Stupid Things Lawyers Worry About

Every lawyer has a fear that some little thing he/she did or didn’t do will eventually ruin someone’s case. Sometimes the fear is justified – missing a deadline or failing to disclose an expert can have serious consequences.

Some fears aren’t as justified. For example, I’m often so careful in my language in my complaints/petitions that they are often nearly unreadable. Here’s an example, highlighted to show my thought process:

1. Defendant did then and there operate a motor vehicle in such a manner as to cause it to collide with the rear end of the vehicle plaintiff was operating.

What I’m really thinking:

1. Defendant crashed her car into plaintiff’s car.

Why I don’t say it (with my own thoughts in italics)

1. Defendant did then and there (because if I don’t say that, it won’t establish that the accident happened at the same time I mentioned in the other paragraph, and suddenly the whole complaint is legally inadeaquate) operate a motor vehicle (because what if it’s not a “car,” what if it’s an SUV, etc) in such a manner as to cause it to collide with the rear end of the vehicle plaintiff was operating (not “plaintiff’s vehicle” because what if plaintiff doesn’t own it, what if she owns more than one vehicle – we need to show that she was in the vehicle (not “car”) at the time, and that the vehicle defendant(‘s car, not defendant herself) struck wasn’t say, a vehicle in a garage somewhere) .

You get the idea. A non-lawyer will read that and think I’m joking. A lawyer will read that and know I’m not. It’s neurotic to a certain extent, but I think there’s a legal basis for it, especially in Illinois where “fact pleading” is the rule.

Another such neurosis is found in the insistence in making sure doctors phrase their opinions with the words “to a reasonable degree of medical certainty.” It’s archaic, cumbersome, and I don’t think juries know what the heck it means. But the fear is that, without proper foundation, the opinion can’t get into evidence.

Never mind the fact that the phrase itself isn’t necessary… see an old post on the Illinois Trial Practice blog for the Illinois rule, or for the Iowa rule, see Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 485 (Iowa 2004).

But still… this is the kind of stuff I think about.

(Howard Zimmerle is a lawyer in the Quad Cities)


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