A different kind of “three strikes and you’re out”

A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point.

[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

That’s three strikes. Or, really, all the same strike, stated three ways. This is another example of judges being able to get away with clever or sarcastic writing that most lawyers should probably avoid. Judges can get even more colorful. Yet, a lawyer takes a big chance in doing so, especially (in my view) in the court of appeal. So unfair!

2 Comments

  1. It’s kind of like how when you were a child, your parents could use curse words, but you’d be punished if you did.

  2. To me this language seems like linguistic three card Monty or David Copperfield causing the Statute of Liberty to disappear, it is nothing more than an illusion accomplished by directing the viewer’s attention to something else.

    A defense lawyer could never do this because the appellate court would tear them up.

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