Sunday, November 25, 2007
Saturday, November 17, 2007
As the DC Legal Times reports, the grammar war is under way.
With impeccable legal logic, "civil death" is a term that can only apply to people who are perfectly alive. But some living people -- and here we're talking about felons -- are deemed to be "civilly dead," meaning that they have forfeited all civil rights, such as the right to sue or vote. Various state statutes have enshrined civil death, such as the Utah code that declared, somewaht oddly that a life prisoner is "deemed civilly dead" -- and yet, even a civil corpse was allowed to make conveyences. Watch out for "Night of the Civilly Dead" at a theater near you!
Oddly enough, the concept of civil death came from Church law. In the thirteenth-century, the legal scholar declared that monks experienced mors civilis (civil death), in that they could not sue or be sued, or hold property. These days, of course, civil death is a concept that prisoners rights groups are trying to bury.
Update: Jim Rose points out that he addresses "civil death" (humorously) in the context of cryogenic freezing in his book The Supreme Court Jester. Read the passage here.
(I also explore the legal language of cryogenics, cloning, UFO's and other futuristic phenomena in Chapter 10 of my book, The Party of the First Part.)
Sunday, November 11, 2007
Legislative drafters take a long time to reach the period. Judge Mark Painter, an appellate court judge in Ohio and an expert on legal writing, recently illustrated the point in LawyersUSA. Painter quotes an Ohio statute consisting of a single 326-word sentence. The sentence can be found, appropriately enough, in Party of the First Part's Legalese Hall of Shame.
In his article, Judge Painter shows how to cut this mess down to a reader-friendly 155 word statute with sub-points and even a bit of punctuation thrown in. Well done, your honor! According to Judge Painter, it took him about an hour to accomplish his revision. Can't the legislature spare as much time?
Saturday, November 10, 2007
In classical Latin, posse means “to be able to” or “to have power to,” lawyers sometimes use the term in posse, which means “in potentiality.” This is contrasted with in esse (“in existence”). For example: “The term ‘grandchildren’ in the will was interpreted as meaning grandchildren in esse and in posse.” (Random House Webster’s Dictionary of the Law).
But what about the sheriff’s posse? In that usage, posse is short for posse comitatus, which means “the force of the county” (in post-classical Latin, posse took on the meaning of “force”). In English common law, the posse comitatus was every able-bodied man over the age of fifteen in a county, whom the sheriff could summon to quell a riot, to pursue a felon, or – who knows? – maybe even to round out a foursome for bridge. In the UK, the sheriff’s ability to summon a posse remained valid (at least, in posse) until 1967. In various US states, the county sheriff retains this power still. Section 150 of the California Criminal Code, for example, requires that “every able-bodied person above the age of 18” join the posse comitatus when summoned to do so by local authorities. – or face a fine between $50 and $1,000. So be ready to saddle up when duty calls!
(Thanks to Taran Johnston, Ph.D., for inspiring this entry.)
Sunday, November 4, 2007
A brief is a written argument that is submitted to a court as part of a lawsuit, and it is a fair question to ask why something called a brief is usually anything but. Granted, brief is related to the Latin brevis, meaning short. Its immediate ancestor, however, is the noun breve, which refers to a letter issued by the Pope, less solemn than a papal bull, but authoritative nonetheless. This is where we get the legal sense of brief, which was originally synonymous with writ, an old-fashioned term for a document that initiates a lawsuit.
So a brief is not by definition a short document, but it doesn’t have to be long one either. In America, up to the early twentieth century, legal briefs typically consisted of just a few pages of legal citations and argument. In the 1908 case of Muller v. Oregon, a prominent Boston lawyer named Louis Brandeis caused a sensation by submitting a 113-page brief, bristling not only with case citations, but with medical and legal statistics to support his argument. After Brandeis won the Muller case; courtrooms across the country were flooded with briefs resembling Homeric epics – they became known as Brandeis briefs.
At times, it’s downright readable.
The new FRCP is the result of a three and a half year effort to make the rules more reader-friendly. It is just one example of a growing “Plain English” movement that aims to sweep away the cobwebs of legalese in official documents.
Over the past year, programs to convert government regulations into plain English have taken hold on the state and federal level, while existing plain language standards are being more vigorously enforced. At the same time, jury instructions are being rewritten in various jurisdictions to make them more accessible. Bad news for insomniacs.
None of this involves changing the underlying legal rules; rather, this is a movement to change the language of the law. In the case of the FRCP, the Judicial Conference of the United States went so far as to insist that the new version had merely been “restyled,” presumably to allay any fear that the rules had been, as it were, resubstanced.
But as Professor Joseph Kimble, who led the drafting effort, points out, “good style improves substance” – if nothing else, by clarifying the substance. In the process of redrafting the rules, “we caught one inconsistency and ambiguity after another,” says Kimble. The restyling effort brought consistency to the seemingly indiscriminate use of terms such as for cause, for cause shown, for good cause, and for good cause shown.
The quest for greater clarity has led to some surprising results. For one thing, the word shall has now been banished from the Federal Rules.
The problem with shall is that it leads to confusion. Language experts agree that in legal documents, shall means “must.” But in the current FRCP, shall is often used to mean “should” or “may.” In the restyled rules, each instance of shall is replaced by a more accurate word.
“All the shalls are gone,” says Kimble triumphantly. It’s not at all clear where all the shalls went – one hopes to some sort of linguistic retirement home where they play shuffleboard with mesne process and try to avoid squabbles with the arguendo’s.
Many other convoluted rules are headed for retirement this December. Consider FRCP 8(e)(2), which concerns pleading in the alternative:
Current Rule: When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.
New Rule: If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
See? The meaning is the same, but reading it feels distinctly less like banging one’s head against the wall. Alas, a restylist’s work is never done. The Advisory Committee on Evidence Rules may soon begin revamping the Federal Rules of Evidence – including its 42 shalls.
In May of this year, Congress passed legislation requiring federal agencies to produce plain-English compliance guides for small businesses. A more sweeping measure, which would actually define “plain language” and require each agency to appoint a plain language coordinator, enjoyed bipartisan support in the last Congress, only to get lost in the shuffle following the midterm elections. Supporters hope to get it re-introduced in this Congress.
The Securities and Exchange Commission has resuscitated plain English rules it put in place ten years ago. In April of this year, the SEC cited 40 companies for submitting proxy statements that failed to meet the Commission’s plain language guidelines.
Legalese is under attack at the state level, too. In January, Governor Charlie Crist announced the Florida Plain Language Initiative, which requires each state agency to form a team of writers, editors, and policy experts to improve the agency’s public-facing documents. On his website, Crist declares that “it makes no sense to talk to people in bureaucratic legalese.”
Unfortunately, not everyone on the Governor’s own staff has got the hang of plain English. The Executive Order announcing the Plain Language Initiative starts out with a full page of superfluous "whereas" clauses, followed by
NOW, THEREFORE, I, CHARLIE CRIST, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (1)(a) of the Florida Constitution, and all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect:
Meanwhile, in California, new plain language criminal jury instructions took effect last year. Whereas the old instructions were notorious for their stilted language, the new instructions tend to be written in everyday English. To take one widely-cited example:
New: People sometimes honestly forget things or make mistakes about what they remember.
A number of states, including New York and New Jersey, have approved new instructions on the all-important definition of “guilt beyond a reasonable doubt.” Old “pattern” jury instructions tend to define the burden of proof in abstract terms – telling jurors that they must possess a “moral certainty” or an “abiding conviction” regarding the defendant’s guilt. The new instructions explain to jurors that they should vote for a conviction only if they are “firmly convinced” of the defendant’s guilt.
The battle against legalese goes way back. The cause has been championed by all sorts of politicians, from the sixteenth century monarch Edward VI, who urged Parliament to make statutes “more plain and short,” to President Jimmy Carter, who railed against “gobbledygook” (a word, incidentally, that was coined in 1944 by Texas congressman Maury Maverick who was trying to evoke the sound that turkeys make).
One reason for the recent upsurge in plain English reform is the mounting evidence of the high price of legalese. “The cost of bad writing in government and business is staggering,” says Kimble, whose 2006 book Lifting the Fog of Legalese is itself a call for plain language in law.
In the early 1990’s, for example, the Department of Veteran’s Affairs took one form letter that was written in legalese and translated it into plain English. Over the next year, the number of telephone calls to the VA asking for clarification of that letter dropped by about eighty percent. The VA concluded that adopting that single letter nationwide would save it $40,000 a year – an enormous sum when multiplied by all the letters and forms sent out by all government agencies.
A Pentagon study estimated that the US Navy could save up to $350 million a year if its internal memoranda were all written in plain English. But then, the military brass does have a certain penchant for gobbledygook: its specifications for standard-issue fruitcake run to eighteen pages.
Even more alarming is the human cost. Law professor Peter Tiersma has exhaustively studied jury instructions and concluded that “there have probably been dozens of people who have been condemned to die by juries who poorly understood the legal principles that were supposed to guide their decision.”
Small wonder that there’s been a backlash against traditional legal language. That’s not to suggest that lawyers should expect hordes of pitchfork-bearing townsfolk camped outside their offices. But still, when even court rules start showing up in plain English, it might be time to reconsider one’s attachment to witnesseth.
And if you still need something to lull you to sleep at night, there’s always the Tax Code.