Dealing with semantic wormholes in some Supreme Court decisions

I don’t think they’d qualify as “loopholes,” contrary to what a reader suggested online upon reading the first installment of my March 22, 2015 column in The Manila Times about egregious proofreading glitches in two rulings of the Philippine Supreme Court. The term “loopholes” means “ambiguities or omissions in the text through which the intent of a statute, contract, or obligation may be evaded,” but I think neither a missing “a” nor a subject-verb disagreement arising from misuse of the plural “were” would constitute a legally or logically defensible ground for such evasion.” I therefore suggested the the more innocuous term “semantic wormholes,” which the Urban Dictionary pejoratively defines—only the “wormholes” part, I must admit—as “a phenomenon that has a way of completely absorbing the attention of its user.” Is my nonlegal opinion sound or unsound? So you can figure that out yourself, I posted that column of mine, “Part 1: How to proofread questionable or downright wrong legalese,” in this week’s edition of the Forum. Do tell me what you think after you’ve read it. (March 22, 2015) 

Part 1: How to proofread questionable or downright wrong legalese

I received a well-meaning, constructive letter recently from a 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; when the document gets printed, you can no longer correct it.”

He 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 comment: 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 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 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), and ‘the country’s national resources’ (natural).”  

We’ll take up more of his very instructive proofreading predicaments next week.

This essay first appeared in the weekly column “English Plain and Simple” by Jose A. Carillo in The Manila Times, March 21, 2015 issue © 2015 by The Manila Times. All rights reserved.

Why are legal papers and contracts written in gobbledygooky English?

Frankly, I tried to provide a balanced, dispassionate answer to the provocative question below by BonRuiz, a member of Jose Carillo’s English Forum, about the English of lawyers. But I’m afraid that my bias for plain and simple English still showed through when I attempted to justify legalese, the jargon that lawyers use to communicate with their fellow lawyers and other legal practitioners. It just seems to me that the profound tendency of legalese towards complexity and obfuscation doesn’t have a proper place anymore in modern-day society.

Question by BonRuiz, Forum member (March 5, 2014):

Sir, I hope you can enlighten me on why legal documents and contracts use too many unnecessary words that are not direct to the point and hard to understand? Is this a lawyer’s standard procedure so he can be the only one who can interpret and make money out of it?

Most legal contracts and documents are too wordy, not direct to the point and confusing (terrible grammar). Is this standard practice in law? Why can’t they make it simple and precise?

My reply to BonRuiz:

Your first question is why legal documents and contracts use too many unnecessary words, words that you say are not direct to the point and are hard to understand.

The answer is that these legal documents and contracts use a language that’s called legalese—the jargon or specialized language that lawyers use to communicate with fellow lawyers and other members of the legal community, particularly justices, judges, and paralegals. This language presumes that the target audience—whether readers or listeners—is adequately knowledgeable with legal concepts and the legal system. This is why to laypersons not equipped with or are not privy to this knowledge, legalese would read and sound much too wordy for comfort and, very often, beyond understanding and comprehension.

Your next question is whether the use of legalese is a standard procedure of lawyers so that only they can interpret the document or contract and thus be able to make money from those who need or have use for those documents and contracts.

I think that this is a very harsh assessment of the motivation of lawyers in writing or speaking in legalese. Here, from a lawyer who writes under the username WiseGeek, is I think a fair, levelheaded justification for legalese:

In law, words have very specific and clearly defined meanings, and lawyers are careful when drafting legal documents to say precisely what they mean, even if the meaning is only apparent to other lawyers. Some of the word use may appear unusual to people who aren’t familiar with the law, as ordinary words can have a different meaning in a legal context. For example, seemingly redundant phrasing actually isn’t, when the legal meanings of the phrase are considered.

In contrast, here’s a more candid justification for the complexity of legalese from a lawyer who blogs under the username SoMeLaw Thoughts:

Here’s one deep, dark secret about lawyers—we see risk everywhere. I can look at a picture of a man on a sidewalk and come up with a dozen potential lawsuits without batting an eye. And that’s before this hypothetical man crosses the hypothetical street. We lawyers spend years reading the most ludicrous cases you can imagine that involve chain reactions of people jumping onto moving trains, dropping bundles of fireworks that explode, and a concussive wave that tips over a large scale injuring a woman nearby (actual, famous case). It’s our job to see the worst potential outcome and help our clients avoid it.
 So when a client comes to an attorney and says “Hey, can you draft up some terms for my business so that we’re protected from lawsuits?” then the lawyer’s mind starts spinning like a rickety travelling carnival ride that was installed without inspection, has no safety restraints in the cars, and is operating at twice the recommended speed. Our minds are now racing to give our clients the best possible defense to a future lawsuit.
 That’s an important distinction—giving a defense to a lawsuit rather than preventing a lawsuit. Lawyers know that anyone can be sued by anyone else for anything. The question is whether the lawsuit has merit and will stick. Good terms and conditions will give you plenty of ways to dismiss the lawsuit with as little effort as possible, but you’ll still have to deal with the lawsuit. So that’s why these terms and conditions can run so long—they are trying to arm the company for a war that might come from the land, sea, air, space, other dimension, and in the case of some special litigants, parallel universes where your company is secretly in league with paranormal forces and therefore should pay the plaintiff one billion dollars. Drafting these terms are like packing for a trip when you have no idea if you’re going to Hawaii or Antarctica and you don’t know how long you’ll be gone…

Now, your third question is whether it’s standard practice in law to make most contracts and documents too wordy, not direct to the point, confusing—and also to have terrible grammar.

I doubt if it’s standard practice in law to deliberately and viciously make contracts and documents very wordy, not direct to the point, confusing—and also to make their grammar terrible. Legalese is, I think, simply the present-day outcome of centuries of overcareful, overzealous, overprecise, overwrought, and overbearing formulation, implementation, interpretation, and application of the law in evolving societies. It’s an arcane, stultifying language that generations of lawyers and other legal practitioners have not seen fit or bothered to simplify for clarity of expression and for easier understanding by laypeople. Indeed, for no better reason than convenience, modern-day legal practitioners still resort to and freely use many of the English-language legal templates and language quirks that date back to Victorian England and even earlier. They do so as if totally oblivious of the evolution of the English language in our Telecommunication Age towards accuracy, brevity, and clarity. I also think this is precisely why you’ve gotten the wrong impression that most contracts have terrible English grammar. Actually, on close examination, their English grammar would most often be aboveboard, except that their syntax and construction are those of a long bygone era, when those documents were still laboriously composed by longhand using quill and ink. In a very real sense, then, most contracts and legal documents today are composed by lawyers as if they are living in a time warp, making them—both the documents and the lawyers—sound terribly outdated, even archaic.

Your last question is whether it’s possible to make contracts and legal documents simple and precise. My personal answer is that, particularly in a democratic country like ours, it’s not only possible but highly desirable. In recent years, in fact, there has been a growing movement in North America and in the United Kingdom to use plain and simple English not only in contracts and legal documents but also in court litigation and in legislation, the better for laypeople to understand, appreciate, and follow the law as well as to assert their rights and fulfill their responsibilities as members of society. Read, for instance, “Lawyers Should Use Plain Language,” an article by Carol M. Bast in the Florida Bar Journal for a comprehensive discussion of the plain language trend and legislation in the United States.

Let’s just hope that the plain language movement and legislation will soon catch on in the Philippines as well.

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For a much richer appreciation of how legalese differs from plain and simple English, read:

“A Visit from St. Nicholas” (’Twas the Night Before Christmas), a poem by Clement Clarke Moore

then compare to:

“The Night Before Christmas, Legally Speaking” (Parody)

Strategies for avoiding tedious repetition of words in English

For everyone who’d like to get rid of the unpleasantly bureaucratic tone of their English, I recently reposted in Jose Carillo's English Forum an essay that I wrote for my English-usage column in The Manila Times way back in 2004. In that essay, “Phrases desirable and phrases abstruse,” I observed that bureaucrats, lawyers, and not a few academicians use a lot of officious stock phrases, among them “by virtue of,” “with reference to,” “in connection with,” “with regard to,” “in order to,” “with respect to,” “in line with,” and—perhaps the most irksome of all—“this is to inform you that” for both bad and good news and everything in-between.

I said that these phrases make their English sound so highhanded and even threatening, but we learn to tolerate them because they are part of their professional jargon. The problem though is that through repeated exposure to these stock phrases, we eventually appropriate them in our own writing and speech without even realizing it. Indeed, many of us in time begin to sound like bureaucrats, lawyers, and academicians ourselves. Their jargon permeates not only our conversations with our friends and coworkers but also our own memos, letters, and reports.  

I then argued that we should avoid those officious stock phrases like the plague, that we shouldn’t allow tradition and peer-group pressure to tyrannize us into using them against our will, and that in business and in our personal lives, we should instead aim to write and speak in more concise, more pleasant, and more friendly English.

That essay drew the following response last June 20, 2013 from Mwita Chacha, a Forum member based in Tanzania, East Africa:

“I agree that the best way to effectively get our ideas across is by making our sentences as precise as possible. But as a beginning writer, I sometimes feel reluctant to use a word more than two times in the same writing. That’s why I’m sometimes tempted to alternate, say, “about” with unpleasant bureaucratic phrases like “with regard to,” “with reference to,” and “as regards.” Admittedly, they sound standoffish and tend to get in the way of clear communication, but I think they help in many ways to eradicate repetition in the prose. Is there any better tactic of getting rid of repetition?”

This question gives me a wonderful opportunity to break new ground in my advocacy for plain and simple English, so I am sharing my reply to Mwita Chacha below with Forum members and with everyone desirous of having a better and more pleasant command of it. (June 30, 2013)

Systematic, wide-ranging ways for avoiding dysfunctional word overuse

The repeated use of a particular word in writing is not bad per se; it’s the dysfunctional overuse of that word that has to be studiously avoided. And I wouldn’t use the word “tactic” to describe such studious avoidance, for a tactic seems too fleeting and too short-term an approach for dealing with unpleasant over-repetition. Instead, I would go for the word “strategy” to describe the more methodical and wide-ranging way for achieving that objective.

To come up with such a viable strategy in English, we need to distinguish between its two general types of words and to understand the matter of language register and tonality.

The two general types of words in English, you will recall, are the content words and the function words. The content words are the carriers of meaning of the language, and they consist of the nouns, pronouns, verbs, adjectives, adverbs, and interjections. The function words are the logical operators of the language, and they consist of the prepositions, conjunctions (the coordinating conjunctions and subordinating conjunctions), and conjunctive adverbs. (“Lesson #6 - The Six Basic Logical Relationships in Language”) In a class of their own are the articles “a,” “an,” and “the,” which many grammarians consider as neither content words not function words (we won’t take up the articles here to keep this discussion manageable).

Among the content words, nouns are the most amenable to substitution with other words as a strategy for avoiding tedious repetition. For this purpose, of course, we routinely use pronouns for subsequent mentions of subjects identified by name—“he” or “she” for singular proper names and “they” for one or more of them, and “it” for singular things and concepts and also “they” for one of more of them. In feature writing and in the more creative forms of expression, we can use synonyms or similar words for subsequent mentions of particular nouns. (“Using synonyms to enliven prose”) Those synonyms can focus on particular or specific attributes of the subject or key word, thus giving the reader or listener more information about them without going into digressions that might just unnecessarily impede the flow of the exposition. For example, the subject or key word “John Updike” might be later referred to in an exposition generically as “the writer” or more specifically as “a writer of sex-suffused fiction,” “a notable literary realist,” “the prolific American novelist and short-story writer,” “the two-time Pulitzer Prize-winning novelist,” and “America’s last true man of letters.” Indeed, by using a synonym or brief descriptive detail, each subsequent mention of the subject becomes an opportunity for throwing new light on it for the reader’s or listener’s benefit.

As parts of speech in English, verbs, adjectives, and adverbs each have a unique and distinctive meaning or sense. In the case of verbs, there’s a specific verb for every kind of action; for instance, while there are close similarities between “walk,” “stroll,” “saunter,” “amble,” and “jog,” they are not by any means perfectly synonymous. Thus, once you have used the verb “walk” the first time around for the action you are describing, it won’t be appropriate or advisable—just for the sake of avoiding repetition—to refer to that action as “stroll” the second time around, “saunter” the third time around, “amble” the fourth time around, and so on and so forth. For accuracy and authenticity’s sake, you’ve got to stick to “walk” in all subsequent mentions of that action you described as “walk” at the start.

This strategy should also be applicable to adjectives and adverbs. For instance, you’d be out of line describing a woman as “beautiful” the first time around, then describing her as “pretty,” “comely,” or “fair” in subsequent mentions; you’ve got to stick to “beautiful” or else not use that adjective again in the exposition. The same strategy would also apply to adverbs; once you have described the manner an action is done as “cruelly,” you can’t refer to that same manner as “fiercely” in a subsequent mention. In fact, it would be good language policy to avoid repeat usage of adverbs (particularly those than end in “-ly”) or use their synonyms later in an exposition. (“Antidote to the widespread myth that adverbs are bad for writing”)

Now let’s take up what you describe as your reluctance to use one word more than two times in the same writing and, in particular, your being tempted to sometimes alternate the preposition “about” with such unpleasant bureaucratic phrases as “with regard to,” “with reference to,” and “as regards.” Of course it’s a good general approach to avoid using the same word or phrase more than two times in the same exposition, but strategically, I think you’d be ill-advised to alternate “about” with such phrases as “with regard to,” “with reference to,” “as regards” in subsequent parts of the same exposition. As you yourself have pointed out, although these phrases can eradicate repetition in your prose, they will definitely make your prose sound standoffish and thus just get in the way of clear communication. It will be like jumping from the frying pan to the fire, so to speak.

Along with the preposition “about,” its synonymous phrases “with regard to,” “with reference to,” and “as regards” belong to the class of words known as the function words. As I mentioned at the outset, function words are the logical operators of the language, and as such they have very specific purposes and roles to play in the creation of meaning in language. In the particular case of prepositions, there’s a unique word for combining a word or phrase with another noun phrase to express a particular modification or predication; as a rule, for instance, “on,” “in,” “at,” “to,” “toward,” and “after” can’t be substituted with or interchanged with one another (“Lesson #8 – Specific Rules for Preposition Usage”). Most preposition usage is essentially conventional rather than logical, but it’s a fact that specific prepositions have become so well-established for evoking particular relationships in space, time, and logic that it would be foolhardy to misuse them, to trifle with them, or to tinker with them. The good writer knows that a healthy respect for the conventional usage of prepositions greatly paves the way for good communication.

Now, the preposition “about” belongs to what I would call the normal, day-to-language register of English. A language register is, of course, simply a variety of a language that’s used in a particular social, occupational, or professional context. In general, in terms of degree of formality, we can classify the language of register of English in six categories: very formal, which is characterized by very rigid, bureaucratic language; formal, characterized by ceremonious, carefully precise language; neutral, characterized by objective, indifferent, uncaring language; informal, characterized by casual or familiar language; very informal, characterized by very casual and familiar language; and intimate, characterized by personal and private language. (Note here that I didn’t hesitate to used the verb “characterized” five times, for to have alternately used the verb phrase “distinguished by” for it would have been a needless distraction.)

It so happens though that over the centuries, the legal profession developed a variety of English that’s pejoratively called legalese, an officious, legal-sounding language that can be roughly classified between very formal and formal language. This is the language used by lawyers in making contracts, affidavits, depositions, and pleadings before a court of law. A common feature of legalese is the substitution of the day-to-day, vanilla-type preposition “about” with the longish and ponderous phrases “with regard to,” “with reference to,” and “as regards” along with the substitution of such day-to-day, vanilla-type conjunctions “because,” “so,” and “later” with their longish equivalents “whereas,” “therefore,” and “hereinafter,” respectively. When legalese stays within the confines of the legal profession or community, however, all’s well with English as we know it.

The unfortunate fact, however, is that legalese has continually leached into both written and spoken business English over the years, such that a typical memo or business report these days sounds very much like a legal brief meant for lawyers and court magistrates. When peppered with such legalese as “attached herewith,” “aforesaid,” “heretofore,” and “for your perusal,” the English of such memos and business reports becomes very rigid and bureaucratic and extremely formal or harsh in tone. This is the language register and tonality that your English would acquire if, for the purpose of avoiding repetition of the preposition “about,” you fall into the habit of routinely alternating it with such legalese as “with regard to,” “with reference to,” and “as regards.” What’s even worse, your use of these forms of legalese will force you to make unwieldy, complicated sentence constructions to match their ponderousness and severity.   

My advice to you then is to fiercely resist the temptation to alternate common prepositions and the function words in general with their legalistic counterparts. You’ll be much better off as a writer and as a communicator by using the plain-and-simple English prepositions and conjunctions instead—even repeatedly. You can be sure that your readers or listeners will like it much better that way.