THE SCRIVENER English Test For Lawyers: Fall Semester 2020 By Scott Moïse

Professor Scrivener noticed that methods and substance, not ipse “Deserts” means “the punish- our South Carolina lawyers have dixit). ment that one deserves.” See “Just not had a test for two years. That Deserts” or “Just Desserts?, Mer- will never do. To make sure that EXTRA CREDIT: Translate “De Natu- riam-Webster.com Dictionary, your skills are still sharp, we will ra Deorum.” https://www.merriam-webster. have a Fall Semester COVID-19 re- com/dictionary/just%20deserts. mote edition of the English Test for 2. Who let the dogs out? Not ____! “Desserts” means “a sweet course Lawyers. You may begin. (A) I or dish served at the end of a (B) Me meal.” Id. at https://www.merri- 1. The court ruled that the expert’s am-webster.com/dictionary/des- testimony was based on reliable ANSWER: sert. The two words have the same methodology, not ipse dixit. What (A) I pronunciation, so the confusion is is ipse dixit? The pronoun “I” is in the nomi- understandable. (A) an unproved or dogmatic native case, so “I” is used for sub- Justice Scalia knew the answer statement jects in a sentence. In this situa- to this question. See Brown, 564 U.S. (B) false underlying premises tion, “I” is the subject because I am at 796 (quoting The Complete Broth- (C) junk science doing the acting: “I did not let the ers Grimm Fairy Tales 198 (2006 ed.). dogs out.” In fact, 439 opinions have gotten ANSWER: The pronoun “me” is in the ob- it right. Unfortunately, 179 court (A) Something said but not proved; jective case, so it is used for objects opinions have not, with the U.S. a dogmatic statement in a sentence. For example, “Who District Court of Nevada being the As readers with good memories did the dog bite?” Not me! In that latest outlaw. See Atkins v. Gittere, may remember, we covered the situation, I am being acted upon by No. 202CV01348JCMBNW, 2020 meaning of the Latin phrase “ipse the dog. WL 3893628, at *43 (D. Nev. July 10, dixit” in a previous column, but Even though grammatically 2020) (“Only [after the sentencing that was before the South Carolina correct, saying “not I” may sound a phase of a capital trial] can the Court of Appeals used the phrase little pretentious, like I think I am sentencer truly weigh the evidence and was astute enough to define it, Queen Elizabeth or something. On before it and determine a defen- knowing that some of us would not the other hand, I do not want to dant’s just desserts.”). know the meaning: use poor grammar. Therefore, I will As for “dessert’s,” I would have just evade the problem by answer- to subtract points if you chose that The phrase “ipse dixit,” which ing like this: I did not let the dogs answer. “Desserts” is not only the translates as “he himself said out. That solves the problem. Woof, wrong word, it is not being used it,” was coined by Cicero, who woof, woof, woof, woof. as a possessive noun that would used it to belittle the reasoning require an apostrophe (as in “I ate and argumentative powers of 3. “As her just ______for trying the dessert’s frosting”), and YOU the followers of Pythagoras. to poison Snow White, the wick- CANNOT USE AN APOSTROPHE TO When asked to justify their po- ed queen is made to dance in red MAKE THE WORD PLURAL. I cannot sitions, the followers would just hot slippers ‘till she fell dead on say that enough. say “ipse dixit,” opting out of the the floor, a sad example of envy merits of the debate altogeth- and jealousy.’ ” Brown v. Entm’t 4. According to The Bluebook, er. Cicero, De Natura Deorum, Merchants Ass’n, 564 U.S. 786, 796 which words should be italicized I.V. (H. Rackham trans., Loeb (2011). in the following case citation: Classical Library 1933). (A) deserts See, e.g., Turner Mfg. Co. v. Watson, State v. Warner, 430 S.C. 76, 87 n.1, (B) desserts 395 F. Supp. 3d 352, 360 (D.S.C. 2019) 842 S.E.2d 361, 366 n.1 (Ct. App. (C) dessert’s (Garfinkle, J., dissenting) (empha- 2020) (holding that the expert’s sis added) (citing Lietzow v. Hill St. testimony on cell site location ANSWER: Chem. Corp., 299 F. 2d 44, 48 (3d Cir. information was based on reliable (A) deserts 2015)), (reversing trial court’s ap-

64 SC Lawyer plication of the maxim “expressio either-or position without consider- 2020 WL 3848063, at *26–27 (U.S. unius est exclusio alterius”), cert. ing all relevant possibilities July 9, 2020), the U.S. Supreme denied, 930 F.2d 22 (4th Cir. 2020). Court reversed three sexual assault ANSWER: convictions because the state court ANSWER: Answer (B). In Herrera v. Finan, 176 F. lacked jurisdiction over the defen- See, e.g., Turner Mfg. Co. v. Watson, Supp. 3d 549 (D.S.C. 2016), a pro- dant, a member of the Seminole 395 F. Supp. 3d 352, 360 (D.S.C. 2019) spective college student sued the Nation of Oklahoma. Jurisdiction (Garfinkle, J., dissenting) (empha- South Carolina Commission on rested on the issue of whether the sis added) (citing Lietzow v. Hill St. Higher Education (CHE) when—al- land granted to the Native Amer- Chem. Corp., 299 F. 2d 44, 48 (3d though she had been a resident ican Indian Nation had retained Cir. 2015)), (reversing trial court’s of this state for almost her whole its status as a reservation. The application of the maxim “expressio life—she was denied residency majority ruled that it did because unius est exclusio alterius”), cert. status for tuition and scholarship Congress has not adopted any denied, 930 F.2d 22 (4th Cir. 2020). purposes because she was a de- single statute that explicitly termi- pendent child of undocumented nates that status. In Chief Justice •Italicize or underline signals such immigrants. Under CHE regula- John Roberts’ dissent, he argued as see; see, e.g.,; and cf., including tions, a dependent child of undocu- that the majority had made several any periods in signal abbrevia- mented immigrants was presumed to show that Congress tions (such as e.g.); however, do to be a non-resident. In support of had not explicitly disestablished not italicize or underline the com- her due process claim, the student the reservation, none of which ma after “e.g.” argued that even if this presump- he believed had any relevancy to •Italicize or underline case names. tion was rebuttable, the regulation the point of the matter. “This,” he •Italicize or underline explanatory still burdened her familial right of stated, “is a school of red herrings.” phrases in prior or subsequent association because rebutting the Id. at 26 (Roberts, C.J., dissenting). history, such as aff’d, vacated, presumption would interfere with “School of red herrings”: priceless. remanded to, rev’d en banc, overruled her right to live with her parents • Answer (C) is a : an by, and superseded by statute. and require her to disassociate that presents an •However, do not italicize or un- from her parents and their support. either-or position without derline phrases in related author- The court disagreed: considering all relevant ity parentheticals such as “con- possibilities. curring,” “dissenting,” “citing,” and This argument is a . “translating.” It assumes without justifica- For example, in Simmons v. South •Italicize non-English words and tion that in order to rebut the Carolina, 512 U.S. 154, 171(1994), the phrases unless they have been in- presumption a dependent stu- jury was presented with evidence corporated into common English dent would need to become an of the defendant’s future danger- usage. Latin words and phrases independent person under the ousness if he were to be released, that are often used in legal writ- applicable regulations. Rather, setting up an either-or argument: ing are considered to be in com- as clearly elucidated in the CHE either sentence the defendant to mon English usage and should guidance document, a depen- death or he will be a dangerous not be italicized. However, very dent student with undocu- threat to society. The Supreme long Latin phrases and obsolete mented parents may be granted Court realized the of this or uncommon Latin words and in-state residency status if he argument: phrases should remain italicized. or she provides sufficient evi- See The Bluebook: A Uniform System dence of South Carolina resi- The State may not create a of Citation (21st ed. 2020). dency . . . . false dilemma by advancing • This is for law nerds only: (1) The generalized arguments re- Bluebook rule for the order of Id. at 581 (internal citation omit- garding the defendant’s future parentheticals within a citation ted). dangerousness while, at the is Rule 1.5(b); (2) The new twen- same time, preventing the jury ty-first edition of the Bluebook 6. In Question 5 above, what are from learning that the defen- was just published. the names of the arguments set dant never will be released on forth in Answers (A) and (C)? parole. 5. What is a straw man argument? (A) an argument that misleads or ANSWER: 7. Judge Porter (stricked, struck, distracts from a relevant question, •Answer (A) is a : an ar- strucked) the affidavit because it meant to lead to a false conclusion gument that misleads or distracts was not notarized. After the affida- (B) an argument that distorts the from a relevant question, meant vit was (stricked, struck, stricken, speaker’s own position to make it to lead to a false conclusion. strickened), the defendant submit- easier to defend ted a new, notarized affidavit. (C) an argument that presents an In McGirt v. Oklahoma, No. 18-9526,

September 2020 65 ANSWER: Sometimes, though, the court itself out copying the opposing counsel, •Judge Porter struck the affidavit. uses the word. See, e.g., Mortg. Elec. violating the court rules, and failing Registration Sys., Inc. v. Scalise, No. to provide protruding tabs for the The past tense of the verb “to CV030198286S, 2004 WL 1326055, exhibits strike” is struck. at *1 (Conn. Super. Ct. May 27, 2004) (D) Dismissed an appeal for the (“[T]he first, third and fourth spe- lawyer’s failure to cite to the record •After the affidavit was struck OR cial defenses are strickened as the in his appellate brief. stricken, the defendant submitted same are conclusory or the plead- a new affidavit. ing of legal effect.”) (also omitting ANSWER: the Oxford commas, which is All of the above. The preferred past participle is something I cannot live with). As (A) In Sambrano v. Mabus, 663 “struck.” “Though stricken often an aside, three courts have used F.3d 879, 882 (7th Cir. 2011), the appears as a past participle, gram- the adjective “panic-strickened,” court found that a lawyer had matical authorities have long con- but that is also incorrect; the word “massacred” any potential claim sidered it inferior to struck.” Bryan is “panic-stricken.” against the defendant in a “wretch- A. Garner, Garner’s Modern American ed” brief that—among other Usage 481–82 (3d ed. 2009). Mr. 8. Which of the following number things—had violated court rules, Garner calls “strickened” a “double ranges are correct: cited the incorrect standard of bobble” (when someone reaches for (a) The quotation can be found on review, and in the argument section a word, the wrong word, and then pages 223–224. (which was one and a half pages, mistakes another word for that (b) The quotation can be found on total) failed to show how the trial wrong word). pages 223–24. court erred. The Seventh Circuit Although “struck” is by far the (c) Former Chief Justice Costa M. Court of Appeals spared no words form of the word most used in Pleicones served on the South Caro- in describing the lawyer’s perfor- judicial opinions, “stricken” is also lina Supreme Court from 2000–2016. mance on his appellate brief, which widely used. The double bobble (d) Former Chief Justice Costa M. had bypassed the only possible “strickened” does appear in 49 cas- Pleicones served on the South Car- nonfrivolous grounds for appeal es, none in South Carolina, but it is olina Supreme Court from 2000–16. and instead was based on an argu- mostly used when quoting pro se (e) The legislature amended §§ ment “with no prospect of success.” parties’ written court submissions. 8880–8887 of the Cosmetology Act. (B) In a sua sponte opinion, (f) The legislature amended §§ Scott v. Arrow Chevrolet, Inc., No. 01 8880–87 of the Cosmetology Act. C 7489, 2001 WL 1263498, at *1 (N.D. Ill. Oct. 22, 2001), the late Judge Mil- ANSWER: ton Shadur was irate at the answer (b), (c), (e) filed by the defendant’s counsel in •For a range of page numbers, a civil rights action. In addition to separate the range with an en naming the defendant’s counsel dash (preferred) or a hyphen, and as the front-runner to the “award,” retain only the last two digits in Judge Shadur struck the answer, the range: pages 223–24; pages with leave to amend, and ordered 2233–34; pages 23–24. (Bluebook the lawyers to send a copy of the Rule 3.2(a).) opinion to their client, copying the •For an range of all other num- judge, along with a letter advising bers, retain all numbers: the years that no charge would be made for 2000–2016; §§ 8880–8887 ; ¶¶ time and expense of correcting the 100–103. (Bluebook Rule 3.3(b).) counsel’s own errors. (C) In Reed v. Illinois Department 9. Which of the following are ac- of Corrections, No. 17 C 5560, 2019 tions taken by judges in response WL 5184030, at *1 (N.D. Ill. Oct. 15, to poor legal writing? 2019), the court issued monetary (A) Issued an order for the lawyer sanctions and a whole lot of angry to show why he should not be sus- commentary that was triggered by pended or disbarred for ineptitude a five-page brief that cited no cases in his poorly written appellate brief or rules of federal civil procedure, (B) Warned lawyers that they were violated a local rule for briefs, and prime candidates for the Worst contained “unpersuasive” argu- Federal Pleading of the Year Award ments. And do not think that those (C) Sanctioned a lawyer for filing missing exhibits tabs were insig- a reply brief late on the afternoon nificant to the judge because he before an 8:30 a.m. hearing with- mentioned them twice. To be fair,

66 SC Lawyer the judge was also angry at the other words, in non- schoolmarm defendant’s discovery conduct, but language, a complete sentence) the brief seemed to push him over before the colon. the edge in issuing over $1,000 in •(A) A colon may go after “supplies” sanctions. because it follows a full sentence (D) In Han v. Stanford University, (“Katie knew she needed a basket 210 F.3d 1038, 1040 (9th Cir. 2000), full of supplies”). The colon could the plaintiff’s lawyer filed a 15-page not go after “for example” because brief that made no reference to “Katie knew she needed a basket the record below to substantiate full of supplies, for example” is his statements concerning deposi- not a complete sentence. tion testimony and documentary •(B) “We made several evidentiary evidence. The lawyer’s appeal was objections on grounds of” is not a dismissed because he had “exhib- complete sentence. ited complete disregard for the re- •(C) and (D) Colons are appropri- quirements” of the appellate rules ate because complete sentences respecting citations to the record precede the colon. Note that (D) after being notified that the brief has two independent clauses on was noncompliant. Id. either side of the colon. In that situation, a semicolon would also 10. Where does the colon go in be correct. these sentences? (A) Katie knew she needed a basket The general rule has an exception. full of supplies for example boxes You may use colons after an intro- of disposable masks, hand sanitiz- ductory clause that is not a com- er, hand soap, and lens cleaners. plete sentence when a list of items (B) We made several evidentiary follows on a separate line: objections on the grounds of hear- •Grounds for excluding the testi- say, failure to authenticate, and mony are: violation of the best evidence rule. (1) unreliability of the expert’s (C) Bart was having a bad day opinion; recalcitrant witnesses, motions for (2) irrelevance of the subject sanctions, and car trouble. matter; (D) The doors to the courthouse (3) failure to identify the expert were locked all we could do was until after the scheduling order stand outside in the rain until deadline; and someone came to let us in. (4) prejudice to the defendant.

ANSWER: Knowing when to capitalize follow- (A) Katie knew she needed a basket ing a colon is easy. When a com- full of supplies: for example, boxes plete sentence follows the colon, of disposable masks, hand sanitiz- you have the option of capitalizing er, hand soap, and lens cleaners. the first word after the colon or (B) We made several evidentiary using a lowercase letter. If the text objections on the grounds of hear- following the colon is not a com- say, failure to authenticate, and plete sentence, do not capitalize the violation of the best evidence rule. first word after the colon (unless it (no colon) is a proper noun or another word (C) Bart was having a bad day: that should always be capitalized). recalcitrant witnesses, motions for sanctions, and car trouble. The answer to the extra cred- (D) The doors to the courthouse it question in Question 1, which were locked: All we could do was asked you to translate “De Natura stand outside in the rain until Deorum,” is “On the Nature of the someone came to let us in. Gods.” Be sure to include that Latin in your next brief to the Court of Colons are signals that show what Appeals and try your hardest to is to follow in a sentence. In gener- avoid winning the “Worst Brief of al, use them only if your sentence the Year” Award. Dum spiro spero. has an independent clause (in

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