Chapter 8 of my personal favorite writing guide, Richard Wydick's Plain English for Lawyers, counsels against the use of elegant variation. For the uninitiated, elegant variation is the practice of using different words to express the same concept in order to spice up the writing. This tends to make things more confusing, especially in technical arenas. As an avowed logophile, it's one of the book's lessons that I struggle with the most.
I bring it up today, because I can't help but wonder if elegant variation played a role in the denial of a motion for summary judgment in Sprint Communications Company L.P. v. Charter Communications, Inc., C.A. No. 18-2033-RGA-MPT. Charter had moved for summary judgment of non-infringement, citing to its verified interrogatory responses regarding how its products functioned. Somewhat surprisingly, the plaintiff apparently did not dispute the substance of these interrogatory responses -- suggesting that the issue would be ripe for resolution at summary judgment.
The problem was that, as Judge Thynge put it "facts . . . stated in the Statement of Facts
in Charter’s opening brief differ from those in Charter’s (undisputed) verified interrogatory responses." D.I. 218 at 5. This divergence between the cited discovery responses and the statements in the brief was apparently severe enough to create "factual disputes over the differences between [Charter's] discovery responses and the facts stated in its briefing" that precluded summary judgment. Id.
The defendant had a factual dispute with itself significant enough to prevent summary judgment.
Unfortunately, the opinion is too heavily redacted to tell much about exactly how facts laid out in the interrogatory responses differed from the briefing. Nevertheless, it stands as a lesson in choosing words carefully, and for clarity.
(for extra credit try to spot all 7 instances of elegant variation in this very post!)
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