Lawyer language, part 2

On Jun 15, 7:09 am, mak...@gmail.com wrote:
> Alan McKenney wrote:
*   *   *
> > 2.  Is this sort of writing being taught in law schools
*   *   *
> No, I don't think it's taught in law schools.  I have written e-mails on
> several occasions where recipients insisted that I must have consulted
> a lawyer on my wording, which was not true.  It's more of a mindset
> that leads to a certain defensive posture.  I'm not saying it's bad, since
> I have used it myself -- but it's easy to spot, as the OP says.  People
> who are suited to legal training have a natural inclination to this
> mindset.  Yes, it definitely has a place in the legal world -- when my
> lawyer uses it!

Having read Mark's examples below, I respectfully concur in part and dissent in part.  I concur that a certain defensive posture is natural to the legal mindset, for a number of reasons.   First, lawyers (if I may say so myself) tend to be at least reasonably intelligent, and with some notable exceptions (such as the guy in DC -- a judge no less -- who's currently in trial suing his dry cleaners for $67 MILLION for losing his pants -- most lawyers try to avoid doing things that are blatantly stupid, the sort of act that the old dumb-guy joke says usually leads to an obituary where the deceased's last words were, "Hey, Bubba, hold my beer and watch me do THIS!!"  These are people who act before they think, something lawyers are usually strongly adverse to do.  Not that they have to sit and stew about it for an inordinately long time -- the analysis can be split second, or second nature -- but if a person is reacting just from the heart (or the adrenal glands, or the gonads) and not using his head, he is not acting like a lawyer.

Second, both because of their native intelligence and their legal training, lawyers are inclined to think ahead more than a few steps regarding possible consequences both to themselves and to their clients, and to take appropriate action to fend off the likelihood of undesirable ones occurring.   I do not claim that lawyers are unique in this ability: the chess player who can see how to force a checkmate of an opponent 20 moves ahead, or the ball player who seems to be able to predict where the defensemen are going to be in a rapidly changing arena and avoid them on his way to the goal (or who, on defense, seems to magically be in the right place at the right time to head off the attack, catch the ball, tackle or tag the runner), or the soldier who knows when to duck to avoid incoming mortar rounds, and when to pop up and shoot the other guy, are exercising exactly the same intelligence and skill set.  But it does bear mentioning, as I think Mark would agree, that the large part of law school training is learning to "think like a lawyer", which involves following up on all the possible, even unlikely, consequences of a chain of action, and then analyzing and predicting how best to steer those consequences to get the optimum result.

Thirdly, due to both (1) their innate tendency to have foresight regarding the possible consequences of certain actions and (2) their training that disciplines and channels that tendency, there is an attitude of caution which most lawyers feel compelled to follow, both for themselves and their clients, enhanced by the facts that (a) the law is necessarily expressed in words, and thus (b) the lawyer makes a deep effort to shape his words to do what _he_ wants them to do, rather than being at their mercy, (c) it is easier to do that when those words are committed in writing, the whole purpose of the invention of writing being to preserve and record ideas that would otherwise be lost to memory or subject to different parties' varying recollections, and (d) having a backup plan -- "What if Plan A fails?" is one of the possible consequences -- is almost always a good idea.

Thus, lawyers generally belong to the "belt AND suspenders" school of sartorial security; if the belt breaks, the suspenders will still hold his pants up, and he won't be caught with his pants down, figuratively speaking.  Hence, we get phraseology like "to have AND to hold" since somebody else's lawyer may argue that "to have" is not the same thing as "to hold" and that a person who is only given the right "to have" cannot do all the same things with that land or chattel as someone who has BOTH rights.   Better to be safe than sorry, and eliminate the possibility of a hairsplitting argument that the words you chose did not cover the whole ballpark and left some room wide open for interpretation in center field.

However, I must respectfully disagree that the examples Mark cites are typical of "lawyer thinking."  Rather, they are typical of "weasel language" to which lawyers have no claim of a monopoly, and which is used by anyone who wants to try to save face when he is caught red-handed doing something he shouldn't oughta, or who wants to muddy the waters enough so that no one can tell what he really means and he can pretend to agree with both sides.   IMO politicians, NOT all of whom are lawyers (the Current Occupant, frex, is not) are the past masters at such disguised prevarications dressed up to sound pretty.

Running a close second to politicians at using florid language for saying what they think the customer wants to hear rather than admitting what they really think or mean are cheating husbands, English society matrons, Japanese salarymen, TV preachers, used car salesmen, Madison Avenue pitchmen, Latin American dictators, prostitutes, and, hey -- did I leave anybody out?   My point being, don't just pick on the lawyers if your subject is self-serving euphemisms.  We're all human.   Speaking of which, IMO the former Occupant's famous line that "it depends on what 'is' is" was more the act of a cheating husband trying to weasel out of being caught cheating than the act of a lawyer or a politician, although it was of course a little of all 3.

> The legalese doesn't even have to be very long or convoluted.  Here are
> two real-life examples that demonstrate, in my opinion, what is often
> the lawyer's main goal:  to say something that can in no way come back
> to bite them, in other words the ultimate C.Y.A (cover your behind).

I agree that lawyers' training and inclination is to deal with all the "what ifs?" in preparing a contract or similar document, as well as to always consider the CYA aspect when sending letters to opposing counsel, etc. that may be used later to "set up" a claim that the other side should be sanctioned for acting in bad faith, or to head off such a claim being made against _their_ side (or, as with "defensive medicine", to affirmatively head off a malpractice claim).  But that is all just a subset of the quite proper and duly-diligent "belt and suspenders" approach if it is done honestly.   And to the extent a CYA argument may be made dishonestly by some, in cases where there really IS a bad deed he is trying to cover up,  IMO that is due to the unfortunate weasel tendency of human nature and not to their legal training.

Now, a lawyer making such an argument on behalf of a client is in a whole different ball of wax than Mark's examples, below, who just happened to be lawyers but were speaking on their own behalf.  First of all, the lawyer is frankly more likely than the self-represented client to _avoid_ making outrageously improbable arguments since, as an objective professional, not someone deeply and emotionally involved, he is in a much better position to know that such arguments will not fly with a judge or jury.  The fact that this is so is why the rare exceptions -- when a lawyer makes an outrageous argument and gets shot down, or especially when he makes what APPEARS to be an outrageous argument that  _succeeds_, often make the evening news.  And, any lawyer who is reduced to making such arguments probably did so out of desperation, because he had a (laudable) duty to his client to give him the best possible representation of his interests but had no other better argument to offer.

The advocate who stretches a bit to make a point is not to be villified, but praised, since that is how the law evolves; our concepts of justice are far more civilized now than they were a few hundred years ago when an orphan child on the streets would be executed for theft of a loaf of bread, but the factory magnate would have no law at all supervising his employment of the same kid 18 hours a day in a dangerous sweatshop for pennies.

The law, of course, has standards as to what a lawyer can and cannot argue without risking sanctions: the position he takes on behalf of a client must be made upon reasonable inquiry, not for an improper purpose, well grounded in law and fact, or warranted by a nonfrivolous argument for extension, modification or reversal of existing law or establishment of new law (paraphrasing Federal Rule of Civiil Procedure 11).

> Whether the statement actually addresses the issue, furthers the
> discussion, leads to a solution, or whatever is secondary to that main
> goal.

Mark is talking about weasel language here, not legal language.  Lawyers can be, and more frequently these days are, sanctioned for taking actions whose main goal is to sidetrack the discussion or avoid a solution or increase costs for everybody.   Not that it isn't done occasionally, but when done, it is a violation, not the norm.

> Here's one, from a relative (a lawyer) asked to explain why he tried
> to transfer three of his personal credit card balances to the
> account of his incapacitated mother (the transfer was blocked
> due to the diligence of the legally-designated POA for the mother):

Another weasel with something bad to hide, not uniique to the shameful fact he also happened to be a lawyer.

> "...what you are referring to are 'attempted balance transfers.'  By
> this phrase I can only assume that there was some attempt that was
> unsuccessful.  So I assume that these are funds that cannot be
> attributed to me as none of the monies ever ended up in any account
> associated with me. "

Yeah, and it depends on what "is" is.

> Here's another one, from a lawyer who was asked if it was appropriate
> to continue disregarding the procedural rules of a volunteer
> organization:
>
> "I was simply stating a fact within my knowledge and nothing more."

Taken out of context, I don't necessarily see anything wrong with that.  Before the quoted question was put to him, was he in fact advocating evasion of the procedural rules, or was he simply stating a point of fact within his knowledge?   If he tried to pass off a soapbox exhortation as a statement of fact, that would be weasel language.  In other words, a lie, since a mere statement of fact is NOT what it was intended to be.   OTOH if it was in fact just a statement of fact, but everyone else was ASSUMING he intended it to be used as an exhortation to avoid the rules when he had no such intention, it is a fine example of how lawyers should and do use precise words to clarify what they mean when a possible ambiguity arises.

> The best word I can find to describe this style of expression is
> "disingenuous".  Like I said, when it's my lawyer who's using it, I'm
> all for it!

Lawyers didn't invent being disingenuous; AFAIK that started with Adam and Eve and the apple tree.  However, due to our training and skill in use of words, some of us who occasionally visit the Dark Side have come close to perfecting the art.  I wouldn't be so flippantly quick to applaud a lawyer (on my side) who used unclear and ambiguous language unless it was a situation, such as international peace negotiations, divorce mediation or the like, that inevitably called for language leaving some wiggle room that would preserve some dignity for both sides in order to make progress toward a settlement.  In just about any other legal context I can think of, ambiguity serves no useful purpose for anybody, and outright lying (which both of Mark's examples may be, or may not be, depending on context) is improper and counterproductive since, as almost always happens, the truth will out, at which point the liar or weasel is the one who will have egg on his face.

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Mike Jacobs
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