by the Shadow

Odds are, Dear Reader, that you are reading this missive on a computer monitor and that no tree need make the ultimate sacrifice for you to read the Shadow’s quiet rants and ramblings. But what about the Georgia widget manufacturer who receives an emailed purchase order for a container of widgets that must be placed on a slow boat to China?

While the Internet is the perfect purveyor of instant gratification – Facebook, Twitter, Flicker, and so forth – how well can this electronic medium memorialize a legally enforceable contract? Must our manufacturer commit arborcide to have an ink-and-paper contract before she can confidently part with her precious widgets? Will the delay created by snail-mail delivery of the inked contract deprive the slow boat of its container of widgets? Can our manufacturer go to court to enforce the emailed contract if the buyer decides to reject or fails to pay for the widgets?

by The Shadow

In 1918 Justice Holmes famously observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425.

With apologies to the great jurist, such thinking has played no small part in the lack of clarity – or worse, sloppiness – that afflicts today’s legal writing.

Too much confusion – and indeed, litigation – has been sown by words that have been allowed to take on lives of their own. Bryan A. Garner, a law professor and the preeminent authority on modern American usage and legal writing, devotes considerable energy to promoting the use of Plain Language – “the idiomatic and grammatical use of language that most effectively presents ideas to the reader.” Garner, The Elements of Legal Style 7 (1991). To this end, Garner proscribes the unnecessary use of those words with more than one meaning – so-called “chameleon-hued words.” Garner, A Dictionary of Modern English Usage at 145.

The Shadow keeps two holiday gift lists. The first (boring) list is for gifts that might be given to friends and acquaintances. The second is for gifts that won’t be given – but probably should.

In the spirit of the holidays, the Shadow will share with you, Dear Reader, the second list:

For the lawyer who perpetually finds excuses for continuances from trials: either a fishing rod and reel, or a package consisting of a bait-cutting knife, a cutting board, and live worms. The recipient must choose one.

For the judge who won’t rule on motions: a toilet seat that emits a mild electric shock every five minutes.

Lawyers should take a lesson from the great Hollywood directors because an informal survey of law clerks and judges regarding their pet peeves related to lawyers reveals a common theme: Avoid hyperbole. (Spoiler Alert: if you’ve not yet watched The Lion King, Old Yeller, Bambi, or Ghost, read no further.)

“Come on. Do I look like the mother of the future? I mean, am I tough, organized? I can’t even balance my checkbook!”

– Sarah Connor, in The Terminator

New to civil practice this fall is statutory electronic service. The Civil Practice Act (CPA) now allows post-complaint pleadings and documents to be served by email to consenting parties or their attorneys. O.C.G.A. § 9-11-5.

But electronic service should not “terminate” good docket control.