hold" or "the overwhelming weight of authority is" or "the modern trend is" or "the majority rule is" supported by a single citation is a red flag. It is possible, of course, that the citation will state what the trend or majority rule is. On the other hand, the statement of "most courts hold", etc., may be wishful thinking -- or worse! -- on the part of the legal writer. All such statements should be checked out.
Citations that seem unusual or weird on their faces. Something may seem wrong with a citation on its face. Citations to newspaper or magazine articles, student notes and comments, state cases on federal questions, federal cases on state questions, out-of-jurisdictions cases, dissents, concurrences, law review articles, etc., are all red flags.
Unusual brevity or length. The final red flag is the length of the argument. Lawyers have a general sense of how long an argument should be. If an argument seems unusually short or long, the author may be writing around a problem -- either by ignoring important issues or by burying the problem in irrelevancies or verbiage.

If you find a red flag, you should do the following:

First, determine if the red flag really is a red flag. Maybe there is a legitimate reason for what would otherwise seems to be a red flag (most ellipses and brackets fall into this category) or maybe the red flag is just poor writing by your opponent, but nothing you can make use of.
Second, if the red flag is in your own writing or the writing of someone on your side, use it to analyze the quality of your argument. If, for example, you find yourself making a "plain language" argument without quoting the plain language, perhaps you should recast your argument to rely on "intent of the legislature" or "legislative history" or some stupid interpretation by some other court. [If nothing seems to help, however, then maybe you should rethink your litigation strategy.] Similarly, if you find yourself relying on cases as pure propositions of law, then maybe you should force yourself to think hard about the factual analogies or force yourself to explicitly make the argument that, even though the facts in the precedent are different from the facts in your case, the precedent still should be followed for very good reasons.
Third, if the red flag is on the other side, consider explicitly and forcibly bringing it to the attention of the court. Arguments that do so can be devastating:

Remember, pay attention to red flags and you may force your opponent to wave the white flag.

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