Getting Creative In Court

Lawyers, in general, write a lot in their work. I write even more, given that I specialize in appeals and other sorts of post-conviction cases. Over the two-plus decades I’ve been doing this, I like to think I’ve developed a good skill with words, with creation of sentences and paragraphs that convey meaning and argument while still being a pleasant read. The days of legal writing filled with “heretofore”s and meaningless Latin phrases (seriously, if you see any sentence with “inter alia” in it, cross it out and tell me how that sentence is any different) are long gone, thankfully.

Still, there’s only so much creativity you can squeeze into legal writing. For one thing, you’re limited by the realities of the facts in your case (particularly in an appeal) and you can’t really beef up the plot or characters of you brief to make them more persuasive. For another, you have to consider the audience. The truth of the matter is that judges (and their clerks) are busy, have countless things to read on a daily basis, and are interested in being persuaded as quickly and clearly as possible. An appellate brief is no place to play with the form of words and sentences, to be coy about meanings, or to roll out mysteries for readers to ponder.

That’s one of the reasons I started writing fiction, especially fantasy. What better escape from the horrible facts of real life cases than worlds where I get to make up anything I wanted to? Strange new worlds! Interesting creatures! Cultures and histories never before imagined! This is where my creativity gets to thrive, not in court.

Right? Maybe not, if I could draw anything beyond a stick figure.

Third Planet Sci-Fi and Fantasy Superstore is a comic book and related merchandise business in Houston. From the Google Street View image you can see that it’s a wide, one-story building next to a busy street. You may also notice that it’s next-door neighbor is a high-rise Crowne Plaza hotel that towers over the place.

Third Planet is suing its neighbors because . . . well, because there tend to be a lot of assholes staying there. According to a third (!) amended petition filed in state court, hotel guests frequently make use of the hotel’s open-air balconies and fire escape to “throw all manner of projectiles off those landings and onto Third Planet’s roof and parking lot. It goes on to describe one particular day:

On or about March 3, 2019, matters escalated to a new level of destruction. Hotel guests, residents, tenants, patrons, customers, or visitors launched at minimum fourteen large metal-canister fire extinguishers from the Hotel onto Third Planet’s roof and parking lot. The canisters landed on the roof with explosive impact. This caused significant compromise to the structural integrity of the roof. In sum, the roof was irreparably damaged.

The next paragraph simply says: “Then came the rain.”

Pretty compelling stuff, right? Nonetheless, according to the petition, the defense “has previously filed special exceptions, complaining that it could not sufficiently understand the claims and allegations against it.” So what does Third Planet’s counsel do? They write a comic book to lay out everything.

Over the next 13 pages, the comic tells the story of Third Planet, its bowling champion owner TJ Johnson, and the store’s history in Houston. As for those flying fire extinguishers? Well . . .

The whole complaint is here, with the comic part starting at page 6. It’s a bold brilliant move and, without knowing anything about the actual legal merits (property law is not my specialty), I hope Third Planet wins and wins big.

Bold as it is, Third Planet’s resort to visual aids in a pleading is not unprecedented.

A comment to the Volokh Conspiracy post that brought this to my attention pointed to an article from the ABA Journal in 2012 where a lawyer did something similar in federal court.

The case involved the United States’ antitrust complaint against numerous publishers for fixing ebook prices and an attorney wanted to file an amicus (friend of the court) brief taking issue with some of the Department of Justice’s positions. He originally filed a 24-page motion with a 29-page proposed amicus brief attached. The court said he could file an amicus brief, but it could be no longer than five pages.

Which he did, taking a more comic strip approach:

The comic complied with all the usual formatting rules for pleadings in that district (font size, margins, etc.), but that didn’t keep the US Attorneys working on the case from dealing with it without a lot of effort (and the settlement they were seeking was eventually approved). Still, it was pretty clever (you can read the whole five pages here).

Like I said, making your argument in pictures is a pretty bold gambit (easier to do when you’re not actually representing a client). If it works, it’s brilliant. If the judge takes offense, thinks somebody’s diminishing the process, it can be a disaster. Come to think of it, probably for the best that I steer my wilder impulses into fiction.

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