Lawyers and Language

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By on October 2, 2011 5:42 pm Leave your thoughts

Precision in language, spelling, grammar, and punctuation can make the difference, between being a good lawyer or a mediocre. It can also make the difference between being a good lawyer or an excellent one.

I stopped by my office after church this morning and was slapped in the face with an example. In my haste to get a letter out the door to opposing counsel, memorializing our clients’ agreement, and the proposed letter to their child’s counselor, I made no fewer than four “boo boos”!

1. I used Dragon Naturally Speaking and failed to correct spelling of the other lawyer’s first name. She was not pleased.

2. I didn’t proof Dragon’s first effort because I was rushed for time.

3. I later proofed it hurriedly, missing her name, but also leaving in language that I sensed was a bit too strong. I should not have.

4. I allowed my staff to affix a stamp of my signature because I was not coming back to the office. In my defense, I work intensely, fast, and usually efficiently. I really do! And, usually my assistant will catch that misspelling. In this case, I spoke with the client, told her the wording was fairly strong, including her criticism of the child’s father’s behavior, and asked her to read it carefully to make sure it said what she wanted me to convey. She ok’d it, and it remains to be seen whether the other lawyer, who does not know me well, will realize the benefit of understanding the other party’s perceptions of her client. From the tone of her lecturing letter, I do not think so.

Since this lawyer comes from a very good, well run, firm, I think we shall bridge the 30 year gap in our experience for the good of our clients. For now, she has made some assumptions about me that are not correct, but it is partly my fault because of 1-4 above.

I experienced another example of the importance of language when I argued a case before the WV Supreme Court of Appeals. My client graciously agreed to allow me to use her case as an example, it being another one of those horror stories I have been writing about of things that can go wrong if you do not hire a lawyer.

I saw surprise on the faces of the justices when I said that it was both a blessing and a curse that I studied English for five years, 8-12, at Linsly Military Institute in Wheeling. I wish I could go back and explain myself. The “curse” was not that our teachers, Capt. Clutter, Capt. Judy, and the rest were very tough, as they certainly were. One exam required us to list every form of a particular verb in two hours! The curse is I know the rules (99th percentile on my SAT’s), so listening to and reading the English language now, broadcasters, actors, and even co-workers and colleagues, is excruciating. And, when I correct my staff or family member, it is VERY irritating to them.

I did not know until my 50’s that “further” means degree and “farther” means distance. My wife, who is a superb speller and grammarian, explained it to me.

When I learned that my 90 year old mother-in-law did not know the rule either (and she is a GREAT conversationalist!) , and I politely corrected her, my wife was horrified. Quite properly, she inquired what difference will it make in the greater scheme of things if her Mother knows this rule? I am not sure I can articulate it, but I want to be “healthy”, and I want my food to be “healthful”. I want “normality”, not “normalcy. And, I want it to be “their” gift not “there” gift. “Too” means also, and “to” is a preposition!

Now back to my argument before the Court. Any lawyer who has not been there should go. You have this well prepared outline. You MUST have it, just in case all the justices have laryngitis. But, you are never going to get to use it. One of the justices, sometimes two, will be primed with a question before you get to your second full sentence. So, that first sentence must say something about the case and give some hint about why the issues have a larger impact .

My interrogator was perfectly polite but persistent in asserting the issue is narrower than I think it is. She said it was the definition of “another relationship”. I believed that it involvedthe enforcement and interpretation of a pre-nuptial agreement between two parties who had BOTH failed to consult a lawyer! My loyal paralegal was watching the life feed on the office computer, telling me what I should say in answer to the justice’s assertions. The meaning of “another relationship” could be determined only from the context of the facts!

I finished my first turn without saying it. But, during my rebuttal, in frustration, I blurted out my comment about Linsly. The justice repeated that the whole case hinged on the meaning of the term “another relationship”.

You see, when the “pre-nupt” was thrust upon my client a few days before the wedding, she insisted on one important provision. If she was going to waive every monetary benefit for a period of 20 years, she wanted to know that if the marriage failed during the first 10 years, she would have free housing for her and her then 8 year old daughter.

Sure enough, just two years later the husband determined he no longer wanted to be married. And, the wife, after their separation had a very brief sexual “relationship” with someone she met over the Internet, and, the Court decided, over her denials, that there was another “one night stand”.

But, she lost the free housing provision if she sooner found “another relationship”. There was solid testimony from both parties that the husband assured the wife that she did not have to remain celibate, but the term was not defined in the agreement. Having deflected my arguments based on equity, basic fairness, equal protection under the law, and “rules of construction”, the justice, for the third time said, “Mr. Hunter, the bottom line is this Court is going to have to decide what ‘another relationship’ means.” My paralegal shouted, “Yes!” when I finally said, “Judge I KNOW what it means. It is a plain as day, but so far two other judges, family court, and circuit court, have failed to see it. You see, what I learned at Linsly is if they were talking about ‘another relationship’, you HAVE to look at whether there is an existing relationship!”

There was one that they were comparing “another relationship” to, during over 17 hours of arguing over a two day period. It was their relationship, one in which they had lived together for 26 months, were engaged to be married in 11 days, and where the man had a six figure income and she had hardly any.

The husband admitted assuring her that she did not have to remain celibate and that she kept stressing the need to have financial support and housing in any future relationship before she would lose the “free housing” benefit of the pre-nupt. Nevertheless, the family court said “another relationship” meant “any sexual relationship” and denied her a benefit worth $100,000 even though fault was determined to have been the Husband’s.

I simply said to the Supreme Court that if the family court or the circuit court had applied the plain, simple, grammatical meaning to “another relationship”, my client would not have had the agony, delay, and expense of this appeal. I do not know if the WV Supreme Court will agree with me, but of course I think they should.

I commend to you three books. The first is really three books bound in one volume, Edwin Newman’s, “On Language”, “Strictly Speaking”, and “A Civil Tongue”, originally published in 1974-76, by Galahad Books. Another is “You Are What You Speak; Grammar Grouches, Language Laws, and the Politics of Identify”, by Robert Lane Greene. I stopped reading it after Chapter 1, out of frustration. I did not like it, and I will not like the next chapter, “A Brief History of Sticklers”, but eventually I will read it. In that Chapter, he excoriates a little book I liked very much, “Eats, Shoots, and Leaves”, by Lynne Truss. The premise of course is that by “sprinkling commas”, an anonymous writer created a picture of a Panda, entering a bar, having a sandwich, shooting a patron, and leaving. No doubt, the author thought she was saying something much different.

You see, I think putting a closing comma on a parenthetical phrase is important to the meaning of the sentence, and that a comma should separate that last item in a string, and that sprinkling commas reveals your ignorance. It may not be that important to what you do for a living, but it probably is. And, it is important that you know the rules so that when your children come home from school, where they are no longer clearly taught them, you can help them become civilized. But, in a profession where words are our tools, and our written and oral statements are our weapons, you should insist on having a literate, well read, clear thinking, experienced lawyer. I even know one who is willing to help, for a fair price.

 

This post was written by Burton Hunter

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