More on the Second Amendment Comma War

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

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

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

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

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

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

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!

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

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

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

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

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

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

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

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

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?

Or maybe the worst contract ever -- period.

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

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

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

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

Update on "Blight"

As reported right here at POFP a few weeks ago, defining the word "blight" has become a hot legal topic. That because the, um, innovative decision in Kelo v. City of New London strengthened the hand of cities that want to assert eminent domain over "blighted" neighborhoods. By an interesting coincidence, Golden Gobbledygook Award winner Paul Sherman litigates bogus-blight cases for a living. Paul writes:

Your readers might be interested to know that in Lakewood, Ohio, houses were considered blighted if they lacked attached two-car garages, three bedrooms, or two full bathrooms; even the Mayor's house was blighted under this definition (More information on the Lakewood case is available here: http://www.ij.org/private_property/lakewood/backgrounder.html). And if you or your readers would like to see what "blight" looks like, you can check out pictures of these charming houses from Norwood, Ohio, all declared "blighted": http://www.ij.org/private_property/norwood/norwood_homes.html

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

Word of the Week

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

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"

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

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

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

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

ss

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

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

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

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....

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

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

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!

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

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

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?

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

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!

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

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?

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!

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

• Wayne Schiess's Legal Writing Blog
• Writing, Clear and Simple

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

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

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!

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

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

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

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!

Legal Language Podcasts!

Take the The Party of the First Part everywhere you go . . . with the latest podcasts!

I've recorded a series of eight podcasts with all-new material. A new podcast will be posted each week. The first episode: "Warranties and Guaranties" is available now.

• 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

Larceny

A Latinate term for theft, larceny can be traced to an English law of 1225 which sought to punish those who stole deer from the royal hunting parks. The crime was given the name latrocinium (from the Latin latro, or thief), later anglicized to latrociny and finally larceny. The next larceny statute came fifty years later and was also, bizarrely, limited to the theft of the king’s deer. Could it be that for fifty years the British Crown had nothing more pressing than to crack down on deer theft?

Safire's Recommended Reading

In Sunday's New York Times, the great William Safire recommends three books about "the use and abuse of words." Mirabile dictu, but The Party of the First Part is the first book on Safire's list!

Safire praises POFP as a "lighthearted but lucid explanation of legalese." He also recommends Send: the essential guide to email for office and home, by David Shipley and Will Schwalbe; and A Century of New Words, by John Ayto.

POFP in the August Vocabula Review!

Check out the new issue of The Vocabula Review - an internet journal that proudly proclaims "A society is generally as lax as its language." Of course, modesty prevents me from mentioning that the lead article is by POFP. Oh dear, I just mentioned it. Well read it anyhow; TVR is a great publication!

Legalese is Code

A recent post on the tech site O'Reilly Radar offers scientific proof that legalese is actually tedious.

In "Law is Code," Artur Bergman discusses a program that (somehow) turns text into these nifty visualizations with lines and dots and such. When they ran the US Code through the program, it churned out this very, very dense picture of criss-crossing lines. Mr. Bergman's comment:

Legalese is a massively structured dialect. Symbols appear in very distinct patterns that are more reminiscent of machine code than text.

Which isn't entirely fair to machine code. Yes, legalese contains more structure and repetition than normal English. But that doesn't mean it achieves precision. In machine code, a word may denote some tangible reality ("widget"), whereas the common words in legalese denote abstract concepts ("reasonable").

Or so it seems to me it seems to me it seems to me it seems to me.

The Levy Man Cometh

Governor Arnold Schwarzenegger is pushing hard for a major California health care reform. Never mind the politics of the whole thing, the Governor is having terrible trouble over language (not Arnold's usual ESL troubles).

Schwarzenegger's health care plan would be funded by a 4% payroll . . . what? Tax, of course. Except that the plan's supporters call it a "fee." Arnold himself has tried a variety of names for the tax: for a while it was a "coverage dividend." Earlier in the year, he told the Sacramento Bee, "It is not a tax, just a loan." (Hey, you mean taxpayers can get it back, with interest?) Nowadays, he's taken to calling it a levy.

POFP can forgive a new tax, but we can't forgive these "linguistic tricks," as John Fund of the WSJ.com puts it. As Fund points out, Arnold's lingo is on par with such gems as "revenue enhancements" and "solidarity payments."

For more on the wonderfully taxing vocabulary of government revenues, see my earlier column, Death and This.

Word of the Week

Jurat

In Latin, jurat means "he swears" (from jurare, to swear). In English, it's a noun. It is the common name for a notary's certificate: the little burst of legalese at the end of an affidavit saying "Sworn to and subscribed before me this ___ day of ___ , etc."

The word is also used generally to refer to any person who has sworn an oath. In the Channel Islands (Jersey, Guernsey, and Alderney) a jurat is a type of magistrate, appointed for life. According to Black's Law Dictionary, juration is the act of swearing. Of course, that's also the way an Englishman says "duration."

More Golden Gobbledygook Swag!

Great news: Joe Kimble, legal writing guru at Thomas Cooley Law School and plain language crusader, is donating several copies of his new book Lifting the Fog of Legalese as a prize. So in addition to the prizes listed in the post below, contest winners will also receive a copy of this book, which has won praise from Bryan Garner and others.

Submit your favorite bad legalese - either post it as a comment; or email POFP at adamjfreedman@yahoo.com.

Announcing the Golden Gobbledygook Award!

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 winner will get a boxed set (without the box) of my new book The Party of the First Part, together with Jeremy Blachman's Anonymous Lawyer, and Grammar Girl's new audiobook! The first two runners-up will also receive prizes. Entries will be accepted until September 14th. The winner will be announced on September 21st.

Looking for inspiration? Check out the Legalese Hall of Shame at POFP's website.

Word of the Week

Heart Balm Action

A generic name for any of the common law actions for the torts of alienation of affections, breach of promise of marriage, criminal conversation, and seduction. For more on these delicious torts, see my earlier post, The Art of Conversation.

"Tragic Wordplay" in the DC Circuit

Until a few days ago, terminally ill patients had a constitutional right to access potentially life saving drugs - even if those drugs had not yet been approved by the FDA.

On Tuesday (August 7), in the case of Abigail Alliance v. Eschenbach, the US Court of Appeals for the DC Circuit held that no such right exists, reversing last year's decision in the Abigail case by - the DC Circuit. In other words, the court reversed itself. Ooops.

The issue is clearly one of life and death, but in the courts it came down to a battle of semantics.

Read the rest on Huffington Post!

My Way or the Highway?

One of the early Lord Chancellors of England was Thomas Egerton. (The Chancellors were the officials who created the branch of law we call "Equity" - which brings us such nifty things as injunctions and TROs)

Anyway, Egerton was elevated to the post by Queen Elizabeth. After Elizabeth's death, Egerton sought to curry favor with the new King, James. He wrote the King a letter to assure him of his loyalty; he wrote "I have learned no waye but the King's highe waye . . ."

Is this the origin of the phrase "my way or the highway"?

Word of the Week

Endorse and Indorse

English is full of words in which there is a "hesitation" (as Fowler puts it) between the initial i- and the initial e-. Here is a fine example from the law.

A person indorses a document by signing it on the back, or as they say in Latin, in dorso (dorso, of course, being the root of the English dorsal, as in the dorsal fin of a shark). In Britain, people spell the word endorse while in the US, it’s indorse for checks and endorse for all other meanings. “Indorse” is the more traditional spelling; it was favored by Blackstone, who enthusiastically reported that the payee of a negotiable instrument may assign his rights “to any other man, by indorsement . . . and he may assign the same to another, and so on in infinitium.” I don’t think he meant that last bit literally.

POFP on HuffPo!

Your faithful correspondent is now featured on the Huffington Post, commenting on Congress's attempt to redefine discrimination. What Congress is trying to do is increase the Statute of Limitations for employment discrimination cases -- about which reasonable minds may differ -- but their tactics are abominable. Rather than come straight out and change the limitations period, Congress proposes to change the definition of discrimination to the point of meaninglessness. Under Congress's definition, "discrimination" occurs any time an employee receives a paycheck or any other benefit, the amount of which may have been affected by an act of discrimination at any time in the employee's career, no matter how long ago.

Speaking of incomprehensible things, people at technorati say I have to put the following into a blog post:

Technorati Profile

Word of the Week

In Camera

It's a Latin term, meaning "in chambers" or more generally, "in private." A judge's private office is known as his or her "chambers," as every viewer of Law & Order knows from the recurring scene in which a fed-up judge barks to the lawyers "In chambers -- now!" It's the legal equivalent of being taken to the woodshed. When the parties disagree as to the admissibility of document, the judge will often conduct an "in camera inspection" of the document, far away from the jury's gaze.

By the way, the judge's camera is related to Kodak cameras. The photographic variety is a shortened version of camera obscura -- a darkened room into which light is admitted through a double convex lens, casting an image on a suitable surface.

More Icky Words!

A Pennsylvania law firm has tried - unsuccessfully - to banish all mention of "President Bush" from an upcoming trial.

Here's the story (as reported by the Wall Street Journal Law Blog): an anti-war protestor is suing Upper Darby Township in Pennsylvania for "falsely arresting" him (whatever that means) during a Bush campaign stop in 2003. Lawyers for the Township moved to prohibit the plaintiff from mentioning President Bush during the trial - arguing that Bush's popularity rankings are so low that it would unduly prejudice the jury in favor of the plaintiff. Of course, by that logic the word "Congress" should also be banned from all courts.

Unlike the recent debacle in which "rape" and other icky words were banished from the courtroom (see here), this time the judge didn't buy it. "There is no requirement that trials be made up of the blandest theories, facts and arguments available," said Judge Gene Pratter.

Hooray for Judge Pratter. We like our language plain -- not bland.

Word of the Week

Mayhem

“Mayhem” is the act of dismembering or disfiguring another person so as to weaken his ability to defend himself. It is a medieval term (surprise!) coming from the Anglo-Norman maihem or injury. It was originally both a noun and a verb. Prosecutors would bring a charge of mayhem by stating that the defendant “feloniously did mayhem” the victim. By the latter part of the 19th Century, the verb form gave way to the closely-related maim.

One is tempted to ask: wouldn’t any dismemberment weaken one’s defenses? Well, that’s not the way the law sees it. Traditionally, it was mayhem to chop off a limb, but not an ear or a nose because, as Blackstone blandly put it, “they can be of no use in fighting.” Needless to say, lawsuits over repetitive stress injuries didn’t get very far in the Middle Ages.

The Fine Print

The Law Faculty of the University of Cape Town is about to give away valuable trade secrets. In August the university is holding intensive three-day seminars to teach lay people how to decipher legalese; or, at least, the legalese found in commercial contracts. According to South Africa's Independent Online, the course will "focus on the building blocks of legal language: the words, technical expressions, long sentences and complicated structures."

Let's hope the Law Faculty is also teaching its law students how to write in plain English, so that some day in the future consumers don't need a three-day course to read them.

Word of the Week

Barking Dog

"Barking Dog" is defined as a dog that barks, bays, cries, howls or makes any other noise continuously and incessantly for a period of 10 minutes to the disturbance of any other person.
(Source: San Francisco Municipal Code, Art. 1, Section 41.)

Turns out, if a dog barks in the forest, and nobody hears him, then he's not a barking dog.

Rape - without all the icky words

While presiding over a rape case, Nebraska Judge Jeffre Cheuvront had the bright idea of barring attorneys and witnesses from using words including “rape,” “victim,” “assailant” and “sexual-assault kit,” and ordered witnesses to sign papers saying they wouldn’t use the words. Words such as “sex” and “intercourse” were allowed. State law allows judges to bar words or phrases that could prejudice or mislead a jury. (Story from AP).

The idea - apparently - was to prevent the use of words that would unduly prejudice the jury against the defendant. The judge's move certainly didn't do the defendant any harm -- the publicity over the restricted vocab led the judge to declare a mistrial.

Did the judge have a point? Isn't language the way to protect the defendant's rights -- is the defendant covered by things like Miranda and evidentiary rules?

Update - a Pennsylvania court recently rejected a similar attempt to banish "prejudicial" words from the courtroom. See More Icky Words!

Word of the Week

Habeas Corpus

Habeas corpus is a writ (that is, a procedure) for challenging the legality of a prisoner’s detention. In contemporary American law, it refers to a procedure by which the constitutionality of a state conviction and imprisonment can be tested in federal court. The words literally mean “you have the body”; however, the original name for the writ was habeas corpus ad subjiciendum et recipiendum which (very) roughly translated, means, “you have the body, so bring him to court and we’ll decide whether he ought to be detained.” In old common law procedure, there were a number of “habeas corpus” writs, such as habeas corpus ad testificandum, which directed that a prisoner be deliver to a court to give evidence. The writ that we all know and love was sometimes called the Great Writ or the Writ of Liberty to distinguish it from all the others.

Like all writs, it's better with cheese on top.

Hello, Earthlings!

This weekend marks the 60th Anniversary of the UFO crash in Roswell, New Mexico. According to reports, at least 35,000 UFO enthusiasts have descended on Roswell to celebrate.

POFP was there to celebrate with them. Not literally of course, but who else can provide legal lingo for our next close encounter?

Metalaw is the branch of law governing the relations between humans and other intelligent races. The field was launched by the late Andrew G. Haley in 1956, at a time when movies like Invasion of the Body Snatchers and The Man from Planet X fueled the popular feeling that flying saucers could land at any moment. Its founding principle is called the Great Rule: “Do unto others as they would have you do unto them” – which is the traditional “Golden Rule” rewritten to accommodate the fact that aliens may have different preferences from humans.

For the most part metalaw is a theoretical exercise, but the United States did enact an Extra-terrestrial Exposure Law in 1969. UFO enthusiasts charged that the purpose of the law was to keep ordinary citizens from contacting aliens. In fact, it was nothing more than an administrative regulation giving NASA the right to force returning astronauts to undergo a quarantine period. The law does at least provide a handy definition of extra-terrestrially exposed:

. . . the state of condition of any person, property, animal or other form of
life or matter whatever, who or which has:
(1) Touched directly or come
within the atmospheric envelope or any other celestial body; or
(2) Touched
directly or been in close proximity to (or been exposed indirectly to) any
person, property, animal or other form of life or matter who or which has been
extra-terrestrially exposed by virtue of paragraph (b)(1) of this section.

The regulation even provides a hypothetical illustration of what persons might be forced into quarantine: “if person or thing ‘A’ touches the surface of the Moon, and on ‘A’s’ return to Earth, ‘B’ touches ‘A’ and, subsequently, ‘C’ touches ‘B’, all of these – ‘A’ through ‘C’ inclusive - would be extra-terrestrially exposed.” Which is why, before shaking hands with a stranger, it always pays to ask “have you been away from Earth lately?”

Metalaw is an offshoot of the larger discipline of space law, about which you can read more (much, much more) right here.

The Art of Conversation

A couple weeks ago, Chicagoan Arthur Friedman won a verdict of $4,802 for alienation of affections.

In plain English, that means he sued a man for stealing his wife's heart. Proving - as if more proof were needed - that for every grievance, there's a lawsuit just waiting to be filed.

Alienation of affections is an old-fashioned term, but then virtually all legal terms concerning sexual conduct have an archaic ring to them. Various states continue to recognize laws prohibiting fornication, seduction, solicitation of chastity, and criminal conversation - not to mention sodomy and buggery (although very little of those laws remain following the Supreme Court's decision in Lawrence v. Texas).

In this context, alienation does not refer to the existential estrangement that they talk about in college philosophy courses. In legal language, “to alienate” means to transfer one’s property, a usage that dates to the fifteenth century. Over time, lawyers developed a metaphorical sense of alienation, meaning the transfer of, or taking of, any possession, even intangible ones. That’s why the Founding Fathers described our fundamental rights as being “unalienable” – they can’t be taken away.

In a recent North Carolina lawsuit, a woman named Tamara Gilliam is demanding $20,000 from Beverly Hutchens Corbett for seducing Gilliam's husband. Gilliam claims that Corbett is guilty not only of alienation of affections, but also of the intriguingly-named criminal conversation.

Like alienation of affections, criminal conversation (also known as "crim. con.") is a cause of action that allows one spouse to sue a person who induces the other spouse to be unfaithful. It is actually the older of the two doctrines. Sir William Blackstone mentions the term in his Commentaries on the Laws of England (1765-69).

The “conversation” in criminal conversation refers to sexual intercourse, a sense that can be seen in Shakespeare’s Richard III, when Richard refers to Lord Hastings’ “conversation with Shore’s wife.” Of course it is not unusual for the law to preserve archaic meanings for everyday words – like using “fee” to describe an interest in real property (from fief).

The word “criminal” is also somewhat misleading in this context since crim. con. is not a crime at all, it’s a tort (as is alienation of affections). In other words, the state cannot prosecute someone for crim. con.; rather, the law allows private persons can sue each other. In any event, criminal here simply means “wrongful.”