28 December 2012

The Subject of Ridicule

Not only did the district court here fail to identify any of the [appropriate] factors that would have supported a dismissal with prejudice, but it also in effect adopted a "three strikes" rule for securities fraud pleading that has no support in precedent. In the district court's view, appellant had had "three bites" and deserved no more opportunities to comply with the stringent requirements of the [Statute]. Simply counting the number of times a plaintiff has filed a complaint cannot, however, substitute for an analysis of whether the rigorous standards of the [Statute] have been met.

The [Court's] opinion regrettably (but deliberately) reiterates the same cliche used by the district court. Metaphors enrich writing only to the extent that they add something to more pedestrian descriptions. Cliches do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depends on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us. [Emphasis added.]

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[The] process of adaptation and progress, embedded in our legal tradition, necessitates the careful exposition of prose in our opinion writing. A cliche like "three bites at the apple" provides a formalistic rule that does not account for the particularities of an individual case.

The problem of cliches as a substitute for rational analysis is particularly acute in the legal profession, where our style of writing is often deservedly the subject of ridicule.

Reinhardt, Circuit Judge, concurring Opinion. Eminence Capital, LLC v. Aspeon, Inc., 316 F. 3d 1048 (9th Cir. 2003)

Illustration: Gustave Doré (1832 -1883), King Solomon Writing Proverbs