Saturday, December 13, 2014

Lawyers, literacy and legalese...

In recent times, the term 'Legalese' itself has become a derogatory word, often used with sarcasm and spite.  Some law firms proudly state that they use plain language with their clients and will not use legalese.  Globally, there has been a shift both in advocacy for its reduction as well as actual use by lawyers in practice.  But what are we reducing?  What is legalese?

Legalese refers to words and phrases that are used by lawyers to communicate terms of both dispute and agreement.  According to the Oxford Dictionary, the definition of Legalese is the formal and technical language of legal documents that is often hard to understand.

It is rare to hear lawyers say the old 'theretofore' and the 'Notwithstanding' language.   This is what lawyers think is legalese.  When non-lawyers are talking about legalese, they may actually be talking about what lawyers call plain English.

The problem is that some of the words used by lawyers and courts are so rich in meaning that they will, of course, be understood very differently from person to person.  Sure enough, there are some terms that could be replaced with terms that are easier to communicate with someone without the familiarity, but for most words and phrases, the 'legalese' words are exactly the correct words.

Take for example this excerpt from a Supreme Court Opinion: 

¶2 We conclude that, given the legislature's enactment of
Wis. Stat. § 180.1704 (1999-2000)2 and the prevailing Wisconsin
case law regarding choice of law, Wisconsin law applies in this
case. Primarily relying on the decisions of Boyd v. Mutual Fire
Ass'n, 116 Wis. 155, 90 N.W. 1086 (1902), and McGivern v. Amasa
Lumber Co., 77 Wis. 2d 241, 252 N.W.2d 371 (1977), we further
conclude that, in order for officers and directors to have a
fiduciary duty to creditors, a corporation must be both
insolvent and no longer a going concern. Because Beloit
Corporation was a going concern during the applicable two-year
period in which a claim could have been brought, we conclude
that its officers and directors owed no duty to its creditors
during that time. Given these conclusions, we do not need to
address the court of appeals' holding regarding issue preclusion
in this case.

Most lawyers would respond with, "sounds like a close case.  The officers and directors dodged some serious problem here.  I'd have to see the complaint and then check the cases and statute to see exactly what happened here."  Most non-lawyers would not know what this is about at all.  This however, IS plain English.

The words and the language lawyers use are so rich in meaning that this is the type of language that seems to be accused of presenting confusing language for only lawyers to interpret.  It is not only the words but the context of the words that create the unique language for lawyers.

In law school, students read thousands of cases.  In reading, they acquire this literacy for lawyers.  It may be the most important skill they acquire in their studies.  Having a lawyer skilled in literacy for lawyers can provide an advocate, a strategist, but possibly a translator of plain English.

Monday, September 15, 2014

The Allegory of the Cave...and lawyers.

In Plato's famous Allegory of the Cave, he explains why the people with lack of knowledge (cave knowledge) do not have true knowledge. Is the court system a modern-day, human-constructed cave?  

For an abbreviated explanation of the allegory of the cave, see:  

The people in the cave were essentially shown a false world and constructed their belief system on it.  This comes as no surprise because we believe what we see with our own eyes.   In the case of the cave, the cave captives who remained in the cave could not trust their eyes because their eyes deceived them.

The courts may seem like Plato's cave because, for some, courts are misunderstood.  Barring the issue of access to courts, and generally speaking, the courts are not like the cave.  The cave represents what people can't know. The nature of courts, unlike the cave, is designed to be usable, knowable, and observable.  And, for the most part, the entire process is open to all eyes for public review. Further, every bit of evidence is scrutinized by the court and the trier of fact.  Again, this is done in an open forum for controversy resolution; one that is open to the public for review.  Yet, court reps are often scrutinized for being part of a big mystery instead of respected for being a place to resolve disputed matters. So, how are the courts like Plato's cave?

There will always be uncertainty and mystery for people involved in the court process.  After all, there is an ever-changing and complex nature of how the legal process works within courts.  The process by itself can be a mystery and put someone, including lawyers, in the unknown. To successfully navigate through a case, you have to have content knowledge, top-notch legal research skills, and a thorough understanding of complex legal procedures.  (E.g. It would be highly unusual for a non-lawyer to successfully fumble his/her way through a complex multi-tort, class action, jury trial on the national stage.)

While it is true that lawyers tend to know more about how to navigate through the legal process, the information is not designed to be hidden from clients as it is in the Allegory of the Cave.  Everyone is presumed to know the laws, statutes, administrative codes, and procedure, which are all publicly created, public documents

So, is the 'process' itself a cave for the clients to exist in?  Some seem to believe that only lawyers and judges get to 'know the law,' and the way things work in court are 'hidden' from them.  Is this another way of accusing lawyers of being cave guards charging a fee?   They might have this belief, but they would be unduly harsh to those who makes a profession of helping others get through these controversies, especially lawyers who have entered the field motivated by social justice.

Plato was a philosopher. As such, he wanted to unearth truths.  The message in the allegory hinged on the notion that in order to find truth, we need to get out of our caves to find truth.  When it comes to going to court, a skilled attorney can be an invaluable guide. I suspect that Plato and his students would unanimously agree. 

Friday, August 22, 2014

Lawyers, the original MMA fighters.

Lawyers...are they the original MMA fighters? When I think of the lawyers that I know, I see smart and passionate defenders...fighters who defend/protect others and the law with veracity and courage.  But what would they look like if you took away the suits, the cordial demeanor, the diplomatic decisions and completely removed the respectful professionalism?

Standing up in real controversy, whether it is psychological, social, or political takes real moxie. Are lawyers the original MMA (Mixed Mental Arts) fighters?

We represent clients with a variety of interests. Their interests pose another layer to the controversy. Is it greedy to demand your inheritance?  Is it arrogance to fight a clause of a contract no one deliberated at signing? Is it appropriate to have a jury decide your fate if you know you are guilty? 

Like it or not, these things need to be resolved in a complex society.  Each person who has a case or controversy needs to be able to get to resolve the matter.  Everyone instinctively needs to figure out what is theirs and protect it. To do otherwise would create a conflict in our minds. Who wants to be at war with their minds? And who better to protect what is yours than an original MMA fighter?

Thursday, August 7, 2014

Plato and the Practice of Law

Lawyer appreciation post:

One of Plato contributions to philosophy was about models. He theorized that the human mind was drawn to models. Essentially, we create initial models of ideas when we first learn of an idea. Later, when we learn more about the idea, our models change, but we are still drawn to reconcile the original model and the new model. Attempts to reconcile the models creates cognitive dissonance (the confusion that happens when we try to connect our initial beliefs with our current situation/reality).  For example, when we first recognize a tree as a kid, we know that it is the big bark covered thing with leaves; a tree is easily recognized. Later we learn about photosynthesis and hybrids and diseases and root systems, etc. No longer do we just say it is a tree, instead we have so much to talk and think about. 

The same is true for the practice of law. We learn what is right and wrong, yet there is so much for attorneys to sort out. According to Plato's philosophy, our minds want to get back to what we know is true (the truth we thought of when we first learned of an issue.)  We essentially want/need to reconnect with our true beliefs. 

I propose that there is no other profession that has to do this as much as the attorney profession. It is a required burden/attribute reserved for us to develop this mental and psychological character to be successful. We are either amenable to it or stressed about doing this. Either way, for us it is ongoing and relentless.   

The strength of mind this takes is truly amazing. This is why I am truly fascinated by my fellow practitioners. I am posting this in appreciation for the work you have done to be able to practice law.  Hats off to you.

Sunday, July 20, 2014

New Law: OWI Stop via Anonymous Tip

The United States Supreme Court has held that an anonymous tipster can now justify the stopping of a vehicle.  In Prado Navarette et al. v. California, an anonymous tipster reported to 911 that a vehicle nearly ran the tipster off the road and described the make, model, color, plate number and approx. location.  The officer located the vehicle and followed it for 5 minutes and then stopped the vehicle after observing no traffic violations.  Anonymous tipsters are generally unreliable, but given the detail of the potential offender and description of the violation, the court held the OWI stop was justified.  Did the floodgates just open?

Tuesday, July 8, 2014

The 'Madonna Effect'

I posted yesterday about Madonna being called to jury duty and it reminded me of when I was called to jury duty.  No, I am not a pop star, but I got the impression that I wasn't going to be on a jury the last time I was called because I am a lawyer.  It got me thinking about whether a juror can be disqualified for cause because of the effect another juror has on them. No lawyer would think that Madonna should be excused because of her status, but what about the other jurors.  In this case, it seems that the jurors who are adoring fans may be excused for cause if they say that they could not be fair and impartial on account that Madonna is sitting right next to them. Should the court have private questioning of the jurors dealing with the 'Madonna effect'?