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Intellectual Property Law

Judges and the KISS Principle

By Michael Scott (all)

Those lawyers who live and breathe a specialty, like IT Law, often forget that not everyone speaks their language, including judges. That isn?t to say that judges aren?t smart. Many are brilliant. But they are generalists, who hear cases on a wide variety of legal issues involving a dizzying array of businesses. Judges can be expected (in most cases) to understand the law. But it is unreasonable for advocates to expect them to understand the jargon of the industry the parties are from. A recent decision by Judge Richard Posner of the Seventh Circuit Court of Appeals brings this fact home.

In Indiana Lumbermens Mutual Ins. Co. v. Reinsurance Results, Inc., 513 F.3d 652 (7th Cir. 2008), the court was faced with a complex set of arguments revolving around the esoteric law of reinsurance. At the end of the opinion, Judge Posner made the following remarks. Substitute ?computer technology? or ?Internet technology? for ?reinsurance? and you should get the point:

A note, finally, on advocacy in this court. The lawyers? oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary?for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges? limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

Id. at 658. The old KISS principle (?Keep it Simple, Stupid?) applies to appellate advocacy, as it does in so many other areas of law and business.

Full post as published by Singularity on March 27, 2008 (boomark / email).