Courts

Lawyer Cites Law With Ellipsis And Yadda Yadda Yadda... Sanctions OTSC

Devil's in those missing details.

By  
on

The ellipsis is a mainstay of the litigator’s toolbox. Properly used, it can bust even the most onerous page limits, protecting attorneys from loquacious jurists who pad their straightforward findings of law in hundreds of words of superfluous crap to make themselves feel smart. Improperly used, and you end up with sentences like, “Brett Kavanaugh’s D.C. Circuit confirmation testimony did not… amount to perjury.” You’ve yadda yadda-ed over the important part.

See, that was the proper use! In any event, improperly used, the ellipsis can land lawyers in a lot of trouble.

An order to show cause filed last year has finally bubbled up to our attention zeroing in on just how problematic an imprudent ellipsis can be.

Can criminal usury be asserted as a claim or must it be a defense to a claim demanding payment on a loan under New York law? I don’t know. My only insights into usury come from The Simpsons:

In arguing that it is not merely a defense, one attorney asserting criminal usury claims in the Southern District of New York wrote that “the prohibition against [a corporation] asserting [usury] does not apply to… criminal usury where interest in excess of 25% per annum is knowingly charged.” Unfortunately, the clerks for federal judges are fairly diligent in digging into this stuff and found out that the actual quote was:

[T]he prohibition against asserting such a defense does not apply to a defense of criminal usury where interest in excess of 25% per annum is knowingly charged.

Sponsored

So the word “defense” is skipped over twice to make this argument. That’s saucy. And, it turns out, too saucy for Judge Stanton:

Accordingly, Mr. Proman is ordered to show cause on or before May 3, 2017 why he should not be sanctioned for dishonesty toward this tribunal based on a knowingly false representation of the law of the State of New York as set forth by the Appellate Division of its Supreme Court, Second Department.

The case has since been resolved, but this is a good lesson in the use of the ellipsis. Be careful what you skip over out there!

(The full order to show cause is available on the next page.)

Sponsored

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

1 2Next »

Topics

,