What he said.
Also, your language appears to cap the total annual Katrina credit available to the employer (the person who gets the credit) at $2400. The original statute makes it clear that this is a per-employee cap, and that the employer can get a much larger annual credit if he employs more than one eligible employee
Except you’re not biting at the challenge that yohanbaby posed to ralph124c.
Here’s what ralph124c said:
To which yohanbaby replied:
So where’s the archaic language, old terminology, 15th century English and obscure Latin terms in the section you cited:
You may think this section is needlessly wordy, but you’ve not given an example of a modern statute that satisfies yohanbaby’s challenge to ralph124c. I don’t see any ancient legal terminology in the original that you’re replaced in your re-draft. In other words, that part of your argument is a straw man, at least with the example you’ve given us.
Now, responding to your re-wording, I think you’ve changed the meaning of the section in a couple of key points.
First, you have drastically reduced the value of the credit, by limiting it to no more than $2,400 for any one person:
Since employers are “persons”, you are saying that no employer will get more than one credit, of no more than $2,400. How is that going to encourage employers to retain lots of employees? They only get a credit for one employee in your re-draft.
Another key point is that you’ve changed the nature of the credit, by deleting some key words. The original read:
So the credit is based on the amount paid to the employee, but is a credit that the employer gets.
Your shortened version allows the employer to take the credit out of the employee’s wages:
Don’t know what the employees will think if they hear their employer’s credit comes out of their wages. :dubious:
In other words, using short sentences may create ambiguity in the section. You’ve eliminated words that you considered unnecessary; I would say that by doing so, you’ve either altered the meaning of the section, or created unacceptable ambiguity.
Finally, I disagree with your comment that there was ambiguity about whether the $6,000 is the maximum qualified wage or the maximum credit. There are two reasons for my disagreement.
First, you don’t draft legislation on the assumption that a person will only read it once, quickly, as your phrase “at first glance” means. You build your legislation to be durable, on the understanding that people will read it carefully before making any decision based on it.
Second, it’s a basic principle of legislative drafting and legislative interpretation that you read a section as a whole. So you can’t focus on the last sentence in isoloation - you have to read it in the context of the section overall. Let’s read the sentence that precedes the sentence you object to:
That is the key sentence. Reading it, it is clear that the credit is separate from the qualified wages. You calculate the credit based on the qualified wages. There’s no confusion there. Then, the final sentence reads:
That sentence says nothing about the credit. It defines “qualified wages” by putting the $6,000 cap on it. That meaning of “qualified wages” then is used for the calculation of the credit in the preceding sentence.
In short, I don’t think you’ve proved your case. You’ve set up a couple of straw men, and your re-draft is much more ambiguous than the original. Short sentences tend not to be as precise as longer ones.
I think it does, assuming that certain key terms have been previously defined (which is a near-certainty).
Im not the best person to comment on this, but anyone who does have a comment should take into account that any terms that may appear to be ambiguous or unclear are probably defined in prior sections of the Code.
I disagree that this is clear. Even if it is, do you really mean to say that your third sentence is not meant to explain or clarify your first sentence?
So, does this mean that you abandon the claim that your re-draft is better than the original? If you’ve abandoned that claim, what are you now saying?
Yes, it does. You have to work your way through the wording carefully, just like you would work your way carefully through a wiring diagram in electrical work, but I would say that it is comprehensible.
We must have had different English 101. My English 101 was that you never leave “this” standing alone, because it creates ambiguity. You always give it a noun, so that the reader is certain what you’re referring to. YMMV on English style, but ambiguity is one of the worst things to have in a legal document, whether it’s a statute or a contract. That’s why it’s standard drafting practice to always give “this” a noun. If by doing so you increased the number of words in the sentence, so be it. Precision of meaning is preferable to ambiguity, even if that means longer sentences.
I think this illustrates my point. InvisibleWombat’s posting is a reasonable explanation of the statute, the sort of thing a lawyer would tell his or her client if they were asked “What does this part of the tax law mean?”. But, IMO, it’s essential that the actual wording of the statute is as free from ambiguity as possible, so that every lawyer can give the same explanation without having to guess about what individual words or phrases are intended to mean.
That’s not to say the statute can’t be improved - a replacement of “such” with “the same” would be a start. But a legal draftsman (drafter? Don’t want to be sexist, but “drafter” has decided military overtones) must aim for precision above all else.
And what is wrong with that?
Let’s say that you’re the client. You’ve got a million dollar deal. Your lawyer comes up with a draft of the contract. She points out a particular key paragraph that has two alternative wordings for you to choose.
She says:
“Alternative A is pretty wordy, I know, and uses some rather old, stilted terminology. However, this phrasing has been in front of the courts of this jurisdiction innumerable times and its meaning is clear in the case law. If we use it, I can give you a pretty strong assurance that we won’t ever have to go to court on it.”
“Alternative B is my re-draft. I’ve tightened it up, got rid of a lot of words, it’s easier to read. It’s never been considered by a court. I’m pretty sure it has the same meaning as Alternative A, but I can’t be sure the courts would agree. If we use Alternative B and there’s ever a problem, litigation may result, and I can’t be sure the courts will interpret it to mean the same thing as the older version.”
“Which version do you instruct me to use?”
It’s your million dollars on the line. Which do you tell her to use? :dubious:
The problem of interpreting words and phrases is why they should be defined within the contract if there is any realistic chance of them being litigated in the future. The best contracts (for the drafters) are designed to keep any dispute out of court altogether, not necessarily to make sure that the terms conform to those from previous cases (since courts can always find new facts in an instant case to distinguish it from prior cases).
Yes, but Northern Piper’s point stands: if a particular turn of phrase already has been litigated, so that there is law that explains what that phrase means, you’re on pretty safe ground. And trust me on this, no matter how well you define your terms within the contract, there’s always going to be something you miss or some wiggle room.
I’m also with Random and Northern Piper on the “this” debate.
I’m a civil engineer who writes specifications for public works projects. It’s just one of those miscellaneous parts of the job.
I’m in no position to dispute that certain wordings have been tested in the courts to have particular meanings. Still, one problem I run into is others who have no more legal training than I - that would be “none to speak of” - who think that by following impressive-sounding language structures, they are spreading magical pixy dust that will prevent against all manner of imagined legal catastrophe.
Anyhow, is there any kind of legal requirement that we should in some places use “at such point in time that” versus “when” -? There probably are fine legal distinctions between “cost” and “price”, and between “payment” and “compensation” - but there aren’t any engineers who can say what those are. But the longer the word, the better, right?
I see any number of human spec writers who believe that redundancy will magically save the day; heck, we might have forgotten to word this provision to cover all possibilities in one place, but we’ll reword it slightly differently in another place just to make sure that we got the rest of them. Anyhow, repeating a contract provision makes it more important, right?
If we use the phrase “The Contractor shall comply with all applicable laws and regulations” enough times, we’ll stay out of trouble, right? Wrong. Any contract that implies that a contractor can in fact break the law is NO contract, as I understand it.
The problem is probably not the lawyers as such. The problem is any number of not-quite-paralegals who think they can out-lawyer the lawyers. Okay, this probably includes a lot of lawyers, as well. Sigh.
Not more important, but sometimes clearer or more inclusive. It’s true, lawyers tend to use synonyms or near-synonyms in their drafting. Is it better to release “all claims” or “all claims, causes of action and judgments”? Or to use something akin to your example, “comply with all laws” or “comply with all laws, statutes, ordinances and regulations”? A “crime”? Or a “crime, felony, misdemenour, or offense”?
In each of these cases, there’s less wiggle room in the second version.
Not exactly. Although a contract can be void if the subject matter is illegal (a gambling contact, or a contract to provide unlicensed professional services, for example), not every violation of the law, even if it exists at the time the contract is signed, makes the contract illegal. If you hire me to drive you to the airport, the fact that I don’t have a city (tax) sticker on my car probably won’t make the contract void. If I don’t have the proper taxi/chauffer’s license, it probably is.
At the risk of oversimplification, in my state, a court looks to the policy behind the law that’s broken. Violation of a law designed to protect the public, especially members of the public situated similarly to the other party to the contract, tend to make the contract void, if they relate to the subject of the contract.
And if the violation of the law comes later, after the contract is formed, it’s unlikely to void the contract as a matter of law. If you hire me to provide services as an electrician, and I’m not licensed, the contract is probably void (legally meaningless from the start), or at least is voidable at your option. On the other hand, if I have my license, but (after the contract is signed) I install electrical lines in your house that don’t comply with the local building code, the contract is not automatically void or voidable. I’ve certainly violated the law, and likely am in breach of the contract, even if it’s silent on the effect of code violations, but that’s not the same thing as void. Among other things, you may still have to pay me at least part of what’s owed under the contract.
Another purpose of contract language like “the contractor is reponsible for ensuring compliance with all laws and ordinances, and obtaining all necessary permits” is to make it clear that this responsibility is that of the contractor (as opposed to the owner, or perhaps the architect). Say the job is shut down because no one pulled a building permit, and that costs the owner $50,000 in lost profit. As the attorney that the owner then hires to file a claim, I’m much happier if the contract makes it clear that pulling permits is the contractor’s responsibility.
This is true, although it isn’t necessarily what happens. Many lawyers simply copy language from previous documents, assuming the “this language has been litigated” line. Often they don’t know whether the language has been litigate or not, or whether the meaning assigned by the courts is the one that their client intends. They use it because it looks official.
I think we have all seen cases where **Random’s ** logic has actually backfired. If you are being specific, and you leave something out, it can count against your client. So you have to be careful. That said, it is the need to anticipate just about every possible way that a deal could go sour that makes good contracts so complicated. Good lawyers will do as **Random ** says and make sure that they try to include every possible variation so that there are no surprises down the line. They don’t always succeed.
OTOH, there is no excuse for including ridiculous boilerplate in litigation documents.
The rules typically say:
http://www.law.cornell.edu/rules/frcp/Rule8.htm
or
http://courtofappeals.mijud.net/rules/public/MCR2.htm#2.111
Here is an example of a negligence complaint from the Federal Rules of Civil Procedure:
And yet lawyers still enormous, repetitive, argumentative complaints.
The 9th Circuit discussed the problems with this approach:
sigh
I should have known better than to toss together a quick rewording and throw it before this exacting gang. My apologies. The majority of your criticisms are quite valid, but some of you have missed my points. First, in response to Northern Piper’s statement that “The goal of good legal drafting is clarity, not obfuscation,” I responded, “In contract law, reusing phrases, if not entire sections, that have been tested in court is a much higher priority than rewriting them to make them clearer.” The response was:
I didn’t say anything was wrong with it. I said that’s the way it is. Your entire lengthy argument reinforced my point. You’re actually agreeing with me on this, Northern Piper.
In response to “does the original wording resolve all of these issues clearly?”, Random responded:
Well, if you assume that the terms have been defined elsewhere for the original draft, then you should assume that they’re still defined elsewhere for mine!
Also, in response to, “And, by the way, ‘this’ clearly refers to the subject of the previous sentence,” Random responded with:
I clearly understand that your use of the word “this” in that sentence refers to my previous sentence. So you can correctly use the word; you just don’t feel it’s clear when other people use it? :dubious:
A final aside to Northern Piper before I try rewording that section again: You said that I “feel the section is too wordy.” No, that’s not it at all. I do not feel that “wordy” is the main problem with “legalese.” My problem is that it’s written to be understood (only) by attorneys. Clarity and understandability are far more important, in my humble opinion, than brevity.
You pointed out several places where my quick rewording is actually wrong. I read that section several times and misunderstood it. I’m a professional writer, and in the course of owning several businesses I had to proof a lot of contracts. I think the fact that I misread it says something about the clarity of the original document. Of course, it also says something about my own carelessness in picking up yohanbaby’s gauntlet without putting in the necessary time to fully comprehend the text I was rewriting, but that’s a different issue. For that matter, I wasn’t even addressing what yohanbaby was looking for directly, as there’s no Latin or archaic English in the original text either.
I’m working today, so this is about the maximum amount of time I can spend in this thread right now. I’ll be back to try the rewrite again later tonight or tomorrow if anyone really cares. I suppose we should establish that first. Is there anyone arguing that the original paragraph I started from can’t be made clearer for laymen? If not, I won’t bother to try it.
I had a lawyer once, didn’t do crap.
If you have half a brain you don’t need a lawyer.
It’s possible that it could be made clearer, but it’s important not to be distracted from the questions presented by Ralph124’s post:
First, whether laws could be simplified to the point where we would not need trained professionals to deal with them.
Second, do legislators intentionally (and needlessly) make laws more complicated and difficult to understand in order to generate more business for lawyers?
For reasons I will explain, the answer to both questions is NO.
I believe an example will help illustrate the issue behind the first question. Suppose your job is to draft a law of homicide. Now, we all know that generally speaking, it should be illegal to kill another human being.
But should all killings be treated the same? What if the killer was the victim of an attack and had no means of escape besides killing his attacker? What if the killer is in his house and has shot and killed an intruder? What if the killer kills by accident because the brakes failed on his car? What if the killer was a drunk driver who ran into somebody? What if the killer was robbing somebody’s store and killed the shopkeeper by accident? What if the killer was a bombadier in the U.S. Air Force who was ordered to bomb enemy soldiers? What if civilians die as a result? What if the killer is an executioner? A law enforcement agent who shoots and kills a fleeing bank robber? etc. etc.
The point is that as an honest legislator, if you draft a law of homicide that is reasonably fair and captures the values of the community, you will end up with a law that is fairly complex. The law will contain exceptions, and exceptions to exceptions. There may also be a lot of lingo: words and phrases like “malice aforethought,” “premeditation and deliberation,” “felony-murder,” “manslaughter”
Now imagine that you have to draft an income tax code!!
At the end of the day, if you are reducing complex ideas to writing, and expressing those ideas in precise terms, you end up with something complicated. It’s just unavoidable. And so we have trained professionals whose job it is to deal with all that complexity, i.e. lawyers.
Just as we have aeronautical engineers; computer programmers; and automobile mechanics to deal with other complicated systems. Yes it would be nice if a helicopter was simple enough that anyone could build one. But it’s not and they can’t.
As to the second question, I see no evidence of any sort of mass conspiracy among lawyers to make laws more complicated. Since you don’t need to postulate any sort of conspiracy to explain things, it’s reasonable to assume that there is no such conspiracy until somebody comes along with some serious evidence.
Finally, I think it would be a useful exercise for InvisibleWombat to keep redrafting until he or she comes up with something that is just as precise as the original statutory language. Although it is possible to draft many laws more clearly, it is not possible to clarify to the point where we would significantly reduce the need for lawyers, and InvisibleWombat’s drafting would help show this.
Another point to remember in drafting laws is that they are drafted on the understanding that they will be used in an adversarial situation, with two opposing parties trying to interpret them in different ways. It’s not like an instruction manual, say, where everybody who reads it is looking at it from the same perspective (“How do I turn off that damn flashing clock on my VCR?!”)
The Crown prosecutor will look at the law from this perspective: “what elements do I need to prove to secure a conviction in this case?” The defence lawyer will be looking at it from a completely different perspective: “What defences are available to allow me to raise a reasonable doubt?” They will tend read the law differently, in case of ambiguity. The same is the case in most other areas of the law, such as income tax, contract, or family law.
Because of those differing perspectives, ambiguity must be avoided as much as possible. And I simply am not convinced that short sentences will avoid ambiguity, when the matter goes to court.
Remember, “It depends what the meaning of ‘is’ is.” 
welcome to the world of adversarial litigation. This type of exercise is what lawyers have to consider any time they put pen to paper - not just “what does my client mean here?” but also, “how will the opposing client’s lawyer try to pick apart what I’ve written?” That’s why lawyers tend to use longer sentences - to provide as much detail as possible, to reduce the scope for contrasting interpretations.
“Point of clarification, My Lord; the witness is putting words in my mouth; I referred aprovingly to comments from my learned friend, Pravnik, but I did not myself say those words, as review of the record will demonstrate.”
Sorry, I misunderstood. I assumed from this comment that you were linking brevity to clarity:
But getting back to the main issue, I’m intrigued by this comment:
What I find interesting is that following this discussion, you seem to accept that the criticisms raised by Random, Tevildo and myself are valid and that you misunderstood the meaning of the section. That in turn implies that you accept that the wording used by the drafter gave a single, intelligible meaning to this section. You also appear to agree that you understand the section now, even though you are not a lawyer. In other words, it is a clear section, not in the sense that the meaning is immediately apparent “at a glance”, but that on careful reading, a non-lawyer can agree with a lawyer on the meaning of the section, not because “the lawyer says that’s what it means” but because of careful analysis of the wording of the section.
I would argue that the section does its job in explaining who is eligible for the credit, how the credit is calculated, and what the cap on the credit is. I would again use my analogy of the wiring diagram - when you’re trying to describe something relatively complex, the goal is to reduce ambiguity as much as possible, after a careful review of the description by the person using it. The writer of a legal document assumes that the reader will put some effort into understanding it, just as the person who prepares a wiring diagram assumes that the person using it will take considerable care in reviewing it before actually tinkering with the wiring.
I think that this exercise is a search for clear meaning, but I think I am using clear meaning in a different sense than you are using. I’m assuming that “clarity” means that after careful analysis, the section should only have one meaning and that the ambiguity is reduced to a minimum. I take it that you’re using “clarity” in the “at a glance” sense. I continue to have my doubts that that standard is possible in a piece of writing that will be used in an adversarial setting, where ambiguity will be seized upon.
I’m interested to see if you can make it better. 
I’ve never seen it.
A competent attorney will insert the phrase “including, but not limited to” to protect against this possibility.
Some lawyers do. Most don’t. Most of the enormous, barely-comprehensible pleadings I have seen were drafted by pro se parties who were not attorneys.
I am too.
I’m reminded of something amusing…
http://www.hmcourts-service.gov.uk/judgmentsfiles/j3689/cavendish_v_stagecoach_1205.htm
Read it until you get bored (which may not take long if you’re not particularly interested in legal minutiae), then skip to Paragraph 46. 
Watch how you talk about Random (who didn’t). 
Some competent lawyers think that’s useless crap: