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.