The Party of the First Part

Eleventh Circuit agrees to an expedited briefing of the ObamaCare challenge

2011-03-13T14:09:00.000-07:00

The briefing will begin April 4 and will be completed on May 25. That schedule could still allow for an en banc oral argument on June 6, as the challengers requested.
————
In a move to speed the constitutional dispute over health care on to the Supreme Court sooner, challengers to the new federal law on Thursday night asked the Eleventh Circuit Court to put the case promptly before ten-judge, en banc Circuit Court, and to do so at a hearing in June. If the Circuit Court agrees, that could make this case — involving 26 states and leading to a judge’s decision to nullify the entire new law — the first one likely to be heard by the Supreme Court. (ht Scotusblog)

On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation

2011-03-13T14:01:00.000-07:00

On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation. As Ed Whelan notes at NRO, the initial Miranda decision was 5-4, over a vigorous dissent by Justice Harlan, who pointed out that the warnings are not mandated by the Constitution's text. When the Court came to re-examine Miranda in the Dickerson case, the majority conceded that the use at trial of a voluntary confession, in the absence of Miranda warnings, does not violate the Constitution, but supported the warnings as a "prophylactic" device. Scalia rightly blasted the majority for assuming an "immense and frightening anti-democratic power" -- not merely to enforce the Constitution, but to impose prophylactic policies that can void the laws of elected state and federal legislators.

The Death Penalty

2011-03-12T04:18:00.000-08:00

Illinois just got rid of it. Maybe the right policy choice, but is the DP unconstitutional? The 5th amdt seems to assume govt can take your "life" if due process is observed.

Podcast: Raiders of the Lost iPhone!

2010-06-05T09:01:00.000-07:00

Guy walks into a bar -- stop me if you've heard this one before -- carrying an experimental fourth-generation prototype iPhone. After heavy drinking, college student ends up with the phone and sells it to Gizmodo. Have any laws been violated? Find out on my Legal Lad podcast, where I'm doing two full episodes on the legal fallout of the lost iPhone saga!

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Podcast: Is Public Breastfeeding Legal?

2009-08-05T18:59:00.000-07:00

This week, my Legal Lad podcast looks at a woman's right to breastfeed in public. Turns out the law differs radically from state to state. And -- in honor of World Breastfeeding Week -- my colleagues at Quick and Dirty Tips have posted their own podcasts looking at other aspects of breastfeeding -- the techniques (from Mighty Mommy), the etiquette (Modern Manners Guy), and the latest medical research (House Call Doctor). Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

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Podcast: Embezzlement

2009-07-19T04:58:00.000-07:00

What to do when your business partner is dipping into the till? In my Legal Lad podcast, I explain the law of embezzlement -- which applies to skimmers and scammers, even if they secretly hope to repay their employers someday. Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

More links to subscribe to Legal Lad:
Legal Lad on iTunes
Legal Lad via RSS
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Deciphering the Sotomayor Hearings

2009-07-15T18:40:00.000-07:00

How can you spot the wise Latina? She'll be speaking Latin, of course. Just two days into the Sotomayor hearings, the nominee has dazzled the crowd with stare decisis, sui generis, and pro bono. In case you're having trouble following all this, a number of papers have published legalese glossaries for non-lawyers, here and here.

Oh Canada

2009-07-12T05:32:00.000-07:00

Ever wonder what Law & Order would look like North of the border? In my Legal Lad podcast, I take a look at what makes Canadian law different from US law. Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

My piece in the New York Times

2009-07-12T05:24:00.000-07:00

Last week, the New York Times ran my Op-ed piece about the Declaration of Independence. The Founders borrowed liberally (to put it mildly) from the language of British law when drafting the Declaration. What makes the Declaration great is that the Founders turned what might have been a provincial legal document into a universal declaration of rights. And that's something to celebrate!

Poetic Justice

2009-02-08T09:27:00.000-08:00

My fellow Brooklynite, Russell Bittner, tells me that he is working "on a series of poems for snarky children that I intend to market to the children of lawyers -- and, by extension, to those children's parents, many of whom I assume to be equally as snarky."

"Snarky," according to the OED, means "irritable, short tempered," from "snark," meaning either to snort or to nag.

And so here, for all you kids out there, is one of Russell's creations -- Nolens Volens (willing or not).

Nolens Volens

My friend Nolens – just like me –
goes to bed unwillingly.
Nolens thinks that sleep is rot;
Mom, however, thinks it’s not.

“What the heck,” – I hear Nol say –
“sleeping leads to tooth decay!”
Nolens has a point, I think;
Mom, however, doesn’t blink.

“Sleep’s not right for guys like us –
guys who spit and curse and cuss!”
Nol – it’s clear – loves sacred texts;
Mom politely genuflects.

Then, as I’m about to swear,
I see Nolens grab his bear,
hibernate, and take a chair
high up where there’s no there there.

Nolens’s fingers, once asleep,
leave off fleecing Bo Peep’s sheep –
wherein I discern the rub:
Nol has fallen for the cub.

I next grumble fitfully
as the clock strikes half past three,
sinking me with each dull clink –
Mom, however, doesn’t shrink.

She, instead, has darker plans:
“Afternoons,” she countermands,
“aren’t – like mornings – made for naps;
pillows take the place of laps.”

Volens now unmasks my frown
as Mom gently swings me down,
sending me between the sheets
into rapture that entreats

me to ask for one more thing
to divest of sleep its sting:
that while sucking on my thumb,
I can call old Nol my ‘chum.’

Word of the Week

2008-11-28T15:58:00.000-08:00

Replevin

An action to recover possession of tangible personal property wrongfully taken or withheld by another. In ancient usage, it could also refer to an action to recover a person; that is, by bailing him out of jail. It comes from the Old French replevir. The verb form is replevy, which is often used in its polite form, "replevy, s'il vous plaît."

Plain Language Around the World

2008-11-28T15:35:00.000-08:00

There's been a recent outbreak of common sense throughout the English-speaking world. Herewith (!), a recap of some current plain language initiatives.

In Newfoundland, the Public Legal Information Association is publishing booklets to provide "legal information without the legalese." (Thanks to Voice of the Common Man, Newfoundland).

Canadians are also leading the charge against impenetrable credit card applications. The Toronto Star reports that the Financial Consumer Agency of Canada and MasterCard Canada have unveiled a model plain language application form.

In Australia, an entrepeneur has launched a website with plain language advice and forms for separated parents to create custody plans without having to wade through the swamps of legalese. (Thanks to the Daily Liberal).

Meanwhile, here in the US of A, Tech Journal South has published a terrific article on how to "remove legalese from your writing." The author, a small business consultant, has lots of sensible advice, including such fundamental (and often overlooked) points as keeping your audience in mind.

H2 -- oh?

2008-11-28T15:30:00.000-08:00

We don't usually think of "water" as a legal term, but the definition of water is now a controversial item among environmentalists. According to a report in the Toledo Blade, a recently-enacted interstate compact regarding use of the Great Lakes defines water as a "product," which has some people concerned that this will allow multinationals to demand access to the Lakes under international trade laws.

Word of the Week

2008-11-08T10:36:00.000-08:00

Lemon Law

A statute that entitles the purchaser of a car that turns out to have substantial defects to return it for a refund or replacement.

For the origin of this curious term, check out this post on the Lemon Justice site. Apparently, the use of "lemon" to describe sub-standard products goes back to the early 1900's. Read more, here.

Golden Gobbledygook Deadline Extended!

2008-10-12T15:00:00.000-07:00

By popular demand, we've extended the deadline for submitting entries to the Second Annual Golden Gobbledygook Award to October 28th!

Yes, Golden Gobbledygook -- the coveted prize for the best example of bad legalese. You can post your entry right here at the blog (as a comment to this post), or just send the worst example of legalese you can lay your hands on to POFP (adamjfreedman@yahoo.com).

The top three winners will get a boxed set (without the box) of the new paperback edition of my book The Party of the First Part, together with the Vocabula Review's new essay collection (a must for all language lovers): Vocabula Bound 2: Our Wresting, Writhing Tongue. Our distinguished panel of judges will announce the winners here at the POFP blog!

Word of the Week

2008-10-05T09:42:00.000-07:00

Golden Parachute

An "excessive" severance payment to an executive. Recent coverage of the Economic Stabilization Act of 2008 (aka the "bailout bill") mentioned that Congress would restrict the "golden parachutes" available to companies that sold troubled assets to the Treasury. Many assumed that the media were just speaking informally, but in fact the "Golden Parachute Rule" is enshrined in the Tax Code -- imposing a 20% excise tax (on top of income tax) on any severance payment that is more than 300% of the executive's recent average annual pay.

Legal Brainteaser: What's a Country?

2008-10-05T09:13:00.000-07:00

Sure, you're a little bit country. But what if your country isn't really a "country"?

This question -- or something like it -- recently gripped the Ninth Circuit when reviewing a deportation order against Nikolay Dzyuba. The Bureau of Immigration Appeals had ordered Dzyuba deported to the Ukraine, which they considered to the be the "country" from which he had entered the US back in 1991. The problem is that when Dzyuba entered the US, on July 5, 1991, the Ukraine was still part of the Soviet Union. It did not gain its independence until August 24, 1991 -- seven weeks after Dzyuba's entry.

This argument sent the judges scrambling for their copy of Webster's Third New International Dictionary but that Dictionary says that "country" can be either an independent political entity or a geographic region. As is sadly typical in modern "descriptivist" dictionaries, Webster's indicates no preference for either meaning. The question ultimately proved too daunting for the Circuit -- they kicked the case back to the Bureau of Immigration Appeals to decide whether pre-independence Ukraine was a "country."

Any bets on what they'll decide?

Straight Talk on Gobbledygook -- and Reform

2008-09-28T13:29:00.000-07:00

Cheryl Stephens -- plain language guru -- has cleared up the original meaning of the word "gobbledygook."

The term was coined by Henry Maverick, but as Stephens points out:

Maverick said the bureaucratic style of writing reminded him of the turkeys who strutted around the yard making a lot of noise that ended in a pile of sputum on the ground. That sputum was the gobble-de-gook. Not the strut nor the song-- the spit and pus!

For more of Cheryl's wisdom, check out her terrific blog, Building Rapport. In particular, you'll see information about the Plain Language in Government Communications Act now pending in Congress. To heck with the bailout; urge your congressman to support that.

Word of the Week

2008-09-27T09:12:00.001-07:00

Ferae Naturae

Latin (literally, "of a wild nature"); used as both a noun and an adjective to refer to animals of a sort that are not normally domesticated. Under traditional common law rules, the owner of an animal ferae naturae was strictly liable for any injuries caused by the animal.

The Second Annual Golden Gobbledygook Award!

2008-09-27T09:02:00.000-07:00

Just what you've all been waiting for -- a Prize for the best example of bad legalese.

The term "gobbledygook" was coined by a Texas congressman, Henry Maverick. He meant for the word to evoke the sound that gobbling turkeys make. The word was meant as an indictment of confusing legalese and officialese.

But people have come to take legalese in stride; to which POFP says "Enough!

Send the worst example of legalese you can lay your hands on to POFP (adamjfreedman@yahoo.com) -- and you can be the proud winner of the Golden Gobbledygook Award. The top three winners will get a boxed set (without the box) of the new paperback edition of my book The Party of the First Part, together with the Vocabula Review's new essay collection (a must for all language lovers): Vocabula Bound 2: Our Wresting, Writhing Tongue. Winners will be announced October 14th.

Looking for inspiration? Check out the Legalese Hall of Shame at POFP's website. (The two recent entries listed below will be considered for the prize... but the competition is wide open!).

New Entries in the Hall of Shame

2008-09-27T08:42:00.000-07:00

Two new entries for the Legalese Hall of Shame in our related website.

From attorney Erin Engels, a baffling sentence from a retirement agreement. The lawyer used 150 words to say "Retiree waives his right to sue the employer." But why just "waive" a right when you can "release, remit, remise, acquit and forever discharge " a right? It's hard work, but then this was a union job.
From concerned citizen Howard Kline, an Ohio traffic ordinance that requires a GPS unit to navigate your way through the dangling modifiers.

In our never-ending quest to reform legal language, we've exposed these (and other) examples of bad legalese to public ridicule. Check them out at the Hall of Shame!

A Fabulous Book for Language Lovers

2008-09-07T15:22:00.001-07:00

Hot off the presses! A new collection of essays from The Vocabula Review -- an online journal devoted to battling nonstandard, careless English, while also celebrating the opulence and elegance of the English language.

The book is called: Vocabula Bound 2: Our Wresting, Writhing Tongue (the subtitle comes from a quotation by Ben Johnson). It is a collection of twenty-eight essays about the English language, as well as ten poems, that originally appeared in The Vocabula Review. Included within its covers are essays by Joseph Epstein, Judge Mark Painter, and -- yours truly.

You can order Vocabula Bound 2 from Vocabula Books or Amazon. It's also worth checking out Vocabula Review for the pleasure of reading its fascinating content.

Word of the Week

2008-09-07T14:05:00.001-07:00

Admixed Embryo

Wired Magazine reports that Admixed Embryo is "legalese for any early-stage embryo combining human and nonhuman genes or tissue. Encompassing both cybrids and chimeras yet sounding less apocalyptic than either, these hybrids are now approved in England for stem cell research."

Word of the Week

2008-09-01T08:20:00.000-07:00

Coparcenary

Co-ownership of property by two or more individuals who inherited it jointly under the laws of intestate succession. The word derives from the Anglo-Norman parcenerie and Old French parsonerie, both meaning "partnership."

Word of the Week

2008-08-24T15:47:00.000-07:00

Mischief Rule

A method of interpreting statutes, which involves asking "what was the mischief that this statute was meant to remedy?" The answer to this question will reveal the underlying purpose of the statute, which should guide all interpretation. And besides, inquiring minds want to know.

Word of the Week

2008-08-17T08:33:00.000-07:00

Boycott

A boycott is a concerted effort to refrain from buying from, selling to, or working for, some company or other organization. Some types of boycotts are illegal.

The term entered the language in 1880, thanks to Captain Charles Boycott, who was the estate agent for the Earl Erne in County Mayo, Ireland. The Earl's tenants demanded that Boycott reduce their rents and when he refused -- and began evicting tenants -- everyone in the locality agreed to stop dealing with him. Unable to find workers for the Earl's fields, or tradespeople from whom to purchase necessities, Captain Boycott eventually moved to England to pursue other opportunities, as they say. But his name had already become famous. By November 1880, the Times of London used "boycott" as a verb. The rest is history.

Oh Kannada!

2008-08-17T08:21:00.000-07:00

According to OutlookIndia, a legal battle is brewing over the status of the Kannada language of India. Not whether Kannada is an "official" language of India (it already is), but whether Kannada deserves to be recognized as a "classical" language.

A constitutional decree in 2004 created a new category of languages in India -- languages that met certain requirements could be accorded the status of a 'classical language.' Tamil and, a year later, Sanskrit, have been accorded the status. But so far, Kannada has not.

On the off-chance you're not familiar with it, Kannada is one of the major Dravidian languages of India, spoken in the southern state of Karnataka. Karnataka activists have blocked an express train for 20 minutes to agitate for classical status, and they've promised to take the issue up to the Supreme Court if they don't get their way.

So if a group of ancient Romans blocks a train in your neighborhood, don't be alarmed; they're probably just agitating to get more respect for Latin.

Calling all Scribes

2008-08-11T17:13:00.000-07:00

Last Saturday (August 9) was the annual luncheon for Scribes, the American Society of Legal Writers. This was the first Scribes luncheon I had attended and it was great fun -- an entire roomful of law-and-language nerds! What could be better?

The guest of honor was Justice Antonin Scalia, who received the Scribes Lifetime Achievement Award. Justice Scalia gave a characteristically lively acceptance speech. Both Scalia and Bryan Garner stayed after the lunch to sign copies of the book they've just written together: Making Your Case: The Art of Persuading Judges.

Also in attendance was the indefatigable Lisa Solomon, whose website, The Billable Hour (www.thebillablehour.com), is a great source for all things legal (including, ahem, my book). And Scribes Executive Director, Joe Kimble, was there with copies of his lucid book, Lifting the Fog of Legalese.

If you want to know more about Scribes, check out their website www.scribes.org.

Word of the Week

2008-08-11T17:00:00.000-07:00

Robbery

Robbery is a theft committed in the presence of the victim -- a hold up. As the legal lexicographer John Cowell wrote in 1607:

Robberie commeth from the French, and in our common lawe [signifies] a
felonious taking away of another mans goods from his person or presence, against
his will, putting him in feare, and of purpose to steal the same goods.

Highway robbery was, at first, not a metaphor, but a technical offense -- a robbery committed on the King's highway, and it carried a heavier sentence.

Word of the Week

2008-07-19T15:56:00.000-07:00

Sua Sponte

Latin. Of its (his, her, their) own accord. This term refers to action taken by a court without being asked to do so by a party, e.g., The court dismissed the claim sua sponte.

Occasionally pronounced (at least by lawyers at my old firm) as "sua spumoni," which of course means "of his own Italian ice cream." Which reminds me, National Spumoni Day is coming up soon -- August 21!

Word of the Week

2008-06-29T12:04:00.000-07:00

To Bear Arms

This has to be the phrase of the week -- perhaps of the year. Depending on which side of the gun rack you stand, "to bear arms" is:

a plain English term, meaning "to carry weapons";
an idiomatic phrase, used by the Founding Fathers to convey "military service"; or
a mistaken spelling of "bare arms" (because the Founders wanted Minutemen to show off their muscles).

Read my full commentary in the next post -- soon to be published (in slightly different versions) in New York Law Journal Magazine and Vocabula Review.

The DC Gun Case: Loaded Words

2008-06-29T11:50:00.000-07:00

On June 26, the Supreme Court fired off its decision in DC v. Heller, holding that the Second Amendment confers an individual right to possess firearms, unconnected to military service.

The Heller case – long anticipated as the Court’s first-ever comprehensive interpretation of the right “to keep and bear arms” – generated an astounding 67 amicus curiae (“friend of the court”) briefs. But of those 67 briefs, the only one cited by both the majority and dissenting opinions was one submitted by a group of professors of linguistics and English, the so-called “Linguists’ Brief.”

These language scholars took center stage because of the dearth of judicial precedent on the Second Amendment. In the absence of helpful prior decisions, the Court had to start from scratch in decoding the “original meaning” of the Amendment. While various briefs cited founding-era dictionaries, only the Linguists devoted their entire brief to the niceties of eighteenth century grammar and usage.

That may seem like a lot of fuss for a single sentence – but then, this is no ordinary sentence. The Second Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

You will immediately notice that the sentence has two parts, a “prefatory” clause (the bit ending in “State”), and an “operative” clause (everything after “State”). The relationship between those two clauses has bedeviled scholars for years. Gun control advocates say that the prefatory clause limits the scope of the amendment to militia members, while their opponents claim that the operative clause creates an individual right to bear arms that cannot be fettered by the preface. Unfortunately, there is nowhere else in the Constitution to look for guidance: the Second Amendment’s prefatory clause is the only one of its kind in that document.

The Linguists tell us that the prefatory clause of the Second Amendment is what’s known as an “absolute clause,” that is, an adverbial phrase that is separate from the main clause of the sentence. Such clauses are called “absolute” because they are grammatically independent from the rest of the sentence – no word in the absolute clause can be said to modify any particular word in the main clause.

On the strength of that grammatical autonomy, some gun enthusiasts argued that the prefatory clause has no impact whatsoever on the operative clause. George Mason Law Professor Nelson Lund, for example, wrote in an academic paper that “the Second Amendment has exactly the same meaning that it would have if the preamble [i.e., prefatory clause] had been omitted.”

The Linguists attacked Lund’s assertion with a fusillade of grammar books demonstrating that an absolute clause, while grammatically distinct, “add[s] meaning to the entire sentence.” The Linguists’ point can be seen in an absolute construction that is still in common use: “weather permitting, I will go for a walk.” In that sentence, “weather permitting” is the absolute clause (tip – such clauses typically involve verbs ending in “-ing”). The main clause stands on its own grammatically, but the absolute clause modifies the speaker’s intention to go for a walk.

The Second Amendment’s absolute clause, according to the Linguists, expresses a causal connection; namely “because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Justice Antonin Scalia, writing for the majority, readily concedes that there is a logical link between the two halves of the sentence, but he argues that the prefatory clause merely announces a purpose of the operative clause, not the purpose (other purposes of gun ownership include hunting and self-defense). On this reading, the Second Amendment is really about allowing individuals to own guns, the fact that this right happens to bolster the militia is simply an added plus.

And then there is the operative clause’s guarantee of a right “to keep and bear Arms.” Neither side is entirely happy with that phrase. The majority opinion focuses on the straightforward word “keep” while the dissent spends most of its time on the more complicated “bear.”

“Keep” has much the same meaning as it did in 1773, when Samuel Johnson defined it as “[t]o retain; not to lose,” and “[t]o have in custody.” Standing alone, the right “to keep arms” suggests an individual right to have a gun in your house – preferably locked in a child-proof drawer, but an individual right all the same.

The Founders, however, did not create a stand-alone right to “keep arms,” they joined it with the right “to bear arms.” In the High Court, the battle over the Second Amendment’s operative clause came down to the question of whether “bear arms” must be understood in an idiomatic or non-idiomatic sense. An idiom is an expression that is peculiar to a language (from Latin idioma, “peculiarity”), and which conveys a meaning different from its literal or logical signification.

The dissent argues that in the eighteenth century, “bear arms” was an idiomatic expression meaning “to perform military service,” thus emphasizing the martial purpose of the amendment. Among the many examples quoted in the Linguists’ Brief is the Declaration of Independence, which denounces King George for forcing American colonists “to bear Arms against their country.” The Linguists also cite an academic survey of newspapers, books, and pamphlets from the founding era: of 115 texts using the term “bear arms,” all but five did so in a military context.

Further supporting the dissenters’ interpretation, the Linguists demonstrated that the word “arms,” even without the “bear,” had an overwhelmingly military connotation in the late eighteenth century. In his 1794 treatise, The Distinction Between Words Esteemed Synonymous in the English Language, John Trusler distinguishes “arms” from “weapons,” stating that the former are “instruments of offence generally made use of in war.” Based on the evidence, one is tempted to agree with Yale professor Akhil Amar that “the Framers [of the Second Amendment] envisioned Minutemen bearing guns, not Daniel Boone gunning bears.”

And yet, Justice Scalia was having none of it. He rather ingeniously contends that the idiomatic sense of “bear arms” only existed when those words were followed by the preposition “against.” It’s not clear where Scalia got that argument – The Complete Idiom’s Guide to the Second Amendment ? – but it allows him to conclude that the Founders intended “bear arms” in the non-idiomatic sense of “to carry arms.” In other words, you have right to your gun, whether or not you join the militia. As the majority spokesman, Scalia had the last word, a fact that may have left the much-cited Linguists feeling as though they had been shooting blanks.

Work, Work, Work

2008-05-26T04:11:00.000-07:00

In the case of Tyson Foods, Inc. v. de Ascencio, the Supreme Court is currently considering the issue of whether the word "work" under the Fair Labor Standards Act includes the time spent donning light protective gear, "if the activities do not require a significant level of exertion." Read the rest at Scotus Blog. All I can say is: if doing work requires a "significant level of exertion," then I want no part of it.

Word of the Week

2008-05-11T17:33:00.001-07:00

Eigne

An adjective from Law French meaning "firstborn," it also has a metaphorical sense of "prior" or "superior" (giving rise to constructions such as eigne title). Old English law, with its fine distinctions, recognized the status of bastard eigne -- the firstborn illegitimate son of parents who subsequently married and had a legitimate son. Whatever would we do without that term?

Word of the Week

2008-04-25T18:55:00.000-07:00

Dotards

Dead or decayed trees that cannot be used for timber. They are distinguished from windfalls - trees and their fruits that are blown down by the wind. A tenant for life may cut down dotards, but does not get the windfalls. (See L.B. Curzon, Dictionary of the Law).

La Loi Dans Le Yukon, eh?

2008-04-13T12:08:00.000-07:00

A small claims case over C$13,000 will end up costing Canadian taxpayers over ten times that amount -- all because of a violation of "language rights."

The defendant, who owns a bed & breakfast, was originally held liable for unpaid bills to a local construction firm in the Whitehorse area of the Yukon. But the Yukon Court of Appeal vacated the judgment because the defendant (a francophone) was not given the opportunity to defend himself in French, as Canada's language laws require. The Court ordered the provincial government to pay C$143,000 to the parties and lawyers for their expenses in litigating this weighty issue.

Word of the Week

2008-04-13T11:52:00.000-07:00

Venireman

A prospective juror -- before becoming an actual juror, the venireman must pass the voir dire examination.

The word derives from the ancient writ of Venire Facias Juratores, literally, "to make the jurors come" -- it was an order to the sheriff to summon a jury (venire is Latin for "to come"). The writ was sometimes known simply as Venire Facias, or even just Venire.

Word of the Week

2008-04-06T15:28:00.000-07:00

Turntable Doctrine

Also known as "attractive nuisance" (one of the law's great oxymorons) -- this doctrine holds that the owner of premises must not keep unguarded machinery or other items that might attract or lure children into hurting themselves. If a child does wander on to the property and end up with injuries, the owner cannot argue that the kid was trespassing: the attractiveness of the machinery/structure amounts to an implied invitation to enter.

According to Black's Law Dictionary, the name comes from "the dangerous and alluring qualities of a railroad turntable."

Wassup?

2008-04-06T15:09:00.000-07:00

And I think we all know what that means.

Or do we? Maryland's Court of Special Appeals recently had to consider the question of whether the term "What's up?" -- when uttered by a policeman -- constitutes a greeting, or an interrogation. The issue arose in the criminal trial of one Maurice Prioleau. Shortly after Mr. Prioleau was arrested for drug possession, a Baltimore cop addressed him by saying "What's up, Maurice?" -- to which Mr. Prioleau gave an incriminating response.

Prioleau's lawyers argued that "what's up?" amounts to a police interrogation and, therefore, that Maurice should have been given a Miranda warning before he answered. Granted, the question mark sure makes it look interrogatory, but the court sided with police, stating:

"The phrase 'what's up?' is commonly used as a greeting, especially, as the State
points out, among young people."

Word of the Week

2008-03-15T08:51:00.000-07:00

Spitzerfreude

Okay, not exactly a legal word but very close. It's what they call a "portmanteau" word, that is a merger of two existing words -- like, say, advertorial. It's a blend of Elliot Spitzer and schadenfreude, the splendid German word meaning "malicious enjoyment in the misfortune of others." Spitzerfreude (sometimes spelled Spitzenfreude) is defined as "malicious enjoyment in the misfortune of Client 9."

Meanwhile, as speculation mounts that Spitzer might plead to a Mann Act violation, it's worth noting that the original name of the statute was the "Mann White Slave Trade Traffic Act" -- "white slavery" being a nineteenth century term for the act of forcing young women in prostitution.

Word of the Week

2008-03-08T12:20:00.000-08:00

Goods and Chattels

It's one of those phrases with legal overtones but no clear definition. Traditionally, the phrase is taken to refer to every type of personal property except a freehold title. It can even include interests in land, such a lease.

"Good" is an English word, related to the Old Norse gothr. "Chattel" comes from the Old French chatel, and ultimately from the Latin catalla, which literally means cattle. Somehow, the French came to use "cattle" to refer to any moveable good; which is an odd usage, given that cattle are notoriously difficult to move. Medieval "law French" pleadings from England refer to "biens et chateaux." As so often happened with these old expressions, English lawyers decided to translate half of the phrase (thus changing biens to good), but leaving the other half foreign.

Shakespeare, who as I have commented elsewhere, knew his law, has the character Petruchio (Taming of the Shrew) exclaim: "I will be master of what is mine own. She is my goods, my chattels, she is my house."

Patently Obvious

2008-03-08T12:15:00.001-08:00

Word of the Week

2008-03-02T16:22:00.000-08:00

Fighting Words Doctrine

The First Amendment doctrine that holds that certain utterances are not constitutionally protected as free speech if they are "inherently likely to provoke a violent response from the audience" (Black's). Besides which, it's horrible manners.

SEC Chairman: Cut the Gobbledygook!

2008-03-02T13:05:00.000-08:00

In testimony last week before the House Small Business Committee, Christopher Cox, Chairman of the Securities and Exchange Commission, explained how cutting out legalese from government documents and required disclosures is good for business. Chairman Cox discussed the SEC's recent proposal for plain English summary prospectuses for mutual funds. He also supported a bill now before Congress, the "Plain Language in Government Communications Act of 2007," which would require the use of plain language in any new or revised document issued by a federal agency.

Denounce and Reject

2008-03-02T12:49:00.000-08:00

For those who were intrigued -- but perhaps confused -- by last Tuesday's linguistic squabble between Hillary and Barack over the differences between "denouncing" and "rejecting" Louis Farrakhan, POFP has kindly deconstructed the whole thing. See my piece in today's New York Times for the real story!

OOXML? LOL!

2008-02-23T09:20:00.000-08:00

Slashdot reports continuing controversy over the confusing language of the "Open Specification Promise" that Microsoft imposes on users of its Open Office XML (OOXML). The OSP, which was originally titled "covenant not to sue" includes a promise by Microsoft not to assert certain patent claims against the user (to figure out which claims, one has to go through a long list of specifications and then relate them back to whatever Microsoft patents exist in the world). In return for Microsoft's "personal promise" not to sue you, you are deemed to make some promises back to Microsoft.

As Slashdot says: Developers wishing to make use of OOXML are unlikely to understand the complex legal language of the Open Specification Promise, and such a document - being neither a release nor a contract - has never been tested in court.

Word of the Week

2008-02-23T08:58:00.000-08:00

Ejusdem Generis

Latin for "of the same kind." This is a legal rule for interpreting legal documents and statutes. Such rules are also known as "canons of construction" (see my earlier post on canons of construction in environmental law). The basic idea is that if words belonging to a certain genus are followed by more general words, then the general words are assumed to describe only things belonging to the same genus. So if Mr. Smith's bequeaths "my Ford, Buick and other vehicles" to his nephew, a court would probably conclude that his bequest did not include his private airplane (even though an airplane could be a "vehicle").

Word of the Week

2008-02-18T19:27:00.000-08:00

Scotch Verdict

A verdict of "not proven" permitted under Scottish law. It has the legal effect of an acquital (and, indeed, was the traditional manner of acquitting a defendant in Scotland). But in the 18th Century, the "not guilty" verdict gained a foothold in Scotland as a more exculpatory type of acquittal. So the "not proven" verdict now comes across as weaker -- as though the defendant is still suspect. Reportedly, Senator Arlen Specter tried to vote "not proven" on an article of impeachment of Bill Clinton. But that's just trying to vote no without voting no -- a little like smoking without inhaling.

Love and the Legal "Person"

2008-02-12T18:29:00.000-08:00

POFP's latest column has caught the notice of the New York Times. The weekend Times featured a round-up of interesting articles in other publications, including the article by yours truly in the February Corporate Counsel magazine.

The article -- "Love, Corporate Style -- takes a Valentine's Day look at the question: Can corporations fall in love? After all, corporations are legal "persons"; they can earn income, own property, and pay taxes. Why can't they fall in love, if the right tender offer comes along.

Read the full article here.

"Genital Integrity"

2008-02-09T13:23:00.000-08:00

Got your attention?

"Genital Integrity" may be the new buzz phrase for plaintiffs' lawyers looking to cash in on botched circumcisions. The movement suffered a setback, as New York Lawyer reports, when the Minnesota Court of Appeals ruled that a mother who didn't like the way her baby's circumcision looked could not sue the hospital for medical malpractice. Sure, and they laughed at tobacco suits at first! The woman's lawyer vowed to battle on in the fight for "genital integrity."

Here at POFP, we're planning a campaign against errant apostrophes -- we call it the battle for "genitive integrity."

Word of the Week

2008-02-09T13:09:00.000-08:00

Companion Animal

Under various state animal cruelty statutes, a "companion animal" is an animal that is commonly considered a pet. Under New York law, the crime of aggravated cruelty to animals applies only to abuse of domesticated animals. In the landmark case of People v. Garcia, it was finally settled that pet goldfish do indeed qualify as "companion animals" -- just in case anyone was considering taking away their little plastic castle.

Update!

In a cosmic coincidence, the very funny Supreme Court Jester has taken up the goldfish/companion animal theme. He has written a detailed post about the rights of goldfish -- including goldfish divorce law!

Word of the Week

2008-02-03T06:50:00.001-08:00

Corruption of Blood

Disqualification from inheriting, retaining, or passing on to one's heirs any rank or title or any interest in land. (See Random House Webster's Dictionary of Law). Corruption was part of the punishment of "Attainder" -- attainder being related to taint, as in "tainting the blood" -- and was reserved for heinous crimes such as treason. Both Attainder and Corruption of Blood are prohibited by the Constitution. So the good news is that you're free to pass on any title to your heirs, but then, the Constitution also prohibits the government from granting titles.

Put that in Plain Tetun!

2008-02-03T06:36:00.000-08:00

A big -- but often overlooked -- issue in legal language is "what language is legal?" In East Timor, the news agency AKI reports that the Asia Foundation is working on translating the laws into the local language, Tetun. Until now, most of East Timor's laws were exclusively in Portuguese, a holdover from Portugal's colonial rule, which ended in 1975. That may seem like a small matter, but it has been estimated that only about 5 percent of East Timorese are fluent in Portugese; the other 95 percent have no access to the country's statutes. Until now, that is.

To all those Tetun speakers out there: welcome to the world of legalese!

Word of the Week

2008-01-20T19:17:00.000-08:00

Grandfather Clause

The term is generally used to describe a clause in a statute that exempts a class of persons or entities from whatever new requirements are being imposed by the statute. For example, when states raised the drinking age to 21, people who had been able to drink under the old law (that is, people aged 18 - 20) where generally "grandfathered in." Although the phrase is innocently used today, its origin lies in the post-Civil War Jim Crow laws. Laws passed in Southern States imposed literacy tests on new voters, but exempted any person whose grandfather had voted. Naturally, the exempted class was entirely white. (See "A Hereditary Perk the Founding Fathers Failed to Anticipate," New York Times, January 15, 2008, A12).

More on the Second Amendment Comma War

2007-12-16T11:32:00.000-08:00

As we reported recently (see "Holster that Comma," below), there's a comma war brewing as the Supreme Court gears up to hear its first Second Amendment case in nearly 70 years.

In today's New York Times, yours truly weighs in on the punctuation and grammar of the most tortured sentence in the Bill of Rights. Take a look - if you like the article, please email it on to a friend! (At the time of posting, the column is #4 in the "most emailed" category at NYT).

Word of the Week

2007-12-16T11:20:00.000-08:00

In rem

Latin (literally, "directed at the thing"). The phrase describes the fundamental character of a legal proceeding as focused on a particular piece of property rather than a person. In an "in rem action" the plaintiff generally seeks judgment declaring the status or disposition of certain property. In rem actions are often brought by the government, and you can always spot one from the case name; for example: United States v. Ten Bottles of Scotch Whisky, 48 F.(2d) 545 (C. C. A. 2d. 1931). But be careful: sometimes the property sues back, as in Three Half-Pipes of Brandy vs. United States (1858).

Word of the Week

2007-12-09T06:25:00.000-08:00

Chance-Medley

Although it sounds like an impromptu song, chance-medley is an archaic term from criminal law that refers to a killing during a sudden fight. When the killing is not judged to be in self-defense, then the crime was known as manslaughter by chance-medley. Originally, the term applied to the the fight itself -- it is meant to convey the sense of a sudden and unexpected brawl. (See Random House Webster's Dictionary of the Law).

Word of the Week

2007-12-02T10:02:00.000-08:00

Utter

Verb: To put or send into circulation a forged document or instrument. Federal criminal law uses the formulation "utters [or] publishes" in defining various counterfeiting and forgery offenses. The same language can be found in state statutes, such as Section 248a of the Michigan Penal Code: "A person who utters and publishes as true any false, forged, altered, or counterfeit financial transaction device, as defined in section 157m, with the intent to injure or defraud any person is guilty of a felony."

Fighting Legalese in Malaysia

2007-12-02T09:54:00.000-08:00

The English-language paper of Malaysia, The Star, recently featured a column by a British Council member lamenting the use of legalese in his tenancy agreement. "Apparently, I was 'desirous of tenanting said premises' – or something like that," wrote the author, Tom Hayton.

Hayton argues for greater clarity in legal writing -- and he rails against the rise of gobbledygook, citing (drumroll, please), our very own Legalese Hall of Shame. Thanks Tom!

That's Dactylic Hexameter, Partner

2007-12-02T09:33:00.000-08:00

Who knew that along the shores of the Brazos, the murmur of the Muse is sweet? At least for lawyers, that is. Texas Lawyer reports that a reading by lawyer-poets gathered a crowd of 30 or so listeners at a Houston Borders. One of the poets, former litigator Ken Jones, read an Elizabethan sonnet about lawyer/yuppie ennui inspired by a Brooks Brothers "Half-Off" sale. "Ultimately as attorneys we are writers," said Jones. "It's also a love of words, of language."

Another participant at the reading was University of Houston law professor David Crump, who I take to task in my book for opposing some "plain English" reforms. Turns out that Crump is himself a master of the sonnet; having published a book of 52 (one per week). Hats off to Professor Crump.

Watch this space -- POFP will be publishing an article about the use of poetry in judicial opinions soon!

Word of the Week

2007-11-25T14:58:00.000-08:00

Holiday

Holiday, comes from Old English hálidæ ("holy day"), which, in Middle English morphed to halliday, then holliday, and eventually holiday. Black's Law Dictionary defines it as "a day upon which the usual operations of business and government are suspended and the courts closed . . . ." A "legal holiday" is specifically a day "exempt from judicial proceedings, service of process, demand and protest of commercial paper, etc." The statutory holidays are those enshrined in law -- the federal holidays are listed at 5 U.S.C. 6103. Most states observe the federal holidays, but there are some variations, like Bunker Hill Day in Massachusetts.

So break out the eggnog and enjoy the seasonal concentration of statutory holidays.

Holster that comma!

2007-11-17T09:42:00.000-08:00

Next week, the Supreme Court will ponder whether they should rule on the constitutionality of Washington, D.C.'s strict gun control ordinance. If they take the case, their interpretation of the controversial Second Amendment may depend on the meaning of all the commas put in there by our punctuation-happy Founding Fathers.

As the DC Legal Times reports, the grammar war is under way.

Word of the Week - UPDATED

2007-11-17T07:32:00.000-08:00

Civil Death

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.)

Bad Writing in a Statute Book Near You

2007-11-11T08:17:00.000-08:00

As William Zinsser wrote: "There's not much to be said about the period except that most writers don't reach it soon enough." (On Writing Well, 1990).

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?

Word of the Week

2007-11-10T08:48:00.000-08:00

Posse

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.)

Word of the Week

2007-11-04T13:28:00.000-08:00

Brief

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.

I hear canons

2007-11-04T08:16:00.001-08:00

Canons of construction, that is. The Concurring Opinions blog reports on a recent Supreme Court argument that focused entirely on the meaning of the words "any other law enforcement officer" in the Federal Tort Claims Act. Those words come at the end of a list -- and whenever there is a list in a statute or regulation, it raises potential questions of statutory interpretation.

When the Supreme Court issues its decision, we'll find out if the Justices relied on such arcane doctrines as ejusdem generis or noscitur a sociis. In the meantime, read more at Concurring Opinions -- or POFP's past column about statutory interpretation (in the context of environmental law), here.

Great Language Site

2007-11-04T06:19:00.000-08:00

I just recently came across this site: Away With Words. The proprietor of the site, Nancy Friedman (no relation), describes the subject matter as "Names, brands, writing, and the quirks of the English language." At the moment, for example, she's got some very amusing posts about Lufthansa's pseudo-German ("Germlish") ads, and Macy's "cringe-covered" boots. Enjoy!

Plain English: A Mighty Wind

2007-11-04T06:06:00.000-08:00

If you’re one of those people who likes to curl up at night with a copy of the Federal Rules of Civil Procedure, you’re in for a shock. There’s a new FRCP coming to town next month (that's right, Decembe)r, and it’s not nearly as sleep-inducing as the current version.

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:

Now there’s a sentence that could use a bit of restyling. Still, Florida deserves credit for trying.

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:

Old: Failure of recollection is common. Innocent misrecollection is not uncommon.

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.

This article originally appeared in the September 2007 issue of New York Law Journal Magazine.

Word of the Week

2007-10-28T16:39:00.000-07:00

Torture

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.

The Worst Online Agreement Ever?

2007-10-27T12:11:00.000-07:00

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"

2007-10-27T11:56:00.000-07:00

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.

Word of the Week

2007-10-21T15:35:00.000-07:00

Witnesseth

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!).

Word of the Week

2007-10-13T13:29:00.000-07:00

Usufruct

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"

2007-10-13T12:56:00.000-07:00

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.

Patently Obvious

2007-10-08T11:59:00.000-07:00

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.

Word of the Week

2007-10-07T06:25:00.000-07:00

Trover

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

2007-10-07T06:02:00.000-07:00

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.

Word of the Week

2007-09-29T09:25:00.000-07:00

Not exactly a word, granted, but an abbreviation typically found at the beginning of an affidavit or other sworn statement, when listing the venue of the affidavit: "State of New York, County of New York: ss."

Unfortunately nobody can remember exactly what those two little letters stand for. They come from an old system of Latin notation known as “court hand," so it's safe to say that they stand for something in Latin. The abbreviation is sometimes said to be short for scilicet (one may know); but other suggestions include subscripsi, sans, sacerdotes, sanctissimus, Spiritus Sanctus, and sunt. Black’s Law Dictionary will only go so far as to say that it is “commonly . . . supposed to be a contraction of ‘scilicet’.” And yet, no self-respecting lawyer will draft an affidavit without it.

Poetry on the Bench

2007-09-29T09:08:00.000-07:00

U.S. District Court Judge James Muirhead rejected a prisoner's exhibit in a decision written entirely in poetic verse. To be exact, a decision written in the style of Dr. Seuss' "Green Eggs and Ham."

NY Lawyer reports that an inmate sent the egg as part of his complaint against New Hampshire state officials. The inmate, Charles Wolff, 61, says, among other things, that he cannot tolerate hard-boiled eggs, so when he was served a meal with them, he mailed the complaint and egg to court in a manila envelope.

Judge Muirhead wrote: "I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not take them soft or scrambled Despite an argument well-rambled." He then ordered the egg destroyed: "No fan I am Of the egg at hand. Destroy that egg! Today! Today! Today I say! Without delay!"

Muirhead actually follows a noble tradition of poetry on the bench. In 1983, for example, a Michigan court rejected a lawsuit brought on behalf of a tree -- the panel's dismissal consisted of 12 lines of verse modeled on Joyce Kilmer's famous poem "Trees." It began:

We thought that we would never see/ A suit to compensate a tree.

Until death . . . and then some

2007-09-26T16:52:00.000-07:00

All eyes on the New Jersey Supreme Court as they weigh in on the meaning of that oh-so-controversial word: "spouse."

Here's the question: is a widower still a "spouse?"

The New York Post reports on the long-running battle over the estate of Johnson & Johnson heir John Seward Johnson, Jr., who established a trust in 1961 for the benefit of his children and grandchildren and their "spouses." Broadway producer Marty Richards was married to one of those children -- Mary Lee Johnson -- until Mary Lee's death in 199o. Despite Mary's death, Richards claims that he is still a "spouse" within the meaning of the trust.

In 1996, a Superior Court judge ruled against Richards, holding that widowers don't count as "spouses." But then an appellate court reversed, ruling that widows remain spouses, although divorcees do not. As they say on Broadway: on with the show!

Full text Gobbledygook

2007-09-26T15:00:00.000-07:00

By popular demand, I've now posted the full 38-page "Information" that won First Place in the Golden Gobbledygook Award. Go the Legalese Hall of Shame, and where you see the First Place Golden Gobbledygook entry, follow the link to the winning document!

And the Winners Are....

2007-09-21T04:31:00.000-07:00

The winners of the first annual Golden Gobbledygook Award were announced last night at a special ceremony in Brooklyn, New York. Read the full story at the website.

The winners are:

First Place: an "Information" filed in Oklahoma State Court (featuring a 1,028 word sentence!), submitted by Paul Sherman of Virginia.

Second Place: a ghastly pre-nuptial agreement, submitted by a lawyer who wishes to remain anonymous.

Third Place: a court pleading from New Jersey Superior Court, submitted by Cynthia Covie Leese, a retired Judge who, once upon a time, actually had to wade through that pleading. She was not persuaded!

Dishonorable Mentions go to: Joel Wakefield; Ken Adams (of Adams Drafting); David Dickinson; and Mila Zain.

All of the Winning submissions, and the Dishonorable Mentions, are available at the Legalese Hall of Shame! Thanks to everyone who submitted entries to the contest!

Word of the Week

2007-09-21T04:08:00.000-07:00

Blight

A noun that refers to dilapidated (usually urban) districts. Although the term has been around for years, its importance increased after the Supreme Court's 2005 decision in Kelo v. City of New London, which made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. One of the most common reasons for condemnation is a finding of "blight" under state law. Different states define "blight" differently, but typically the word applies to an area in which the structures are unfit or unsafe to occupy because of defective design or construction; faulty layout or overcrowding; insufficient light, sanitation, and open space; and even economic dislocation “resulting from faulty planning” -- but then, why let the same planners have another go at the neighborhood?

Word of the Week

2007-09-16T09:51:00.000-07:00

Rest, Residue and Remainder

The final blast of legalese in many wills, this phrase emerged from a prolonged struggle among lawyers to find just the right words to describe the leftover bits of one’s estate.

Rest, residue and remainder has been described as a “ritual utterance” – a sort of incantation that lawyers hope will bring good luck. There is no particular technical significance to any of those words, although lawyers do occasionally take a stab at creating bogus pedigrees for them. In the eighteenth and nineteenth centuries, some courts followed the English case of Hogan v. Jackson, in which the court decided that “remainder” referred to real estate, while “residue” referred to personal property.

The phrase does evoke English law's fascination with poetic rhythm, as heard in such formulations as "the truth, the whole truth, and nothing but the truth." Anglo-Saxon law, you see, emerged from an oral tradition in which legal phrases were memorized as semi-poetic verses.

Golden Gobbledygook -- Get Those Submissions In!

2007-09-14T16:13:00.000-07:00

The deadline for the Golden Gobbledygook award is midnight tonight (September 14th). I might show a little leeway to well-intentioned entrants who are just a teensy bit late - but hurry up and submit already!

The Golden Gobbledygook Award recognizes the best example of bad legalese.

The entries submitted so far have been fabulous. I've seen gloriously opaque pleadings, truly impenetrable contract clauses, a nonsensical pre-nuptial agreement, and a bizarre animal safety statute, among many others. Each of them is ghastly in its own special way.

Call me a masochist, but I want to see more! So submit your favorite example of exquisitely bad legalese! Post it in a comment, or email adamjfreedman@yahoo.com The Golden Gobbledygook winner will be announced on September 20th!

Legal Passages From India

2007-09-11T19:04:00.002-07:00

From the Indo-Asian News Service: Indian Law Secretary T.K. Vishvanathan has made a plea for clearer legislative drafting.

In particular, Mr. Vishvanathan took aim at long-winded sentences. "Long sentences intimidate the readers, while also making the law lose its spirit," he said, adding that "present legal draftsmen too like their co-professional forefathers love to test the agility of their readers by making them leap wide gaps between the subject and the verb, and the verb and the object in the sentences written by them."

He offered an interesting theory that the tradition of lengthy sentences in statutes comes from the fact that the early parliamentary draftsmen in England had been conveyancers (and conveyancers, evidently, used particularly long sentences). Can anyone comment on this theory?

The Brief That Ate Texas

2007-09-11T18:47:00.000-07:00

From Lowering the Bar's blog, we learn that O'Melveny & Myers has filed an appellate brief in the Fifth Circuit that is -- drum roll please -- 239 pages long. This is what happens when lawyers and word processors get together without adult supervision.

In 1908 Louis Brandeis caused a sensation when he filed a 113-page brief in Muller v. Oregon. For a time, long briefs were known as "Brandeis Briefs." Now, presumably, they'll be known as O'Melveny briefs.

A Salt and Battery?

2007-09-09T13:33:00.000-07:00

The AP reports that a McDonald's employee in Georgia spent a night in jail and faces misdemeanor charges for serving an over-salted hamburger. Allegedly Ms. Kendra Bull spilled salt on some hamburger meat and went ahead and cooked it anyhow. Unfortunately, one of the salty burgers was served to a member of the local constabulary.

Perhaps the most interesting linguistic feature of the case -- apart from the dilution of words like "reckless" -- is Bull's statement that, after she spilled the salt, a co-worker "tried to thump the salt off." Thumped?

A Great Chapter on Legal Writing

2007-09-09T12:42:00.000-07:00

Ray Ward of the (new) legal writer blog, has posted a chapter that he wrote for the book A Defense Lawyer’s Guide to Appellate Practice. The chapter is called Style and it has great suggestions for improving one's writing. Ray takes aim at some of the classic monsters of legalese (doublets and triplets), but also points out the litigator's tendency toward hyperbole (using terms like "indisputably" when the other side is disputing it).

Thanks to the Manage Your Writing site for pointing this out.

POFP Podcasts!

2007-09-08T05:51:00.000-07:00

There's a new Party of the First Part podcasts!

This week's topic is "Trespassers will be Prosecuted." There'll be a new podcast each week for the next six weeks. You can listen for free at any of the following venues:

iTunes, click here.
Pod-Planet, click here.
Podfeed, click here.
Podcast Alley, click here.
Odeo, click here.

It even has theme music . . . . enjoy!

Word of the Week

2007-09-08T05:39:00.000-07:00

Prurient Interest

This phrase is part of the current legal test for obscenity: material is said to be obscene if it "appeals to a prurient interest." A prurient interest is defined as "an unacceptable interest in sex." Unacceptable to whom?, one might ask. The answer is: to the judge or jury in a particular case. Oh well, the word comes from the Latin purire, meaning "to itch," and thus has the sense of an itching or burning desire.

Ever since the sub-prime debacle, the Prurient Interest rate has gone up to almost 5 percent.

What? Sharking is a Verb?

2007-09-06T17:24:00.000-07:00

According to an Associated Press story, a federal court jury considering the biggest Chicago mob trial in years has asked for an English language dictionary.

The jurors say they don't want to look up legal terms. They say they just want to check common definitions of English words. Federal Judge James Zagel told defense attorneys and prosecutors that he prefers not to send jurors the dictionary. He'll instead ask the jury to give him a list of the words they want defined.

Why the reluctance to give the jurors a dictionary? True, dictionaries may give multifaceted and confusing definitions, but if we trust jurors to sift through ballistic evidence, why can't we trust them to navigate Websters? Heaven knows, but judges are notoriously reluctant to define terms for the perpetually-confused jury members. Peter Tiersma has chronicled some of the worst abuses of enforced jury ignorance (like refusing to explain to jurors what aggravating and mitigating mean) in his book Legal Langauge. And I discuss the "language barrier" faced by jurors in this column.

Golden Gobbledygook Sweeps The Nation!

2007-09-04T19:23:00.000-07:00

Thanks to the following blog-meisters for promoting the Golden Gobbledygook Award:

The entries are starting to come in... there are some great examples of bad legalese, but at this point, the competition is wide open. So submit your favorite example of exquisitely bad legalese! Post it in a comment, or email adamjfreedman@yahoo.com

Now Comes The Book

2007-09-04T08:00:00.000-07:00

September 4th (today!) is the official publication day of The Party of the First Part. Already, our spies have reported seeing the book on shelves at Barnes & Noble on the Upper West Side . . . So cast off your boilerplate; march into your nearest bookstore, and demand The Party of the First Part -- in plain English.

The Amazon page is here;
Barnes & Noble here;
Powell's books, here;
Also, the book will soon be available via thebillablehour.com.

ENJOY!!

Word of the Week

2007-09-01T04:42:00.000-07:00

Nuisance

One of the oldest torts, a nuisance is any condition or activity that interferes with a person's "quiet enjoyment" of his or her property. The word comes from the Latin nocere (to hurt), from which we get such related words as annoyance, noise, and noxious. A public nuisance is an unreasonable interference with the public's health, safety, peace or convenience.

The doctrine of nuisance gives rise to the delightfully oxymoronic attractive nuisance, refers to dangerous conditions that might be positively inviting to certain people (think children wandering on to a construction site). Attractive nuisance is sort of like "willful negligence" -- only lawyers could come up with these terms.

POFP Teams Up With Grammar Girl!

2007-08-30T19:24:00.000-07:00

This week, yours truly is guest hosting the Grammar Girl podcast.

For those who don't know Grammar Girl, she is one of the nation's top podcasters, with fun and informative broadcasts about English language and usage. This week, I'm discussing the topic of "Readability" -- specifically how the rules for creating clear legal documents can be applied to any document.

Grammar Girl's podcasts can be found on i'Tunes or at the Grammar Girl website.

The Law Rocks - Literally

2007-08-30T19:16:00.000-07:00

The Wall Street Journal law blog reports that a second year law student at Boalt Hall is creating legal-themed rock music -- filling, as they say, a much-needed void.

He's got a ballad about promissory estoppel, a blues anthem called "12(b)(6)" . . . and then, there's Mens Rea:

Oh, mens rea,
It's a guilty mind
The girl gives me mens rea
And actus reus isn't far behind

The Great Canadian Comma Dispute

2007-08-28T17:01:00.000-07:00

Ken Adams from Adams Drafting delivered the news: the great Canadian comma dispute is over.

What? You didn't know about it? Read Ken's OpEd piece here. Ken served as expert witness in a case before the Canadian Radio-television and Telecommunications Commission. It was essentially a contract dispute between two telecom companies. The commission issued a preliminary opinion that hinged on the placement of a single comma -- and that's when they called in Ken.

If you want to read more about punctuation in the law (and who doesn't?), read my column Comma Cause.

Update on The Golden Gobbledygook Award

2007-08-25T09:02:00.000-07:00

Thanks to the following blogs that have mentioned The Golden Gobbledygook Award:

Overlawyered

The (new) legal writer

California Personal Injury Blog

California Debt Blog

As a reminder - we're looking for bad legalese. Exquisitely bad. Kind of like the Bulwer-Lytton Prize for the worst opening line of prose ("It was a dark and stormy night. . . . ").

To enter the competition, send me the best example of bad legalese you can find -- you can either post an entry here at the blog, or email me at adamjfreedman@yahoo.com.

The winning entry and runners-up will be posted to the Hall Of Shame on the POFP website -- and the person who submits the winning entry will get a signed copy of my new book, as well as the new audio book from star podcaster Grammar Girl, Anonymous Lawyer by Jeremy Blachman, and Lifting the Fog of Legalese by Joseph Kimble.

Good luck!