Back in October, 2014, an attorney named Howard Shipley filed a brief with the U.S. Supreme Court on behalf of a client named Sigram Schindler Beteiligungsgesellschaft MBH — one of those German companies with a long name that’s practically unintelligible in English. The “human” client was a fellow whose name, not surprisingly, was Sigram Schindler, a German inventor. The case was entitled Schindler v. Lee, and involved some kind of patent dispute. Shipley’s brief quickly got the attention of the Supreme Court.
Unfortunately, it was not the kind of attention a lawyer hopes to get from the court — namely, having the court say, “Hey, this is an important legal issue — let’s set the case for oral argument and make some new law here!” Instead, on December 8, the court declined to review Schindler v. Lee and on the same day, issued a brief order directing Shipley to explain why he shouldn’t be fined or otherwise punished for filing a brief that didn’t comply with the Supreme Court’s rule that legal briefs explain “in plain terms” what the dispute is all about.
It seems that, as Mr. Shipley quietly acknowledged in a footnote, “Prof. Sigram Schindler, one of the inventors of the ‘453 Patent, should be recognized for his significant contributions to this Brief.” But, the name of Prof. Schindler’s company wasn’t the only thing unintelligible — as Lyle Denniston, the distinguished reporter who used to cover the Supreme Court for the website SCOTUSblog put it, “Neither the questions presented nor the body of the filing were clear . . . and many symbols and abbreviations were used throughout its thirty-seven pages.”
The “Questions Presented” is the heart of any brief filed with the Supreme Court — it’s supposed to let the court know, in one or two sentences, what important legal issue the case presents for decision. Instead, someone who opened the Schindler brief would have found 37 pages that mostly read like this: “For SPL testing a CI, the FSTP-Test hence needs [symbol that looks like an upside-down A] TT.0s of CI [symbol that looks like an upside-down A] their compound inventive concepts — as recognized and input by the user.” It would be more effective without having to interject descriptions of the mathematical notations, but even the other text that’s written in English (well . . . sort of) is impossible to follow.
Of course, what constitutes a “plain statement” can be in the eye of the beholder. The average person who picked up a Supreme Court brief that the justices on the court would have thought met the “plain terms” standard would probably have been bewildered by statements like, “This petition for a writ of mandate comes to the court following a successful motion under Rule 56 granting summary judgment to the respondent.” Prof. Schindler probably thought his brief was written “in plain terms,” too — for a scientist.
But Shipley — who had signed the brief — had to hire respected Supreme Court advocate Paul Clement, who had once been Solicitor General under President George W. Bush, to explain why the court shouldn’t fine Shipley for violating the court’s rules. In 2015, Clement’s law firm filed a 41-page brief on behalf of Mr. Shipley pleading for mercy. It recounted the history of how Schindler v. Lee had come before the court, and argued that Shipley was caught between the competing demands of the Supreme Court’s “plain terms” rule and his client’s desire to explain his case in a way that reflected Schindler’s “favored terminology and locutions.”
Or, for the rest of us, unintelligible gibberish.
About a month later, the court filed a brief order that read: “A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All members of the Bar are reminded, however, that they are responsible — as Officers of the Court — for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated ‘in plain terms,’ and may not delegate that responsibility to the client.”
So, thanks to the efforts of the Clement law firm, Shipley dodged a bullet — although it’s likely that Clement’s law firm charged Shipley more than any fine the court might have levied. But at least it allowed Shipley to appear before the court with a bit more dignity than his brief in Prof. Schindler’s case had presented.
Still, even the court’s order demonstrates how “plain terms” is still a fairly subjective standard.
Would the average person understand what “the Order to Show Cause, dated December 8, 2014, is discharged” means — without a lawyer to translate it?
Frank Zotter, Jr. is a Ukiah attorney.
Hence then, the article about judicial follies the ghostwriter was published today ( ) and is available on Ukiah Daily Journal ( Middle East ) The editorial team at PressBee has edited and verified it, and it may have been modified, fully republished, or quoted. You can read and follow the updates of this news or article from its original source.
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