Martin Schwartz’s article (“Do You Speak Legalese?”) (April) was spot on in advocating use of plain English. I suggest the effort will be difficult, however, particularly for real property lawyers, the law of which probably will always retain its medieval heritage of estates in land entailing feudal services.
One reason is inertia. The duplication of written and Arabic numbers was instituted (and is still retained in writing checks today) to ensure clarity when all documents were written by hand. It was made obsolete by the typewriter in the 19th century, but here in the 21st, we still have it.
Another is certainty. It is safe to use the exact language approved by a judicial decision. Unfortunately, the reason the judicial decision was necessary was because the language was unclear. Stare decisis, thus, ensures the perpetuation of bad grammar.
Although intricacy does not guarantee clarity, seeking the latter often results in the sentence that runs on for a full page, usually in outline form. Likewise, inclusion of every conceivable specific term with more general terms does not guarantee clarity, although it does help allay the drafter’s fear that every word someday may be parsed by another lawyer to find a loophole.
Fortunately, lawyers as scriveners are no longer paid by the number of words used, although the billable hour seems to counter any tendency to terseness. Unfortunately, zealousness to avoid ambiguity means legalese promises always to be with us.
R. Thomas Farrar, Coconut Grove
Lawyers Advising Lawyers
As a volunteer adviser, I could not have agreed more with our president in the May issue. Young attorneys who were seven years old when the Towers came down have joined our band of brothers and sisters replete with crippling debt and unrealistic expectations.
Most learn the trade while swimming with morays and great whites. These folks need to understand that before they can help clients they have to protect themselves from being ruined by these same clients.
I advise all my needful young folk that the Klingons had it right. “Only a fool fights a battle in a burning house.”
It is easy to lecture about money and time management when you are retired and have cash in the bank; but our young lawyers are up against walls we never had to scale and demons we never had to confront.
Join the LAL (Lawyers Advising Lawyers). You will learn more from them than they will ever learn from you.
Charles B. Tiffany, Kissimmee
In Praise of the Oxford Comma
Joshua Byrne Spector’s “A Walk Through the Strike Zone” (May) is a very helpful manual for litigators. Thank you for publishing it. In my view, the most important way the manual can be used, by way of Fla. R. Civ. P. 1.140(f), is striking “scandalous matter from any pleading at any time.” And nothing could be more scandalous than the failure to use the Oxford comma.
Yes, the failure to use one can create millions of dollars’ worth of ambiguity, and courts are beginning to take notice. O’Connor v. Oakhurst Dairy, 851 F.3d 69 (1st Cir. 2017). So, too, have the varied members from bars and the judiciary all across this country as shown on #appellatetwitter. (You won’t have to go too far on the Twitter record of Judge Dillard at @judgedillard, incoming chief judge at Georgia’s court of appeals, to see the reasons.)
Ultimately, the challenge before us as law-abiding members of The Florida Bar is essentially civilizational, and, therefore, a matter of public policy. Valley Forge Life Ins. Co. v. Lawrence, 196 So. 2d 759, 760 (Fla. 3d DCA 1967) (“There is no doubt that the public policy of any civilized state is against the commission of crimes….”).
Thus, when an opposing pleading fails to use the Oxford comma, I encourage litigators everywhere to rise up and strike back, using Rule 1.140(f) to preserve clarity, peace, and justice in our time.
Christian W. Waugh, The Villages