Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 31

United States v. Papagno
Victor Papagno had a goal: to collect
two of every kind of computer or, as he
phrased it, to build the “Noah’s Ark of
Computer land.” Unable to buy such a
collection, he decided to steal it. Over
10 years, he pilfered 19,709 pieces of
computer equipment from his employ-
er, the Naval Research Laboratory. After
he was caught, Papagno pled guilty and
was sentenced to 18 months in prison. 9
The genius of combing through the record
to find the defendant’s boast about the “No-
ah’s Ark of Computer land” makes this open-
ing memorable and appropriately humorous.
Noah Messing says that introductions should
be “short and pithy.” 10 This opening is just
that.
Hall v. Sebelius
This is not your typical lawsuit against
the Government. Plaintiffs here have
sued because they don’t want gov-
ernment benefits. They seek to dis-
claim their legal entitlement to Medi-
care Part A benefits for hospitalization
costs. Plaintiffs want to disclaim their le-
gal entitlement to Medicare Part A ben-
efits because their private insurers limit
coverage for patients who are entitled
to receive coverage from their private
insurers rather than from the Govern-
ment.
Plaintiffs’ lawsuit faces an insurmount-
able problem: Citizens who receive So-
cial Security benefits and are 65 or old-
er are automatically entitled under fed-
eral law to Medicare Part A benefits. . .
. There is no statutory avenue for those
who are 65 or older and receiving Social
Security benefits to disclaim their legal
entitlement to Medicare Part A bene-
fits. 11
Judge Kavanaugh’s use of substantive
transitions is evident in this opening and in
the one that follows. He uses this coherence
technique so often that some might think is
slows down the forward momentum of his ar-
gument. I disagree. Law is complex. Layer-
ing the same words throughout a paragraph
and even over several paragraphs creates co-
hesion and reinforces the central point you
want to make. The estimable H.W. Fowler fa-
vored the repetition of key words, and had
www.vtbar.org
this caustic comment for those who need-
lessly vary word usage: “It is the second-rate
writers, those intent rather on expressing
themselves prettily than on conveying their
meaning clearly . . . that are chiefly open to
the allurements of elegant variation.” 12
real events. By putting the focus squarely on
President Clinton, Judge Kavanaugh’s open-
ing reminds us that the strategy of dropping a
few bombs after each terrorist attack was not
going to stop bin Laden. That was my reac-
tion, but even if you did not see this in Judge
Kavanaugh’s opening, I trust you agree it is a
compelling narrative start to an opinion.
Coalition for Mercury-Free Drugs
v. Sebelius
The Coalition for Mercury-Free Drugs
opposes the use of vaccines that con-
tain thimerosal, a mercury-based preser-
vative. The Coalition believes that vac-
cines containing mercury harm young
children and pregnant women. The Co-
alition and several of its members sued
to suspend the Food and Drug Admin-
istration’s approval of thimerosal-pre-
served vaccines. The District Court dis-
missed plaintiffs’ suit for lack of stand-
ing.
We recognize plaintiffs’ genuine con-
cern about thimerosal-preserved vac-
cines. But plaintiffs are not required to
receive thimerosal-preserved vaccines;
they can readily obtain thimerosal-free
vaccines. They do not have standing to
challenge FDA’s decision to allow other
people to receive thimerosal-preserved
vaccines. 13
This opening is a paradigm of effective le-
gal writing style. Every sentence in this open-
ing is in the active voice. Every sentence puts
the subject and verb close together at or
near the start of the sentence. The average
sentence length is 13.8 words per sentence,
well below my recommended avera