By Popular Demand, a Writing Sample

In a comment to my last post on legal writing, Carolyn Elefant of My Shingle wrote--

[T]hanks for the great resources. However, what I'd love to see are examples of great legal writing in briefs. Not just serviceable or workmanlike (which is how one of my former bosses complimented my work) but stuff that really stands out.

Since I don't have a library of briefs other than the ones I've written, I thought I'd post the appellate and reply briefs from one of my own old cases in a case in which a loss at trial led to a later victory. Readers can decide for themselves if the writing stands out, but I remember being pretty happy with the effort when I filed the briefs. This was especially true when the appellate court agreed with my position and granted my partner and me a new trial because we established during the appeal that some of the defense witnesses had lied on the stand during trial.

I remember the result as being somewhat dramatic, which is another reason I chose these briefs as ones to post. For better or worse, I take credit for writing every word. The opening appellate brief is here; the reply is here. The case involved a claim that a hospital committed malpractice when one of its patients was admitted for psychological problems stemming from lifelong sexual abuse by authority figures. Not long after the patient was admitted, the psychiatric social worker who was partially responsible for her care began a sexual relationship with her. At trial, a jury found in favor of the hospital after its lawyer argued in closing argument that the hospital had no reason to doubt the employee's abilities when he was hired, and that he "had no history of sexual misconduct."

In fact, however, the employee did have a history of sexual misconduct, though it was hidden from us during discovery and at trial. When I got wind of the perjury during the post-trial motion period, I took some more depositions even though trial was over. During these depositions, I was able to prove that some of the witnesses had lied during discovery and at trial.

If any of this sounds interesting, there's more detail in the briefs. The decision by the appellate court that led to the new trial and a subsequent victory for the client is reported at M.E.S. v. Daughters of Charity Services of St. Louis, 975 S.W.2d 477 (Mo. Ct. App. 1998).