Unintended Consequences

This interesting article is about a new Florida law that serves as a good example of the perils of statutory drafting. 

An internet café is challenging the recently enacted law, which banned internet cafés in an attempt to crack down on internet-based gambling establishments.  The law prohibits “illegal slot machines.”  An “illegal slot machine” includes any “system or network of devices that may be used in a game of chance.”  The new law also creates a rebuttable presumption that a “device, system, or network is a prohibited slot machine or device if it is used to display images of games of chance and is part of a scheme involving any payment or donation of money or its equivalent or awarding anything of value.”

What's the problem, you ask?  The new law appears to be so broad that the term “illegal slot machine” encompasses any computer, smart phone, or other electronic device that could be used to access an internet gambling site.  This almost certainly isn't what the Florida legislature intended, but it looks like that it what it got.    

The article provides a link to the complaint, if you're interested.  You might notice that famed professor Alan Dershowitz is co-counsel for the café.      

Point Well Made

Ross Guberman’s Point Made is an excellent source for practitioners looking for easy ways to improve their writing.  While Point Made focuses on brief writing, Guberman’s 50 tips can be used in every type of writing, from demand letters to appellate briefs.  

In the book, Guberman offers pointers on organization, style, and sentence structure including: using dashes, semi-colons, and colons to emphasize; interspersing short, pithy sentences with longer ones to add interest (a tip I frequently employ); conceding bad facts to spin them in a way that makes them less harmful; and drafting parallel constructions to streamline information and comparisons.  Many of Guberman’s fabulous pointers can be employed by everyone from novice legal writers to seasoned brief drafters 

My favorite part of Point Made is Guberman’s “real-life” examples, something lacking from many legal writing books aimed at practitioners.  It is easy to give legal writing pointers; it’s harder to show legal writers how to use those pointers to draft impactful briefs.  Guberman does an excellent job of outlining his tips then showing the reader how the tips can be (and have been) used in real briefs. Guberman’s examples are from public and private lawyers; from a variety of cases; from plaintiffs and defendants, so there’s something for everyone in Point Made.

My only criticism is that a few of Guberman’s tips aren’t widely usable or, in my opinion, advisable.  For example, Guberman recommends that writers use rhetorical questions.  I’ve never personally been involved in a case where a party used a rhetorical question in a way that didn’t make the writer seem arrogant.  Admittedly, the examples Guberman offers are very effective.  But, the rhetorical question tip is one, in my opinion, that should only be used by advanced legal writers who can craft a rhetorical question that falls on the right side of the line between clever and pretentious.

Guberman also recommends interspersing “balanced, elegant” long sentences in legal writing to add literature-like richness.  Again, Guberman’s examples are fabulous; again, this tip isn’t widely applicable.  In fairness, Guberman himself admits the tip may be “too much” for some writers and suggests an alternative “freight-train” style that is more practical.   

Overall, Guberman’s book is an excellent source for practitioners looking for “quick and dirty” tips to improve their writing.  The book is easy to follow with a user-friendly format that will enable any lawyer to pick it up and, thirty minutes later, implement Guberman’s tips.  I highly recommend Point Made.        

I'm Not Sure Who Ladie Is...

but she has her own room in this building.

Who Cares About an Oxford Comma?

Anyone who knows me knows I am a strong advocate for the use of serial commas.  A case currently pending before the Supreme Court of Georgia is yet another example of why legal writers should always use serial commas.

 

The Georgia Open Records Act contains a provision that exempts records from public access “disclosing an economic development project prior to a binding commitment having been secured, relating to job applicants, or identifying propriety hiring practices….”  

 

The legislature passed the provision specifically to prevent an autoworkers’ union from obtaining access to certain training materials.  The union, however, is claiming the language should be read to permit access to training and applicant records once the state secures a binding commitment (essentially reading out the comma before "or").  

 

The state (I believe correctly) argues the statute creates three categories of exempt records: (1) those disclosing an economic development project prior to a binding commitment; (2) those relating to job applicants; and (3) those identifying proprietary hiring practices, training, skills, or other business practices.  This reading protects the applicant information and hiring and training materials from disclosure even after a binding commitment has been secured.

 

As Chief Justice Nahmias recognized at oral argument in the case, the two-category reading of the Act proposed by the union would defy all accepted rules of grammar and essentially mean the legislature and the governor didn’t know or understand the rules of grammar when they passed and signed the law.

 

Oral argument was held on June 17, 2013, so a written opinion won’t be issued for several months. The case is Kia Motors Manufacturing Georgia Inc. v. Coleman.  An article about the case can be found here.

Show, Don't Tell

A good legal writer doesn’t tell the audience why the client should prevail—the writer shows the audience why.  This is a very hard concept to teach, but Justice Pfeifer of the Supreme Court of Ohio nails it in his dissent in State v. Willan, No, 2012-0216, 2013 WL 2631542 (Ohio June 11, 2013).

Justice Pfeifer and the majority disagree about whether an Ohio statute is so ambiguous it cannot be enforced.  To highlight the ambiguity of what he refers to as “24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period,” Justice Pfeifer drafts his own 307-word, single sentence dissent. Id. at *4.  He compares the single period in the statute to a “lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae,” and determines the statutory ambiguity is a “circumstance up with which we should not put.” Id.  I cannot do this dissent justice by describing it here—you simply must read it for yourself.

Ensure You Know the Difference

Insure versus ensure—These words are not synonyms and do not share a common meaning. 

What’s the easy way to remember the difference?  Insure always pertains to insurance.  Ensure, on the other hand, means to make certain that something occurs.  Thus,

The lawyer ensured that he would be protected in the event of a malpractice claim by insuring his practice.

This sign is wrong.

Are Apostrophes Necessary?

There’s nothing like an old-fashioned grammar nerd debate.  This one, at Slate, is over apostrophes and whether they remain necessary. 

On one side of the debate are John Richards, the founder of the Apostrophe Protection Society (yes-there is such an organization), and Lynne Truss, of Eats, Shoots & Leaves fame, who has stated: “Getting your itses mixed up is the greatest solecism in the world of punctuation.  No matter that you have a Ph.D. and have read all of Henry James twice. If you still persist in writing, ‘Good food at it’s best,’ you deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”

On the other side—George Bernard Shaw, teenagers everywhere, and the creators of the Kill the Apostrophe website (yes—it too exists), who believe the apostrophe “serves only to annoy those who know how it is supposed to be used and to confuse those who dont.” (Note the intentional removal of the apostrophe from “don’t.”)  

Needless to say, I—like every other legal writing professor I know—think apostrophes are necessary.  The whole story is worth a read.