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“Q&A with Quarles & Brady’s King Poor”

Law360 E. King Poor

E. King Poor is a partner in Quarles & Brady LLP's Chicago office. He concentrates on trial and appellate practice. As an appellate lawyer, he has appeared before the United States Supreme Court three times and authored two petitions for certiorari granted by the Supreme Court. Overall, he has also participated in more than 60 appeals in state and federal courts. These appeals include contract disputes, class action defense, arbitration, defamation, constitutional law, creditors' rights and administrative law. In addition, Poor has experience representing pro bono clients in criminal and habeas appeals.

Q: What is the most challenging case you have worked on and what made it challenging?

A: Challenging cases come in all sorts of shapes and sizes. One stands out for me: Harris v. Reed, 489 U.S. 255 (1989). Warren Harris was sentenced by the Circuit Court of Cook County, Ill., to 50 to 100 years for murder. My colleague, Kimball Anderson, and I represented him pro bono in his habeas appeal to the Seventh Circuit. At the time, I was an associate at a Chicago firm and was told: if you write the briefs, you argue the appeal. I did just that — and lost. In a 2 to 1 decision, the Seventh Circuit held that the state court had found — without saying so expressly — that Warren’s constitutional claim was waived.

The files for the case were then close to being sent to the warehouse. But the ruling remained troubling — a federal court finding that a state court had found a waiver, without the state court ever saying so directly.

I took a walk at lunchtime and stopped and bought a newspaper, The Christian Science Monitor, and then headed back for lunch at my desk. I opened the Monitor and read an article about a Supreme Court case, Michigan v. Long, and how there the court had ruled that constitutional claims for direct appeals could be deemed waived only if the state court had said so in a “plain statement.” A conflict with Supreme Court precedent now came into sharp focus: if the “plain statement rule” applied to direct appeals, should it not also apply to habeas cases? And so began our journey to the Supreme Court.

Some 18 months later, in an 8 to 1 decision reversing the Seventh Circuit, the Supreme Court answered the question that sprang from buying that newspaper during my lunchtime walk. Justice Harold Blackmun began the opinion: “In this case, we consider whether the “plain statement rule” of Michigan v. Long … applies in a case on federal habeas review … We hold that it does.”

The moral: If your intuition tries to tell you something, listen, and take a walk.

Q: What aspects of your practice area are in need of reform and why?

A: Bloated legal writing. Too much legal writing continues to be larded with needless detail and jargon. Such writing exacts a price on everyone. It not only takes too long to read, it can make the simple more difficult, and the difficult even more difficult. It spawns confusion and ultimately drives up the cost of the process.

Of course, there never was a Golden Age when the legal profession was free of such writing. But each generation of lawyers and judges must guard against it and promote something better. Our own times have produced champions for plain writing such as Bryan Garner in his The Elements of Legal Style and Joseph Kimble in his Lifting the Fog of Legalese — to name a few.

Law schools are in a unique position to influence better writing; it can be taught and it’s taught most often by example. Yet the first legal writing that most law students read comes from judicial opinions. And while I’ve often heard judges at seminars tell lawyers to keep footnotes to a minimum and keep briefs “brief,” it’s not hard to find opinions rich in footnotes and overlong with recitals of procedural history.

Combating acronym-creep is also a worthy cause. And some courts are doing their part. Recently, the Wisconsin Court of Appeals and D.C. Circuit offered this plea: “Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not and littering their briefs with references to “SNF” [spent-nuclear fuel] … and “BRC” [Blue Ribbon Commission].” Anthony Gagliano & Co. Inc. v. Openfirst LLC (Wis. Ct. App. Jan. 8, 2013) (quoting National Assoc. of Regulatory Commissioners v. US Dept of Energy, 680 F.3d 819, 820 n.1 (D.C. Cir. 2012).

Good examples matter. And the advice of Strunk and White in their classic Elements of Style remains timeless for all of us: “Omit needless words.”

Q: What is an important issue or case relevant to your practice area and why?

A: Civility. Here again, we cannot look back to a romanticized time when there was no misbehavior in our profession. But the movement of recent years stressing civility is welcome. As part of this, specific conduct has been targeted such as refraining from offensive language or agreeing to reasonable requests for extensions of time and the like. That’s all important. But civility goes beyond that. It encompasses an attitude to the practice of law that gives opposing counsel the benefit of the doubt. In any lawsuit, the process is rarely flawless — a discovery response may be late or documents cannot be located. Civility means not immediately imputing a bad motive to the other side if something goes awry. Opposing counsel may have simply overlooked or missed something. It happens to all of us. Of course, this isn’t a prescription to be naive, rather, it’s simply a healthy reluctance to ascribe bad faith to another lawyer.

Again, judges are important role models. In recent years, we’ve seen appellate opinions where the majority or dissent refer to each in terms that are — just not civil. We look to the judiciary to set the bar high on this. All of us, lawyers and judges alike, have a role to play in fostering civility. The public is watching.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: Kimball Anderson, Winston & Strawn in Chicago. As an accomplished appellate lawyer, Kimball has impressed me with his ability to winnow a case down to its essence. The appellate process demands a culling of issues. And Kimball has an keen sense of what deserves attention and what to leave behind. He is also generous with his time and talent and has often used his considerable skills as an appellate lawyer to represent pro bono clients.

Q: What is a mistake you made early in your career and what did you learn from it?

A: After studying case law for three years in law school, I tended to think of the argument section of a brief — with its discussion of case law — as the main event. Case law is important, but the statement of facts may be just as important. Judges usually know the law, but they don’t know the facts of your case. And case law works only as it fits the facts of a case. A lawyer’s job is to go beyond reciting the abstract rule from case law. The “why” behind the rule must be explained and how it applies to the facts.

Moral: Don’t underestimate the importance of the statement of facts.