This month, the Bar Bulletin introduces a new feature by George Jarecke, an instructor in the art of legal prose. This month, Jarecke draws on his CLE archives for the subject of his article. Our idea is that future articles will be based on writing samples and questions submitted by legal practitioners and the courts. Thus, we encourage you to delve into your own archives or pull out that brief or letter you have just received from opposing counsel and send your inquiries and examples of artful or artless legal prose to Jarecke at gjarecke@practicallegalwriter.com.

It’s been said that a blank sheet of paper looks terribly pure: writing something on it is certain to make a mess. So, we have good reason to pause when beginning a brief as we want to squeeze every bit of potential out of that first paragraph. In an appellate brief, for instance, the first substantive paragraph is our chance to sell the court on our theory, our story of the case.

An example is a brief to the U.S. Sixth Circuit Court of Appeals that Dickinson Wright in Detroit wrote in 1991 for defendant Johnson & Johnson. One of the plaintiffs, Frank Ferlito, had dressed himself in cotton batting as Bo Peep’s sheep for a Halloween party and, once at the party, tried to light a cigarette. The flame passed too closely to his lamb-arm and set him ablaze. He and his wife, who made the costume, sued J&J claiming that it had failed to warn them of the danger that cotton would burn. The jury gave the Ferlitos a big verdict, the court granted J&J’s motion for judgment notwithstanding the verdict and the plaintiffs appealed.

Dickinson Wright has a delicate task. If Ferlito’s injuries hadn’t been so severe, this case comes close to sounding like a joke -- a man dressed as a sheep sets himself on fire with a cigarette lighter, then claims that the cotton manufacturer breached its duty to warn him, that, uh, well, that cotton burns. But Ferlito was badly burned; Dickinson Wright would have to write with a light touch so as not to aggravate those burns.

The Ferlitos’ counsel argued that, while his client was aware that cotton could burn, this was cotton batting and he didn’t know that such a thing would burn so quickly. Maybe an open and obvious danger wasn’t so obvious after all? Maybe there was a difficult fact question upon which reasonable people could differ?

Dickinson Wright’s brief opens:

The facts of this case, like the product at issue, are simple. Appellants sustained injuries when Frank Ferlito, having donned a “Bo Peep’s sheep” costume, which encapsulated his body with cotton batting from head to ankle, put an open flame to the sleeve of his costume and was burned. Appellants submitted their case to the jury on the lone theory that Johnson & Johnson Products, Inc. (“JJP”) was negligent in failing to warn them of the flammability of the cotton batting used to adorn Mr. Ferlito. When the jury returned a verdict for Appellants, the trial court declared the jury’s findings “shocking” and “incredible.”

Not so fast, Ferlito -- your theory that a fact question arises out of a nonexistent complication based on the shocking fact that cotton batting burns faster than tightly spun cotton is sneaky but a loser. We will examine it and kill it later, but let’s first tell the court what our theory of this case is: “The facts of this case, like the product at issue, are simple.” The first concept that we want the court to grasp is that there is nothing much to this dispute. We’re here only because the jury developed some understandable sympathy for the Ferlitos’ plight.

Note that Dickinson Wright does not judge Ferlito’s actions. In the privacy of our own law offices, we can shake our heads at the silliness of someone who doesn’t know enough to keep fire away from cotton and then has the nerve to expose his foolishness in the public record. But we’re not going to take any chance of offending the court by pointing that out. Let the court come to its own conclusion and do its own sniggering in chambers.

Highlighting the theory that this is a simple case, Dickinson Wright pares this preliminary fact statement to the core; they don’t even mention the cigarette lighter. They save the details of how Ferlito set himself ablaze for the Statement of Facts (and there tell us that the culprit was a “disposable butane lighter”). The Fer-litos no doubt mentioned the cigarette lighter somewhere in their brief. We might ponder, however, whether we’d rather see that cigarette lighter in this paragraph. Would a reader otherwise stop to wonder how the fire could have started?

If we’re opting for simplicity, our quibble with this language might instead be with “encapsulated;” while vivid, the verb isn’t the simplest possible. “Covered” would work quite as well. If we want to simplify further, we could cut “used to adorn Mr. Ferlito.” There’s no dispute over which cotton batting it was that caused the injuries. While we’re quibbling, we should note that Dickinson Wright refers to Johnson & Johnson by its initials and the Ferlitos as the dehumanized losers, “the Appellants.” That’s generally conceded to be a fairly obvious shot these days.

Dickinson Wright underlines the concept that this case is simple by noting that the Ferlitos “submitted their case to the jury on the lone theory” of negligence. It’s really just a fact of the case that the Ferlitos had only one theory, but why not make the most of it, if subtly?

Finally, the trial court handed Dickinson Wright a real gift, describing the verdict as “shocking” and “incredible.” How many times do Christmas and your birthday occur on the same day that the Easter Bunny shows up?

And Dickinson Wright managed not to make a mess of the gift-wrapping; they saved those words for the end of the first paragraph. First, that sentence does a fine job of concluding the opening paragraph. Second, a well-known prose concept is that the last statement takes on the most importance. Here, we allow the reader to pause on this sentence with that strong, quoted language before moving on to the next paragraph.

The beginning of the second paragraph is handled well, with a useful transition and a statement of what happened next: “Accordingly, upon motion by JJP, the trial court entered judgment for JJP notwithstanding the verdict.” We’re off and running, and it should come as no surprise that the Sixth Circuit had no trouble affirming the j.n.o.v. in favor of Johnson & Johnson.

By the way, Dickinson Wright handled the argument that the Ferlitos didn’t know that cotton batting burns so rapidly by discussing another case in which a woman’s fuzzy gown burned rapidly. Everyone knows, the court in that case stated and Dickinson Wright repeated, that finely divided fibers in cotton, newspaper and wood shavings burn more rapidly than more tightly woven products made from the same materials. No, Mr. Ferlito, “The facts of this case, like the product at issue, are simple.” n