What we’ve got here … is failure to communicate

By Hon. David Dreyer

On his Barrett Law website, Canadian barrister and solicitor Richard Barrett shares the following joke:

A physician, an engineer and a lawyer were discussing which of their respective professions was the oldest.

The physician said: “Remember that, on the sixth day, God took a rib from Adam and fashioned Eve, making her the first surgeon. Therefore, medicine is the oldest profession.”

The engineer replied: “But, before that, God created the heavens and earth from chaos and confusion, and thus she was the first engineer. Therefore, engineering is older than medicine.”

Then, the lawyer spoke up: “Yes, but who do you think created all of the chaos and confusion?”

We know the answer. Certain lawyers, even certain judges, are experts at creating confusion, if not chaos. Usually we do it through a tendency to obfuscate. In many cases this talent was bequeathed to us by some law professor.

Seasoning one’s speech or writing with Latin is another sure way to defeat comprehension. I appreciate Latin like I appreciate the “Mona Lisa.” It’s not a dead language, really, more like one preserved in a cryogenic state in case we need it.

But do we need it? Not really. Since Latin is rarely heard today anywhere outside of the Catholic Church, and rarely even there, we would be well advised to stick to English. Plain, simple English. As fabled judge and judicial philosopher Learned Hand wrote, “The language of law must not be foreign to the ears of those who are to obey it.”

That dictate, unfortunately, appears to be foreign to the thinking of certain judges and lawyers.

In a ruling in a case in my home state of Indiana, the court (not I) chose to dredge up the decades-dormant word “propinquity,” meaning the state of being close to someone or something. It appeared in a subheading above the following soliloquy: 

“In any event, while the gerund ‘operating’ is nominally a noun, it is not functioning as such in section 3, but, rather, as the object of the prepositional phrase ‘of operating while intoxicated,’ which is functioning as an adjectival phrase to modify ‘conviction.’ As such, ‘conviction’ is the noun closest to the prepositional phrase beginning with ‘that occurred within … five … years’ and, in our view, is clearly being modified by that phrase as well. In summary, while we acknowledge that word order is important, there is nothing in the word order of section 3 to suggest that the phrase ‘occurred within … five … years’ is intended to modify anything other than ‘conviction.’”

The irony is that the case was about contrasting interpretations of common language in a sentence.

Fred Rodell, who taught at Yale Law School for more than 40 years in the 20th century, once bluntly observed, “There are two things wrong with most legal writing. One is its style. The other is its content.”

Lawyers often feel compelled to propagate phrases and build language fortresses to protect clients’ interests. It’s an understandable inclination but only makes the job of discernment tougher for judge and jury. Ultimately, this weakens the entire justice system. 

“Gobbledygook,” wrote Michael Shanks, former chairman of the National Consumer Council of England, “may indicate a failure to think clearly, a contempt for one’s clients, or more probably a mixture of both. A system that can’t or won’t communicate is not a safe basis for a democracy.”

I agree. We must constantly remind ourselves that we serve our community poorly if it can’t understand what we’re saying or writing.

On the other hand, I’ve enjoyed serving in a system where the sublime and the ridiculous occasionally exist side by side, and often because of communication issues.

Though the following exchange sounds more like a Three Stooges routine, it really took place in an Indianapolis courtroom with a native English-speaking person.

Judge: Raise your right hand.

Witness reaches for the stars

Judge: No, just hold it by your head.

Witness puts hand on top of head

Judge: No, hold it by your face.

Witness puts hand on cheek

Judge: Let me see the palm.

Witness holds hand out palm up.

That brings mind a well-known, if likely apocryphal, courtroom exchange:

Lawyer: “And lastly, sir, all your responses must be oral. Ok? What school do you go to?”

Witness: “Oral.”

Lawyer: “How old are you?”

Witness: “Oral.”

Our barrister and solicitor friend Richard Barrett, whose website URL is “the-friendly-lawyer.com,” offers these other gems of cross examination, which he calls Bloopers:

Q. Doctor, did you say he was shot in the woods?

A. No, I said he was shot in the lumbar region.

Q. Are you married?

A. No, I’m divorced.

Q. And what did your husband do before you divorced him?

A. A lot of things I didn’t know about.

Q. Could you see him from where you were standing?

A. I could see his head.

Q. And where was his head?

A. Just above his shoulders.


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