Lawyers who specialize in civil litigation spend most of their days writing. We have heard it said that U.S. lawyers, collectively, are the highest-paid professional writers in the country and there might be truth to that.
Some lawyers get playful with language. A federal judge made up a word and, over time, others adopted the word and it became an accepted word now in at least some dictionaries.There are stories of judicial clerks challenging one another to insert an obscure word in a judicial opinion, for example.
We had to wonder if the appearance of the fairly obscure word, “sclerotic,” in a recent opinion by Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) was inserted playfully (though the word was completely appropriate in context).
Judge Magnuson was addressing the argument of a litigant disappointed by the result of her arbitration. After having lost, the litigant discovered that the “chair” of the arbitration panel had mediated a dispute that involved her adversary some time before, which the “chair” had failed to disclose earlier.
When confronted with the fact that the “chair” had actually disclosed six previous arbitrations that he had been involved in with the respondent, Morgan Stanley Smith Barney, and challenged with the fact that the objecting party did not identify any hint of misconduct, she pointed to a 1968 U.S. Supreme Court case which, she argued, was absolute and categorical. “the [1968 Supreme Court] decision sets forth a black-and-white rule: failure to disclose means evident partiality and vacatur of the award.”
Her position that the law on this issue is sclerotic and may only be refined by the Supreme Court is not supported by either subsequent caselaw or by our legal system’s precedent-based jurisprudence, which relies on the evolution of legal principles through subsequent interpretations of Supreme Court opinions.
Hooray for the memorable use of an obscure word! Let’s hope some judicial clerk won a bet by getting the word inserted into the decision.