Would You Like Salt on That Crow?

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Antonin ScaliaSo, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents.  I realize this is old news now, but I’m posting it mostly as a word of simultaneous warning and relief to my students and to fellow lawyers.

The Warning: Mistakes in writing can be devastating.  When I hop on my soap box about minimizing errors, I’m not just being obsessive-compulsive (although that’s part of it).  I’m trying to spare students and colleagues the painful taste of crow.  In Scalia’s case, the crow tasted like weeks of unrelenting online crucifixion by critics of all shapes and persuasions.  In the case of lawyers and paralegals, crow might taste like a loss of employer confidence, a demotion, a fleeting job opportunity, or even (with the right mix of mishap and happenstance) a lash of legal malpractice liability.

Salt with that Crow?The Relief: As much as we do want to avoid mistakes, we can also take solace in the fact that all human beings make them — even handily-staffed Harvard Law grads with thirty years of tenure on the Highest Court in the Land.  At the end of the day, Scalia is still a renown legal genius and still “the intellectual anchor for the originalist and textualist position in the Court’s conservative wing.”   He might be able to rinse his mouth of crow a bit more quickly than we lowly students, para-professionals, and lawyers can.  But I hope Scalia can still serve as a reminder that whenever we fall, we can always (and must always) simply stiffen up the upper lip and thunder forth.

New Position, New Challenge

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I am excited to announce that I’ve now been appointed as the new Coordinator of the Paralegal Studies Program at the University of Memphis!  In addition to teaching up to four classes per semester, my duties now include student recruitment, curriculum development, course scheduling, representing the Program both on internal committees and in community outreach, and ensuring that the Program is staffed with top-quality adjunct faculty members. And of course, I’ll still be writing legal briefs for QP Legal and teaching CLEs as always.  So it looks like I’ll be quite a busy little bee!  Wish me luck!

What’s in a Sandwich?

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This is just proof that lawyers will fight over anything.  I love it.

Given that the term “sandwiches” is not ambiguous and the Lease does not provide a definition of it, this court applies the ordinary meaning of the word. The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Merriam-Webster, 2002. Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans. As such, there is no viable legal basis for barring White City from leasing to Chair 5. Further, PR has not proffered any evidence that the parties intended the term “sandwiches” to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of “sandwiches” in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same.

White City Shopping Center, LP v. PR Restaurants, LLC, Unreported, No. 2006196313; 2006 WL 3292641, at *3 (Mass. Super. Oct. 31, 2006).  This is what happens when courts issue opinions on Halloween.

And just in case you were wondering, yes, the parties did indeed submit “numerous dictionary definitions for the term ‘sandwich,’ as well as expert affidavits.”  White City Shopping Center at *3, n.3.  You mean there’s such a thing as a paid sandwich expert?  Damn, I’m in the wrong business…

New Rule #8: Check Your Biases at the Door

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Just something to think about.  Interesting story in the ABA Journal from a few weeks ago. Law partners were asked to review a legal brief and analyze the writing.  Even though all participants read the exact same legal brief, they were given different information about the supposed author:

Sixty partners from 22 law firms who agreed to participate in a “writing analysis study” received copies of the memo. Half were told the memo was written by an African-American man named Thomas Meyer, and half were told the writer was a Caucasian man named Thomas Meyer. Fifty-three partners completed the task. Of those, 29 received the memo supposedly by a white man and 24 received the memo supposedly by a black man.

The reviewers gave the memo supposedly written by a white man a rating of 4.1 out of 5, while they gave the memo supposedly written by a black man a rating of 3.2 out of 5. The white Thomas Meyer was praised for his potential and good analytical skills, while the black Thomas Meyer was criticized as average at best and needing a lot of work.

Reviewers found an average of 2.9 out of seven spelling and grammar errors in the memo by the white Thomas Meyer and 5.8 out of seven errors in the memo by the African-American Thomas Meyer….

Here’s the ABA article, and here’s the original report the ABA was referencing.  Several commentators on the ABA website noted problems with the study (for example, we do not know what other factors might have affected the partners’ evaluations).  The consulting firm that conducted the study does attempt to limit the scope of its results:

In order to create a study where we could control for enough variables to truly see the impact of confirmation bias, we did not study the potential variances that can be caused due to the intersection of race/ethnicity, gender, generational differences and other such salient identities. Thus, our conclusion is limited to the impact of confirmation bias in the evaluation of African American men in comparison to Caucasian men. We do not know (although we plan to study the issue in the very near future!) how this impact will splinter or strengthen when gender and/or other identities are introduced.

I’ll keep an eye out for that follow-up study.  Meanwhile, the firm suggests countering inherent bias by taking proactive steps to limit subjective and subconscious influence to the extent possible, as in this example:

In one law firm where we found that minority summer associates were consistently being evaluated more negatively than their majority counterparts, we created an interruption mechanism to infuse the subjective with objective. We worked with the firm to create an Assignment Committee, comprised of 3 partners through whom certain assignments were distributed to the summer associates and through whom the summer associates submitted work back to the partners who needed the work done. When the work was evaluated, the partners evaluating the work did not know which associate had completed the work. The assignments for this process were chosen judiciously, and there was a lot of work done to ensure buy-in from all partners. At the end of the summer, every associate had at least 2 assignments that had been graded blindly. The firm then examined how the blind evaluations compared with the rest of the associate’s evaluations and found that the blind evaluations were generally more positive for minorities and women and less positive for majority men.

New Rule #7 … Proofread!

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While I understand that the news media outlets all want to be first, I think this one probably could have spared the extra few seconds it would have taken to correctly spell “fire” and “working.”  Darned speed-typing!  Gets ya every time…

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Look It Up! Or Not…

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I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like “prevent,” “delay” and “report.” Over the years, justices have looked up both perfectly ordinary words (“now,” “also,” “any,” “if”) and ones you might think they would know better than the next guy (“attorney,” “common law”).

All of this is, lexicographers say, sort of strange.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

[What a sec .... you mean dictionaries don't provide the exact meanings of terms?  Holy sh*t...]

J. Gordon Christy, a professor at the Mississippi College School of Law, surveyed the scene in 2006, and he did not like what he saw. “We are treated,” Mr. Christy wrote in The Mississippi Law Journal, “to the truly absurd spectacle of august justices and judges arguing over which unreliable dictionary and which unreliable dictionary definition should be deemed authoritative.”

The NYT author also poked a bit of fun at Chief Justice Roberts, who had recently dedicated a few lines of a recent SCOTUS opinion to explaining what the word “of” means:

That reading follows from a common definition of the word “of.” See Webster’s Third New International Dictionary 1565 (2002) (“of” can be “used as a function word indicating a possessive relationship”); New Oxford American Dictionary 1180 (2d ed.2005) (defining “of” as “indicating an association between two entities, typically one of belonging”); Webster’s New Twentieth Century Dictionary 1241 (2d ed.1979) (defining “of” as “belonging to”).

Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 131 S.Ct. 2188, 2196 (U.S. 2011).

And that of course reminded me of another iconic moment in theoretical lexicography

In a quick search I just saw that so far this year it looks like the Supremes have also used dictionaries to define “plaintiff,” “accept,” “continue,” “change,” “obtain,” and “clothes.”  And here’s Justice Scalia concurring with his colleagues in the classic Scalia-esque manner (only Scalia can concur with you and call you absurd in the same breath):

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that “ ‘domestic violence’ encompasses a range of force broader than that which constitutes ‘violence’ simpliciter.” … That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of “domestic violence” from the period surrounding § 921(a)(33)(A)(ii)’s enactment. At the time, dictionaries defined “domestic violence” as, for instance, “[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another,” Black’s Law Dictionary 1564 (7th ed. 1999), and “[v]iolence toward or physical abuse of one’s spouse or domestic partner,” American Heritage Dictionary 534 (4th ed. 2000)…. Those definitions, combined with the absence of “domestic violence” entries in earlier dictionaries, see, e.g., Black’s Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a “term of art” definition “encompassing acts that one might not characterize as ‘violent’ in a nondomestic context….”

Gotta love it.  At any rate, I suppose I don’t see any harm in looking up words — even simple words.  But of course (as always) we have to keep in mind context and other factors affecting the word’s usage and effect (whether intended or unintended).  What do you think?  Are judges belittling themselves by looking up the word “of”?  Or do creative lawyers sometimes leave judges with no choice but to reel us all back in to the basics?

New Rule #6: What NOT to Say

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New Rule!!!  Legal writers, never use the word “witnesseth” again.  Ever.

Even though I differ a bit from Bryan Garner on the use of footnotes, I think he’s right on the money when it comes to overused, archaic legalese.  Here’s Garner’s latest article on the topic.  He explains why these words/phrases should be retired from the legal lexicon:

  • and/or
  • herein
  • deem
  • know all men by these presents
  • provided that
  • pursuant to (I must admit I’m guilty of using this one)
  • said
  • same
  • shall
  • whereas
  • witnesseth
  • such

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