I’m reading the legal notices in the paper. A woman wants to change her name. If someone wants to object, they (or their lawyer) have to file a written appearance.
What the heck is a written appearance? Is it their way of saying that they have an issue and want to appear before the judge to discuss it? Or, do they state the issue in writing so that no one has to go before the judge?
Why would anyone have any say whether or not she changes her name? I could understand someone having an issue if she wanted to change her name to Adolph Hitler or something, but for general name changes, why would the courts give anyone the right to object?
Also, while looking for something to write about, I also ran across a summons. Now, I rarely read the paper. I NEVER look at the legal notices (except when my professor tells me to). So, why would a summons go in the paper? If the person being summoned doesn’t read the paper either, they’re never going to see it. Or, if the person has moved, they’re not likely to be checking the paper in their previous town. In this case, a liquor store is the defendant and a distributor is the plaintiff. I’m assuming that the liquor store is avoiding the process server and that’s why it was posted in the paper. If they still fail to respond to the summons, do they automatically lose? What would happen if the store owner later showed up and said they had been on vacation and didn’t see the paper? Would a decision be overturned if they could give a valid reason for not responding to the summons?
Just to note: Yes, I am doing homework. But, the answers I’m looking for have nothing to do with the homework assignment. This is just stuff that sparked my curiosity while attempting to read this, um, stuff.
Oh, another question - do you guys have a special class on how to read and write this stuff? Do you get extra points for a full paragraph with no punctuation and where half the words are in Latin?
Nothing about the other stuff, as I am a law student and in another country, but yes for this - I am currently taking a class called Language, Latin and The Law.
Admittedly, this isn’t required but it is fascinating.
I haven’t had a class meeting as yet but I have done the reading - as I say, it’s not required, its a supplemental class I’m taking (so no grades, no credit) but yes. I found myself bogged down looking up Latin terms. Plus one of the reasons I love law is that I love language. So yes, it is fascinating to me. That’s a subjective test anyway. Would it fascinating to a reasonable, ordinary person? What characteristics would an reasonable ordinary person have? Hmmm…
However, my assignments have plenty of full stops in them.
On point to your larger question, I am not in the US but I am American, and I have seen such notices. I presume that the actual format of the wording required either by procedure or law.
The latter, though they may eventually be required to go before a judge.
Name changes can be used to try to duck obligations of creditors, or child support payments, or the like.
Your assumption is correct, though they need not be actively avoiding the service of process. Any time normal service fails, the Court might require service by publication.
They can have default judgment entered against them. At least in the federal system, such default judgment can be fairly easily vacated (i.e. canceled) if the person has a good reason for not having answered.
In the American system, we read a bunch of cases, and generally learn the lingo that way. That said, as a matter of style, lawyers are moving away from the excessive jargon. Good judicial opinions and briefs are now written without all the mumbo jumbo. Check out a recent opinion by Scalia for a good example of clear legal writing.
ETA: Sometimes the language is required by statute. In Pennsylvania, in order to change your name, you have to file a ridiculous notice full of legal mumbo jumbo. The ancient statute remains in place because it makes the newspapers money.
Most of the excessive, required mumbo jumbo is part of forms/templates at a firms database. Beyond that - my very short experience at a large firm was that paralegals worried about that kind of stuff, rather than lawyers.
Richard Parker: Thanks for the answer. I was actually reading something earlier today that was written in clear English. It was the result of the investigation of the Probation Department of Massachusetts. Since that actually was something related to the assignment for this week, I wanted to know what the result was. I was pleasantly surprised to see that it was written in plain English. I only read 4 or 5 pages (no time to read all 300+) so I don’t know if it went downhill after that or not but I was happy with the pages I read.
It’s pretty annoying that I was able to understand the investigation report but not the stupid legal notices.
If you want guidance on good legal writing, hie thee to Google and look up Bryan Garner, editor of Black’s Law Dictionary and a leading advocate of clarity in law. Absolutely get a copy of his A Dictionary of Modern Legal Usage, and check out his other books, too. Here are ten tips someone condensed from one of his books:
Nametag: Thank you for the reference. Legal guidance isn’t something I’m looking for. Well, I was until about an hour ago but my lawyer and I finally managed to talk on the phone so I’m good on the guidance.
While I’m enjoying my Government class this semester, I’m looking forward to never taking another class like this again.
That’s some good advice right there. Actually, it’s all good advice and not just for lawyers. I wish some of my classmates would take his advice. I still find myself reading their discussion board posts out loud in an attempt to figure out what the hell they’re trying to say.
Lawyers often resort to using ‘forms language’ for one very good reason: it’s held up in court when challenged. The interesting thing here is that CYA use of form language is often unnecessary and may sometimes be counterproductive.
For example: “give, devise, and bequeath” in wills. Originally the three verbs referenced three different ways of transferring property to heirs at death by will, IIRC one relevant to real property, one to tangible gifts of personal property (“my second-best bed”), and one to gifts to ‘remaindermen’ (those who get whatever is left over after the other provisions are carried out. But if your jurisdiction no longer makes those distinctions, it is just pointless to use them. For example, leaving one child “my house and its contents” and another child “my money market account and my coin collection” should be obvious in intent – but what if half the coin collection is stored in the house? Of such things are family fights made.
That is not to say that traditional ‘lawyer language’ is always bad. Just as Colibri working in taxonomic ornithology may pay close attention to anatomical details the man in the street would consider nitpicky, while giving short shrift to something like coloration he considers important, “lawyer language” focuses on things shown to be important in past cases. Courts may be annoyed with “jailhouse lawyers’” repeated habeas corpus petitions, but they know that the Great Writ has historically had a vital purpose in bringing the person locked up without trial before a judge where he may get a fair trial. (The relevance to a certain group of persons detained on a leased base might be a GD-worthy case in point.) “Per stirpes” is a two-word shorthand in wills for a concept it takes 20 words to spell out in plain English. Jargon has purpose in every profession – it nails down things important to the proper practice of that profession that the rest of us tend to ignore. (I have yet to figure out why an accountant thinks a debt is an asset.)
Richard Parker has it right. I’m writing only to add a couple points.
I agree that Bryan Garner is the leading advocate of clarity in legal writing. In my opinion, if a layman cannot understand a piece of “legal jargon,” the writer has failed clearly to express herself. That said, I also agree that many times, lawyers simply copy what someone else has done previously that passed muster without much thought. I once got a draft answer from a junior associate that included a prayer for attorneys fees. I asked why it was in there, when the law is plain that attorneys fees wouldn’t be available in that type of case. “Um, it was in the last one I filed.” Okay; why in there? It took me talking to three or four other lawyers, tracing the origin of the phrase, before I could get that taken out of the draft. One lawyer even argued for keeping the phrase in “because you never know.” Actually, in California, you pretty much do know.
In California, a summons must be personally served – i.e., it must personally be handed to the defendant. If, however, the plaintiff can show the court that he has diligently attempted to serve the defendant but has been unable to do so, the court will permit service by publication. In the case you reference, I would assume that the liquor store is not ducking service (since to serve them you’d likely just need to walk in during business hours and drop it on the clerk), but may have closed its doors. In which case, no matter how hard you try you won’t be able to serve them personally. So the court could authorize service by publication; that is, putting a notice in a paper of a significant enough circulation in the area, usually at least once a week for a month. After a month, if the liquor store doesn’t do anything, you’d then apply to the court to default the store; that is, to have the store deemed served with summons and, since it didn’t appear, you’d get a judgment against them. Which, as Richard Parker notes, can sometimes be easy to overturn (in California, though, the window to challenge a default is pretty small; only six months, as I recall).
Actually, in law school they do teach you how to read this stuff, and when you begin practicing you’re generally so afraid of making a mistake you write like it. And then some poor senior attorney like me has to slog through it and try to figure out what you’re trying to say. I’ve found the most effective way to get a junior associate to write more clearly is to ask him to explain to me what he means by a certain sentence. Then I tell him to write that down instead.
Thanks guys. I read both the two long posts and was pleasantly surprised that you both kept my interest from start to finish, considering the subject matter. That was very informative.
Is it really fascinating or are you pulling my leg?