Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's take a look at the briefing by both sides on this attempt by #WashingtonHebrewCongregation to claim they had parents waive liability for WHC fondling their kids at daycare, a sentence I can't believe I just typed.

Not going to do a full run through of every brief, just wanted to touch on some things at a high level (he typed before realizing that's NOT the phrase of choice in this context) because I have concerns with how both parties opted to brief their arguments.

Just to be clear, since a word got dropped in that first tweet, the kids fondled at #WashingtonHebrewCongregation were fondled by WHC *staff*, not by the building itself. Just in case anyone was wondering.

Let's start with Williams & Connolly's opening brief for #WHC, because it does something that (1) is incredibly unprofessional and unethical, IMO, and (2) should set massive alarm bells ringing for the court:

The strategic use of ellipsis.

Here's how they quote the "relevant" waiver language in their introduction, at page 2 of their opening brief and the first time they mention it.

And here's how the language shows up in the argument section.

Connoisseurs of briefing structure may note that there's usually a Statement of Facts between intro and argument, which I'm skipping. We'll get there

Now look, there are two potential reasons to use ellipsis, and as you'll see in a second this actually hits both of them. First, you can use ellipsis to cut out irrelevant material. If you have a clause that waives liability to heirs, assigns, successors, etc. - ellipse it out!

There's no need to have that entire laundry list every time you quote the clause.

That's fine.

You can ALSO use ellipsis to try to hide damaging information from the court.

That?

See the problem?

All that stuff in green? Perfectly fine to leave out. It's covering contingencies and parties not relevant to this case.

But you can't fucking cut off the clause at "which I or my minor child may sustain" when what follows is an EXPRESS LIMITATION ON THE RELEASE

The release applies only to injuries that are a "result of [the kid's] participation in these activities"

And "these activities" refers back to the undefined "the activities of the [School]" for which parents are providing "Blanket Permission"

This, if I'm a lawyer on this, is a *massive* problem for the school, for a couple of reasons:

1) The language doesn't say "participation in the School" or "may sustain while in care" - it says "participation in these activities [i.e. participation in school activities]"

That's narrower. Going on a school trip, doing science experiments, climbing on the monkey bars at the playground? Those are "school activities" and injuries from those are going to be subject to the liability waiver.

Being taken to a private room by a teacher so that he can fondle you is not a school activity.

But it gets worse, because 2) the "activities" being referenced are those for which the parents *GAVE BLANKET PERMISSION*

That's the header of the section (though the headers may not be allowed to be used for interpretive purposes), and the clause opens by talking about the children being "permitted to participate in the ACTIVITIES of [the school]"

Nobody is going to convincingly argue that the "activities" in which the school and parents agreed the child was allowed to participate included "being diddled by a teacher"

So when Williams & Connolly excises that language from the release and just doesn't bother mentioning it to the court, they are exceeding the bounds of proper advocacy and (IMO, anyway) violating their duty of candor.

By which I mean - contrary to popular imagination, and what IMO W&C did here - lawyers are NOT allowed to hide important facts from the court, or twist things to make an argument without a good faith basis. W&C's duty was to leave that language in and argue "school activities"...

covered "being at the school" so that "anything that happens at school" is part of the liability waiver.

They didn't do that, probably on the theory of "let's let the plaintiffs make that argument first, maybe they won't"

IMO that crossed the border into unethical when they cut

the relevant language out of the quote.

(In other words, if they had made the same substantive arguments but left the language in, it would be one thing. That's not what they did. They tried to bury the bad language, pretend it didn't exist. Not OK)

Next we have the Plaintiff's opposition to the motion. Aside from arguing that the waiver can't apply because the school was grossly negligent (based on redacted facts, and not what we're focusing on now), they absolutely caught the "participation in activities" issue

But (and I hate to say it) IMO they didn't do the best job presenting that argument to the court. Here's what they submitted on that issue. So what are my concerns?

First, I don't know why there initial framing was about "what a parent would have understood". There's a pretty simple rule in interpreting contracts: if the language is clear and unambiguous, a party's private misunderstanding of what it means doesn't matter

In other words, if that same language had waived liability for any injury "occurring on school grounds" or "as a result of staff conduct" it wouldn't matter whether the parents realized that included "sexual abuse at the school"; the release language would be clear & unambiguous

So your first line of attack in any contract interpretation case is always "the plain language of the contract means what my client says it does" and the fallback is "even if that's unclear, it's at least ambiguous" - and you only get into intent once you reach that fallback

And they had plenty within the language of the release itself to go hard after "we don't care about intent, this release CLEARLY doesn't cover sexual abuse"

And to be fair, they did do some of that. But by wrapping it in the framing of "parental intent" it loses punch

Second, I have no idea why this argument is in a footnote. This isn't a footnote, it's a case-winner

WHC argued the release for damage from participation in school activities covers any injuries while in WHC's care. If that were true, there'd be no need for a separate waiver for injuries relating to allergies - that would already be covered, and would therefore be meaningless

The law is crystal clear on two basic rules: 1) contracts signed together will be read together, even if they are formally two separate documents; and 2) courts WILL NOT construe contract language as meaningless if there's any other reasonable construction that would have meaning

Here, that's a slam dunk, AFAICT: the allergy waiver has meaning if you construe the "Given Activities" waiver as limited to "school activities" and not "any time in school care". It has none if you construe it as "any time in school care is 'participation in school activities'"

So that's not an argument that you shove into a footnote. That's a paragraph or two of development, arguing that the agreements were signed together, citing the caselaw on reading those waivers together and not rendering either a nullity.

Instead, they just tossed it in!

And the result? The school's reply just ignored that argument altogether. It didn't mention the allergy waiver, didn't try to argue away the inconsistency with their reading. And they could only do that because it was in a footnote.

Anyway, the parents should *absolutely* win this motion, and #WashingtonHebrewCongregation should be absolutely ashamed to have put that argument forward. But there's a chance that the judge misses one of the key arguments because the parents treated it as an afterthought

Anyway, thought these briefs presented a good opportunity to talk about some briefing & strategy nuts and bolts, hope you enjoyed