In the second post of this series the Hermit
Philosopher shook down the echoes of the Norman Conquest and its effects on
legalese. Exhibit A was Kohlbrand v. Ranieri,
a weird Ohio case involving linguistic couplets and similar lawyerisms. The
post ended by foreshadowing a discussion of the “negative pregnant,”
malpractice in Michigan, and the question, “what is a bank?” So, as promised …
What Hath
William Wrought?
If it were not for Guillame
le Conquerant, lawyers might write plain English. Instead, we use redundant
tautologies (ahem!) like couplets and weird syntactical structures like the “postpositive
adjective” and the “negative pregnant.”
Postpositives – a descendant
of Law French – were explained in the previous post as phrases in which the adjectives follow
the word they modify. In addition to the examples given earlier, they include agent
provocateur, battle royal, body politic, court-martial, and
– God Almighty!
– many more.
A “negative pregnant” is another
postpositive phrase, and it means a denial that implies an affirmation. For
example, if a witness is asked whether he stole $100 from the plaintiff, on
March 22, 2019, he might reply, “No, I did not.” Left uncertain, of course, is whether
he stole that or some other amount on that or some other date from the plaintiff
or someone else. Thus the negation is pregnant
(fraught) with meaning.
William I of England –
William the Conquerer – is not culpable (from Latin culpa, “fault”) for all of the muddled legal writing we see today,
but nearly 10 centuries ago he set in motion some nefarious linguistic practices
that make my teeth itch.
Medical Malpractice
Muddle
Consider the following passage from a Michigan case
decided in 1971:
This
appeal presents a very simple question, but it is fraught with great danger for
the public weal. The question is: Was the trial court in error in refusing to
grant defendants’ motion for a judgment notwithstanding the jury’s verdict for
the plaintiffs?
Do
you feel in danger? The public weal (wellbeing) is threatened! Mon Dieu!
Instead of talking about the Michigan-Ohio State game, people all over Ann
Arbor are worried that the trial court was in error when it refused to grant
the defendants’ motion.
This was a medical malpractice case. The plaintiff,
Mr. Guilmet, had horrible peptic ulcers. He went to Dr. Campbell, who advised
surgery, said it was a very simple operation, and said there was no risk to it
at all. “After this operation you can throw your pillbox away; your Maalox you
can throw away.” Thusly did Dr. Campbell essentially guarantee that Mr. Guilmet
would be cured.
Alas, he wasn’t cured. He suffered numerous
complications, had to undergo three other surgeries, contracted hepatitis and
other infections, lost about 80 pounds, had sleep disorders, and even lost his
job. He sued Dr. Campbell for negligence and breach of contract. The jury wasn’t
convinced Dr. Campbell had been negligent, but it did hold that he had breached
his contract (his promise) to cure the patient. For this they awarded the equivalent
of about $310,000 in today’s dollars. Campbell’s lawyers moved to set aside the
jury’s findings – that is, they moved for a “judgment notwithstanding the
verdict.” The judge denied the motion, and Campbell appealed.
Despite the befuddled way they stated the issue, the
appellate judges affirmed the trial court decision. Simply put, the question was whether
a medical malpractice (negligence) case can be decided on the basis of contract
law. The clear conclusion of Guilmet v.
Campbell is: Of course it can be. Whether the defendant is a physician, a
plumber, or an auto mechanic, if they guarantee to fix something and fail to do
so, that’s a breach of contract. Dr. Campbell didn’t just discuss the surgery
with his patient, he browbeat him into consenting to it by promising he would
get well. Instead, he got worse. Guarantee breached. End of case.
Other Purveyors of Pestilent Prose
Lest
you think judges are the main sources of muddled thinking and wretched writing,
consider the work of our elected legislators. Open any volume of state or
federal statute books and you can find gems like this one, chosen more at less at
random from a portion of the US Code dealing with banks and banking:
Wherever
the word “bank” is used in this Act, the word shall be held to include State
bank, banking association, and trust company except where national banks or
Federal reserve banks are specifically referred to.
The
terms “national bank” and “national banking association” used in this Act shall
be held to be synonymous and interchangeable. The term “member bank” shall
be held to mean any national bank, State bank, or bank or trust company which
has become a member of one of the reserve banks created by this Act. The term …
“the continental United States” means the States of the United States and the
District of Columbia. [12 U.S.C. § 221]
Raise your hand if you can now explain
what a “bank” is.
I cannot resist
picking apart this stupefying passage. It is under “definitions” in the Federal Reserve System law, but it actually defines nothing. It merely says that the term bank includes some other things that,
apparently, aren't otherwise considered banks. And, by the way, the term
doesn’t just include those other
things, it “shall be held to include” them. Why use one word when five will do?
A definition,
by definition, must clearly state a term’s precise meaning. Definitions
are hard to write, and legislators are notoriously bad at it. I learned
somewhere along the way – about seventh grade, I think – that a definition must
not include the word being defined. You can’t make clear the meaning of a word
by using the word itself. If you intend to define bank, you can write something like “a business in which money is
kept for saving or commercial purposes or is invested, loaned or exchanged,”
but you can’t use bank in the
definition of “bank.” If you do, the statement is circular and meaningless.
Apparently some
Members of Congress skipped the seventh grade.
One more point
about this lousy provision. According to its author(s), the “continental United
States” means all 50 states and DC. Thus, by fiat of Congress, Hawaii is part
of the North American Continent. Never mind that it is in the middle of the
Pacific Ocean about 2,500 miles west of Los Angeles.
Congress defines
things weirdly on occasion. For example, under federal tax law, a tomato is
considered a vegetable, even though high school botany students can tell you
that it’s a fruit – the fleshy, seed-bearing part of a flowering plant. It’s all well and good to know that a tomato is a fruit, but it’s smarter not to put it in fruit
salad. 😊
# # #
Up next: A jurist who “bucks”
the trend.
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