DEALING WITH QUESTIONABLE OR DOWNRIGHT WRONG LEGALESE

Part I - Proofreading questionable or downright wrong legalese

Sometime in 2015 I received a very well-meaning, constructive letter from a Philippine Supreme Court staffer asking if he could consult me once in a while when he’s in doubt about his work. Part of his job is to proofread court decisions and resolutions drafted by a ponente or the designated writer from among the justices.

The letter-writer, whose name I won’t disclose for obvious reasons, says he’s neither a lawyer nor an English major, so his proofreading is confined to just typos and grammar. “I used to be very strict,” he says. “I’d correct ‘back wages’ or ‘in so far’ into one word, and put a comma or period where I think it’s needed. This is because my idea of proofreading is that it’s for publication purposes, [because once] the document gets printed, you can no longer correct it.”

         PHILIPPINE SUPREME COURT IN SESSION, 2016

The letter-writer cited two very arresting examples (all italicizations mine): “Once, I came across the phrase ‘without authority so to do’ in a quoted Rule of Court. My immediate impulse was to correct it to ‘without authority to do so’ but when I checked with the Rules of Court, I found that it’s how it is written in Rule 27. In another instance, the decision in Diamonon v. DOLE has this phrase, ‘to serve the interests of a justice.’ The ‘a’ is certainly not needed there but you can’t change it because it’s as good as law. This is a very good example of how even the article ‘a’ can change meaning if used improperly.”

My comments as Forum moderator:  I checked those dubious usages and found that “so to do” and an even more curious variant, “to so do,” have precedents in British English and in American jurisprudence. Here’s a “so to do” usage by the University of Oxford: “The Green College Development Office will only issue information about Old Members when those Old Members give written permission so to do.” And here’s a “to so do” usage by a law of the State of Arizona: “Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.” No matter how awful-sounding they are then, let’s allow both usages to pass unchallenged.

But as to the extraneous “a” in the Diamonon v. DOLE decision, it’s a very serious proofreading error that gives a derogatory sense to an appellate court’s broad discretionary powers in considering matters not assigned as errors on appeal, in effect allowing it to arrive “at a just decision and complete resolution of the case or to serve the interests of a justice or to avoid dispensing piecemeal justice.” The mere thought of a justice making a decision for his or her own self-interest is too subversive to contemplate, so even if that offending “a” now forms part of the Rules of Court, it ought to be knocked off in the interest of justice, semantics, and good sense.

The letter-writer continues: “I began to be more lax when I noticed resentment in my being strict as evidenced by my simple corrections not being implemented, especially when it comes to subject-predicate agreement. This may just be a feeling, but it’s possible that because of their higher educational attainment, lawyers feel bad about being corrected by a nonlawyer.

“To illustrate, when I changed the verb ‘were’ to ‘was’ in the phrase ‘the alluded delay in the completion of the subject project were traceable to…,’ the correction was returned to me marked by an ‘x’ and with ‘the series’ added to ‘traceable’ to justify the use of the verb ‘were.’ (Your opinion, please.) So I just confine myself now to correcting very obvious mistakes, such as ‘the property can only be assessed through a narrow road’ (accessed), ‘hinge of doubt’ (tinge of doubt), and ‘the country’s national resources’ (natural).”  

In Part II, we’ll take up more of his very instructive proofreading predicaments.

Part II - Proofreading questionable or downright wrong legalese

For starters in Part I, I presented a couple of proofreading errors in two Supreme Court rulings that were brought to my attention by one of its staff, part of whose job is to proofread court decisions and resolutions drafted by a ponente or the designated writer from among the justices.* The first glitch is the needless, wickedly subversive presence of the article “a” in a labor dispute ruling, and the second, a rather jolting subject-verb disagreement arising from misuse of the plural “were” in a demand-for-payment ruling.

 PROOFREAD BUT UNCORRECTED ERRORS IN JUDICIAL DECISIONS ARE NOT “INFALLIBLE INADVERTENT ERRORS” BUT MAY BE MORE FITTINGLY CALLED   “SEMANTIC WORMHOLES”

Right off, a reader who goes by the username zyggy asked me online if those “infallible inadvertent errors”—his words, not mine—could be called “loopholes.” I told him I didn’t think so, for a “loophole” is defined as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.”

Since those proofreading errors don’t really constitute a legally or logically defensible ground for such evasion, I suggested that both can be more fittingly called a “semantic wormhole.” That’s a more innocuous term that the Urban Dictionary pejoratively defines—only the “wormhole” part, I must admit—as “a phenomenon that has a way of completely absorbing the attention of its user.”

Now let’s go back to the Supreme Court staffer’s letter and take up the rest of his very instructive proofreading predicaments. Before I forget, though, I still owe the Supreme Court staffer my opinion about his rebuffed proofreading correction of the verb “were” to “was” in the draft of that demand-for-payment ruling, as follows (italicization mine): “As stated in its original decision, it held that the evidence on record categorically showed that the alluded delay in the completion of the subject project were traceable to additional works and change order works required by respondent which were not part of the original agreement.”

His correction, he said in the letter, was returned to him marked by an “x” and with “the series” added to “traceable” to justify the use of the verb “were.”

So here’s my opinion: You were right, and the ponente who refused your proofreading correction from “were” to “was” in that sentence either doesn’t know or forgot how English subject-verb agreement works.

The Supreme Court staffer continues: “In the last decision I proofread, I marked these errata: ‘did not mention of the testimonies’ (delete ‘of’), ‘in the contrary’ (‘in’ to ‘on’) and ‘while it maybe true’ (may be). Happily, the concerned justice’s office adopted my corrections, but as always, I remained uncomfortable until I confirmed these… As you can see, these corrections are those which you would normally miss when you spell-check a document. But since I’m not an English major, sometimes I too am not really sure about the corrections I’ve made. And this is where I seek your help.”

He then presented this third proofreading dilemma: “The minutes I review every week starts with this: ‘The minutes of the preceeding session.’ I had noted that there’s no such word as ‘preceeding’; it should be ‘preceding’ or ‘minutes of the proceedings.’ My correction went unheeded so I just let it be. Am I right or wrong?”

My answer: You’re absolutely right, and the Supreme Court needs to recognize it once and for all for the sake of good English.

And then the letter-writer asked this grammar question, evidently in general and not regarding a particular Supreme Court decision: “What should the verb be in this sentence: ‘He insisted that she (stay, stays, or stayed) in the house’?”

Now I told him that it’s a really, really tough and devilishly equivocal grammar question! Offhand I’ll say that the answer could be the subjunctive “stay,” the indicative present-tense “stays,” or the indicative past-tense “stayed,” but the explanation is so complicated that it needs another column to give it justice.

Part III - A devilishly equivocal grammar question

In Parts I and II, I analyzed a couple of proofreading errors in two Supreme Court rulings that were brought to my attention by one of its staff, part of whose job is to proofread court decisions and resolutions drafted by a ponente or the designated writer from among the justices. Recall that the first glitch he called my attention to was the needless, wickedly subversive presence of the article “a” in a labor dispute ruling, and the second, a rather jolting subject-verb disagreement arising from misuse of the plural “were” in a demand-for-payment ruling.

PROOFREAD BUT UNCORRECTED ERRORS IN JUDICIAL DECISIONS ARE NOT “INFALLIBLE INADVERTENT ERRORS” BUT MAY BE MORE FITTINGLY CALLED “SEMANTIC WORMHOLES”

Right off, a reader who goes by the username zyggy asked me online if those “infallible inadvertent errors”—his words, not mine—could be called “loopholes.” I told him I didn’t think so, for a “loophole” is defined as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.”

Recall that in Part II, I observed that since those proofreading errors don’t really constitute a legally or logically defensible ground for such evasion, I suggested that both can be more fittingly called a “semantic wormhole.” That, I said, is a more innocuous term that the Urban Dictionary pejoratively defines—only the “wormhole” part, I must admit—as “a phenomenon that has a way of completely absorbing the attention of its user.”

Now let’s go back to the Supreme Court staffer’s letter and take up the rest of his very instructive proofreading predicaments.

Before I forget, though, I still owe him my opinion about his rebuffed proofreading correction of the verb “were” to “was” in the draft of that demand-for-payment ruling, as follows (boldfacing mine): “As stated in its original decision, it held that the evidence on record categorically showed that the alluded delay in the completion of the subject project were traceable to additional works and change order works required by respondent which were not part of the original agreement.”

Recall that his correction, as he said in the letter, was returned to him marked by an “x” and with “the series” added to “traceable” to justify the use of the verb “were.”

So here’s my opinion: You were right, and the ponente who refused your proofreading correction from “were” to “was” in that sentence either doesn’t know or forgot how English subject-verb agreement works.

The Supreme Court staffer continues: “In the last decision I proofread, I marked these errata: ‘did not mention of the testimonies’ (delete ‘of’), ‘in the contrary’ (‘in’ to ‘on’) and ‘while it maybe true’ (may be). Happily, the concerned justice’s office adopted my corrections, but as always, I remained uncomfortable until I confirmed these… As you can see, these corrections are those which you would normally miss when you spell-check a document. But since I’m not an English major, sometimes I too am not really sure about the corrections I’ve made. And this is where I seek your help.”

He then presented this third proofreading dilemma: “The minutes I review every week starts with this: ‘The minutes of the preceeding session.’ I had noted that there’s no such word as ‘preceeding’; it should be ‘preceding’ or ‘minutes of the proceedings.’ My correction went unheeded so I just let it be. Am I right or wrong?”

My answer: You’re absolutely right, and the Supreme Court needs to recognize it once and for all for the sake of good English.

And then for last, the letter-writer asked this grammar question, evidently in general and not regarding a particular Supreme Court decision: “What should the verb be in this sentence: ‘He insisted that she (stay, stays or stayed) in the house’?”

Now that’s a really, really tough and devilishly equivocal grammar question! Offhand I’ll say that the answer could be the subjunctive “stay,” the indicative present-tense “stays,” or the indicative past-tense “stayed,” but the explanation is so complicated that it needs another column to give it justice.

Part IV - A devilishly equivocal English grammar question

In Part III, towards the end of my discussion of wormholes in certain Supreme Court rulings and correspondence, I said that the unnamed SC letter-writer who brought them to my attention posed this devilishly equivocal grammar question: “What should the verb be in this sentence: ‘He insisted that she (stay, stays or stayed) in the house’?”

I replied that the answer could be the subjunctive “stay,” the indicative present-tense “stays,” or the indicative past-tense “stayed.”  Since the explanation would involve some grammatical complexities, however, I decided to devote this separate grammatical analysis of this grammar puzzler.

Let me start by rearranging the answer choices for that sentence: “He insisted that she (stays or stayed, stay) in the house.” This will allow us to discuss the more familiar grammar concepts first and work our way to the more complicated ones.

Recall now that there are three moods of verbs in English, mood being that aspect of the verb that expresses the speaker’s state of mind or attitude toward what he or she is saying. These moods are the indicative mood, the imperative mode, and the subjunctive mood. The indicative and imperative both deal with actions or states in factual or real-world situations; in contrast, the subjunctive deals with actions or states as possible, contingent, or conditional outcomes of a want, wish, preference, or uncertainty expressed by the speaker.

The most common and familiar of the three moods is, as we know, the indicative. It conveys the idea that an act or condition is (1) an objective fact, (2) an opinion, or (3) the subject of a question. Indicative statements seek to give the impression that the speaker is talking about real-world situations in a straightforward, truthful manner; their operative verbs take their normal inflections in all the tenses and they follow the subject-verb agreement rule religiously.

Now let’s closely examine the sentence in question when it uses the first answer choice: “He insisted that she stays in the house.” This sentence is perfectly grammatical when it is said or understood as an indicative statement, where the speaker declares in a persistent but straightforward and truthful manner what he believes is an objective fact: that the female referred to currently stays—that’s the verb “stay” taking its normal present-tense inflection—in that particular house.

That sentence is also perfectly grammatical when said or understood as an indicative statement when the verb in the “that”-clause is in the past tense: “He insisted that she stayed in the house.” Here, the speaker declares in a persistent but straightforward and truthful manner what he believes is an objective fact--that the female being referred to stayed for sometime—that’s the verb “stay” taking its normal past-tense inflection—in that particular house.

Finally, let’s now closely examine the sentence in question when it uses the third answer choice: “He insisted that she stay in the house.” There’s now an apparent subject-verb disagreement in the “that”-clause between the singular “she” and the plural-form “stay.” However, if that sentence is said or understood to be subjunctive, it would be grammatically and semantically correct. Indeed, one of the uses of the subjunctive is to denote a speaker’s insistence that a particular action be taken, not that it’s true or factual.  

So then, always keep in mind this rule for subjunctive sentences with a “demand,” “require,” or “insist” main clause followed by a “that”-clause indicating the action to be taken--The operative verb of that clause always takes the subjunctive plural present tense (without the suffix “-s”) whether the doer of the action is singular or plural: “I demand that all of you leave right now.” “The company requires that all job applicants take an IQ test.” And, in the same token, “He insisted that she stay in the house.”

I trust that I have adequately clarified this particular and very unique form of the subjunctive.

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These discussions first appeared in the weekly column “English Plain and Simple” by Jose A. Carillo in The Manila Times in several issues from March-April 2015, © 2015 by the Manila Times Publishing Corp. All rights reserved.