BC Law IPTF Blog

I love this study: Is Plain Language better? Comparative Readability Study of Plain Language Court Forms by Maria Mindlin. (PDF)

The study re-writes a Subpoena Duces Tecum and a Proof of Personal Service and discoveres—no joke—that if you re-write them using simpler English, people understand them better.

I am very much against the use of legalese in court documents. While I still want lawyers to have the ability to decrypt legalese, why should we make it harder for each other and especially harder for laypeople?

I ran across this article while trying to find better language for a Subpoena Duces Tecum. The subpoena forms found in the Mass. Practice books or online are crap. The language is meaningless. What do you really need to say? You’re telling someone to come to a courthouse about certain information, over a certain matter, by a certain date. You could really say:

You are ordered by the Commonwealth of Massachusetts to testify at the Grimes Courthouse at 123 Lawsuit Road, Boston, MA - (617) 123-12345 - at 9:00 AM EST regarding Jones v. Jones (Docket No.: 12-D07-1234).

You are ordered to bring with you all documents relating to all bank accounts in the name of John Jones (S.S.N.: 123-45-6789)…

If you do no follow these orders…

And then you’re done. Pretty clear what you have to do, right? And then you serve this with a cover letter that says that if they just mail you the documents by a certain date, then the people you serve don’t have to show at the courthouse. I would even go as far as Maria Mindlin recommends and change the name from Subpoena Duces Tecum to “Order to Go to Court and Provide Documents.”

Just cut through the bullshit and tell people clearly and precisely what they need to do. Wouldn’t everything be easier that way?

Which also reminds me: Often I’ll call an organization before I subpoena them to find the name of the Keeper of the Records. Usually, people know who this person is. But sometimes when people hear the word “subpoena,” they freak out and figure out a way not to give me that information. (”Oh, you have to send it to someone in California in the legal department there.” “Oh, I don’t know who that should go to… [click - dialtone].”) But if I just told them I need to serve a court order to get some account information from a customer involved in a lawsuit, then I bet it’d be less threatening.

I’m writing an Agreement for Judgment, and we want to set out a payment plan for some back rent. I struggled with the difference between using “shall” versus “will.” My first instinct was that “shall” is a stronger command, and that “shall” should be used all the time, even in place of “will.”

But then I came upon this realization: “Shall” is what people do, whereas “will” is what objects do.

For example, “Defendant shall continue to pay rent…” But: “The monthly rent will be $1,000.”

This reasoning stems from the thought that people “should,” therefore they “shall.” Things or objects “are,” and therefore in the future “will be.”

Whew. I feel good about this now. Now I just have to wait for my ulcer to settle down, and then I can get back to work.

Here’s the relevant purpose regarding copyright from our publication agreement:

1. I, ___________________, hereby represent and affirm that I am, or am authorized to act on behalf of, the copyright holder[s] of the Article, that I submit the Article for publication to the Forum, and grant the Forum a perpetual, world-wide, sublicensable, irrevocable, non-exclusive license to publish the Article electronically on the Forum, to reprint the Article or portions thereof in any medium now in existence or later invented, to cause the Article to be republished on electronic legal research services, including but not limited to LEXIS and Westlaw, to excerpt from the Article, to distribute, reproduce, transmit, and display the Article, to add hypertext links, graphics, images, and formatting to the Article, and to use the author’s name and likeness in promoting the Forum.

2. The Licensor retains the right to register, in the Licensor’s name, the Licensor’s copyright in the Article with the appropriate governmental office.

3. The Forum agrees to include in its publication of the Article, a notice of the Licensor’s copyright ownership. Notice will be in the form, “© YYYY [Licensor’s name]. Published with permission of the copyright holder.” Upon the Licensor’s request said notice will also include a restriction on use by guests to the Forum.

4. This agreement does not require that the Forum be the first publisher of the Article.

5. If, after the Forum’s publication of the Article, the Licensor subsequently causes the Article to be published, the Licensor agrees where reasonable to include or have included in such publication an acknowledgment in the following format: “Reprinted from the Intellectual Property and Technology Forum at Boston College Law School, YYYY B.C. Intell. Prop. & Tech. F. MMDDXX.” and, if published in electronic format, a hypertext link to the Forum. (YYYY B.C. Intell. Prop. & Tech. F. MMDDXX. is the chronological citation assigned the article during publication on the Forum.)

I wonder if we should just instead consider incorporating a Creative Commons license–or option for other licensing if appropriate–within our license? Here’s Lawrence Lessig’s quick take on the whole copyright licensing of law journal articles.

Ran across this article from August, 2006, on 3L Epiphany about law articles citing legal blogs:

Law Review Articles Citing Legal Blogs

The blogger compiled a list of 75 blogs and ranked them by number of citations to them. Here are the top five:

• Sentencing Law and Policy (78)
• The Volokh Conspiracy (62)
• Balkinization (32)
• SCOTUS Blog (32)
• How Appealing (30)

If you look at the list, you’ll see that the BC Law IPTF Blog is not there. And, so, injustice continues to exist in this world.

BC Law’s own Prof. Alfred Yen is now a guest blogger on Concurring Opinions.

For everyone who’s preparing for the MPRE in two weeks, I found two links that were particularly helpful:

http://thnlnk.com/epinions/Advice.on.How.to.Pass.the.MPRE/143

http://thnlnk.com/jdjive/Advice.from.Those.Who.Failed/730

And so I’m going to take some of this advice, and get back to my studying…