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By Ian Pisarcik, Legal Publications Attorney Editor
Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:
[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients.
Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).
It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.
Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).
The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.
So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.
Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.
The following material has been posted to BarBooks™ as of June 1, 2014. Chapters to books in progress are posted as they are finalized, before they are available in print.
§ 12.4-1(b)(1) Speedy Trial (updated)
2014 Oregon Legislation Highlights
Now available on BarBooks™
Health Law in Oregon
PDF available for download
Oregon Real Estate Deskbook
Chapter 11: Easements
Chapter 19: Commercial Real Estate Finance
Oregon Formal Ethics Opinions
2005-23 — Information Relating to the Representation of a Client: Retired and Former Lawyer
2005-25 — Fee Agreements: Suspended and Disbarred Lawyers, Fees and Division of Fees
2005-39 — Lawyer as Pro Tem Judge
2005-50 — Conflicts of Interest, Current Clients: Office Sharers Representing Opposing Parties
2005-55 — Lawyer as Escrow Agent
2005-81 — Communicating with Represented Persons: Information Relating to the Representation of a Client, Second Opinions
2005-95 — Duty to Report Misconduct
2005-96 — Information Relating to the Representation of a Client: Notarial Journals 2005-117 — Trust Accounts: Funds Held in IOLTA or Non-IOLTA Account, Types of Depository Institutions
2005-129 — Competent Representation, Information Relating to the Representation of a Client: Responsibilities on Death of a Sole Practitioner
2005-133 — Attorney Fees: Financing Arrangement
2005-136 — Information Relating to the Representation of a Client: Lawyer’s Wrongful Termination Claim
2005-148 — Conflicts of Interest, Former Clients: Representing One Spouse in Dissolution After Joint Estate Planning
2005-155 — Conflicts of Interest: Multiple “Of Counsel” Relationships
2005-157 — Information Relating to the Representation of a Client: Submission of Bills to Insurer’s Third-Party Audit Service
2005-167 — Lawyer as Mediator: Attempted Fraud by One Party
2006-176 — Conflicts of Interest: Lawyer Functioning in Multiple Roles in Client’s Real Estate Transaction
Visit our online bookstore at http://www.osbar.org/store/pub/pubcat.asp?action=view&cat=Ethics to preorder Oregon Formal Ethics Opinions, 2014 Supplement, today!
The 2014 supplement of Oregon Formal Ethics Opinions includes the full text to the most recent version of the Oregon Rules of Professional Conduct, and updated tables, subject index, and opinions citator, PLUS one new 2013 opinion and 17 opinions revised to conform to the new rules:
One new opinion:
- Ethics Op. 2013-189 Accessing Information about Third Parties Through a Social Media Networking Website
And 17 revised:
- Ethics Op. 2005-23 Information Relating to the Representation of a Client: Retired and Former Lawyer
- Ethics Op. 2005-25 Fee Agreements: Suspended and Disbarred Lawyers, Fees and Division of Fees
- Ethics Op. 2005-39 Lawyer as Pro Tem Judge
- Ethics Op. 2005-50 Conflicts of Interest, Current Clients: Office Sharers Representing Opposing Parties
- Ethics Op. 2005-55 Lawyers as Escrow Agents
- Ethics Op. 2005-81 Communicating with Represented Persons: Information Relating to the Representation of a Client, Second Options
- Ethics Op. 2005-95 Conflicts of Interest: Duty to Report Disciplinary Rule Violations
- Ethics Op. 2005-96 Information Relating to the Representation of a Client: Retired and Former Lawyer
- Ethics Op. 2005-117 Trust Accounts: Funds Held in IOLTA or Non-IOLTA Account, Types of Depository Institutions
- Ethics Op. 2005-129 Competent Representation, Information Related to the Representation of a Client: Responsibilities on Death of a Sole Practitioner
- Ethics Op. 2005-133 Attorney Fees: Financing Arrangement
- Ethics Op. 2005-136 Information Relating to the Representation of a Client: Lawyer Wrongful Termination Claim
- Ethics Op. 2005-148 Conflicts of Interest, Former Clients: Representing One Spouse in a Dissolution After Joint Estate Planning
- Ethics Op. 2005-155 Conflicts of Interest: Multiple “Of Counsel” Relationships
- Ethics Op. 2005-157 Information Relating to the Representation of a Client: Submission of Bills to Insurer’s Third-Party Audit Service
- Ethics Op. 2005-167 Lawyer as Mediator: Attempted Fraud by One Party
- Ethics Op. 2005-176 Conflicts of Interest: Lawyer Functioning in Multiple Roles in Client’s Real Estate Transaction
Excerpted from Appeal and Review: Beyond the Basics (OSB Legal Pubs 2014), chapter 4 Effective Oral Advocacy.
By William F. Gary, Hon. Joel S. DeVore, Hon. Erica L. Hadlock, and Hon. Jack L. Landau
The Judges’ Goals for Oral Argument
On any court, judges hold a wide variety of views about the utility of oral argument. Some judges say it rarely influences how they vote to decide a case; others report that it affects their decisions in a significant minority of cases argued. Still other judges believe that argument rarely shifts their vote on the ultimate outcome, but acknowledge that how the parties frame the issues during oral argument often influences the way in which the judges write opinions. What happens during a court of appeals argument certainly can affect the court’s decision whether to affirm a lower court’s or agency’s decision without published opinion (AWOP) or to write an opinion in the case.
Some common themes do emerge in conversations with judges about what they hope to accomplish during oral argument. Judges view argument as their sole opportunity to question the advocates—to engage in a dialogue with the lawyers instead of merely being on the receiving end of the lawyers’ monologues. Because of that, and because 15 minutes go by so quickly, judges may not allow lawyers much time to deliver prepared arguments—which too frequently are only variations on the monologues already delivered in the briefs—before the judges start asking questions.
A primary goal that judges have in questioning lawyers is to clarify what the parties are arguing, in the most basic sense. Before the judges start evaluating the merits of the parties’ arguments, they need to understand what those arguments are. For example, the judges want to know exactly which trial-court rulings the appellant is challenging, and on precisely what grounds. If the appellant’s brief is vague, ambiguous, or internally inconsistent in that respect, judges are likely to ask clarifying questions before they address the substance of the appellant’s arguments.
Court of appeals judges also may not immediately dive into the merits of a case if the briefs have not made clear what issues are properly before the court, and by what standards the appellate judges will review the lower court’s rulings on those issues. If the briefs leave the court with questions about whether arguments were preserved for appeal, or what standards of review apply, judges are likely to use argument time to clarify those points.
In addition, court of appeals judges may ask questions related to their general desire to resolve cases in the most straightforward way possible, without addressing more issues than is necessary (a desire that is grounded both in jurisprudential principles and in workload concerns). Judges sometimes refer to this as looking for the “first principled door out” of a case. Accordingly, judges may ask questions aimed at clarifying how the various arguments presented in a party’s brief relate to each other. Essentially, the judges are trying to picture the flowchart that shows the relationships between all of those arguments, with the hope of discerning the simplest path from one end of the chart (the assignments of error) to the other (disposition of the appeal). If those analytic pathways are not clearly described in the brief, the judges probably will ask questions on that point.
Beyond clarifying the contours of the parties’ arguments and how they interrelate, judges view oral argument as a time to explore the strengths and weaknesses of those arguments. By asking probing questions, the judges intend to give each lawyer an opportunity to make the best case possible for his or her client. Judges may want to know how a party’s arguments can be reconciled with (or distinguished from) existing case law, or if the party can prevail only if some precedent is overruled. In a case that centers on statutory interpretation, judges might ask how a lawyer’s proposed construction of a particular provision makes sense in the context of the statutory scheme as a whole. Or a judge might ask a hypothetical question designed to reveal whether a lawyer’s argument remains sound when pushed to its logical conclusion. In all of those circumstances, the judge’s goal is to make sure that the lawyers have been confronted with any potential weaknesses in their arguments and have had a fair chance to respond.
Practice Tip: Because the judges will have read the briefs before argument, experienced oral advocates generally spend little time repeating the points they’ve already made in their briefs. Instead, they focus on responding to their opponent’s arguments. Indeed, some of the most compelling oral arguments are those in which the lawyers start by acknowledging their opponents’ strongest points and then making their best arguments in response.
Judges also use oral argument as an opportunity to explore the implications of the positions that the parties advocate. In resolving a case, judges must decide whether to publish an opinion (instead of AWOP a case in which the lower court’s judgment will be affirmed) and, if they do issue a written opinion, must consider how that published discussion of the law will affect future cases. Those concerns often prompt judges to ask big-picture questions of the lawyers that go beyond the details of the particular case at issue. Thus, if a lawyer’s argument is focused mostly on the pertinent facts and the outcome the lawyer advocates, a judge might ask the lawyer what legal principle would lead to that desired result. Indeed, some judges will ask lawyers to articulate the rules of law they think the court should announce in its opinions.
In addition to helping judges better understand the parties’ arguments and their implications, oral argument also gives appellate judges an opportunity to get the benefit of their colleagues’ thoughts. Because the court of appeals sits in three-judge panels, each judge is able to listen to exchanges that might not have occurred if that judge were the only one asking questions. Many judges go into argument with the goal of breaking out of any “tunnel vision” or “bubbled thinking” they may have developed around the issues in a case.
By Ian Pisarcik, Legal Publications Attorney Editor
I recently stumbled across Derrick Muller’s blog post, “Was Barack Obama’s Greatest Contribution to Legal Scholarship the Bluebook?” The post posits the following three facts: (1) Harvard Law Review members generally lead the effort to revise The Bluebook, (2) The fifteenth edition of The Bluebook was released in 1991, and (3) Barack Obama was the president of the Harvard Law Review from 1990 to 1991. The fifteenth edition includes massive revisions (the book expanded from 272 to 366 pages). While it is unclear whether the president’s contributions were negligible or significant, Muller’s blog post managed to spark my interest in the history of this often shuddersome book.
The first edition of The Bluebook was published in 1926 by Erwin Griswold, a second-year law student at Harvard, and consists of 26 pages. There is no index and the book devotes two pages to identifying symbols for hand editing manuscripts. The cover isn’t even blue; it is a dull grayish-brown color reminiscent of efflorescence-riddled concrete or perhaps the mouth of the Willamette River. The first line in the first edition states: “This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form.” The current nineteenth edition, coming in at 511 pages (36 of which make up the index), suggests The Bluebook may have strayed from this original intent.
As for those who wish to look for details in the pages of the fifteenth edition, like patterns in tea leaves, foreshadowing the future path of the president, you may want to start with the fact that South Texas College of Law Professor James Paulson called the fifteenth edition the first manual with a “social conscience.” Paulson noted that the fifteenth edition added a substantial number of citation examples written by women, including titles on topics such as feminism, sexual orientation, reproductive rights, and apartheid. You may want to turn to page 103 and note the newly added and apropos (in light of a recent executive order) citation example: Women’s Bureau, U.S. Dep’t of Labor, Leaflet No. 55, A Working Woman’s Guide to Her Job Rights. Given The Bluebook’s current pace, curious minds will have to employ a team of researchers to find such details if another Harvard law review member is ever elected president of the United States.
* Those who may be interested can find full PDF copies of the first 15 edition of The Bluebook here.