Conspicuous under the UCC

Under the UCC, to disclaim the implied warranty of merchantability, the disclaimer must be conspicuous--it must stand out from the surrounding test so the reader would notice it. ALL-CAPS is typical:

* * *

Seller warrants that the goods sold are new and free from substantive defects in workmanship and materials.

SELLER'S LIABILITY UNDER THIS WARRANTY IS LIMITED TO REPLACEMENT OF GOODS OR REPAIR OF DEFECTS OR REFUND OF THE PURCHASE PRICE AT SELLER'S SOLE OPTION. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, IS MADE BY SELLER, AND NONE MAY BE IMPUTED OR PRESUMED.

Buyer must pay all sales taxes, tariffs, and other governmental charges. This Contract is governed by the Texas law.

* * *

But I like this:

* * *

Seller warrants that the goods sold are new and free from substantive defects in workmanship and materials.
_________________________________

Seller's liability under this warranty is limited to replacement of goods or repair of defects or refund of the purchase price at seller's sole option. No other warranty, express or implied, including the warranty of merchantability, is made by seller, and none may be imputed or presumed.
_________________________________

Buyer must pay all sales taxes, tariffs, and other governmental charges. This Contract is governed by the Texas law.

* * *

Jury instructions

A typical jury instruction in Texas:

• A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

I'm too busy to rewrite it now, and let's be honest: this would be hard to rewrite.

But we should make the effort. This instruction is used in criminal cases, and the accused's freedom may depend on the jury's understanding of recklessness. Shouldn't we explain it in language the jury can understand?

Not that the Flesch score and Flesch-Kincaid grade level are the ultimate indicators, but the Flesch score of this text is 29 (60 is plain) and the grade level is 19.

Plain English: What is it good for?

I think everything should be written in plain English. But when I push plain English, what I'm really aiming at is legal text that must be read and understood by nonlawyers:

Insurance policies
Website disclaimers
Credit-card agreements
Jury instructions

And more. But I don't try to impose plain English on my students who are learning to write memos and briefs. I save it for the advanced class in which they will write client letters and ticket disclaimers.

If we could bring plain English to multi-million-dollar transactional documents and appellate briefs, that would be great. But right now we can't even bring it to jury instructions in death-penalty cases. We have a ways to go.

Sad reality as noted by Ken Adams

"Many lawyers have the notion that their firms or law departments have a consistent drafting style, hence the commonplace put-down: 'That's not the way we do things around here.' But it is in fact highly likely that any given organization exhibits a crazy quilt of drafting usages. Life would be simpler for the individual drafter and the organization if all drafting were done according to a house style."

-Ken Adams

Ken might have gone on to say that his own Manual of Style for Contract Drafting would be a good choice for a house style manual.

Visit http://www.adamsdrafting.com

Sports announcer makes usage mistake

In describing Tim Duncan's dunk, the announcer said,

"Tim Duncan--exclamating the finish!"

Very nice.

Varying your words

Let's don't vary words for the sake of variation, okay people?

I am reading memos about a seller disclaiming the implied warranty of merchantability. Some writers use a different word once they've used disclaim.

I get waive the implied warranty

• not right for what the seller does

I get avoid the implied warranty

• close, but not the same as disclaim

I get repudiate the implied warranty

• fine, I guess
  

But why can't we just use disclaim? These writers do not realize the word is sort of stock term here. Or they don't realize that the word's appearing in the statute means it's an important word. And they're still varying words for the sake of variation.

Let's don't.

I gave a talk

I arrive at the airport and take a cab to the hotel where the CLE seminar is being held. My Tunisian driver seems to want to discuss religion, so I arrange for him to take me back to the airport after my 30-minute talk. (And we do discuss religion. He is Muslim and has a lot of opinions about what he calls the three holy-book religions: Judaism, Christianity, and Islam. It turns out to be a great conversation.)

I enter the hotel and am directed to the wrong floor. When I finally arrive at the right check-in table, the attendant hesitates when I tell her I am one of the speakers.

She just looks at me. "I'm Wayne Schiess," I say.

"Oh. You look like a student."

This is unusual. I don't have my tie on yet, but I haven't been mistaken for a student in many years, and the last time was when I was wearing a baseball hat and a backpack--at the law school.

I decline my complimentary set of materials: a thousand pages of bad legal writing by lawyers donating their time. (The first chapter I happen to turn to has multiple sentences of more than 100 words each--on the first page.) The big, durable binders are nice, but you've got to find a way to unobtrusively throw away a four-inch stack of paper.

I go in to listen. Someone is going long. Five minutes over time. Now ten. Eventually nearly 15 minutes over time. Why do I care? Because I'm the last speaker of the day, and I have to end at 4:45 or people will be annoyed. They can't report more CLE time than the course is accredited for, so they will resent it if I go past the ending time. I am to start at 4:15, but if I don't get started until 4:25, I still better end by 4:45.

So now my talk will have to be 20 minutes instead of 30. Why do I care? I'm not getting paid anyway. But for some odd reason, my ego gets lathered up and I think "They fly me in and pay my expenses--93 dollars for cab fare alone--and I get to speak for just 20 minutes?" I try to shrug it off.

Now I'm on the dais, waiting for the person before me to finish. Oops. The moderator set the countdown timer, forgot to start it, and left for 30 minutes. Now this speaker can go long without even knowing it and can cut into my time even more. Try not to care, Wayne.

Besides, no one here cares about ejusdem generis anyway. That's right. I'm speaking on one of the canons of construction: an obscure yet recurring character in the drama of contractual interpretation. I decided on it because I thought my materials and my originally planned remarks would be too basic. Surely no one will know much about ejusdem generis.

But what if they do? What if this talk is, in fact, too basic? I have a mini-panic attack on the dais less than 10 minutes before my talk. Now I begin to hope I'll have only 15 minutes.

Wait a minute. First you're mad about losing speaking time, and now you're happy? Get control of your emotions, Wayne. If they hate it, they'll mark you down on the course evaluations. You'll never be asked back, and that's fine. No more giving up 8 hours of your life to give a free 30-minute talk.

But last time you got a call from someone who heard you at the seminar and who wanted to hire you for a paid seminar. Calm down.

Okay, he's wrapping up.

Wow. I'm about to give a talk on legal drafting at 4:15. Asking for trouble. Tired audience, dry topic. Why do I get put last? Because I'm a superstar speaker? The pre-talk adrenalin is really pumping now, and my mind is all over the place.

Hey, I'm going to have nearly 25 minutes. Okay, let's see what I can do with ejusdem generis in 23 minutes.

It's a 23-minute performance. Add a joke here, a self-deprecating remark there. Look at me--I'm a word-nerd, see? Comment dryly on hereunder. Point out a that-which error in an example text. Focus on the near futility of drafting around ejusdem generis or any canon of construction. Get them laughing. Talk fast. I'm about out of time. Plug my blog? No. Done.

Now six people want to talk to me. "Is and/or a good construction?" "Do you give public seminars I can sign up for?" "I enjoyed your remarks."

This, I remind myself to soothe my ego, is how it usually goes. I can handle myself in front of an audience. I do okay.

The performance high wears off. I get back to the airport after discussing Islam. I sit and read.

Sounding smart

I read stuff all the time that I find plodding and fluffy. Sometimes I actually wake up long enough to realize "this writer is trying to sound smart." Big words, elegant variation, literary devices, fancy sentence constructions, long sentences, abstraction.

How come some of us naturally want to write that way?

Are we showing off? Are we insecure? Do we really think dense writing sounds smart? Do we fear that simple writing sounds stupid? Do we have the learned mindset that writing is a different thing from ordinary communication?

On Latin--it must come from the top

There are some Latin terms we could all get rid of: inter alia comes to mind.

But although I advocate getting rid of all Latin in legal writing, you can't just suddenly abandon subpoena, habeas corpus, and mandamus. When writing for a legal reader, you should use the recognized terms of art.

If the legal profession is to abandon all Latin, it must come from judges. Once judges begin saying "order to testify," then we can abandon subpoena in writing for legal readers. That day may never come.

I'm focused on abandoning Latin in writing for nonlawyers.

Against "subpoena"

A commenter writes:

• I think some of the Latin terms express, in a word or two, ideas that take a sentence to clarify in English. Every profession has it's own vocabulary particular to itself. Would you want to change the word subpoena for instance to "document requiring you to appear in court"? Seems a bit silly.

To me, it is silly to use a Latin word when you can use an English phrase everyone will understand. I also think Latin is pretentious.

For subpoena, how about "order to testify"? This recommendation is from here:

• http://www.acra.gov.sg/legislation/pdf/glossary.pdf