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

The Power of Words!

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Just heard that a case I briefed on appeal in Tennessee has been reversed and remanded! It was an uphill battle, replete with municipal immunities and judicial fact-finding, but we won! I always love to hear when battles are won with the mighty pen. Here’s to the power of persuasive writing!

Citation Hot Potato

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Where, oh where, should my citations go?  Just read another article by Bryan Garner arguing that citations should be relegated to footnotes rather than cluttering up a legal brief.  He’s been pushing for the switch to footnotes for quite a while now.  And as usual, his arguments make perfect sense.  Take this comparison, for example:

In your legal work, I’m sure you often have to make sense of something like this:

“Our opinions in Hughes Aircraft Co. v. United States, 86 F.3d 1566, 39 USPQ2d 1065 (Fed. Cir. 1996) (Hughes XIII) and Hughes Aircraft Co. v. United States, 140 F.3d 1470, 46 USPQ2d 1285 (Fed. Cir. 1998) (Hughes XV) do not lead to a different result. Hughes XIII explicitly held that Hughes Aircraft Co. v. United States, 717 F.2d 1351, 219 USPQ 473 (Fed. Cir. 1983) (Hughes VII) was entirely consistent with our intervening en banc decision in Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931, 4 USPQ2d 1737 (Fed. Cir. 1987). Hughes XV held that Warner-Jenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule. 140 F.3d at 1475, 46 USPQ2d at 1289. In neither case was there controlling authority that in the interim had made a contrary decision of law applicable to the relevant issue.”

You have to make sense of this because your client is depending on it. That task becomes significantly easier when the passage is shorn of the citations:

“Our opinions in Hughes XIII¹ and Hughes XV² do not lead to a different result. Hughes XIII explicitly held that Hughes VII³ was entirely consistent with our intervening en banc decision in Pennwalt v. Durand-Wayland.⁴ And Hughes XV held that Warner-Jenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule.⁵ In neither case was there controlling authority that in the interim had made a contrary decision.”

I must admit, I am torn on this issue.  I always hesitate to disagree with someone like Bryan Garner, but I also think sometimes citations become the scapegoat for other writing missteps.  So, in the example above, what if we introduced the cases and assigned simpler reference labels first, rather than trying to do all that while simultaneously embedding the long citations in prepositional phrases and compound sentence clauses and whatnot?  What if we rid ourselves of redundant parallel citations?  How about trading marathon sentences for shorter, crisper points?  Can we ditch a few empty adverbs and abstract nouns?  Maybe trade them in for more action verbs?  Convert the roman numerals to Arabic numbers, perhaps?  Get rid of some double negatives and ambiguous pronouns?  That way Mr. Garner’s example becomes something like this (the opening sentence is added for a bit of context):

The law of this case is no longer binding, because controlling authority has shifted in the interim. That distinguishes the present case from the two leading decisions where the law of the case doctrine prevailed. The first is Hughes Aircraft Co. v. United States, 86 F.3d 1566 (Fed. Cir. 1996) (“Hughes 13″). The second is Hughes Aircraft Co. v. United States, 140 F.3d 1470, (Fed. Cir. 1998) (“Hughes 15″).  Hughes 13 preserved the law of the case because its earlier rulings were “entirely consistent with Pennwalt” and other intervening decisions.  Hughes 13  at 1576.¹  Hughes 15 likewise had “no reason to depart from” the law of the case because it, too, had “satisfie[d] the … rule as stated in [the intervening case of] Warner-Jenkinson.”  Hughes 15 at 1475.²  Since neither Hughes 13 nor Hughes 15 had occasion to reconcile the law of the case with any subsequent contrary authority, those precedents have no bearing on the issue at bar.

FN1.  Revisiting Hughes Aircraft Co. v. United States, 717 F.2d 1351 (Fed. Cir. 1983) (Hughes 7) in light of Pennwalt Corp. v. Durand-Wayland, 833 F.2d 931 (Fed. Cir. 1987).

FN2.  Revisiting Hughes 7 in light of Warner–Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997).

Well, what do you think?  Is Door #3 available?  It does use embedded citations, because that keeps the reader’s head from bobbing to and from the footer every four seconds to verify statements made in the text (which can be just as distracting as long citations).  It also uses some footnotes — but only sparingly, and only for ancillary information.  It jettisons the extra-lawyery mumbo-jumbo and cuts to the chase.  My goal was to trim the fat and keep the meat, so to speak.  Is this version easier to read, or harder?  Does it make sense, or have I distorted what the court was trying to say?  If anyone’s interested in the original case where Mr. Garner found this excerpt, you can read the full opinion here.

A Useful Double-Negative

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Most people communicate to be understood; you need to communicate so that you cannot be misunderstood.

I just stole this awesome quote from a friend of mine, who stole it from a friend of his.  I hope neither one of us gets banished for our thievery, but this is such a nifty thought that I just couldn’t resist sharing.

TABL Law Students Conference

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The Tennessee Alliance for Black Lawyers is preparing for its 2014 Law Students Conference in Nashville, and I’ll be there giving another seminar on legal research and writing! Can’t wait to work with all the great students again this year! Save the date: March 21-22… Details to come!

Less is More

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I happened upon this interesting dissent in my research recently.  If you can forgive the biting tone (note the judge’s befitting name), I think the minimalist technique is pretty effective.  It’s not bogged down with preachy legalese.  It doesn’t pontificate or soliloquize. It’s short and (not so) sweet.  Here it is, from Ex parte Clay, 675 S.W.2d 765, 768 (Tex. Crim. App.1984):

Onion, Presiding Judge, Dissenting.

I dissented in Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982). I dissent again. I simply call attention to the unrealistic and laughable statements of the majority:

“It is important to note that the ‘carving doctrine’ was abandoned primarily because it encouraged crime … The abandonment of the ‘carving doctrine’ overcame an aspect of the criminal trial that substantially impaired its truth-finding function.”

Fantastic.

Rarely do I have the pleasure of seeing judges describe their distinguished colleagues’ reasoning as “laughable” (forgive me for being entertained).  Regardless of whether you agree with the dissent or the majority, I think this pithy opinion offers good evidence of why less is more.  Note the very short sentences and short paragraph.  In fact, most of the “argument” commandeers (and makes a mockery of) the majority’s own words. The grand finale is a one-word sarcastic scoff.  No need for a conclusion sentence.

Again, the tone is another matter and a different debate.  But after reading this dissent, it’s hard to avoid at least being tempted to second guess the majority.  So in that sense, perhaps this dissent succeeds in its rhetorical goal.  If you want to check out the full opinion, here it is on Leagle.com.

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