In the ABA Journal, the incomparable Bryan Garner has an indispensable list of words and phrases that lawyers should not use: herein, deem, know all men by these presents, provided that, pursuant to, said, and same. And "and/or." The only one that I am occasionally guilty of is "and/or" which in the odd circumstance just seems to me to be more efficient than ", or both." Garner musters some pretty persuasive authority against "and/or"
American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a "freakish fad" and an "accuracy-destroying symbol." The New Mexico Supreme Court declared it a "meaningless symbol." The Wisconsin Supreme Court denounced it as "that befuddling, nameless thing, that Janus-faced verbal monstrosity." More recently, the Supreme Court of Kentucky called it a "much-condemned conjunctive-disjunctive crutch of sloppy thinkers."
Damning to be sure, but I'm not sure I buy Garner's argument for why and/or is never appropriate:
If a sign says "No food or drink allowed," nobody would argue that it's OK to have both. (Or includes and.) And if a sign says "No admission for lawyers and law students," would you argue that either could go in alone? You'd be thrown out of court.
The real problem with and/or is that it plays into the hands of a bad-faith reader. Which one is favorable? And or or? The bad-faith reader can pick whatever reading seems favorable.
Here's an example that makes Garner's point from a recent Nebraska Supreme Court opinion (they didn't get the memo from Kentucky):
On reinstatement to practice by the Supreme Court, such party shall, on written request and upon payment of the requisite fees and/or mandatory assessments, be restored to membership in this Association.
But what about this subheading?:
Budget Impact -- Moderate state and/or local costs, likely partially offset by the avoidance of federal penalties.
The subheading prefaces an explantion that, depending upon implementation, a particular activity could incur state costs but not local costs, local costs but not state costs, or state and local costs. A simple "and" just doesn't cut it.
On April 22 (Earth Day and the birth of V. I. Lenin and death of Richard Nixon, probably just a coincidence), the U.S. Supreme Court will hear oral argument in Susan B. Anthony List v. Driehaus, a constitutional challenge to an Ohio law that criminalizes false statement during an election campaign about the voting record of a candidate or public official, and the dissemination of any false statement about a candidate, either knowing it is false or with reckless disregard for whether it is true, with the goal of electing or defeating the candidate. Or, to put it more drily and precisely, the Supreme Court will consider:
(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.
As reported in the New York Times, which makes it official, to aid the Court the Cato Institute and humorist P.J. O'Rourke ("America's leading political satirist"1 and an H.L. Mencken Research Fellow at the Cato Institute) have submitted an amicus brief in support of the constitutionality of the law. Its main assertions are:
Truthiness, Insinuations, And Allegations Are A Vital Part Of Political Speech
Truthiness, Insinuations, And Allegations Are Protected By The First Amendment
The Public Interest In Political Honesty Is Best Served By Pundits And Satirists
Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy. … I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.
In the "we needed a court decision to establish this!??" category, a judge has found that a woman has the right to keep the father of a child out of the delivery room at the child's birth. Here's the opinion, Plotnick v. Deluccia (yes, this is a New Jersey case.) Kudos to fathers who are passionate about being involved in the lives of their children, but Emily Bazelon at Slate summed it up:
Once the baby is born, it’s about the baby. Before that, though, it’s about the mother, too—there is just no way to separate her from the fetus. ... When men can have babies, then they can decide who comes into the delivery room. Until then, the limits of biology limit their rights.
It's the same old story. Scanners don't protect people, people do. The Toledo Blade tells the tale of a loaded semiautomatic handgun in a woman's purse that was picked up by the scanning equipment at the Toledo Municipal Court, but not noticed by the scanner on duty until the gun and its carrier was already through security. The woman and her companion -- and the gun -- were then tracked down in the lobby of the building and cooperated with security. A disciplinary hearing for the inattentive screener is pending. In the end, the scariest part of the story may be this -- the Clerk of Court, who is responsible for security, told the Toledo Blade she didn't learn of the incident until weeks after it happened, when a newspaper reporter brought it to her attention.
In Texas, the things people wear to court apparently include cartoon pajamas, exposed underwear, fuzzy slippers, low-cut blouses and "booty shorts." (Michigan stories, anyone?) A Texas judge has now specifically banned such attire, according to this story in the Longview, Texas, News-Journal. And then there's the incriminating stuff. “We’ve had stuff as silly as defendants going up to plea before the bench, and they’ve got a crack spoon hanging around their neck.” ABA Journal also reminds us that this month employees at San Francisco's Civic Center Courthouse protested strict enforcement of an 18-year old dress code that requires them to "look professional at all times," which the court administrator has interpreted as dress shirts and ties for males. As anyone who has ever attempted to enforce or comply with a dress code understands, the story notes that what is considered appropriate for women is "less clear-cut." Outside the courthouse protestors chanted, "Don't hate, we look great."
A Chinese woman walked into a law office in New York’s Chinatown and asked to see her lawyer. She had applied for asylum, claiming that she had been forced to get an abortion in China to comply with the country’s family-planning laws, and she was anxious about her coming interview with immigration officials.
She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.
But the lawyer, John Wang, told her to relax. The process, he said, was straightforward, and as long as she memorized a few details, everything would be fine. “You are making yourself nervous,” he said in Mandarin. “All you would be asked is the same few rubbish questions.”
An exquisite meditative New Yorker piece, This Old Man, by the incomparable Roger Angell, is a gift for anyone needing encouragement about the daunting journey into the upper decades of life. Within our profession, we need look no further than retired Justice John Paul Stevens, whose vitality shines through in this story by Tony Mauro in the National Journal, and Michigan's own John Reed, who added to his already considerable public service workload by accepting appointment to the task force on the status of the State Bar created by order of the Michigan Supreme Court this month.
People seem to be using "lead" as the past tense more and more. I have seen it not just in student drafts and blog posts, but in newspapers, books, and other sources edited by people who ought to know better. I'm not sure what the problem is; perhaps people are analogizing to the verb "read." The present tense and past tense of that verb are the same. Or perhaps they are comparing it to the element "lead," which is also pronounced "led."
Whatever, the reason, it's not proper English.
Hear, hear! Or, as even Ivy League educated people seem to be saying more and more -- "here, here!"
Two separate stories from different sides of the ocean about associates perhaps being encouraged to engage in unethical behavior does make one wonder whether reliance on the efficacy of the traditional partner-associate mentoring is always well-placed. Above the Law recounts the story from Texas of an associate sent to hang out with potential jurors in a room forbidden to lawyers, because, says ATL, "if someone is going to get in trouble, let it be an associate." Meanwhile, a post from the UK blog Lawyer Watch comments on a "depressing case" involving allegations of interrelated dishonesty by a partner and the partner's assistant:
The problems faced by an assistant in this position are manifold. They are compromised by their own culpability or contribution to any mistakes or (if there were any) prior dishonesty. My sense from talking to lawyers in difficult ethical positions is that responsibility is shifted implicitly or overtly to the partner. The dangers are obvious, but as an assistant in a law firm the economic and social need is to serve the partner. The client (and their case) is theirs. They get to take the tricky decisions.
It's hard enough being an associate these days without being bumped off the straight and narrow by someone who's supposed to be guiding you to professional success.