Deciphering the Sotomayor Hearings

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.

Plain Language Around the World

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?

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.

Legal Brainteaser: What's a Country?

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

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.

New Entries in the Hall of Shame

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

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.

Oh Kannada!

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

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.

Work, Work, Work

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.

La Loi Dans Le Yukon, eh?

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.

Wassup?

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."

Patently Obvious

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.”

Click here to read the entire column.

SEC Chairman: Cut the Gobbledygook!

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

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!

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.

Love and the Legal "Person"

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"

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."

Put that in Plain Tetun!

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!

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).