[HPFGU-OTChatter] Legalese: (Was Run-on sentences)

[elfundeb]

Carol's original:
Any organization not a party to this suit that is subpoenaed for the
taking of a deposition shall designate one or more officers,
directors, or managing agents, or other persons who consent to testify
on its behalf, and may set forth, for each person designated, the
matters on which the person will testify.

Carol's rewrite:
I *think* this sentence means roughly, "If you are not a party to this court
but are subpoenaed to testify under oath, you may designate one or more
persons who consent to testify on your behalf and you may determine the
matters on which each person will testify."

Ali's rewrite:
If one is subpoenaed for the purpose of taking a deposition but is not
part of this suit, one can designate a party (or parties) to testify
on one's behalf and may direct the matter that said party will testify
on.
Debbie's defense of legalese:
I'm a lawyer and I'm going to defend the original example, even
though sometimes the complexity of sentences in statutes (and contracts)
makes my head spin.  Lots of legal writing could be made more
layperson-friendly.  The one Carol quoted is actually quite clear and
consisely written.  Sometimes in order to understand the meaning of a
provision of a particularly complex sentence in a statute or contract I have
to resort to the sentence-diagramming skills I was taught in junior high and
which I thought at the time were completely useless in the real world.
However, the drafter's objective is to convey the intended meaning with
precision, so that persons applying or interpreting those provisions will
carry out the intent of the drafters.

Both Carol's and Ali's rewrites sacrifice clarity for readability.  Each one
omits important information about the scope of the rule.  Neither Carol's
nor Ali's rewrite conveys the important points that (1) the rule allowing a
non-party who has been subpoenaed to designate persons to testify only
applies to non-natural persons, such as corporations, trusts, partnerships,
etc., or (2) the person designated (an individual) must be a person with a
position of responsibility for the organization.  (The phrase "or other
person" tacked onto the end of the list is generally interpreted to be
limited to encompass only individuals with a similar relationship to the
entity as the listed individuals and not to mean any other person in the
universe; otherwise the subpoenaed entity could designate someone who knows
nothing to testify.)  Also, Ali's rewrite uses the word "party" to refer to
the person designated to testify.  However, in the legal world 'party' means
the plaintiff and defendant in a lawsuit or the parties to a contract.
Carol's rewrite also does not make clear that the rule only applies to
depositions (which is not the same as testifying in court).  The sentence
doesn't explain what a deposition is, but most statutes and contracts have a
'definitions" section which lays out all of the jargon, legal and otherwise,
used in the contract and lets the reader know what the parties to the
contract intended them to mean.)  This makes the document clear, even though
it may be annoying for the reader to have to refer to the definitions
section.

I believe the legal profession has greatly improved in its ability to use
plain English.  It's been a very long time since I've seen anything like the
"party of the first part" and "party of the second part" gibberish that used
to be common.  For example, a real estate contract is likely to identify the
parties as the "Buyer" and "Seller" which laypersons should readily
understand.  Part of the reason contracts are still not clear to laypersons,
however, is jargon.  Using shorthand terms with well recognized legal
meanings makes the language more legally precise.  A definitions section
helps, although a layperson may require an additional explanation.  (This is
why homebuyers generally benefit from obtaining legal help.)

Some legal writing could be simplified but the legal world is still burdened
by English history.  For example, phrases with double adjectives that
essentially mean the same thing, e.g., "The property is free and clear of
all liens" are, I am told, a legacy of the fact that at the time the English
common law was developing the aristocracy spoke French while the common
people spoke only English; thus, descriptions would use both English- and
French-derived words for clarity.  There is obviously no need for that
today, but traditional phrasing with a well understood legal meaning is hard
to eliminate.

> ~Ali, who's off to DC and is hoping everyone who's near a cherry blossom
tree takes the time this weekend to celebrate the cherry blossom festival
and the coming of spring

Carol:
Enjoy the cherry blossoms!

Debbie:
Yes!  Enjoy!  It's a gorgeous day so maybe I will bike over and see them
myself.

Debbie
whose realizes that some of her sentences are very complex, and hopes that
they'll pass Carol's sharp editorial eye


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