Some topics are gifts that keep on giving. Legal incantation is one of them. Last summer I wrote about the openings of declarations, a fertile source of drivel, and noted that the traditional recitation that the declarant has personal knowledge, and could competently testify, is itself incompetent testimony.
Reader responses were at least as interesting as the column itself. One reader, who had emailed me a year earlier to tell me I was an irritating narcissist, now wrote to say how much he appreciated the column about declarations, and insisted that I write more columns like it. (It's amazing how much smarter someone can get in a relatively short time, and here I am doing just what he asked, even though he didn't actually say I wasn't
an irritating narcissist this time.)
Another reader wrote to cite cases holding that conclusory statements about personal knowledge are neither necessary nor effective. This message not only supported my point, but also tacitly cast aspersions on my research skills.
Still another correspondent made the point that logic is irrelevant because attorneys are at the mercy of clerks, and that "[a]ny practitioner who has had a clerk refuse to file a declaration, and send it back, because it does not contain the magic words, 'I have personal knowledge of the facts ...' will cling to those words as a shipwrecked sailor clings to a spar."
Things like that do indeed happen, odd though it seems that a clerk would actually take the time to search documents for specific bits of mumbo-jumbo. I recall that when I was just a young lawyer knee-high to a Witkin
volume, one of my employers complained that a clerk had bounced his notice of something or other because it said the matter "was heard" by the court instead of it "came on regularly for hearing" (whatever that means).
When I wrote back to the attorney clinging to the spar, he confirmed that one of his declarations really had been bounced because it lacked an incompetent statement of personal knowledge. He added, "I do think that the practitioners who work at the upper end of the system"--a reference to my appellate practice--"are perhaps a little unaware of the problems confronted by those who work at the lower end."
The thought of appellate and trial courts as the summit and foot, respectively, of Olympus, and me as temple acolyte peering down from the top, made me giggle, but again he had a point: Appellate clerks are less likely to fabricate requirements out of semantic superstition. I've never had an appellate clerk bounce a paper because it lacked some meaningless verbal formula. But then, I've never had a trial court clerk do it either, although I do file papers in trial courts and often ghostwrite trial-court documents for other attorneys.
It has been many a year since I've written that I was licensed "in all the courts of the state of California"; concluded that I had personal knowledge of something; or speculated that I might testify in person. I've never written that something "came on regularly for hearing" (whatever that means), even though I've witnessed a document bounced for lack of that phrase (and thus have personal knowledge of it, and could testify competently thereto). I won't cling to that particular spar.
Going through life cramming documents full of rubbish, on the odd chance that some court clerk with a dubious grasp of reality will be checking for a particular
piece of rubbish, is a bit like carrying a lightning rod around with you every day. It's possible that someday you'll be caught in a thunderstorm and be glad you have it, but certainly you'll look silly in the meantime.
Not long after the email exchanges about declarations ran their course, I was assisting someone I'll call "Attorney A" and ghost-wrote a declaration that authenticated rather a lot of exhibits by means of sentences along the lines of, "Exhibit 7 is a copy of the complete works of William Shakespeare translated into Esperanto." Attorney A dutifully added magic words so that the authenticating sentences would say something like, "Exhibit 7, incorporated herein by reference, is a copy of the complete works. ..." Attorney A apparently did this in the belief that it was somehow necessary--that the declaration would be invalid for lack of this formula--though I can't dismiss the possibility that Attorney A either does things like this to show that he doesn't read this column, or never remembers it. In these pages I have more than once pointed out that herein
is dangerously vague, since it means "in this" without saying what "this" is. I never
use the word (well, hardly ever--it's in this paragraph twice).
I'm not sure what it means to incorporate an exhibit instead of just identifying it. An exhibit is an exhibit, after all, and it doesn't stop being one for lack of corporate status. I'm guessing that if you've ever examined a witness about a document, you didn't ask, "Do you hereby incorporate by reference Exhibit C herein as if it, and each of it, were part of your testimony?"
And I see no point in saying
that I'm referring to something. Either I'm referring to a document or I'm not referring to it, and any reader who can't discern which is probably beyond hope, and certainly beyond assistance through explanation.
I didn't make a fuss about Attorney A's "incorporated herein by reference" insertions. Time was short, I wasn't the one signing the declaration, and it could've been much worse. The fully drivelized version would go something like: "A true and correct copy of the complete works of William Shakespeare translated into Esperanto is attached hereto and incorporated herein as Exhibit 7." There may even be other useless bits of clutter that I can't remember at the moment. Drivel is another gift that keeps on giving.
Howard Posner practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.