My seventh-grade English teacher, Mr. Dean, was one of those phenomenal teachers whose lessons stick with you, even several decades later. I still remember our final exam in that class -- write down everything from the class. He gave you a point for each thing you remembered. This is where I first became interested in English grammar. I wrote down definitions for every part of speech, every sentence structure, every thing I could drudge up from my barely teenage mind. The testing format forced me to remember it all in some type of unified format.
As my education progressed, I found that the parts of speech and grammar rules I had memorized were mere building blocks for a broader concept -- English usage. Proper usage is the use of the language that gets the message across most precisely and effectively. Grammar was simply a tool to provide clarity.
What specific language means becomes critical in the law. As a society we use language to create legal creations that only exist in our words. McDonalds, Google, FaceBook, Exxon, Bank of America and a plethora of other corporations are what lawyers like to call "legal entities." These corporate characters are as much a creation of our legal words as Hamlet is a creation of Shakespeare and Don Quixote is a creation of Cervantes. The main difference is Shakespeare and Cervantes don't have legions of lawyers, legislators, lobbyists and judges making sure that their characters behave and benefit in certain ways.
The words of the law are powerful. A judge signs a piece of paper (or today has the digital image of her signature affixed to an electronic document) and the words can lock you up, sever your marriage, take your house, cars and money or anything else the words give them power to do. So you can see why attorneys obsess over what a word or a sentence means.
The practice of law can teach you just how slippery definitions can be. Entire portions of the law books are dedicated to simply defining words. Reading a statute, the lawyer's reflex is to run to the definition portion of the statute to decipher the meaning and determine if the hole for your case's peg of facts is square or round.
Just this week our office had a case that could have potentially been decided on the difference between a statutory and a judicial lien.
A statutory lien is a claim against property that can be made by statute. The typical example is that if a contractor does work on your house and you don't pay him, the contractor has a statutory claim or lien against your house. A judicial lien is when someone sues you, gets a court order and places a lien or a claim on your property. But what if a statute outlines a procedure for filing paperwork in an existing court case to obtain a lien -- is the lien statutory or judicial? Questions like this cause court hearings. The law has a grammar all its own that attorneys argue about and that judges decide.
When the legal language and the interpretation are clear, society gains significant benefits. Property rights are created and defined. Regulations and laws make our lives safer by defining criminal acts and providing proactive environmental, food, airline and traffic safety. Our domestic relationships are protected. Our society is secured. But the law is a human creation and it is a work in progress. As our world changes, the words and grammar we use to create our laws will change and the legal results will also change.
The law can't be regurgitated like a seventh-grade English test, but instead we shouldn't be afraid to try to change our perceptions and our laws. We may hold the truth of equality and justice as self-evident, but we should always be striving to make our legal language perform as close as possible to our professed ideals.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.