From time to time, you actually get a gift. Last Tuesday, Ruminations received one from Judge Richard A. Posner. He sits on the United States Court of Appeals for the Seventh Circuit. No shrinking violet is he. The gift was his concurring opinion in a non-real property case and can be seen by clicking HERE and turning to page 17.
His gift, welcome as it was, resulted in our making our prepared, unusually short blog posting a little longer than we had planned. That in and of itself would trigger his ire, but for the triviality of the Ruminations Retail Real Estate blog when compared with what he sees from the bench.
Recall that his was a concurring opinion in the traditional sense. The reason he wrote it, however, is interesting and might be a commentary on the leases and other documents we, real estate people, write. Try these tidbits on for size:
I agree with the decision but have reservations about some of the verbal formulas in the majority opinion. I do not criticize the majority for reciting them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination.
To repeat what I said at the outset, I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.
The same could be said for so many of our leases, if not all of them.
His examples touch on a number of categories. Take, for example, when the main decision said that the United States Court of Appeal was obligated to “afford ‘great deference’” to what turns out to be a magistrate’s finding of “probable cause.” Among the questions he raises, is that of: Why should a federal court of appeals pay “great” deference to a magistrate, an individual who ‘generally oversees first appearances of criminal defendants, sets bail, and conducts other administrative duties.’” Magistrate judges are appointed by a majority vote of the federal district judges of a particular district. They are not constitutional appointees whose appointment must be confirmed by the United States Senate. Judges sitting on the federal District Courts and the Court of Appeals are.
Judge Posner also questions why the main decision wrote: “… those mistakes do not go to a defendant’s actual guilt or innocence.” To that, he comments:
There is first the question, which I’ll leave for another day, what the terms “actual guilt” and “actual innocence” mean that “guilt” and “innocence” without the adjective “actual” do not mean.
Here’s one more example, one addressing a lack of precision in the main opinion, but one that is so common that it almost is part of the wallpaper. If the subject matter is new to you, you may need to read it twice, but you’ll get the point:
I also question the statement near the end of the majority opinion that “claims of [jury‐]instructional error” are to be “review[ed] … for abuse of discretion,” the term “abuse of discretion” being defined a few lines further along as including, among other missteps, “material errors of law.” Of course material errors of law are potentially very serious, but what has that to do with discretion or its abuse?
Judge Posner deserves “great deference” from Ruminations. In honoring that obligation, we confess that we’ve selected examples of his observations, but not some very astute observations he makes about real “legal” things.
So, what were we griping about in the blog posting we had teed-up for today before this gift arrive on Wednesday? Here is a much shortened version.
How does insuring for “the full replacement cost of the property” differ from insuring for “the replacement cost of the property”? [Is there more milk in a full quart than in a quart?]
If the “term of this Lease” is defined as “Term,” then why do leases then use “Term of this Lease”?
Does “three hundred fifty and NO/100 dollars ($350.00)” mean something different than “three hundred fifty dollars ($350.00)” or even just “$350.” Does it make lawyers look like they went to law school?
Why do some leases use “lessor” and “lessee” while no one speaks that way? Is it because we want to test everyone to see if they mistakenly write (or read) one in place of the other? The world calls these parties “landlord” and “tenant.” Why do some leases refuse to get with the program?
If a Lease (or other document) has Exhibits, does it mean something different when we write: that something appears in “Exhibit X as attached to this Lease and made a part hereof” as contrasted to merely appearing in Exhibit X? A sibling to this is when we write “as defined in Section X of this Lease.” Why not just, “as defined in Section X”?
Do you know about the word, “said” as we so frequently see it in our documents? It is the past participle of the word, “say” Perhaps we use it to refer to something we’ve already written or described, but, “Why do we do so”? “I went to the supermarket yesterday to buy an apple. At said supermarket, they had three (3) kinds of apples.” Is that how we communicate? Basically, try replacing every “said” with the word, “the.” Do that the next time you review an agreement. Yes, in a handful of places, you might prefer, “such,” as in “as set forth in such agreement.” Once you’ve absorbed that, then think about what “the said Agreement” could possibly mean. Try, “the the Agreement.”
We easily could list dozens of examples of sloppy excesses and inartful ways we write our leases and other agreements. But, we won’t. What we will do, however, is to invite all of us to actually read our documents, not skim them while acceptingly treating their archaic and formulistic provisions as poetry. Our task is to write prose, not poetry.
So, we’ll place a matching bookend on today’s posting by combining two parts of Judge Posner’s opinion, adapting it for our readers: “Ruminations does not criticize our many colleagues for using certain words and certain formulations in our documents because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. … Everything we write can be written in straightforward language—and should be.”