Lawyer language, part 3

On Jun 24, 8:01 am, David Ames <worldrec...@juno.com> wrote:
> On Jun 11, 7:13 am, Alan McKenney <alan_mckenn...@yahoo.com> wrote:
>
> > In legal discussions and (supposedly) legal
> > documents one all too frequently runs into
> > prose like the following
>
> "failed, onitted and neglexted"  --
>
> what distinguishes each of these from the others, when alleging that
> payment has not been made?

IMO this is just like the "to have AND to hold" analysis in my earler post on this thread.  The lawyer who drafted that phrase is trying to make sure there is no weasel-room for another lawyer to argue that what his client did, or wants to do, falls between the cracks.  These words are partial (some would argue complete) synonyms for "didn't do it"; the only reason to state them all is that a creative counsel on the other side could find a way to say that they _are_ only partial synonyms and that what his client did or didn't do, fell outside the range of what the drafter is complaining of, and thus, does not give rise to liability, since of course he can't be liable for doing or not doing something if it wasn't within the scope of what he was legally obligated to do or avoid, or if the reasons he did or didn't do something are outside the scope of the permissible or impermissible reasons for doing or not doing it.

Try imagining what would happen if the clause you suggest only contained one of those words, and not the whole list of partial synonyms, AND if the law were fetishistically precise about the meanings it would allow words to assume (which it used to be more than today, see below).   Here's a few that occur to me off the top of the head:

complaint: D "failed" to pay P

possible answer: D didn't "fail" to pay P, since that word "fail" indicates an absence of any effort or desire to ever make payment; my client sincerely wanted to pay, but it just slipped his mind, so he "neglected" to do it that month.  Or, he inadvertently "omitted" the check from the envelope when he sent that bill to P from the stack of bills he was paying.   Or, he negligently put the wrong check in the wrong envelope.   Ad infinitum. 

complaint: D "omitted" to pay P

possible answer: D didn't "omit" to pay P, since that indicates he somehow left payment out.  D did in fact include payment when he sent the bill back to P, but he forgot to include postage, so it came back and "failed" to reach P.  Or, D didn't "omit" payment, he affirmatively "refused" to pay because the goods were shoddy and he believed he didn't owe anything.   Or, D didn't "omit" payment, he did send a check, he just "neglected" to make sure there was enough cash in his account to cover the check.  Ad infinitum.

complaint: D "neglected" to pay P

possible answer: There was no negligence involved because D knew exactly what he was doing and intended to fail to pay it.   Or, D "omitted" to pay but that omission did not rise to the level of "neglect" since it was a reasonable mistake and anybody could have done it even when exercising due care.   And so on.  

You get the idea.   By including all the partial synonyms, the drafter of such a clause is getting the message across, "I don't care what the reason was or what your excuse is, we intend to cover the whole ballpark, and the fact is, payment from D never reached P in a form that would satisfy the contract."   It takes out the weasel room.

Now, why do lawyers do this?   Frankly it happened more in the old days than today, and is found less and less in modern legal language, for 2 main reasons: (1) the old forms of action and pleading required very precise, complete allegations of what the complainer said the defendant did wrong, and a complaint was subject to dismissal for what would today be thought a trivial factual error; modern pleading rules generally require only "notice" pleading, i.e. something sufficient to put the defendant on notice of the general nature of what he is alleged to have done wrong; and (2) modern law (and the fusion of law and equity in most jurisdictions) has gone a great deal farther than in the old days towards looking at the real intent of the parties, the reasonableness of their actions, the good or bad faith with which actions were undertaken, and the fairness of the outcome to both sides.

The old way applied strict, supposedly literal, in fact almost magical or talismanic meanings to the words used, while the new way recognizes that all language is metaphor, that all words are ambiguous,  that communication is never perfect, and thus tries to get at what the parties REALLY wanted and meant by what they said, rather than chopping off a perfectly logical and clearly intended meaning by applying a narrow, strict interpretation.   But to the extent some states' laws (or some judges) still give Draconian effect to minor linguistic slips, AND to the extent all good lawyers exercise an inherent degree of caution and CYA in the language they use (see my earlier posts on this thread), use of such strings of synonyms is likely to survive quite a while into the legal future.

--
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Mike Jacobs
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