Update (April 2, 2014): If I were to allow myself to exhaustively catalog my pet peeves in this blog, readers would be deluged with an incessant and torrential tirade. I would lose my half dozen readers for sure.
Too often, I am David Lynch’s Angriest Dog in the World. “He cannot eat. He cannot sleep. He can just barely growl. Bound so tightly with tension and anger, he approaches the state of rigor mortis.” I blame the occupation but admit I might have cause/effect reversed.
I generally keep this affliction to myself and spare my readers (or maybe I am kidding myself). In any event, I promise I will not make my “pet peeves” a regular feature of Minnesota Litigator but indulge me once in a while. This is my second “pet peeve post” in over five years of writing on Minnesota Litigator. Think of it as a controlled release necessary to relieve pressure and mitigate the risk of melt-down.
How in the world can lawyers criticize an adversary for a “self-serving affidavit” with straight faces? The point of a litigant’s affidavit is to benefit the litigant’s case. So any litigant’s affidavit is (or better be) “self-serving” by definition (as is the lawyer’s absurd criticism of such affidavits, of course.)
So, please, don’t respond to an affidavit simply by labeling it “self-serving.” The point of the seminal case in this district (and this federal circuit) on this point, Banbury v. Omnitrition, is not that one can cast doubts on an affidavit by pointing out that it supports her case. The point is that one cannot defeat summary judgment by submitting an affidavit that is flat-out and indefensibly in complete contradiction to earlier sworn testimony.
In the recent case of Schultz v. Dorel Juvenile Group (the case of the exploding hand-truck and the alleged oral settlement agreement), defendant sought to exclude plaintiff’s affidavit in opposition to summary judgment under the Banbry v. Omnitrition rule – suggesting that the affidavit was inconsistent with deposition testimony. A legit objection but U.S. District Court Chief Judge Michael J. Davis (D. Minn.) concluded otherwise (correctly)
[How many readers snickered to themselves with self-satisfaction at my “split infinitive” in the first sentence above (“to exhaustively catalog”)? This is another pet peeve of mine. What is wrong with splitting infinitives? Why is this somehow an indication of bad writing or poor education? I have no clue. It enervates me almost to the state of rigor mortis. Pedants,:allow me to recklessly split infinitives ad libitum sans condemnation please.]
Original Post (October 27, 2011) (under subject line: “13-POINT TYPE DOES NOT EXIST (One Crotchety Lawyer’s Pet Peeve)”):
Justice may be defined as “the quality of being fair and reasonable.”
Arbitrariness, irrationality, and caprice are widely thought to be inconsistent with the qualities of fairness or reasonableness (here is my favorite expression and embodiment of injustice).
Though not on a par with a per se rule of “adjudication by summary execution,” there are those in the federal bar in the district of Minnesota (ok, well, at least one lawyer, the author of this post) who believe that the local rule requiring type size “in at least font size 13 based on the designation of the word processing program used to prepare the memorandum” is arbitrary and capricious.
Typefaces are not elastic. They are designed of specific size. There is no such thing and there never has been “13 point type” in any font. It’s like having a speed limit of “no slower than 40.2 miles per hour.”
This crisis in American law will not be remedied until typography and graphic design are taught in law school.
[I actually have a motion pending to strike a brief for my lapse and failure to submit a brief in 13 point type. My font weighed in at 12 points, a default font size, of course, for just about every word-processing program. I wonder how many similar motions have been brought. I wonder if any have been granted. I offered incidentally to refile the brief with that added 1 point boost in type size but neither the court nor the opposing lawyer has taken me up on the offer.]