What is POFP?

Why do lawyers refer to long documents as briefs and
18-year olds as infants? Why do they use so much Latin when so few of their
clients are Ancient Romans? Is it a conspiracy?

Party of the First Part has the answers! Check out the Website for the
Legalese Hall of Shame; a glossary of legal words linked to Adam Freedman's
columns; tips on writing legal documents in plain English; and more!

Sunday, October 28, 2007

Word of the Week

Now there's a hot-button word. Under the UN Convention Against Torture, torture means "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind" -- provided that a "public official" was involved. Private acts of cruelty without official sanction don't amount to torture. " In the US statute that codifies the Convention (18 USC 2340), Congress added the requirement that mental pain or suffering must be "prolonged" in order for the act to constitute cruelty.

Words like "severe" and "prolonged" are a little too vague for comfort -- or so it seems to POFP. However, my suggestion that "torture" requires a more precise definition was met with howls of derision on Huffington Post. I guess not everyone enjoys law dictionaries as much as POFP.

Saturday, October 27, 2007

The Worst Online Agreement Ever?

Or maybe the worst contract ever -- period.

The Central Pacific Railroad has a charming online "Photographic History Museum" which can be found here. From the Home page, click on "Legal Notices" to find a truly egregious Users Agreement, here. Kudos to reader Phil Venton for unearthing this.

The User Agreement goes on for over 31,000 words. When cut and pasted into word (and made a uniform 12 pt font), The Agreement stretches over 57 pages. It contains 44 "herein's." The integration clause (usually "this contract represents the entire agreement between the parties") is a 640-word monster. If you send the website an image, they are free to use it -- but in this Agreement it takes a 766-word sentence to say so.

What's truly odd is that the owners of the website want you to know that they have a sense of humor about the whole "law" thing by peppering the entire Agreement with jokes. For example, in the Force Majeure clause (one of two force majeure clauses, actually), they warn that an "Asteroid Impact," "Vulcanism" or "Ice Age" would void the Agreement. Hilarious, of course -- but the Agreement is no joke, as the authors say at the opening: Don't be put off by the legalese, but please read these terms and conditions of use carefully before using this website, because you are bound by them. In other words, you have to wade through all 57 pages of this -- including our lame attempts at humor if you want to know what your rights are.

Finally, the site owners seem to have gone out of their way to make the User Agreement difficult to read online. I can't put it better than Mr. Venton, who commented that the webpage "appears to have been designed by a burlap sack full of color-blind hedgehogs." Actually, that's not entirely fair to color-blind hedgehogs.

Update on "Blight"

As reported right here at POFP a few weeks ago, defining the word "blight" has become a hot legal topic. That because the, um, innovative decision in Kelo v. City of New London strengthened the hand of cities that want to assert eminent domain over "blighted" neighborhoods. By an interesting coincidence, Golden Gobbledygook Award winner Paul Sherman litigates bogus-blight cases for a living. Paul writes:
Your readers might be interested to know that in Lakewood, Ohio, houses were considered blighted if they lacked attached two-car garages, three bedrooms, or two full bathrooms; even the Mayor's house was blighted under this definition (More information on the Lakewood case is available here: http://www.ij.org/private_property/lakewood/backgrounder.html). And if you or your readers would like to see what "blight" looks like, you can check out pictures of these charming houses from Norwood, Ohio, all declared "blighted": http://www.ij.org/private_property/norwood/norwood_homes.html

As a New York City resident, turns out that most of my friends and I have lived in blight conditions for years. But then we suspected as much. Fortunately, Paul's organization, Institute for Justice, was able to help prevent the condemnation in both of these cases.

Sunday, October 21, 2007

Word of the Week


An Old English form of the verb "to witness," this word crops up in a number of boilerplate contracts, as in the preamble to an insurance policy that states “this policy witnesseth that . . .” Many leases also use that word, as seen in the opening line, “Witnesseth: the lessor agrees to lease said property, etc., etc. ” Loyola law professor and plain-language advocate Peter Tiersma describes witnesseth as “a totemic signal that roughly means ‘This is a legal contract; the following are its terms.’” Not to deny that there's something fun and whimsical about bandying about Olde English terms, but on the whole, it's best done at your local Renaissance Faire (while jousting!).

Saturday, October 13, 2007

Word of the Week


The right to use and to enjoy the profits of property that belongs to another. If somebody gives you usufruct over land, you can live on it, grow crops on it, and eat or sell those crops. But you cannot sell it.

Usufruct is a Roman legal concept; the word comes from Latin usus (use) plus fructus (fruit), thus conveying the concept of property you can use and enjoy the fruits of, but still isn't yours. From Roman law, usufruct entered the French Civil Code, and from France was transplanted to the Louisiana Civil Code, where it remains today, defined in Section 535.

In A Streetcar Named Desire, Stanley tells Stella that the Napoleonic Code means that "what belongs to the wife belongs to the husband also, and vice versa." Sorry Stanley. Actually, Louisiana law gives the surviving spouse usufruct over the marital property -- but not ownership. Maybe usufruct was too much of a mouthful for poor Stanley.

Tying the "Not"

A poorly worded Arkansas law allows babies to get married, as CNN reports.

The Arkansas legislature passed a law intended to set the minimum age to marry in Arkansas at 18, with the exception being pregnant teens who have parental consent. But the operative paragraph of the law says:
In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.

Because of that extraneous "not" anyone can legally tie the knot in Arkansas, even toddlers and infants. And why not? Probate law has long recognized the doctrine of the "Precocious Toddler," i.e. the legal fiction that even young children are capable of procreation. In any event, the governor declined to call a special session of the legislature to fix the problem; instead ordering a special "Code Revision" committee to fix it as a technical error.

No harm? It didn't take long before the "notty problem" ended up in litigation. The mother of a 17 year old woman who gave her daughter permission to marry sued local officials in Benton County when they refused to issue a marriage license. The court found that the Code Revision Committee had no business removing the "not" from the law -- only the legislature can make substantive changes to the law.

Governor Beebe's office says that it still does not have plans to call a special session -- but that "not" might be a mistake.

Monday, October 8, 2007

Patently Obvious

From the October 2007 issue of New York Law Journal Magazine.
Necessity is the mother of invention. And invention, it turns out, is the mother of litigation.

A Supreme Court ruling last Spring sent shockwaves through the already-litigious world of intellectual property by making it easier to challenge the validity of a patent. Patent reform legislation currently making its way through Congress threatens to further upset the apple cart.

Much of the controversy turns on the definition of a single word, and it’s obvious. That is, the word in question is “obvious.”

One of the conditions for a valid patent is that it be “non-obvious.” In other words, the invention being claimed must represent an advance over existing technology which in patent law is known as the prior art.

And when patent lawyers say “prior,” they mean way, way prior. In 1976, the Supreme Court invalidated a patent for a supposedly novel method of using water to flush manure out of dairy barns. The Court held that the patent was “obvious,” citing, among other authorities, the fifth labor of Hercules, in which the superhero used water to clean the Augean stables. So if you were thinking about patenting a method for parting the Red Sea, don’t bother. That one’s obvious too. Cf. Exodus 14:21.

The idea behind the obviousness test is that granting a patent, which amounts to a temporary monopoly to exploit a particular technology, should be limited to true innovations. In last April’s decision in KSR v. Teleflex, the Supreme Court held that a patent for a car gas pedal with an electronic sensor that adjusts to the driver’s height was – duh! – obvious.

Well if that’s obvious, one wonders about the fate of other patents. McDonald’s, for example, has a 55-page application seeking to patent “a method and apparatus for making a sandwich.” The document includes such innovative thoughts as “it is advantageous for sandwiches to be served when freshly made.” The method proposed by McDonald’s involves combining meat, cheese, and garnish within toasted “bread components.” Look out world!

In any event, the definition of obvious has become the key battleground in patent law. Obvious comes from the Latin ob (“in view of” or “towards”) plus via (“way”) – suggesting, metaphorically, something that lies in the way. In everyday English, there are many gradations of obviousness. It’s one thing to say that obvious means “plain as the nose on your face” and it’s another thing to say that it means “evident, if you just gave it a moment’s thought.”

Ultimately, the meaning of obvious comes down to this: obvious to whom? To the man on the street, or to Stephen Hawking? In patent lingo, the answer is, obvious to Mr. or Ms. Phosita – “Phosita” stands for a “Person Having Ordinary Skill In The Art”. Hypothetical persons such as Mr. Phosita often spell trouble for lawyers – think of the Reasonable Man of tort law, who seems so saintly at first, but then is always out riding an omnibus when you really need him.

Courts have long debated what sort of person Mr. Phosita really is. Earlier precedents imagined him as a fairly passive person; therefore, an invention was deemed obvious only if the prior art contained some “teaching, suggestion, or motivation” that would have nudged Mr. Phosita toward making the same discovery.

But in KSR, the Supreme Court gave Mr. Phosita a facelift, describing him as “a person of ordinary creativity, not an automaton.” As a creative person, Mr. Phosita might find a method for combining meat, cheese, and bread to be “obvious” even if he hadn’t read about it in The Sandwich Quarterly.

These competing views of Mr. Phosita are just the latest in a long struggle to come up with a verbal formulation that captures the je ne sais quoi of patentability. In America, the struggle began with the Patent Act of 1793, drafted by Thomas Jefferson, which limited patents to that which is “new and useful.”

In 1850, the Supreme Court struck down a patent for the making of porcelain doorknobs on the ground that it represented “the work of the skilful mechanic, not that of the inventor.” The Court thus created a somewhat arrogant hypothetical “inventor” who sneers at the work of mere mechanics (“You call that prior art? My three-year-old daughter could’ve invented that.”)

In 1880, Supreme Court Justice Noah Swayne urged an even more exacting standard for patentability, saying that a valid patent must reflect “a flash of genius.” In 1950, Justice William Douglas raised the bar higher still, saying that a patent must “push back the frontiers of chemistry, physics and the like . . .” Basically, nothing short of a Buck-Rogers-style ray gun would qualify.

The Patent Act of 1952 replaced the Swayne and Douglas formulations with the current test of non-obviousness “at the time the invention was made.” The patent reform legislation before Congress would shift the goalposts by requiring that the invention must not have been obvious at any time “before the effective filing date of the patent.”

Patent law has other linguistic oddities. “Patent Troll” – a term reportedly coined in 1991 by Peter Detkin, former general counsel of Intel – is a person who obtains patents solely for the purpose of launching infringement suits. A troll is a creature from Scandinavian mythology usually found living under a bridge or in a cave, just waiting to abduct a princess or file a complaint. In 2006, Research in Motion paid $612 million to settle a patent troll lawsuit.

A predecessor of the troll was the “submarine patent.” A submarine patent is one that is filed secretly and then “surfaces” years later, usually in the context of an infringement suit. Before 1995, the period of patent exclusivity began on the day the patent was published, but an inventor could file his or her application and then delay publication for years. Now, however, patent exclusivity begins on the date of the earliest filing, so the modern troll has no incentive to delay publication. Besides, trolls don’t like submarines – they can’t reach the periscope.

Every patent applicant, be they troll or Thomas Edison, must contend with an archaic rule requiring that all patent claims consist of a single sentence, no matter how complicated the subject matter. The “single sentence rule” does not appear in any statute; rather, it has simply been a part of Patent and Trademark Office practice ever since 1836. In 1995, the DC District Court upheld the PTO’s rejection of a patent because the applicant had (horrors!) broken up his claim into nine sentences. Indeed, the court held that the insertion of a period anywhere in a claim, except for abbreviations, would be fatal.

Patent law also has a distinctive set of verbs. A patent does not describe its subject matter; rather, it “reads on” the relevant technology. Actually, thanks to the single sentence rule, it reads on and on and on. Be that as it may, patent lawyers say things like “the ‘123 patent [patents are known by the last three digits of the patent number] reads on gas pedal technology” or – in the case of infringement – that “the ‘123 patent reads on the ‘456 patent.”

When describing the essence of a patent’s invention, the operative verb is “to teach,” as in “the ‘789 patent teaches a method for combining meat, cheese, and bread to make a sandwich.” It’s a much nicer image than trolls or submarines – instead, patents are seen as public servants, each one up at a chalkboard, teaching us an incremental lesson in modern living. It’s just that sometimes patents teach stuff that is, like, so obvious.

Sunday, October 7, 2007

Word of the Week


A very old type of lawsuit to recover property (or the value of property) that was wrongly taken away. The person who takes your property is said to have "converted" it to his own use; sometimes, the action of trover is referred to as "trover and conversion." Trover is an archaic Anglo-French word meaning "to find" -- in modern French it's trouver. In English common law, the plaintiff in a trover case was required to plead that he lost his property and that the defendant had happened upon it.

You can still bring a case for trover in state court. Or at least, there are legal form companies that will sell you pre-printed trover complaints.

The Sea Sponge Defense

This story's over a year old, but just came to my attention.

Last year, the San Franciso Recorder reported on a Santa Cruz attorney who -- in his haste to file an appellate brief -- did a quick spell check search-and-replace to correct mis-spelled words. Unfortunately, spell check did not recognize the Latin term sua sponte ("voluntarily") and replaced it with the nearest substitute: sea sponge. While sua sponte is a well-known term used to describe action that a court may take of its own accord, this brief argued that "It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense." The judges soaked it up.