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Eliminate these terms from your legal writing

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Legalese Def Photo

Legalese (noun) – the formal and technical language of legal documents that is often hard to understand.

Since its inception, the use of peculiar legal terms has become a legal writing rights of passage. Are the terms effective? Yes. But, whether they are really needed is up for debate. Young attorneys often face this decision with uncertainty. Whether to replace the murky legal terms with clear language or stick with them in an effort to show that they too can write just as confusing is the question.

This article advocates for the deletion of “such” terms. The piece is extremely informative and persuasive, as Bryan Garner does an excellent job of thoroughly explaining the reasoning for his position. Listing numerous sources on the definition/use of each word and why it should be banned.

Keeping a banned-word list is hardly unique to newspapers. The novelist Ambrose Bierce kept a “Little Blacklist of Literary Faults,” published nearly a century ago. He despised committed suicide, preferring instead killed himself (or herself). He likewise disapproved of decease for die, executed for hanged (or put to death), expectorate for spit, inaugurate for begin, prior to for before and so on. He wasn’t fond of genteelisms. No real stylists are.

Legal drafters could benefit from a similar verbal blacklist—a simple list of words that do nothing but blemish the documents that contain them. Learn them and ax them.

and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.”

See, Ax These Terms from Your Legal Writing

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The Stunt that Keeps on Giving…

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News of the mysterious ‘Dumb Starbucks’ coffee shop that popped up in Los Angeles over the weekend spread like wildfire. As details emerge, it appears the shop was one big stunt. As it turns out, the idea was the brainchild of Comedy Central reality-TV-show host Nathan Fielder. The networks argument against trademark infringement, parody law & free speech…

Despite threats from Starbucks that what Nathan Fielder is doing is a trademark infringement, the network’s parent company says “Dumb Starbucks” constitutes “protected free expression.”

See, Comedy Central Lawyers Approve ‘Dumb Starbucks’

Copyright Law Pop Quiz – News Organizations

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Consider the following scenarios:

  • Two high school cheerleaders are suspected of spearheading an elaborate underground gambling ring.  Neither the police nor the school will release the students’ photographs, but your reporter was able to obtain several images of the girls on Facebook along with a short video of them performing a cheerleading routine.  Can your station use these visuals in its newscast?  During a tease?  On its website?
  •  With the gubernatorial election a month away, a story appears overnight on the website of the local alternative weekly newspaper that the incumbent has late-stage cancer and may only have weeks to live.  Your political reporter tries, but is unable, to confirm the story overnight.  Can your station lead its morning newscast with the story?  If so, must you attribute the newspaper as the source of the story?
  • Your station’s primary competitor obtains hidden-camera video of the star quarterback for the local NFL team injecting steroids before a big game.  Your assignment editor identifies the source of the video, but is unable to negotiate a licensing agreement at a reasonable price.  Can your station still broadcast parts of the video on its newscast (using the video recorded from your competitor’s newscast)?

See, What Every News Organization Needs to Know About Copyright Law.

Textual Citations, or nah?

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Bryan Garner is a world renowned lawyer, lexicographer, and teacher. His book Garner’s Modern American Usage and Elements of Legal Style is the leading source for the effective use of the English language. He is also the editor-in-chief of all current editions of Black’s Law Dictionary. Garner writes a monthly column for the ABA Journal. His latest piece discusses textual citations and the hindrances they place on legal writing.

Although legal writing is the least skimmable prose known to humankind, those who create it commonly do something that forces readers to skip over dozens, even hundreds, of characters in almost every paragraph. I refer, of course, to citations: the volume numbers and page numbers that clutter lawyers’ prose. These superfluous characters amount to useless detail that distracts the reader from the content. This habit also results in two evils that you might think contradictory: overlong sentences and paragraphs on the one hand (the extra characters bulk it up, after all), and underdeveloped paragraphs on the other.

I agree with Garner, textual citations make for messy paragraphs, but using footnotes as the alternative has its drawbacks as well.

See, Textual citations make legal writing onerous, for lawyers and non lawyers alike.

Quentin Tarantino Suing Gawker Over Leaked Script

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Hollywood_Reporter_Rule_Breakers_Quentin_a_p

Quentin Tarantino has filed a copyright lawsuit against Gawker Media for allegedly facilitating the dissemination of copies of his unproduced script, The Hateful Eight.

Last week, the famous director was outraged after details about the Western circulated. He was so irate that he told the media that he wouldn’t be making the picture as his next film.

Soon afterwards, Gawker’s Defamer blog linked to the 146-page script under a post titled, “​Here Is the Leaked Quentin Tarantino Hateful Eight Script.”

See, Quentin Tarantino Suing Gawker Over Leaked Script

Should Rap Lyrics Be Admissible Evidence?

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It seems hard to justify the use of lyrics like this as anything other than a cynical attempt to influence the jury with what is likely unfair character assassination. Any “gangster rap” artist is going to have lyrics in their songs that read like the manifesto of a criminal. That, however, does not make that person a criminal. Music is art, after all, and nobody goes around suggesting that Gwar actually wants to eat your children, that Martin Scorsese is part of the mob, or that John Carmack murders uber-demons in his spare time. Gangster rap has grown up and been commercialized so that it’s as authentic as Kraft American Singles cheese and mostly as palatable. Some gangster rappers are as “gangster” as the teenage surburbanite children who listen to it so faithfully. In the case of Skinner, the other evidence used against him was testimony by witnesses that told more stories than Stephen King. Still, he was convicted by the jury, though that conviction was later overturned.

See, Should Rap Lyrics Be Admissible Evidence?

Who really owns an LLC’s blog entries?

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Though the question presents itself under very unfortunate circumstances, the issue is worth pondering.

Dear Rich: I am part of an LLC that owns a blog. One of our officers was the active blog contributor. She died last year. Some of the other officers would like to publish her blog posts, but we are unsure who owns the copyright – the LLC or her heirs?

See, Does LLC Own Officer’s Blog Entries?