When a lawyer goes on a road trip from his home jurisdiction, he quickly learns that they do things differently elsewhere. Maybe just a little. Maybe a lot. But there’s almost always some local quirk. It may be the format used in papers. It may be special words. Whatever it is, it pays to know the distinctions.
With that in mind, a question was posed as to which state appellate courts used the word “plenary” as opposed to “de novo.” Both express pretty much the same thing, that the standard of review by the court would be anew, as if for the first time, without deference to the court below. This is a very big deal when it comes to appeals. It can spell the difference between success and failure.
But does a non-lawyer appreciate the significance of the standard of review? Does he even know what it means?
There has been a movement in law toward “plain language,” the elimination of legalisms, Latin, jargon, not to mention the adoration of words like “hereinbefore.” The point is to both make legal writing minimally comprehensible and to make law more accessible to the non-lawyer. Much of this isn’t in serious dispute. Some lawyers write like crap, use words that they believe give their writing a lawyer-ish gloss when it’s just bad, tedious, incomprehensible writing.
But there’s a difference between gratuitous use of lawyerly jargon and invocation of long-understood concepts represented by a word or two. Among the most valued virtues of legal writing is clarity. Non-lawyers read a vague sentence and impute whatever meaning fits their purposes.
Lawyers don’t have that luxury, as we aren’t trying to thrill ourselves with our brilliance but persuade a judge to reach an outcome. It’s the difference between effectiveness and efficiency. We may believe we’ve done an admirable job of it, but if it doesn’t work, then our very best work amounts to nothing more than “good try.” Our goal is to be effective, not efficient.
To achieve our clients’ goals, we rely on words, whether statutory or caselaw. Poorly written laws are a constant problem, but one outside the lawyers’ purview. That’s a product of politics. Poorly written opinions, on the other hand, are the products of reformed lawyers, now called judges.
Opinions flesh out statutes, explain them, clarify them and provide the tests by which we determine, advise and make the arguments upon which our clients’ lives and fortunes depend. We rely on clear text, meaningful words that tell us what’s right and wrong. The sort of vague language you read in polemics does us little good. It might leave us plenty of room to argue, but gives us no clue who wins. Worse still, vague language leaves the decision up to the judge’s feelings rather than the law. It changes law from “it depends” to “who the hell knows?”
In a response to the question about “plenary” v. “de novo,” Kansas Court of Appeals Judge Steve Leben wrote:
Kansas usually says de novo. When I put that standard in opinions, I generally say something like, “We review this issue independently, without any required deference to the trial court.” Lay readers don’t know “de novo” or “plenary.”
It raised two questions for me.
Are 13 words with vague meaning better than 1-2 precise words? Will this help non-lawyers to better understand law? As a lawyer, I don’t know the answer.
The way Judge Leben offered his verbiage could be interpreted differently. Was he saying that review was de novo, or that deference to the trial court was required by precedent, but he was rejecting a deferential standard of review in favor of de novo?* And, obviously, it was more words rather than fewer.
It’s almost always good to use no more words than necessary. But there was an additional question, whether the tradeoff of 13 words for one or two was worth it so that non-lawyers could read the opinion and understand it. This, too, is a controversial question, as there is a strong belief amongst lawyers that non-lawyers can read the words in court decisions all day long, but most will never really understand what they’re reading. Sure, some will (think Shon Hopwood), but most won’t.
The notion of making law more accessible to the public is very populist, and rather rosy. Understanding what the law provides is critical to our existence, as it can spell the difference between sleeping in your bed tonight and spending the rest of your life in prison. And there is a law about everything, not that anyone has a clue about exactly how many crimes there are.**
The Constitution requires that laws provide adequate notice of what they prohibit, which is one of those dirty little lawyer jokes we perpetrate on the public. If nine Supreme Court justice can’t unanimously agree on what a law means, how the hell are you supposed to know and conduct yourself accordingly?
Does the use of explanatory language, even if it means more words*** in the effort to change up the way a clear line is expressed, introducing new words into old concepts that can change their meaning or add confusion where there was clarity, make the law sufficiently more accessible to the public so as to justify the potential confusion?
As a lawyer, my answer is that clarity, at least for those of us who use these decisions to be effective, far exceeds the value of non-lawyers being able to read decisions without jargon. But then, my view is self-serving, as these are the tools of my profession and, frankly, I don’t put much stock in non-lawyers “understanding” the law anyway.
But the law isn’t just for me, just for lawyers. The law is for everyone and, in a better world, everyone should be capable of reading decisions and understanding them without having to hire a lawyer to decipher their meaning. Is it dumbing down law? Does it help? Is this even worth the effort, if it serves no real purpose? De minimis non curat lex, you know.
*No doubt the specific language could be honed, particularly since Judge Leben offered this on twitter, which is rarely the best format for such matters. But it’s not about the one sentence, but the point of trying to take a clear, well-understood one-word legal concept and turning it into an explanatory sentence instead.
**Every person with a beef about how someone did something that resulted in someone being hurt and therefore entitled to a law to protect them, or that some evil is about to destroy society and something must be done, is fodder for a new law. When you hear the sad story, you mutter, “yes, yes, yes, we must have a law!” And so, laws upon laws, regulations upon regulations, pile up. Until you ask, “how did this happen?” Go figure.
***One of the most important decisions ever, Brown v. Board of Education, is 12 pages long. Today, a pedestrian decision can exceed 100 pages. Are more words better?
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To me, this particular example doesn’t seem hard. You use the term of art (de novo) and, if the situation calls for additional clarity for lay readers (for whatever reason: important opinion; the author always wants lay readers to understand; some other context), then you add a quick summary of what it means.
“We review this issue de novo: independently from the trial court, without deferring to its findings.”
There are much harder cases, but this one seems easy?
It’s just an example that raised the larger question. What struck me about it wasn’t just the term of art aspect, but that it related to the concept of standard of review. So a lay reader will be told what the standard is, but will he have a clue what standard of review is or why it matters? It brings together the nature of this Rube Goldberg machine.
Wouldn’t be sufficiently dignified for the judges to tell the parties they “get do-overs on their arguments.”
And they already used Mulligan for golf.
But I would have to say, even if they don’t understand “plenary” or “de novo,” clients who haven’t been around the block before tend to assume that everything on appeal is do-overs. What is harder for them to understand (and what has to be explained) is that a considerable range of issues will be subject to more limited review, and they do not get do-overs on everything.
What do you think about “motion to dismiss for failure to state a claim upon which relief can be granted” versus “demurrer”? I’ll grant that the long phrase conveys *some* more meaning to the lay reader than the term of art “demurrer,” but not enough to make the standard of review understandable to the lay reader. You still have to read the caselaw to know what it means. So it’s just a 15-word term of art instead of a 1-word term of art. Seems like the marginal benefit of each additional word decreases so much that whatever additional clarity might be bought doesn’t come close to justifying the cost in murdered words.
Are you sure they’re the same thing?
Well, I was sure, until just now. I know the demurrer was a pleading, not a motion. But I thought, based on some old cases I read a long time ago, that in civil law, the demurrer, like the modern 12(b)(6) motion, assumed the truth of the allegations in the complaint, said they were insufficient to state a claim for relief, and saved you from having to admit or deny the allegations in the complaint until ruled upon. I take it from your question that I am missing some nuance.
The demurrer was, as you say, a concession (not the same as an admission, but rather “assuming arguendo”) of the truth of the allegations plus a shrug, as “yeah, so what?.” The failure to state a cause is an affirmative defense that must be pleaded.
Is this a material difference? Beats me. I’m a crim defense lawyer, so I leave that to civ pro mavens.
Can we agree that it would be more fun to say “Defendant Jones demurs to the complaint of Plaintiff Smith” than “Defendant Jones moves to dismiss the complaint of Plaintiff Smith for failure to state a claim upon which relief can be granted”?
We have reached a settlement. I agreed with your point from the outset. Just wasn’t 100% that it was a match.
Well, the lay reader can google “de novo” or “standard of review” and get a pretty good idea what’s going on and where or how to look for more information. It’s not like the lay reader is limited to the text of the opinion.
Is that good enough? Well, of course it depends on why they are reading the opinion. Because they heard there were some funny quotes in the opinion? Because it was about the Beetles (First Circuit last week)? Because they were a litigant? Because they followed a citation?
You can’t assume everything, but you can make things reasonably clear and trust diligent lay people to research what they need to know. The real risk is when people think they understand but they don’t. That’s a tough nut to crack without some kind of interaction with such people, but honestly doesn’t seem to be a huge problem with judicial opinions from where I sit. Do you have potential clients coming in and saying they read an out-of-circuit opinion and are confused by the standard of review and how it applies to their case? I have to imagine this comes up not very often.
You probably meant this as a reply rather than a new thread, right? Clients come in all the time with caselaw that doesn’t apply, isn’t precedent, means something very different than what they think it means. Wars on twitter over the meaning of law are a constant, with people absolutely certain they know exactly what the law means. Let go of the specifics of de novo and standard of review (again, an example, not the problem) and look at the bigger issue.
Our audience, in what we submit to the court – whether orally or on paper (often electronic paper equivalents these days, but I digress) – isn’t the general public, of course. So clear simple language that the judge (or often the fresh-out-of-law-school 25-year-old clerk/staff attorney) will understand is vital.
But our clients – and often these days parts of the general public – read/hear what we (and the judges and their kid helpers) say, too. I think there’s both a practical and societal benefit to making our words comprehensible to that larger audience. It may not be the first aim, but it ain’t chopped liver.
So both sides now?
What, no Joni Mitchell video?
Am I the only one who can access Youtube?
https://www.youtube.com/watch?v=UeLiOIdy3Jo
oddly appropriate
The proper use of specialized jargon is good. A layman can certainly easily look up the term de novo, or the word plenary, and if that layman is capable of understanding the concepts, he has now added to his internal dictionary. Much more problematic for the layman are repurposed common words he uses in everyday speech, such as consideration, cause, cure, material, harmless, and several. If he’s paying attention, he might notice that the context of one of these words is completely different than expected, and track down the legal meaning. But it might be hard to convince someone rotting away in a jail cell that the procedural errors that landed him there were harmless.
As for your example, though, why choose between the phrase and the word, when you can use the phrase for one thing and the word for another?
Texas appeals courts review legal conclusions de novo, then the plenary power of the appeals court over the case expires either 60 days after judgment, or 30 days after the court overrules all timely filed motions for rehearing or extension.
I feared the example of de novo would overwhelm the broader issue. What was I thinking?!?
“Are 13 words with vague meaning better than 1-2 precise words?” could have been a headline, and Bettridge could tell you the answer.
Any attempt to replace de novo with some English equivalent will make things worse, rather than better, because it will only add to the list of words that laymen think they understand, but don’t.
Chesterton’s Fence applies to jargon, and there’s got to be a corollary there somewhere: if you tear down the fence, and the reason for its existence is still valid, someone will hastily rebuild it, and it will be much uglier, less functional, prone to failure, and demanding of maintenance than the original.
Isn’t it amazing how often Chesterton’s Fence provides a viable paradigm?
It is a good paradigm for a universal truth, but it’s not a universally understood name for that truth.
For example, any even marginally competent maintenance programmer will have internalized the concept, either intuitively, or by having it beat into them when they broke a feature that is only used by Phil over in accounting for the annual reconciliation.
But, in my experience, if a programmer tells you something like “this patch is obviously wrong, but I need to know why it was added before I fix it” and you reply “yeah, Chesterton’s fence,” you’re more likely than not to get a blank stare.
Programmers matter too, Patrick. They’re good enough. They’re smart enough. And gosh darnit, people like them.
Seems unlikely.
Sometimes, plain English plus a few extra words is exactly what works, particularly on standards of review.
S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir. 2001)
The dead fish test. A bright, if smelly, line.
Are non-lawyers allowed to have a favorite legal opinion? If so, mine is the one where the Supreme Court ruled that a fish is not a tangible object.
Since you asked, no.
Permission vs Forgiveness?
There is plenty of text that is included in opinions as boilerplate, e.g.
“The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder.”
I think the decision has already be made in favor of verbosity over style.
Opinions are verbose (as already noted in the post, but your example was nice too). Let’s make them more verbose.
Stop complaining. A decision this year by The Supreme Court of India (which I have read) weighed in at 547 pages.
You have way too much time on your hands.
I’m not that much of a masochist. It was relevant to my work.
But did you luxuriate in the octopoid embrace of the court’s spectacular prose? Huh? Did you, Jim?
What’s odd to me is that in SHG’s example the first term, de novo immediately conveys the sense of a fresh look, while plenary is confusing in this context. The most common meaning of plenary is “a meeting where all participants are present” which sounds a lot more like another legal term of art, en banc.
I use enough technical language to see the value of specialized terms, but it helps if those terms are clear and easily looked up. This makes de novo or en banc sensible to me since I perceive them as unambiguous, but plenary is a bad choice because it could mean two different things.
You seem to prefer the use of Latin. Let me just add that at heart, you’re writing about the concept of legal certainty. Under civil law, the concept is intended to mean knowing what an official will do with maximum certainty, at common law, it means regular citizens know what the law means. I agree the former is more practical and as a lawyer preferable. But the ideal of our system is to aim for the latter.
If we “aim for the latter,” will we hit it? It may be ideal, but is it realistic? And if we fall short, whether because we didn’t try or because it just didn’t work, what are the implications for the “ideal”? Don’t people deserve to be capable of knowing the law if ignorance is no excuse?
Not sure what it says about me that I was hoping you’d explain the subtle distinction between plenary and de novo.
I usually regret relating the stories behind why an issue arose, as the concrete example becomes more important than the overarching concept, and it’s impossible to stop the momentum once everybody gets hooked on discussing the example to the exclusion of the concept. Sucks.
It’s not a story a Jedi would tell.
It seems that genuine clarity of legal language can only happen as part of codification laws that rationalize the Rub Goldberg contraptions.
One giant fix would be to have criminal trial juries return proven or not proven in place of guilty or not guilty. The latter confuses jurors enormously
Writers write to their audiences. A judge’s primary audience includes colleagues on the same court and other judges on the higher courts. Ultimately, all judges are accountable to non-lawyers, whether via direct election or impeachment through the legislature. Non-lawyers are, therefore, part of the judge’s audience.
Isn’t the answer always “it depends,” or as you said to Gamso, “both sides”?
Judges don’t write for the sake of writing. They write to issue decisions in cases before them. Try that as your starting point rather than begging the question, and then try it again, this time avoiding resort to chaos theory to reach a meaningless conclusion.
Opinions are for lawyers as medical reports are for doctors. Yes, the patient can read the medical report, but they usually defer to their doctor’s explanation of what it means. Clients should defer to their lawyers.
If they want to read the report for themselves, fine. But they have to learn to differentiate between the fibula and tibia. The doctor isn’t going to start writing “the shorter, thin bone in the lower leg” just in case the patient reads the report.
Interesting and persuasive analogy.
Interesting, yes. Persuasive, no.
The doctor patient – your cancer has spread and you can read the report I’m sending to the oncologist but I’m not explaining the roll of the lymph glands – isn’t close to the opinion of the judge. The doc’s report is personal to the patient. The court’s opinion may resolve a particular dispute, but it’s also a public declaration of what the law is.
The proper analogy of the medical report is the advice the lawyer gives to the client.
Good point as well. Charles?
Opinions inherently are “personal” to the parties. In the case of appellate and SCOTUS opinions, they might also establish or clarify what the law is, but in 99.9% of the opinions issued by courts each day, they merely establish the “law of the case”.
So, I stand by my analogy. A medical report is a document intended to convey information from one doctor to another. A legal opinion is a document intended to convey information from one lawyer (a judge) to another (counsel for the parties).
Law is becoming no less specialized than any other field. Professionals within that field need to be able to communicate with one another effectively. If laypersons want to participate, they are free to rise to the occasion.
Finally, I will note that most “law” that individuals are obligated to follow arises from statutes and regulations, not judicial opinions. Whether the “standard of review” is “de novo” is not something the average American needs to understand in order to live as a law-abiding citizen.
This. A doctor is not always necessary for minor medical care, and a lawyer is not always necessary for minor legal care. If you don’t have a doctor, or haven’t decided yet to go to one, you can read medical research (and articles of varying accuracy and readability attempting to translate the research for laymen), and if you don’t have a lawyer, or haven’t decided yet to go to one, you can read statutes and case law — and articles of varying accuracy and readability attempting to explain these as well.
And low-grade research of any kind is often pumped by people who should know better. Just as many miracle cures are pushed by people with “MD” after their name, there is not shortage of JDs embellishing the importance and meaning of prior decisions.
Of course, even this analogy only stretches so far. Published medical research is famously wrong quite often, and published legal decisions — well, we all know that the SC is infallible because it is final.
Perhaps a better medical analogy for a court opinion would a report of autopsy from a medical examiner. Though it may intimately concern the decedent’s next of kin (particularly in cases of unexplained death), it’s also a matter of public record.