Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

This column will focus on Wal-Mart Stores, Inc. v. Dukes, ___ S.Ct. ___, 2011 WL 2437013 (U.S. June 20, 2011), and the power of the one-two punch.

Dukes reversed a Ninth Circuit judgment approving a nationwide class action involving 1.5 million current and former female Wal-Mart employees. The plaintiffs alleged that local Wal-Mart supervisors exercise their discretion over pay and promotion to discriminate against women in violation of Title VII. The plaintiffs sought injunctive and declaratory relief, punitive damages, and backpay. The United States Supreme Court held that the class could not be certified under Federal Rule of Civil Procedure 23(a)(2) based on a lack of commonality; it further held that the plaintiffs’ backpay claims were certified improperly under Rule 23(b)(2) because such claims were not incidental to their requested injunction.

The first sentence of Justice Scalia’s majority opinion makes the final destination pretty apparent: “We are presented with one of the most expansive class actions ever.” Not a promising start if you’re trying to uphold the class.

From a legal draftsmanship viewpoint, my eye was drawn to a technique that appears both in Justice Scalia’s majority opinion and in Justice Ginsburg’s dissent.
This technique is the one-two punch created by coupling a positive assertion with a negative one. The contrast establishes limits; provides clarity; and adds emphasis.

Consider these examples of the positive-negative combination from the majority opinion.
  • “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’ . . . .” Dukes, 2011 WL 2437013 at *7 (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982)). “This does not mean merely that they have all suffered a violation of the same provision of law.” Id.

  • “In the landmark case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough.” Id. at *10 (original emphasis) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).

  • “In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id. at *12. “It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. (original emphasis).
This technique also works in reverse when an initial negative statement is coupled with a clarifying positive statement. “Rule 23 does not set forth a mere pleading standard.” Id. at *7. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis added).

Justice Ginsburg uses the same approach to make her points in dissent.
  • “Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: ‘[T]here are questions of law or fact common to the class.’” Id. at *16 (Ginsburg, J., dissenting) (footnote omitted). “The Rule ‘does not require that all questions of law or fact raised in the litigation be common . . . .’” Id. (quoting 1 H. Newberg & A. Conte, Newberg on Class Actions § 3.10, pp. 3-48 to 3-49 (3d ed. 1992)).

  • “Sensibly read, however, the word ‘questions’ means disputed issues, not any utterance crafted in the grammatical form of a question.” Id. at *16 n.3.
The technique also comes in handy for distinguishing cases. “Teamsters, the court acknowledges . . . instructs that statistical evidence alone may suffice . . .; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account.” Id. at 18 n.4 (citing Teamsters v. United States, 431 U.S. 324, 339 (1977)).

The one-two punch makes for more focused and more persuasive legal writing. And the beauty is that it does so in a calm, reasoned, matter-of-fact way. The contrast does the work; reliance on histrionics and over-the-top adjectives is unnecessary.

Feeling some pressure to fulfill the promise of this column’s title, I have not merely examined Dukes for good legal writing; I also have searched for less-than-perfect expressions of legal thought.

To that end, I offer the following awkward sentence for your inspection: “Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate.” Id. at *6 n.4. Betcha can’t say that sentence aloud in a single breath.

A little remodeling fixes the problem: “The court of appeals accepted in part Wal-Mart’s argument that monetary claims predominated for class members who no longer worked for Wal-Mart and lacked standing to seek injunctive or declaratory relief.”

Mission accomplished.


Have your own rewrite worthy suggestion? Send it to: submissions@hbaappellatelawyer.org