Althouse: Judicial opinions are "poorly written, legalese-riddled," and "read like over-the-top Marx Brothers parodies of stiffness and hyperformality."

March 4, 2013

Judicial opinions are "poorly written, legalese-riddled," and "read like over-the-top Marx Brothers parodies of stiffness and hyperformality."

Says Bryan Garner, trying to figure out why lawyers write so badly.

The poor lawyers! They are trying to sound like the lawyers who were trying to sound like lawyers who were trying to sound like lawyers who were... etc.

The stakes are high and the desire to sound professional and learned overcomes a native speaker's capacity for natural speech.

But there's also the problem that the arguments judges and lawyers are putting together are full of gaps. Clear speech would make that obvious.

139 comments:

Anonymous said...: Clear speech might put them out of jobs.; 3/4/13, 4:21 PM
Mike (MJB Wolf) said...: "[T]here's also the problem that the arguments judges and lawyers are putting together are full of gaps. Clear speech would make that obvious."

That, I suspect, is at the heart of the problem. Hewing to the rules laid down by Strunk and White can fix a lot, but it won't fix poorly thought out ideas. I refer of course to The Elements of Style, which every writer should have already read before getting to law school.; 3/4/13, 4:23 PM
Mark O said...: I can safely tell you that the litigators at Sullivan or Cravath or O'Melveny don't write like that.; 3/4/13, 4:23 PM
Lem Vibe Bandit said...: The Contract Scene; 3/4/13, 4:28 PM
Astro said...: But what about the Sanity Clause?; 3/4/13, 4:32 PM
Mark O said...: No romanettes?; 3/4/13, 4:33 PM
Brennan said...: Can we adopt the Swiss model?

If the people cannot understand it, write it again until they do.; 3/4/13, 4:39 PM
Publius said...: “Being profound and seeming profound"

Those who know that they are profound strive for clarity. Those who would like to seem profound to the crowd strive for obscurity. For the crowd believes that if it cannot see to the bottom of something it must be profound. It is so timid and dislikes going into the water.”

Friedrich Nietzsche “The Gay Science.”; 3/4/13, 4:42 PM
Michelle Dulak Thomson said...: From the article, a spelling test:

These findings call to mind my practice of asking secretarial candidates, who invariably describe themselves as good spellers, to spell three words—such as idiosyncrasy, inoculate and anoint.

I think the two I'd use first are "hypocrisy" and "supersede." At least those are the two I most often see gotten wrong on blogs and blog posts, apart from the inevitable homophone mashup (to/too/two, its/it's, there/their/they're, &c.); 3/4/13, 4:49 PM
Astro said...: "-ese" Legalese, Educatorese, etc. Inflated language to hide the lack of having anything worth saying or of having a logical argument. See:
The Sokal Affair; 3/4/13, 4:51 PM
suestew said...: If they wrote really well, we'd be complaining that they were wasting state/fed tax dollars. And if they wrote superbly, many lawyers would be out of a job because the sloppier judges are, the more arguments there are to be made.; 3/4/13, 4:54 PM
Shouting Thomas said...: The blame is more likely to lie in the Diversity indoctrination all lawyers receive in undergrad school, law school and their intake training in a law firm.

When you have to bow down before the gobbledygook of Diversity, you cannot make sense.

You'll be canned if you do.; 3/4/13, 4:57 PM
Dante said...: It does seem odd, to write laws that everyone is meant to obey, but that ordinary folks can not understand.

It's almost like writing in Latin, and expecting the faithful to obey. At least the Church had intermediaries to explain it.

Regarding contracts, a CEO friend of mine says that once you have to refer to the contract, the relationship is dead.; 3/4/13, 4:58 PM
suestew said...: Mark O - if you think Sullivan, Cravath or O'Whatever attorneys are immune from writing poorly, you are living in a dream world.; 3/4/13, 4:59 PM
jr565 said...: Business writing is the same. They replace clear writing with jargon. in the legal world its legalese.; 3/4/13, 5:01 PM
Pettifogger said...: When I first started practicing in the late 70s, I was concerned that my writing did not look like that of other lawyers. I worked to make my writing conform and found that the change came easily.

At some point later, I realized I had made a big mistake and started trying to clean my writing up. It has taken far longer and been far harder to do that. But now I cringe when opposing counsel changes "if" to "on the condition that." And I've recently dealt with a lawyer who made that change among many other, similar ones.; 3/4/13, 5:03 PM
Dr Hubert Jackson said...: In defense of lawyers, what's clearly written today isn't clearly read 50 years from now.

But some stuff needs to be written for the audience it's intended for.; 3/4/13, 5:05 PM
Pettifogger said...: Dante said: "a CEO friend of mine says that once you have to refer to the contract, the relationship is dead."

That's no doubt true in some contexts, but I hope not in all. I like to think of the contracts I write as instruction manuals for conducting transactions or relationships.; 3/4/13, 5:06 PM
Balfegor said...: Re: Susan Stewart Rich:

While I think Mark O may have a little too much faith in the litigators at S&C, Cravath, and OMM, it's important that he's pointing to the litigators. The article is complaining mostly about transactional lawyers writing up agreements, which is very different.

The litigator has to write persuasively. Too much legalese and gobbledygook will bog down the flow of the story they're trying to sell and the argument they're trying to press. As a result, even if it's not exactly deathless prose, the writing has to be reasonable good.

Meanwhile, the transactional lawyer has to set forth all the provisions agreed to by the parties. The structure of many of these agreements does not lend itself well at all to being written up with English prose (or any other natural language, for that matter). I've seen offering documents spend 1,000 words explaining something that would have been much clearer and more concise as a formula. Shoehorning these abstract but not-terribly-confusing structures into incomprehensible English prose does no one any favours. The same problem arises with the confusion of referents. It would be a lot clearer if they just defined them as variables. But they're lawyers so it all has to be done in prose with "this" and "that" and "such" and "the aforesaid" and all that.; 3/4/13, 5:08 PM
Publius said...: Grabbing the machete of stupid does not make for a clear path.; 3/4/13, 5:09 PM
Dust Bunny Queen said...: But there's also the problem that the arguments judges and lawyers are putting together are full of gaps. Clear speech would make that obvious.

Sorta like Jackie Gleason's ....hummmana hummana ...trying to cover up when he was caught red handed by Alice?; 3/4/13, 5:09 PM
Dante said...: If they wrote really well, we'd be complaining that they were wasting state/fed tax dollars. And if they wrote superbly, many lawyers would be out of a job because the sloppier judges are, the more arguments there are to be made.

How many words are there in the constitution? OSHA laws extend from the floor to the ceiling. This has a number of issues.

First, no one can read all the law and comply.

Second, regulators can find something in the documents that you are not complying to. So you are beholden, even if you are trying to comply.

I write in a different language, called "C". One of the keys to making it so the text is maintainable is to Keep It Simple Stupid (KISS). Because if you don't, if you don't find the right trade-offs, it's impossible to maintain, support, and explain to a customer what the hell it's doing.

Bright lines are required, and excessive law makes anything but a bright line. Not relying on judicial discretion also screws things up.

The simple question is, what's worse? A set of laws so complex, so voluminous anything or nothing at all can be found in them, or relying on the wisdom of the judiciary?

In general, the Judiciary should be given latitude. When there are real screw ups, like Rose Bird in CA, then the system reacts.

Or as in this guy in San Jose who became a cripple, and was so angry at it that he intentionally used the disabilities act to sue small mom and pop gas stations, even whn they were trying to comply, to extract his vengeance of the vicissitudes of life on other people trying to scrape by. Finally, a judge declared he could no longer do it. I applaud that, like I applaud the judge who ordered the welfare mom to get Norplant.; 3/4/13, 5:10 PM
traditionalguy said...: Why all the sniping from the peanut gallery?

The lawyer has to write in a combination of statutory language and law school doctrines that are familiar to the Judge. Briefs are written in a competitive environment and are designed to draw a precedent full noose around the all too political Judge's neck daring him to rule the wrong way.

The lawyer who does that politely threatens the Judge with an appeal and a reversal which he has to have the reputation for doing which means a client who can afford the costs, which Caps on damages in contingent fee cases are carefully designed to eliminate.

Home cooking for a judges friends and political allies is also called injustice.; 3/4/13, 5:15 PM
Unknown said...: Why isn't what's clearly written today not clearly read 50 years from now?

The Ten Commandments are pretty clear. The Constitution is clear to people who aren't trying to change it. Fifty year old and older books are read all the time. We have more than one source for understanding terms that have shifted in meaning in the last 50 years. Customs change, but they're documented.; 3/4/13, 5:16 PM
bleh said...: Mark O said...

I can safely tell you that the litigators at Sullivan or Cravath or O'Melveny don't write like that.

Yes, it is great to live in America, where a man can publish his thoughts without having to fear for his safety.; 3/4/13, 5:16 PM
Michael K said...: The same is true of medical journal articles but they are not the daily practice of medicine. Watch for the new guidelines, written by Obamacare's death panels, to be deliberately obscure so as to avoid responsibility. They worry that they might end up like the NHS chief who seems above it all as only a member of the House of Lords can be.; 3/4/13, 5:17 PM
James Pawlak said...: How lawyers should communicate is best presented in Lloyd Paul Stryker's "The Art Of Advocacy", which appears to still be available from book sellers.; 3/4/13, 5:19 PM
Irene said...: I attended one of Garner's seminars, and it was excellent.; 3/4/13, 5:25 PM
edutcher said...: Betcha Dewey, Cheatham, and Howe wouldn't do that.

Then again:

Cox: You want the usual number of whereases and wherefores?

Flayger: No, better cut 'em in half. I've gotta understand this one myself.

- "The Maverick Line", "Maverick", season 4 Episode 10; 3/4/13, 5:26 PM
Balfegor said...: As I think about this, I think that quite apart from the culture of legal practice, law schools are very much to blame for lawyers' poor writing. My command of the formal register in English was better before I entered law school than after. I can see how flabby, slack, and downright lazy my prose has become, and many of the deficiencies in my prose reflect bad habits I acquired in law school, in the required legal writing course, in writing responses to exams, and in writing papers. We weren't graded on style, just substance. Did we spot the issue? Did we pick appropriate building blocks for our argument? Did we arrange them in IRAC form?

As late as college, I always read my papers to myself out loud to weed out disfluencies and improve the flow of the prose. I don't think I did that at all in law school.

I do it now, sometimes, and would probably benefit from doing it more. But my ear for prose isn't what it was before. It's no longer just Shakespeare, Macaulay, and Gibbon. There's judicial opinions and other lawyerly junk floating around in my head too, now, perverting my sense of our language.; 3/4/13, 5:29 PM
Dante said...: That's no doubt true in some contexts, but I hope not in all. I like to think of the contracts I write as instruction manuals for conducting transactions or relationships.

I'll assume you are correct, given your background. But, how many of the people actually making the day to day decisions have read the contract you wrote? In my field (computer software and hardware), I have never seen the contract and conditions laid open to the people actually interacting with the other corporation.

I have a dim view of the legal shenanigans surrounding the software industry, due to silly patents I've been involved with. However, my sister is a lawyer, her husband is a member of the Supreme Court Bar (though he makes no real money, but files briefs), but the patent crud is out of control in software, and it's simply paying a tithe to lawyers. As far as I can see.; 3/4/13, 5:32 PM
Cody Jarrett said...: Shouting Thomas said...

The blame is more likely to lie in the Diversity indoctrination all lawyers receive in undergrad school, law school and their intake training in a law firm.

When you have to bow down before the gobbledygook of Diversity, you cannot make sense.

You'll be canned if you do.

Diversity? Lawyers all try to out-gobbledy each other and you're blaming diversity?; 3/4/13, 5:33 PM
Left Bank of the Charles said...: "My client has no case" - very clear but also malpractice.; 3/4/13, 5:35 PM
Paul Brinkley said...: If we wrote software the way we write legal opinions, software wouldn't just be buggy; it'd fail to even compile.; 3/4/13, 5:35 PM
The Godfather said...: I spent almost 40 years practicing in a large Washington, DC law firm. In the late '70's as a partner I began to become aware that the very smart associates we were hiring out of the best law schools in the country couldn't write. I mean that they could not write a clear, grammatical sentence. The firm started remedial writing programs, and I started training the young lawyers I worked with. Eventually things got better.

But the problems this article talks about aren't writing problems, they are law practice problems. Transactional lawyers (and I've done that, although it's not the part of law I most enjoyed) write the way they do because they really can't afford to think through every provision of a complex contract or SEC filing or whatever. Even real estate law (my field) has gotten so complex that pages and pages of highly technical text must be written to cover even a straight-forward transaction. The drafters have to follow forms handed down from on high (or actually from associates who've gone before). And maybe they're right to do so. Because the judge (God help us if the document actually gets litigated!) who sees a provision that he's seen dozens of times before is likely to interpret it the same way it has generally been interpreted, by himself and other judges.

I had the experience of dealing with a long-term ground lease (written decades ago) that had a provision in it that was, so far as my research disclosed, unique. The plain meaning was, it seemed to me, plain, but unusual. However, the wise jurists who interpreted it could not bring themselves to give it that plain meaning, and interpreted it as though it said what similar clauses in other leases said about the subject.; 3/4/13, 5:38 PM
Publius said...: "The Ten Commandments are pretty clear."

If English was good enough for Jesus Christ, it ought to be good enough for the children of Texas. --- Miriam Amanda Wallace "Ma" Ferguson; 3/4/13, 5:40 PM
Rabel said...: "For those not golfers, this would mean that pretty poor golfers—those who habitually shoot in the mid-90s but benefit from the big handicap—somehow fool themselves into believing that they really are shooting in the mid-60s, and that they’re about as good as it gets."

He's talkin' bout Obama, ain't he.; 3/4/13, 5:49 PM
Richard Dolan said...: The complaint that legal documents are written in legal language is a a bit silly. Have you noticed that scientific documents are often written in scientific language, and are frequently made even more indecipherable by a tiresome habit of making much of the argument in the form of equations?

Legalese is a form of shorthand. Lawyers and judges use it because they know what it means, and what concepts it calls up. It's easy and (in context) clear and specific to the intended reader. Some prefer to write more simply, and often more expansively, to say the same thing but avoiding legalese. Given the usual audience for legal writing, that extra effort is rarely worth the time (or money) it would take to generate.; 3/4/13, 6:09 PM
Dante said...: In the late '70's as a partner I began to become aware that the very smart associates we were hiring out of the best law schools in the country couldn't write.

I love this sentence, particularly this: "I began to become aware."

First, one has to detect a problem. Things aren't quite right. Then, there is an ocean under which there is something wrong. It takes patience to understand the problem. And even when the problem is understood, to make it clear to everyone else takes more effort.

It takes time, dedication. How it happens, is beyond me. The constant pruning, re-evaluating the pruning, and the time involved coming to this kind of conclusion. And in this case, its digging back into something one ought to be able to stand on top of: the writing capabilities of the best; 3/4/13, 6:22 PM
Rabel said...: I count eight uses of dashes to set off parenthetical information in the article - I think I like this guy.; 3/4/13, 6:22 PM
Dante said...: The complaint that legal documents are written in legal language is a a bit silly. Have you noticed that scientific documents are often written in scientific language, and are frequently made even more indecipherable by a tiresome habit of making much of the argument in the form of equations?

I suppose the question is who has to obey the law? If you want to force a behavior, codify it in law, then it makes sense for the people that have to obey the law to be able to understand it.

Or what are you trying to say?

In general, Scientists aren't trying to tell people this is what you have to do. And insofar as equations, unlike English, it's a very precise way to describe things, such that others can validate what is claimed. If only the law were the same way.; 3/4/13, 6:30 PM
Bob Ellison said...: Good writing is hard.; 3/4/13, 6:31 PM
Anonymous said...: F. Scott Fitzgerald Lawyer Robot says:

"Sometimes a shadow of a doubt moved against a courtroom blind above, gave way to another shadow, an indefinite procession of shadows, that ruminated and pontificated in an invisible penumbra."; 3/4/13, 6:37 PM
Anonymous said...: F. Scott Fitzgerald Lawyer Robot says:

"When the objection rose, her voice broke up sweetly, following it, in a way defense attorneys have, and each change tipped out a little of her warm lawyer magic upon the air."; 3/4/13, 6:47 PM
Anonymous said...: F. Scott Fitzgerald Lawyer Robot says:

"They were both in black, and their judicial robes were rippling and fluttering as if they had just been blown back in after a short flight around the courtroom."; 3/4/13, 6:48 PM
somefeller said...: Another good rule for legal writing - never use Latin terms or phrases unless it is absolutely necessary. Which it rarely if ever is.; 3/4/13, 6:59 PM
Limited Blogger said...: When I was a baby in Big Law, a named and very senior partner said, "What's this 'comes now'? Don't ever be seen coming in court. It's most unbecoming."

So . . . anyone ever wonder where "horn book" originated? I spent my entire first year chasing that one down. Not even Westlaw knew. Hint: it goes back to the days of Little House on the Prairie and involved tortoise shell.

Still wondering about the derivative of "go hence without day." And to say its "on all fours" just sounds obscene or, at the very least, downward-doggy. http://www.volokh.com/posts/1166587868.shtml

But Bryan Garner talking about parodies -- of stiffness and hyper formality? Derp.; 3/4/13, 7:00 PM
Bruce Hayden said...: Legalese is a form of shorthand. Lawyers and judges use it because they know what it means, and what concepts it calls up. It's easy and (in context) clear and specific to the intended reader. Some prefer to write more simply, and often more expansively, to say the same thing but avoiding legalese. Given the usual audience for legal writing, that extra effort is rarely worth the time (or money) it would take to generate.

Some of it though isn't shorthand, but rather, longhand - there is still quite a bit of duplication in a lot of contracts, with both the Norman and the English terms being used for coverage. Never know when you might want to enforce the contract in a French speaking court. Ok, it has been maybe 800 years or so since John Lackland was the first English king to actually speak some English.

Still, at least in the transactional side, it is rare, in my experience to write a contract from scratch. As others have pointed out, you end up appropriating the framework from here, and clauses from there. But, because the lawyers on both sides usually recognize the same sorts of clauses and terminology, it works, until it doesn't - esp. when dealing with a lawyer from another area (my father represented an S&L, and non-RE attorneys used to drive him crazy, since they didn't understand the standard terminology, etc.); 3/4/13, 7:17 PM
traditionalguy said...: We sometimes revert to common language in a final conclusion after all of the opposition's issues raised have been briefed numerically and exposed that they are not in point.

In one case seeking to re-open a default, the opponent had included assertions that were untrue statements about the officer of the Defendant having no knowledge that the loan ever existed.

We were able to attach an affidavit with a copy of the Defendant's tax return from 1998 listing the never paid interest on our loan as a deduction on the the entity's Tax return signed by the same man. He was actually defrauding the IRS.

We ended the brief with a reminder that the Defendant was coming into court for equitable relief that required clean hands, but that he had come into court with "filthy hands."

That is about as creative as we dare to get when telling a judge what he must rule.; 3/4/13, 7:27 PM
paulmichiel said...: This country wastes billions of dollars on pointless litigation that results from the insistence of lawyers on using screwed up language in contracts and statutes.

The most common rationale for using legalese--that "we know what it means"--is bunk. Nobody knows what that crap really means. Oh, some people will tell you they know that it means, but then you'll meet some other pompous jerk who just as confidently tell you that he knows it means something completely different.

The question is, why are we writing in code? Say what you mean, and get over the idea that your firm's antiquated form was handed down from Lord Mansfield or Thomas Jefferson.; 3/4/13, 7:36 PM
Methadras said...: Plain english law should be the norm. Also, the removal of fine print in contracts should be the norm as well. If it isn't good enough to be read in the normal print, then it isn't good enough to be in the contract. Also, get rid of implied consent laws completely. They are an abomination.; 3/4/13, 7:43 PM
Wikitorix said...: The complaint that legal documents are written in legal language is a a bit silly. Have you noticed that scientific documents are often written in scientific language, and are frequently made even more indecipherable by a tiresome habit of making much of the argument in the form of equations?

On the contrary, the mathematics makes the argument very clear. Rigorous mathematical arguments are as strong a statement as it is possible to make. There are no grey areas, no room for feelings or different interpretations. Even a tiny flaw in a mathematical argument invalidates everything that comes after it. There is no possible method of thought that is more clear than mathematics.

The legal system would be much better off if legal arguments could be expressed in mathematical language. You would be far better served trying to learn a little bit more mathematics rather than sneering at it.; 3/4/13, 7:46 PM
traditionalguy said...: This comment has been removed by the author.; 3/4/13, 7:55 PM
traditionalguy said...: For the record, "legalese" is quite clear to lawyers and especially Judges. Call it a horrible code if you want to. but it speeds up legal decisions and makes them tend towards equal protection of the law.

And it can be learned by intelligent communicators.

The gripe seems to be a re-run of the ancient rabble rouser chorus that it's not fair to have to pay a lawyer.; 3/4/13, 7:55 PM
Dante said...: While we are on the topic of Language, here is a statement that prima facia seem quite contradictory:

Almost three in four reported moderate to complete relief and a third reported it worsening.

Of course, that's a journalist.; 3/4/13, 7:57 PM
Lawyer Mom said...: Want to talk about legalese? Let's, starting with docs and hospitals. Have any of you gone through those "privacy" policies, line by line, a/k/a agreements for non-disclosure (which are essentially agreements FOR disclosure)?

I spent 30 minutes revising a two-page single-spaced "disclosure policy" using my super-powered reading glasses and was promptly told to sign a new blank form or be shown the door. No revisions allowed. I chose the door and an all-cash practice.; 3/4/13, 8:02 PM
Joe Schmoe said...: Regardless of discipline, I've found that good writing involves lots and lots of rewriting. Not just rewriting for grammar, but developing and clarifying the ideas behind it.

I suspect that most documents in existence are closer to first drafts than third or fourth. There needs to be time between drafts to allow for reviews with fresh eyes, but we rarely make such allowances.; 3/4/13, 8:02 PM
Dante said...: The gripe seems to be a re-run of the ancient rabble rouser chorus that it's not fair to have to pay a lawyer.

My beef is that if you want someone to obey your rules, they ought to be understandable. And simple. No floor to ceiling OSHA rules, for starters.

Do you deny that there is a huge crowd of lawyers who are intent on manipulating the system to obtain advantage for themselves? Cutouts here, exclusions there, etc.

John Edwards made millions on bullshit. Or Bill Clinton, who managed to have the definition of "sex" exclude oral sex? I'd like to try that on a cop some day. "Dude, I didn't want to have sex, I just wanted to pay her for a blowjob. The president said that isn't sex."; 3/4/13, 8:04 PM
Joe Schmoe said...: I don't read much in the way of legal documents, but have you folks ever considered more illustrations?; 3/4/13, 8:09 PM
Dante said...: The US has the highest per capita # of lawyers in the world. Hire a lawyer! Wish they were cheaper, but instead they muck up the system.

More lawyers than doctors. More lawyers than soldiers. And they are expensive.

One might think the laws, particularly coming out of government, would be understandable. Nope, no incentive for that.; 3/4/13, 8:18 PM
paulmichiel said...: "For the record, 'legalese is quite clear to lawyers and especially Judges."
I'm a lawyer and I disagree. For my sins, I have spent many hours--years--trying to make sense of what the other guys insist is "standard language". Legalese is a smoke screen for sloppy, lazy thinking. If you care about doing it right, you will try to think through what the deal really is and write that down as simply and clearly and simply as possible.; 3/4/13, 8:29 PM
Bob Ellison said...: traditionalguy, you're not winning any fans with that song. Try going back to basics. What are you really good at? Your screen name suggests maybe wood-carving or something similar. Maybe tanning or coopery (sp?).

Telling people they just don't understand the jargon is a fancy way of saying "I'm protecting my turf".; 3/4/13, 8:37 PM
Mark O said...: Susan, there could be bad writing at one of those firms, but it would be outside the norm. Certainly, it would not begin "Comes now the Plaintiff."

But, we might just disagree about what is good.; 3/4/13, 8:37 PM
George M. Spencer said...: Groucho explains the sanity clause.; 3/4/13, 8:41 PM
David said...: The transactional lawyers do get graded sometimes. It generally happens when one of their contracts becomes an element of a dispute between the parties to the agreement. Quite often either the dispute is the product of careless language, or of omission of provisions that could have protected the client. However lawyers rarely suffer the direct consequence of financial liability from the error. They may lose a client or lose reputation but that doesn't help the client who now is in a dispute over the contract.; 3/4/13, 9:02 PM
Methadras said...: traditionalguy said...

For the record, "legalese" is quite clear to lawyers and especially Judges. Call it a horrible code if you want to. but it speeds up legal decisions and makes them tend towards equal protection of the law.

And it can be learned by intelligent communicators.

The gripe seems to be a re-run of the ancient rabble rouser chorus that it's not fair to have to pay a lawyer.

What's the point of expediting the communication barrier for lawyers and judges if the common denominator is for plaintiff or the defendant? They are the ones in peril, so why not make the language suit their needs instead of placating those that hold sway over you?; 3/4/13, 9:04 PM
Dante said...: http://www.examiner.com/article/more-lawyers-than-doctors-more-lawyers-than-soldiers; 3/4/13, 9:12 PM
Dante said...: And note, I have the same issue in what I do. So many people willing to "game" the system by writing more code, that doesn't make much sense.

I really appreciate the lawyers who have posted stating they are trying to make what they are writing the essence of the deal.

In my experience, primarily the essence of the patent.; 3/4/13, 9:13 PM
chickelit said...: Traditional Guy: 1
The Rabble: 0; 3/4/13, 9:31 PM
The Godfather said...: "In consideration of the premises, and other good and valuable consideration, in hand paid, the receipt and sufficiency whereof is hereby acknowledged, . . . " Legalistic jargon, horse twaddle, etc., right? Of course. So, rewrite it in plain English (and if it takes you no more than 15 minutes to do it, it will cost your client $150 -- and if you don't do it right, it could cost your client a lot more).; 3/4/13, 9:31 PM
chickelit said...: Dante notes: In my experience, primarily the essence of the patent.

The claim (or claims) is the essence of a patent--is that your claim?

And I'm not sure if you're following the trajectory of legal service pricing and availability. You sound like someone complaining about the high cost of houses--in 2005.; 3/4/13, 9:35 PM
chickelit said...: And if you guys are unhappy about legal services...wait until changes in healthcare delivery come through. It's getting to be too late to reverse some effects. Things like students deciding not to become doctors or lawyers will eventually affect the professions.; 3/4/13, 9:39 PM
chickelit said...: What's the point of expediting the communication barrier for lawyers and judges if the common denominator is for plaintiff or the defendant? They are the ones in peril, so why not make the language suit their needs instead of placating those that hold sway over you?

I would answer that by pointing out that Judges and litigators work under strict procedural codes and also rely on lots of case law. Is it really necessary to explain that which is taken for granted in the professions and explain it down?; 3/4/13, 9:42 PM
DADvocate said...: A lot of people have trouble writing clearly and concisely. A professor at UT was famous for telling students to write "concisely and precisely." Great advice.

What I mostly see where I work is people adding verbiage on top of verbiage to try and explain something when restarting and taking a more concise, well thought out approach would be infinitely better.; 3/4/13, 9:44 PM
Dante said...: The claim (or claims) is the essence of a patent--is that your claim?

And I'm not sure if you're following the trajectory of legal service pricing and availability. You sound like someone complaining about the high cost of houses--in 2005.

You sound like "Claims" are some profound clear indication of the value of a patent. No, they are merely what the post office let through.

I've read claims that were based on methods that have never been proven to work, and then the claims on top are broad on a broken foundation.

One patent "infringement" I worked on cost $1,000,000 to the company I worked for. The essence of the problem is the patent troll used this patent to attack a bunch of competitors. Never mind the patent was meaningless. What's the value to an incumbent to fight it and win, provided they feel they can squeeze the lessers out of $.

Meanwhile, it kept a lot of lawyers in money. I walked into a room full of 15 lawyers trying to battle this patent, and they told me not to be nervous, as if I were. And there were another five on the phone. It was a mental masturbation fuckoff, completely disconnected from the actual technology. We weren't infringing on the idea of the patent, and the patent itself was worthless because you couldn't build a functional system on it.

Now, my dad works in the pharmaceutical industry and has defended real patents. Patents that cost millions to put together, and yielded real value. Totally different thing. He thinks you ought to be able to patent portions of DNA. I think that's a discovery, not an invention, but he thinks its the investment.

These patents I have dealt with never yielded a product, nor revenue, nor anything, and cost little if anything to put together. And, by and large, they are worthless in terms of actual product.; 3/4/13, 9:52 PM
paulmichiel said...: This comment has been removed by the author.; 3/4/13, 9:54 PM
paulmichiel said...: "In consideration of the premises, and other good and valuable consideration, in hand paid, the receipt and sufficiency whereof is hereby acknowledged, . . . "

The plain English answer is to delete that entire phrase as gibberish that adds nothing of substance to the contract.

It takes less time to cross it out than to type it and proof read it.; 3/4/13, 9:56 PM
Balfegor said...: Re: Richard Dolan:

The complaint that legal documents are written in legal language is a a bit silly. Have you noticed that scientific documents are often written in scientific language, and are frequently made even more indecipherable by a tiresome habit of making much of the argument in the form of equations?

I must say, I've seen a lot of contracts that would have been a lot clearer if instead of trying to render their equation calculating out this or that cashflow in prose, they'd just used the equations editor in Word and substituted the equation itself. A lot quicker to read too.

But I suppose I would say that. I may have turned to the Dark Side and gone to law school, as the soothsayer foretold, but I studied math in college.; 3/4/13, 9:56 PM
traditionalguy said...: @ Bob Ellison... I have to trust my cardiologist when he tells me the best advice he can for my life whether I understand him or not.

It is his reputation for winning that impresses me rather than his giving me a course in Med School level cardiac sciences, Hospital internship, Specialty training and 20 years in practicing in the field so that I can judge him.

Whether you get a good lawyer or a bad lawyer you will be at his mercy for the same reasons. Try to get referrals from trusted people.

But in neither case is treating yourself medically nor representing yourself legally is ever going to work no matter how plain the instructions are written out.

And that's the truth. I have no financial need to protect myself. As Doctor Zhivago told the envious commissars and rabble, "I have always worked."; 3/4/13, 9:56 PM
CWJ said...: So many exelent comments. bpm4532, Dante, and wyosis et all so far. I'm sure there will be many others when I go back to read more.

In the meantime, all professions are conspiracies against the laity. I'll repeat that. All professions are conspiraciies against the laity. Is there really any further reason to explain obscure legalese? Clarity is a professional threat.; 3/4/13, 10:01 PM
Balfegor said...: RE: paulmichel:

The plain English answer is to delete that entire phrase as gibberish that adds nothing of substance to the contract.

I . . . you might want to read that phrase again.

It specifies that there has been "consideration" (=> valid contract) in various forms, that consideration has been paid and that the parties acknowledge both that it's been paid and that it is sufficient consideration for whatever the transaction is. Other than "premises" there's nothing to say what's actually going on in the agreement, but the string of phrases does tell us some important information that one could imagine otherwise being the subject of legal action sometime in the future.; 3/4/13, 10:02 PM
The Godfather said...: Paul Michiel says (of the contract provision I quoted): The plain English answer is to delete that entire phrase as gibberish that adds nothing of substance to the contract.

Wrong, Mr. Michiel. Consideration is essential to almost every contract. Please sit in the back of the class.; 3/4/13, 10:03 PM
Balfegor said...: RE: CWJ:

Is there really any further reason to explain obscure legalese? Clarity is a professional threat.

People aren't willing to pay for clarity drafted from scratch and exhaustively checked and rechecked. They're willing to pay for copy pasted boilerplate re-arranged into the form of the agreement they want, though, so that's what they get.; 3/4/13, 10:05 PM
CWJ said...: Excellent not exelent. My fault. Et al not et all blame autocorrect.; 3/4/13, 10:06 PM
chickelit said...: These patents I have dealt with never yielded a product, nor revenue, nor anything, and cost little if anything to put together. And, by and large, they are worthless in terms of actual product.

This sounds like some of the abuse that Bilski was trying to remedy. BTW, there is supposed to be a new thing in town called inter partes review (IPR) [not to be confused with inter partes reexam]. There's also Post Grant Review (PGR) coming on board. The PTO is running these things--the public policy behind these things is to offer alternatives to civil litigation. I think--if successful--they will centralize things even more in DC.; 3/4/13, 10:09 PM
CWJ said...: Balfegor, I acknowledge your comment. But! I spent much of my career writing reinsurance treaties from scratch. The clarity of my crafting was greatly appreciated by both my clients and employer. And indeed, BOTH ere willing to pay me handsomely for my talents.; 3/4/13, 10:27 PM
Balfegor said...: Re: CWJ:

Balfegor, I acknowledge your comment. But! I spent much of my career writing reinsurance treaties from scratch. The clarity of my crafting was greatly appreciated by both my clients and employer. And indeed, BOTH ere willing to pay me handsomely for my talents.

Fair enough. Then you are both skilled and fortunate to have clients who appreciate the value of your skills.; 3/4/13, 10:32 PM
lowercase said...: This comment has been removed by the author.; 3/4/13, 10:32 PM
Michelle Dulak Thomson said...: Balfegor 10:02, yes. There really ought to be a shorter way of saying that but it is not gibberish and it does convey important information.; 3/4/13, 10:33 PM
paulmichiel said...: Of course consideration is essential. That was the first week of contracts. But a formulaic recitation of consideration like that proves nothing. I think that was the second week.
Our courts do a lot of stupid things, but I don't believe that any court is stupid enough to make enforcement of a contract turn on whether or not it includes that sort of nonsense.; 3/4/13, 10:33 PM
chickelit said...: You sound like "Claims" are some profound clear indication of the value of a patent. No, they are merely what the post office let through.

Claims are analogous to deeds which describe metes and bounds. Sure, your property is surrounded by your neighbors but legally it's defined in writing--in a deed somewhere.

The claims define the property rights provided by a patent, and thus require careful scrutiny. The goal of claim analysis is to identify the boundaries of the protection sought by the applicant and to understand how the claims relate to and define what the applicant has indicated is the invention. ~Manual Patent Examining Procedure, § 2103; 3/4/13, 10:34 PM
Alex said...: The entire profession is built upon stilted ultra-legalese language to the nth degree. Anything less will drum you out of it.; 3/4/13, 10:43 PM
CWJ said...: Thank you, Balfegor. But to be fair reinsurance treaties are a very special subset of contracts. In most other contexts, I expect your original comment is perfectly valid.; 3/4/13, 10:46 PM
Bruce Hayden said...: The claim (or claims) is the essence of a patent--is that your claim?
-in 2005.

You sound like "Claims" are some profound clear indication of the value of a patent. No, they are merely what the post office let through.

Not quite sure what the post office has to do with it, except that I have worked on a lot of post office patent applications. It is the Patent Office, which is part of the Patent and Trademark Office, which is a part of the Department of Commerce. The USPS (Post Office) has been an independent federal company for a number of years now (if you want fun - try explaining to the USPTO why the USPS does not have a state of incorporation - true story).

So, that is what I have done for better than 20 years now, with a little transaction work and a little bit of litigation (including my very own week long jury trial - that I essentially won). But, mostly patent work, where the language is probably even worse than in many contracts and other transactional work.

And, there is little to compare with patent claims, when you are talking about dense verbage. We are still fighting using "the" instead of "said", but you had better never mistake "a" or "an" for either of them. Over the decades, I have heard any number of theories of when you should use "said" instead of "the". All ridiculous, and all based on fifth hand training. Patent attorneys (and agents) have been doing it that way for many decades so it must be right. Well, no.

ChickenLittle is right. Claims are all that really matter in an issued patent. The specification just supports the claims, and the abstract was often written long before the applicant and the examiner ever came to an agreement on what were allowable claims, and is hopefully written to not lock in the claims into obsolete embodiments. The examiner is supposed to force you to rewrite the abstract if it varies too greatly from what was allowed, but they are civil servants, which means that this sort of nit picking detail, right before they are going to get credit for their work on the application, often is skipped over in the mutual enthusiasm of getting the job completed. (-;; 3/4/13, 10:49 PM
Bruce Hayden said...: This sounds like some of the abuse that Bilski was trying to remedy. BTW, there is supposed to be a new thing in town called inter partes review (IPR) [not to be confused with inter partes reexam]. There's also Post Grant Review (PGR) coming on board. The PTO is running these things--the public policy behind these things is to offer alternatives to civil litigation. I think--if successful--they will centralize things even more in DC.

Yeh, well, that is what north of $100 million in lobbying money will buy you thrown in by the high tech companies trying to minimize their exposure to those patent trolls. That is also part of the reason for the change from first-to-invent to first-to-file in less than two weeks. (For the rest of you, we are talking about the America (Dis)Invents Act, enacted almost a year and a half ago). The companies pushing the legislationrely on large patent portfolios with often thousands of patents in them (led by IBM, with by far the largest portfolio), when dealing with each other. For anyone else, trying to sue them for infringement, there are now even more ways to invalidate the patents being asserted against them. Doesn't hurt them, just everyone suing them.

And, yes, I am a bit cynical, having lobbied against the legislation, and then discovering that for ever volunteer lobbyist we had on the Hill, there were hundreds of paid ones on the other side.; 3/4/13, 10:58 PM
Bruce Hayden said...: Our courts do a lot of stupid things, but I don't believe that any court is stupid enough to make enforcement of a contract turn on whether or not it includes that sort of nonsense.

Usually not, but without mutual consideration, you don't have a bilateral contract. So, some recitation of mutual consideration can make the proof that consideration was present easier. But, I will also admit that the language that you cited was extreme, and likely not all that helpful.; 3/4/13, 11:12 PM
Michael McNeil said...: Latin terms and phrases like subpoena?; 3/4/13, 11:14 PM
30yearProf said...: The way the legal process acutally works guarantees this result.
1. Decide who wins.
2. Read the briefs and learn the law.
3. Somehow fit the decision into the law. Cut to length, pound to fit, paint to match.
After all, with luck no one will read it beyond the first paragraph.; 3/4/13, 11:16 PM
Dante said...: Claims are analogous to deeds which describe metes and bounds. Sure, your property is surrounded by your neighbors but legally it's defined in writing--in a deed somewhere.

Nice definition. I claim the rights to all minerals in your property. The post office said it is OK. Hope you don't mind.; 3/4/13, 11:17 PM
Dante said...: Oh, the US Patent office. Sorry about that. I'm not a lawyer, and would never want to be one.

Claims are what get through. As I mentioned, I'm not opposed to all patents, only I think they are abused in my field. Pharmaceuticals, in which millions may be spent, is a different story.; 3/4/13, 11:20 PM
Rabel said...: Several lawyers have self-identified on this thread.

It reminds me of that scene in "Invasion of the Body Snatchers" where the pods started opening up.; 3/4/13, 11:27 PM
Michael McNeil said...: “The Ten Commandments are pretty clear.”

Ah! But does it mean thou shalt not kill — or thou shalt not murder? And kill what?

And what about the fact that Christians are doctrinally exempt from the Ten Commandments, along with all the other strictures of the Old Testament, due to the New Covenant with God (i.e., the New Testament) having superseded the Old Covenant (Old Testament).

Think that's unimportant? That's why the Ten Commandments' prohibition on “images” isn't binding on Christians — and why as a result Christian culture has provided us with two millennia worth of profoundly moving religious artistic expression. Think of Michelangelo's Pieta, for instance.

The (Christian) Roman Empire during the Middle Ages, indeed, made it a part of state policy to produce wonderful, awe inspiring pieces of religious art, and then spread them not only at home but also amongst its dangerous barbarian neighbors, to induce them toward favoring the Empire (with some considerable success, most notably among the Slavs: Bulgarians, Serbs, and Russians).

The Muslims, meanwhile, in their centuries long competition with the Christian world for converts, for the most part doctrinally allowed themselves only intricate geometric patterns for architectural and artistic decoration. While some of that is exquisite, it is my personal opinion that Muslim art in general suffered due to their prohibition on the depiction of living forms — but beyond that, it certainly massively affected all history since.; 3/5/13, 12:08 AM
Unknown said...: The commandment says " graven image" which translates in Hebrew to idol.
See, We have ways to know what the words mean at the time of their writing. All we have to do is do a little searching and we can read it clearly.; 3/5/13, 1:26 AM
Michael McNeil said...: The commandment says “graven image” which translates in Hebrew to idol.
See, We have ways to know what the words mean at the time of their writing. All we have to do is do a little searching and we can read it clearly.

That supposedly oh-so-clear reading of the Commandment in question caused more than a century of chaos, death, and wholesale destruction of wonderful religious art in the medieval Roman Empire — in the so-called “iconoclast” controversy. Thus, historically this issue has hardly been as self-apparent as you make out.; 3/5/13, 2:07 AM
Foobarista said...: Egad. You make it sound as if it's lawyers all the way down!; 3/5/13, 2:24 AM
KCFleming said...: "Judicial opinions ...read like over-the-top Marx Brothers parodies..."

Of course.

How else are you going to transform penalties into taxes?; 3/5/13, 7:40 AM
Unknown said...: There is little we can do about people who, for their own purposes, willfully misread what is very clearly written. The Constitution can, and certainly has been willfully misread, as well as the Ten Commandments.
Apply Occam's razor.; 3/5/13, 7:44 AM
Unknown said...: Would the application of legalese make it more clear?; 3/5/13, 7:55 AM
Bob Ellison said...: traditionalguy, you argue well, and I subscribe to your philosophy on training and capability in complex subjects.

But...and this is a big but...people should be able to describe what they do. Some savants are unable to do so but still do fine work. Mathematicians, painters, etc.

But lawyers work mostly with words. They tend to consider themselves particularly good at word-work. If they can't make their points clear, they fail.

You're right that a cardiologist should not be expected to teach his patient all medical knowledge about the heart. But judges and lawyers are in a different realm. They should be expected to explain laws and transgressions in ways that normal people can understand. Are our laws beyond normal understanding? Too many of them are.; 3/5/13, 8:04 AM
Anonymous said...: It is trying enough to hear The Lawyers Who Whisper in the Walls, but to actually understand them?; 3/5/13, 8:24 AM
Unknown said...: I litigate many cases.

I read many lousy pleadings filled with legalese.

I try to write plain English sentences, on the theory that if my clients can't understand me, the judges can't understand me.

My clients are always impressed that they can understand my filings.; 3/5/13, 8:25 AM
Lem Vibe Bandit said...: This comment has been removed by the author.; 3/5/13, 8:25 AM
Anonymous said...: Sometimes The Lawyers in the Walls purposely give you Bad Advice: "It is OK to give strangers your underwear. I will legally protect you."; 3/5/13, 8:26 AM
Anonymous said...: It is not Assault to force the Underwear on them: the Law recognizes when you are serving a Greater Purpose.; 3/5/13, 8:28 AM
Anonymous said...: Tell the Policeman that you are Immune.

He will Understand.; 3/5/13, 8:30 AM
traditionalguy said...: Bob, if the law is slippery in spots that allow a judge to go either way that is an historically evolved reaction to the facts of complex persons with which Judges deal.

Rational philosophy is a mind game that can be played, But Philosophy runs aground when it meets a case like none other that exposes real humans at work. Then a new slippery out is designed for them if the Judge and the Lawyers are creative.

For example, the law as applied by Muslims is the same law given through Moses plua a warrior overlay with NO mercy allowed, only revenge.

But as Christian culture we value mercy and forgiveness and that has pushed our application of laws into the slippery state they are in. Blame the carpenter from Nazareth and Paul, it's their fault.

So the lawyer is in the middle of a tug of war to get his case recognized as special and worthy of the law's favor. The Chancery in England started administering the King's acts of special mercy in hard cases and today we have Equitable powers vested in our judiciary.

In certain cases they say breaking the law is OK and move on. That becomes part of the tradition. Against the LAW, a Juvenile Court lets criminals go free and a Bankruptcy court lets debtors go free.

The way that rubiks cube of possibilities gets resolved at court relies on a measure of double talk allowing both harsh law and exceptions for certain cases that call out for another outcome.

It boils down to winning the facts determination from a Jury and defending that from the rogue judge. We earn our pay.; 3/5/13, 8:31 AM
Anonymous said...: The Lawyers in the Walls will tell you that they Know people in the Jury: they will straighten it out.

It is Our Secret.; 3/5/13, 8:34 AM
Bob Ellison said...: traditionalguy, your latest post is a masterpiece of the genre we've been discussing. I still don't know what it means, and I've read it twice.

"We earn our pay."

No. You take your piece of flesh.; 3/5/13, 8:40 AM
Anonymous said...: Those who listen in the walls have Lawyers? Maybe those who whisper under the floor are plotting.; 3/5/13, 8:41 AM
Anonymous said...: Bob Ellison, Trad Guy is a good guy. You'd want him as your lawyer I bet.; 3/5/13, 8:43 AM
Anonymous said...: The Lawyers Who Whisper in the Walls say: "Do not worry. We will write a Law specifically for you. You will be Exempt."; 3/5/13, 8:44 AM
Bob Ellison said...: Upon reading a third time, I'm guessing tradionalguy is attempting irony. It's probably beyond me.; 3/5/13, 8:44 AM
Anonymous said...: "The prisons are full of people who did no Listen To Us."; 3/5/13, 8:45 AM
Anonymous said...: The lawyers Who Listen in the Walls put Secret Messages in their contracts. The Judge will Know.; 3/5/13, 8:46 AM
Bob Ellison said...: I think he might be a close friend of mine.; 3/5/13, 8:46 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: Do Not Attempt to understand Us. We know what We Are Doing.; 3/5/13, 8:51 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: We Write This Way on Purpose. It prevents The Spirit of The Law from interfering with The Body of the Law.; 3/5/13, 8:56 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: Clarity is the Hat we put on Confusion.

We do not need a Hat.; 3/5/13, 8:57 AM
Dear corrupt left, go F yourselves said...: Except Sostomayer. She's all. "Yeah, I agree with Obama"; 3/5/13, 9:01 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: Do you know what a thousand lawyers at the bottom of the ocean are?

Scuba Lawyers.

The Lawyers Who Listen in the Walls do not like Lawyer Jokes.; 3/5/13, 9:02 AM
grackle said...: Part of the problem is that legal writings must be as precise and as unambiguous as possible. That means that much of this type of written matter must necessarily be complex. Some folks try to do complex but end up just writing complicated.; 3/5/13, 9:02 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: The Difference between a Good Law and a Bad Law is a Good Lawyer willing to be Bad.

We will be Bad for you.

Oh so Bad.; 3/5/13, 9:09 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: The Law does Not prevent you from Spanking a Stranger when you are Free of Ill Intent.; 3/5/13, 9:15 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: you are Free to Spank Away the Demons.; 3/5/13, 9:17 AM
Anonymous said...: The Lawyers Who Listen in the Walls say: There is the law that is Written and the Law that is Enforced.

The Lawyers Who Listen in the Walls are Comfortable between those two poles.; 3/5/13, 9:19 AM
Michael McNeil said...: For example, the law as applied by Muslims is the same law given through Moses plua a warrior overlay with NO mercy allowed, only revenge.

But as Christian culture we value mercy and forgiveness and that has pushed our application of laws into the slippery state they are in. Blame the carpenter from Nazareth and Paul, it's their fault.

Well yes, but there's also the principle, which Christians understand, of a body of law having been repealed and superseded by a later one. As noted before, the New Testament (New Covenant) for Christians has replaced the Old Testament as the binding contract between Man and God — leaving the Old Testament in much the same position vis-a-vis Christianity as the Declaration of Independence holds Constitutionally in the U.S. today: revered and a source of inspiration and vague “guidelines,” but not binding law.; 3/5/13, 9:27 AM
suestew said...: "Since, in telling one's story to others, one wants to be coherent, one has to structure one's story according to [certain] norms. This means, in effect, that one has to lie. Nothing in life naturally occurs as a culturally coherent story. In order to construct such a story we must leave out the details that don't fit, and invent some that make things work better.... The danger here is that we may come to believe our own stories."

Michael Austin, Useful Fictions, 36.; 3/5/13, 10:22 AM
traditionalguy said...: Betamax3000 gets it. He is amazing.

Bob is my friend, but he thinks more like a Georgia Tech engineer than an Emory lawyer.

God forbid Bob ever gets on my jury and wants exact proof of everything.; 3/5/13, 1:45 PM
Bob Ellison said...: traditionalguy, you never need nobody.; 3/5/13, 2:12 PM