Why Your DWI Urine Test is Not Accurate

Minnesota law enforcement insists on testing drivers’ alcohol content using an unreliable testing method.

At the Barry S. Edwards Law Office I know the flaws in the prosecutors’ case and can challenge the use of DWI urine tests.

The expert scholarship on the science of Minnesota’s drug testing procedures is unrefuted. Common sense, good science, and good law have taken a back seat to the inertia of the status quo.

1. Collection
Under the Minnesota Administrative Rules, a blood test may be administered by a “person who has been trained as a physician, registered nurse, medical technologist, medical technician, physician’s trained mobile intensive care paramedic, or laboratory assistant” while administration of a breath test requires a “person who has satisfactorily completed a course . . . in the use of an instrument specially manufactured to analyze a specimen of breath.” When it comes to urine collection, however, the Rule states only that “[a]ny person may administer a urine test.” Minn. R. 7502.0300, .0400, and, 0500.

Without belaboring the science or getting bogged down in hypotheticals, there are many ways in which a sample collected by “[a]ny person,” rather than someone trained in chain-of-custody, sample preservation, and contamination, can be mislabeled, subjected to unwanted chemical processes, or contaminated.

At a minimum, a proper urine collection kit must have an agent to prevent sugars from fermenting (if the sugars are allowed to ferment, the result will be a higher ethyl-alcohol concentration than the original sample due to the by-products of fermentation.). Proper refrigeration is also necessary to prevent corruption of the sample. See, e.g. California’s “Urine Collection for Blood Alcohol Instructions” (providing for specific training and collection procedures for urine alcohol content) and Wisconsin’s “Ethanol and Common Volatiles by Headspace Gas Chromatography” (same) (on file with the author). While a test can account for subsequent fermentation, Minnesota does not perform this simple test, as discussed below.

2. Testing
The greatest concern regarding urine collection is Minnesota’s “first-void” protocol. Minnesota tests a first-void urine sample, urine collected from a driver upon arrest without having the driver void his or her bladder before providing a sample for testing. As a result, the urine tested is the urine pooled in the driver’s urinary bladder since the driver last voided (urinated) which does not accurately reflect the alcohol concentration in the driver’s blood at the time the alleged offense occurred. So, if a driver drinks to a 0.08 blood alcohol concentration, then waits two, six, or eight hours before driving , but does not urinate before doing so, the urine tested will contain the alcohol that has since been metabolized and no longer indicates the driver’s level of intoxication.

The scientific literature clearly states that first-void urine testing is not an accurate measure of intoxication: “An unusually long residence time in the bladder will tend to skew the UAC/BAC [urine alcohol concentration / blood alcohol concentration] ratio because UAC reflects the BAC at the time when urine is formed and not the BAC at the time of voiding.” “Urine as a Biological Specimen for Forensic Analysis of Alcohol and the Variability in the Urine-to-Blood Relationship” Alan W. Jones, Toxicology Rev. 2006; 25(1):15-35. The author has twenty-four peer-reviewed scientific articles as well as expert affidavits and transcripts of expert trial testimony on file in support of the scientific conclusion that the urine tested via Minnesota’s first-void protocol does not reflect the driver’s level of impairment.

The State of Minnesota is aware of this problem. A Minnesota BCA memo on file with the authors shows BAC and UAC tests of specimens collected from the same individual at the same time. Collected on January 22, 2006 at 04:30, the urine sample revealed 0.12 grams of alcohol per 67 milliliters of urine while blood collected at the same time revealed 0.09 grams of alcohol per 100 milliliters of blood (the corresponding statutory units of measurement per Minn. Stat. §169A.03, subd. 2). The discrepancy is obvious and marked. Pooled urine does not accurately reflect a driver’s level of intoxication at the time of the alleged offense.

The Minnesota BCA could control for such variations by using well-tested ethyl glucuronide (EtG) and ethyl sulphate (EtS) tests or glucose tests which detect residual alcohol that has been metabolized (and can be subtracted out) and alcohol fermentation in a sample that has been stored outside a live body’s urinary bladder, respectively. The BCA does neither.

Tuesday (July 5): the Constitutional implications of Minnesota’s urine test protocols.

(Thanks to Charles Ramsay, Ramsay Law Firm, PLLC for sharing his research)

Published in: on July 1, 2011 at 11:48 am  Leave a Comment  

False Confessions

False Confessions:

Why do people confess to crimes, especially violent crimes, that they did not commit?

False Confessions are Surprisingly Common
According to The Innocence Project, “In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions[,] or pled guilty.” A Chicago Tribune study found that “one decade’s worth of murder cases in a single Illinois county [revealed] 247 instances in which the defendants’ self-incriminating statements were thrown out by the court or found by a jury to be insufficiently convincing for conviction.” How does this happen?

Police Lie
It is not illegal for the police to lie during interrogations.

Police tell a suspect they have an eyewitness and enough material evidence (hair, blood) from a crime scene to convict. “You’re looking at 20 years, or you can help us help you.” For the (unenforceable) promise of a lenient sentence, maybe only probation, a confession is signed.

False confessions also arise when multiple people are accused of committing a crime. Police play one off against the others, causing an innocent person to implicate himself and another to stay out of prison. “Your friend has already admitted to committing the robbery. You just admit you drove, and you won’t see the inside of the jail.” They make the same offer to the co-defendant, and two innocent people go to prison.

What if the suspect is not involved in any way? Police knock down the wrong door all the time. Anyone can find himself or herself at the wrong end of a ten, fifteen, or twenty hour police interrogation. So, you blurt out, “give me a lie-detector test.” Two hours later the cops tell you that you failed the test (remember: they can lie all they want in an interrogation). How about this: cooperate for now—after all, you had nothing to do with the crime—and sort it out later! Another feather in cop’s or prosecutor’s hat. Another false confession puts someone in prison.

The point is, even if the suspect has nothing to do with the crime, especially if the suspect has nothing to do with the crime, “cooperating” now and sorting it out later seems rational under the circumstances. A cost-benefit analysis points to confession when the police inflate the possible punishment as well as their potential influence on a sentence and then feed the suspect such ideas as “it was an accident” or that he “was provoked.”

The Central Park Jogger Case
Enough of abstract theories. Look at the Central Park Jogger case. Five teenagers spent between five (5) and thirteen (13) years in prison for a crime they did not commit yet confessed to. Each spent fourteen (14) to thirty (30) hours being interrogated. One sixteen year old had the reading level of a second grader, and another had an IQ of 87.

Don’t Talk; Demand a Lawyer
None of these people would have confessed if they had insisted on remaining completely silent until they had a lawyer. The police will also tell you that you don’t need a lawyer: “we’re only going to go over a few preliminaries, and you can have your lawyer with you next time.” That’s enough to constitute a waiver of the right to counsel if you then talk.

Do not talk to police without your lawyer present.

Call today for a free consultation.

Barry S. Edwards, attorney
612-310-7398
barrysedwardslaw.com

Published in: on December 2, 2010 at 2:58 pm  Leave a Comment  

Police Bully Tactics End in Deaths

“You know, the Sheriff’s got his problems too,
He will surely take them out on you. . .”
Warren Zevon

BLAM!

BLAM! BLAM! It’s 2:00 a.m., down goes your door, men dressed in black body armor and carrying semi-automatic rifles shout at you . . . DOWN, DOWN ON THE GROUND, NOBODY MOVE!

***

Police with warrants to search a home (often for drugs or other evidence of non-violent crimes) are increasingly appearing in full SWAT gear and storming homes. Such incidents are up from 3,000 per year to over 40,000 per year since 1981.

A client of mine –a gentle, unassuming man—was arrested by a SWAT team. Police appeared with semi-automatic weapons and dogs and established a “safe perimeter” with an estimated ten officers when all they had to do was knock and ask. Hell, Amir (name changed) came to the door in his pajamas and was cuffed while his family invited the police in to search whatever and where ever they wished.

When fully armed SWAT teams burst into a house, things go wrong. At least forty people have been killed when cops employing SWAT tactics botched routine, non-SWAT-type tasks, such as serving or executing warrants.

Called for a noise complaint, police in Denver went berserk when a homeowner asked to see a warrant before letting them in. They beat the man (Rohit Mukherjee), calling the American who was born in New Jersey and raised in Florida a “f***ing Arab” (he was of eastern Indian heritage). When others present tried to make audio and video recording of the abuse, the police took their phones and dumped them in water to destroy the recordings (forensics experts were able to retrieve the recordings), according to Denver News Channel 7 .

These warrants are often based on bad information, often because an informant who is already in jail is trading “information” for a lighter sentence.

These are dramatic, although not uncommon, examples. As always: know your rights. Such arrests are often invalid. Talk to a competent attorney. Do not talk to the cops.

Contact the Barry S. Edwards Law Office today. We know your rights and will help you protect them.

Published in: on October 21, 2010 at 4:40 pm  Comments (2)  

Crime Labs: Incompetent and Biased

Greg Taylor missed his daughter’s 10th birthday. He was in prison. He also missed her high school and college graduations and her wedding day. Prison. To get prosecutions, the North Carolina crime lab misrepresented evidence in Taylor’s case . . . and hundreds of others.

Concerned about crime lab error? The Barry S. Edwards Law Office can help.

North Carolina:
In 1991, Taylor was convicted of killing a prostitute. He discovered the dead body, but did not report it. He was convicted due in part to an initial crime lab determination that the victim’s blood was on his truck (other evidence included self-contradictory, unreliable witness testimony). The crime lab later knew from more-thorough testing — but did not report –that the “blood” it had reported on Taylor’s truck was not blood at all. (Los Angeles: Times North Carolina man exonerated after 17 years). The crime lab, more interested in prosecutions than finding the criminal, sat on evidence that would have exonerated Mr. Taylor.

This is not an isolated case, in North Carolina or elsewhere.

That particular North Carolina lab “once had a policy of excluding complete blood test results from reports sent to defense attorneys” (ABC News: North Carolina Crime Lab Buried Blood Evidence). An FBI report found 230 cases in which that crime lab misrepresented blood evidence so as to favor the prosecution.

National:
In March, US District Court Judge Nancy Gertner (D. Mass) ordered defense and prosecution attorneys to interrogate forensic evidence, including finger prints, DNA, and blood identification. Too often attorneys on both sides assume that both the methodologies and the specific testing are reliable because they are “scientific.” They are not, and Judge Gertner had seen enough casual deference to lab results to insist that attorneys in front of her actually challenge the science, the application of the science, and the representations made about it.

Crime lab scandals have also come to light in Florida (crime lab technician John Fitzpatrick switched DNA samples and changed data); Oklahoma (police technician Joyce Gilchrist’s shoddy work routinely put innocent people in prison for a decade or more); Wisconsin (technician Sherry Culhane and others were disciplined for falsifying lab results); as well as Illinois, California, New York, and Texas.

How Does This Affect You:
Minnesota cops, crime labs, and prosecutors are just as liable to err – or mislead – as those in other states. Your attorney needs to know the latest on labs, tests, and procedure to adequately represent you.

Chuck Ramsey has successfully argued that Minnesota’s urinalysis tests are both scientifically inaccurate (based on flawed science) and improperly performed (DWI Urine Sample Re-test: Judge Tosses Government’s Alcohol Results). Lee Orwig and others have challenged the very use of breathalyzers used throughout the State of Minnesota causing, after years of indefatigable pressure from Orwig and others, Minnesota judges to no longer routinely accept that the machines perform correctly (Minnesota Source Code Coalition). Now, if you have a DWI charge in Minnesota, the judge will not simply record the breathalyzer’s output as scientifically valid. A final word on whether the computers that run the machines are reliable is expected early next year.

Hire the Right Attorney:
Your criminal defense attorney should be a member of the Minnesota Source Code Coalition (check for the attorney’s name on the link above). And if there is any lab evidence in a criminal case involving you, make sure the attorney representing your interests is willing and able to challenge the validity of the test, who performed the test, how the results are applied, and what they really mean.

For more information about how an experienced criminal defense attorney can help, or to see up a free initial consultation, contact the Barry S. Edwards Law Office.

Next: False Confessions

Getting a Divorce: Who Gets What?

I hear over and over (and over) that “if I get divorced, my wife/husband will get half of everything.” That’s simply not true.

IN GENERAL:

Division of property during a divorce is governed by Minnesota Statute §518.58, which states that, “upon a dissolution of a marriage, . . . the court shall make a just and equitable division of the marital property of the parties” [emphasis added].  “[J]ust and equitable” means “fair.”

The statute specifically instructs the court to consider the following circumstances, among others: 

  • the length of the marriage,
  • the age and health of  the parties,
  • each person’s amount and sources of income,
  • employability, opportunity for future acquisition of assets, and
  • the needs, of each party.  

The court also looks at who earned or acted to increase the income, as well as who may have depreciated assets (such as  through exorbitant spending)  If one party primarily works outside the home while the other serves as a “homemaker,” especially if there are children, the homemaker’s contribution as such will balance the income-earner’s.

WHAT TO  DO ABOUT EDUCATION:

Education acquired during the marriage is a particularly tricky variable the court can factor in depending on the circumstances of the two people involved.  When a court tries to ascertain the parties’ earning potential—their ability to care for themselves after whatever finances they contributed to the marriage are divided—“[p]articular attention is given to periods of training or education.” Griepp v. Griepp, 381 N.W.2d 865, 869 (Minn. Ct. App. 1986).

As something of a rule, if the husband or wife (but not the other) benefits from an education during the marriage the court may consider the education a “relevant factor” to be considered in its determination of spousal maintenance (formerly known as alimony). 

So, all other things being equal, the court will try to compensate the party that, in effect, lost money that was spent on the other party’s education or that the non-student spouse spent on maintaining the family’s standard of living while the student was in school. 

The rationale is that the educated party has increased his or her income potential, a benefit that would have accrued to the family had they stayed married, but that, upon a divorce, only benefits the one.

ALL OTHER THINGS ARE NEVER EQUAL:  

In Dela Rosa v. Dela Rosa, 309 N.W.2d 755 (Minn. 1981), the wife worked several jobs to put the husband through undergraduate and medical school.  She did so with the anticipation of sharing a standard of living that comes with a medical degree.  However, the parties divorced before the husband finished medical school, so, while the wife sacrificed, she never enjoyed the benefits of the degree.  The husband finished medical school after the parties separated.

The court held that the undergraduate degree, earned during the marriage while the wife worked three jobs to support the family, was not divisible.  That is, the wife was not entitled to a percentage of the husband/doctor’s degree as represented by future earnings (calculated at present value).  However, she was entitled to money to compensate her for the specific financial sacrifices she made to support the family while the husband was attending school.

Before you apply this analysis to your own situation, however, consider some other cases.

In Davey v. Davey, 415 N.W.2d 84 (Minn. App., 1987), decided six years after Dela Rosa, the court seemingly reached the opposite conclusion.  Again, the wife worked and supported the family while the husband attended medical school.  She contributed nearly $45,000 compared to the husband’s roughly $8,000 contribution. 

However, the court awarded the wife nothing, no percentage of the future earnings based on the husband’s education nor any compensation for the money she contributed to the family by working full time while the husband was in school.

Unfair?  Not necessarily.  In the Davey case, the husband completed medical school while the parties were married and practiced for roughly ten years as an orthopedic surgeon, again, while the couple was married. 

The court reasoned that since the wife had enjoyed the privileges of the husband’s successful career and, as a result, had not worked outside the home since he graduated from medical school, she had received compensation for her earlier contributions to the family.  The couple had also accumulated enough money and property during this time that there were substantial financial resources to be divided between them.  Thus, unlike the wife in Dela Rosa, the wife in Davey would have assets with which to support herself after the divorce.

There are other facts in both cases.  I have abbreviated them for the sake of brevity. 

The point is that the myth of a 50%-50% division—or he or she “gets half”—is almost never the case.  Education is only one of many variables the court will consider.  I will blog about other factors soon.

If you are thinking about a divorce, call me.  A knowledgeable and experienced lawyer can represent you with an understanding of how education and many, many others affect your standing so the court gives you your fair share.

Contact:

Barry S. Edwards, J.D.,  Ph.D

Barry S. Edwards Law Office

(612) 310-7398

And visit my website to see what else I can do for you: http://www.barrysedwardslaw.com

Initial consultations are free and confidential.

Published in: on August 4, 2010 at 11:15 am  Leave a Comment  
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Calling Out Officers Cushenbery (1375) and Swierzewski (7111) Minneapolis 3rd Precinct

Last week, driving home from a movie night at a friend’s, I pulled up behind a squad driving well below the speed limit (maybe 15 mph in an unmarked 30).  In the tenth of a mile I was behind the squad, it continued at this speed, and, successively, its passenger wheels both crossed the white fog line on the right and then its driver’s wheels crossed the double yellow lines on the left.  In both cases, I thought the squad was turning, and I continued going forward at a reasonable, legal speed.  In both cases, the “bait vehicle” (that’s what it was), then pulled back in front of me, seemingly abandoning its turn.

At the next light, the squad turned left, and I followed behind on my way home.  The squad pulled over onto the shoulder / bike lane, and I drove past it.  As soon as I passed the squad, it pulled in behind me and the lights came on.

I was pulled over, scolded for going “half a block” before stopping.  The cop explained that he was on his way to “a call” and that my following the squad at the distance I was at was unsafe in case he had to execute an emergency maneuver.  I asked why he pulled me over if he was on his way to a call.  He ordered me to wait in my vehicle, and he returned to his squad.

Some time later, Officer Cushenbery returned to my driver’s side window, lectured me about following to closely, and gave me a ticket.  I was pulled over by a cop with flashing lights.  I got a ticket for $128.00.  I spent over an hour at court pleading not guilty to a hearing officer, and I have a court date for an arraignment in January.

The lesson: Constitution be damned (http://www.usconstitution.net/xconst_Am4.html), if a cop wants to go on a fishing expedition and harass you while he or she is at it, there’s not much you can do. 

I won’t have to pay the ticket, and neither should you.  But this provides a good lesson in the value of being an informed citizen and calling your lawyer before saying anything to the police. 

Do not talk to cops.  Do not volunteer any information.  Do not open doors (car or house) without a warrant (or in the case of a car stop, other expression of probable cause).  (http://bit.ly/aoijcX).  However intent you might be, avoid the temptation to prove your innocence by cooperating.  Police are trained to get admissions that can lead to prosecution.  Assert your legal rights; the cops will not tell you what those are or expect you to know (http://bit.ly/dgOBDi).   Even if you’re innocent of any wrong doing, lab tests fail, evidence gets contaminated or misused (http://bit.ly/aPgNwo).

Know your rights.  Be polite, but do not cooperate, do not talk, do not consent to any searches.

And call your lawyer.

Published in: on July 23, 2010 at 6:24 pm  Leave a Comment  

Why Defend the Guilty

“Why Defend the Guilty”

I had an unexpectedly animated discussion with a friend last night.

She was (misled by the routine and routinely poorly researched Star Tribune stories about DWIs) furious at what she saw as the breakdowns in Minnesota’s criminal justice system.

The gist of  my friend’s argument was that, using the aforementioned DWI case, if the driver blows a 0.08 or higher, she’s guilty.  Why defend her.  There is proof of her guilt, and she should suffer the consequences.  I explained how and why I would defend the accused.  My friend argued that I was merely wasting the courts’ time and taxpayer dollars.

Of course books can and have been written on this subject, so I’ll limit my comments today to a few particularly interesting and not-well-known issues.

Intoxilyzer 5000 and Other Blood Alcohol Tests

Minnesota law enforcement use a device called the Intoxilyzer 5000 (I5000), the breathalyzer testing machine.  Defense counsel, such as myself, have been  arguing that the I5000 is a black box, that we cannot defend our clients who allegedly had a blood alcohol concentration of 0.08 or higher without any idea of how the machine calculates a blood alcohol content (BAC).

Increasingly courts all over the country are agreeing.  After scholarly articles revealed that the I5000’s results were often inaccurate and others showed the variety of factors that can affect a test, Judges are ordering that the devise’s manufacturer, CMI, release its source code (the computer programming behind its calculations).  http://tiny.cc/9qscp.

Minnesota also uses urinalysis.  Most states do not.  Urine tests are unreliable for many reasons.  http://is.gd/bNliZ.  If a person has some drinks, then waits an appropriate period before driving, if she hasn’t urinated, the urine sample she gives will have the prior alcohol concentration, reflecting the alcohol that has “pooled” in her urine, not an accurate measure of her level of intoxication (if any).  Further, mishandled urine samples can ferment in their container prior to being analyzed, causing the concentration in the urine tested to be higher than when it was produced.

Finally, Minnesota also uses blood tests.  Again, blood must be handled carefully for the specimen to be accurately tested.  Shockingly, the Minnesota State Legislature recently passed a law that allows law enforcement to designate anyone, anyone to draw the blood.  H.F. No. 2881, 3rd Engrossment – 86th Legislative Session (2009-2010).  While the law states that the officer can only designate someone “trained in a licensed hospital or educational institution to withdraw blood,” “educational intuition” is not defined, and the police officers, themselves are increasingly drawing blood.

Note: whichever poison you choose, you do have a choice.  Under Minnesota law, you can refuse a blood or urine test as long as you are offered an alternative.  Minn. Stat. sec. 169A.51, Subd. 3).

***

Hire an attorney to defend you.  Do not rely on the authority of the peace officer or the tests he or she administers.

Future posts will address False Confessions and The “What Do You Have to Hide” Argument.

Published in: on April 29, 2010 at 1:18 pm  Comments (2)  

Get Your DWI Advice from an Attorney, Not the Local Paper

The most popular (e-mailed) article in today’s Minneapolis Star Tribune is yet another in a breathless series on Minnesota’s DWI laws.  Star Tribune reporter, Richard Meryhew writes, “In Minnesota, there are no additional criminal sanctions for driving drunk with a child in the car, though it can be used as a factor in sentencing.”

This is wrong.

A simple DWI (4th degree, blood alcohol content (BAC) of 0.08) becomes a 3rd degree DWI if a child under 16 is in the car.  This is the same crime as a second conviction within 10 years or driving with a BAC of 0.2 or higher.  4th degree DWI and 3rd degree DWI are different crimes, not the same crime with different factors to consider at sentencing.  While 4th degree DWI is a misdemeanor, 3rd degree is a gross misdemeanor.

I spoke with Mr. Meryhew and his editor, Jeffrey Meitrodt, both of whom defended the sentence I quoted above.  Mr. Meitrodt went so far as to say that he would trust his team of reporters who write on Minnesota statutes regularly over what I thought, no matter how much experience I had as a criminal defense attorney, or whom I had talked to.

I contacted an Assistant Hennepin County Attorney in the Criminal Division (i.e., a prosecutor) who stated, unambiguously, that 3rd degree DWI and 4th degree are different crimes.  I followed up with a sitting Hennepin County District Court judge, who commented, upon reading that sentence in the paper, the immediate impression was that it was indeed incorrect.  When I asked the judge if these were different crimes, one for a BAC of 0.08 and no child in the car and one with a BAC of 0.08 with a child in the car, the judge replied “there is no dispute about that.”

As the most e-mailed column in today’s Star Tribune, I’m afraid Mr. Meryhew’s incorrect statement of the law will get a wider viewing than my blog.  However, be forewarned: do not go in front of a Minnesota judge having been charged of driving drunk with a child in the car and expect that your charge is the same as “simple” DWI but with different factors to consider at sentencing.  And don’t hire a reporter as an attorney.

Published in: on April 14, 2010 at 12:49 pm  Leave a Comment  

Case Dismissed: Writing Unintelligible

A recent Minnesota Court of Appeals decision set off a lengthy discussion on the Minnesota State Bar Association’s Solo/Small Firm listserve.  The Court admonished, “[t]he phrase ‘and/or’ is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive.  . . . It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the ‘and’ and the ‘or’ in the context of the subject matter.”  Carley Foundry, Inc. v. Cbiz Bvkt, LLC., 2010 WL 1286836, Minn. Ct. App., 2010.

In 2008, Senior U.S. District Judge J. William Ditter Jr. reduced an attorney’s fees by $31,450.00 because of the attorney’s poor writing.  (E.D. PA).  More severely, in September 2009, Judge Gregory A. Presnell dismissed a motion (albeit without prejudice) solely because of the lawyer’s poorly written memorandum.  Case No. 6:09-cv-1229-Orl-31GJK (C. D. Fl.).

And a bankruptcy judge in Texas dismissed “Defendant’s Motion to Discharge Response to Plaintiff’s Response Opposing Objection to Discharge,” basing its decision on the court’s inability to “determine the substance, if any, of the Defendant’s legal argument, nor c[ould] the court even ascertain the relief that the Defendant’s motion is requesting.”  Therefore, the court wrote, “[t]he Defendant’s motion is accordingly denied for being incomprehensible.”  2006 WL 581256 (W.D. Tex.).

Certainly a case being dismissed or denied for the attorney’s poor writing is extreme.  And, even when dismissed “without prejudice,” such actions prejudice the client who, at a minimum has to pay more for hourly representation and has to wait longer for adjudication on the merits.

All of that said, generally poor legal writing, other than “wast[ing] valuable chamber staff time,” is merely amusing.  Id. While clerking in Hennepin County, Minnesota, I received a Memorandum in Support of a Motion for Summery Judgment, which, I was forced to point out, even black robes cannot cause (especially in Minnesota).  Finally, M. L. Sandler, an attorney in Miami, Florida moved for a continuance because he was recovering from “dick surgery,” rendering him “unable to sit for long periods of time.”  Merely a typo, the attached exhibit from Mr. Sandler’s doctor clarified that counsel was recovering from surgery on his back, disk surgery.

If you are an attorney, take the time to look up rules of grammar and punctuation, have someone proof read your work, or look up the individual rules as they come up.  If you are looking for an attorney, pay attention to how well the attorney writes.  Your case may depend on it.

Published in: on April 7, 2010 at 3:54 pm  Leave a Comment