Monthly Archives: March 2013

I cannot tell a lie (or is it can not)?

Dear readers,

I spent the past weekend at a monastery in Yamhill County, where I found my meditations distracted by a tale that you may recall—concerning young George Washington and a cherry tree.  According to legend, George was given a hatchet when he was about six years old.  With his prized hatchet, young George went about cutting down bushes, and trees, and more trees, and finally, his father’s prized cherry tree. 

Father was not pleased. 

After questioning everyone in the house about the incident, he asked young George if he knew anything about it.  This was a tough question.  But young George, summoning the courage that would help him defeat Lord Cornwallis years later, said, “I cannot tell a lie, father, you know I cannot tell a lie!  I cut the tree.”  Happily, young George lived to become the first President of our country.

So, you ask, what does this story have to do with this week’s Scribe tip?  Basically nothing, except that it provides a nice long introduction to this week’s topic:  when should we use “cannot” and when should we use “can not”?  Both usages are grammatically proper, although most of the time “cannot” is used as a single word, e.g.,

  • But in a larger sense we cannot dedicate, we cannot consecrate, we cannot hallow, this ground.
  • I cannot tell a lie, father, you know I cannot tell a lie!  I cut the tree.

But sometimes, it is better to use two words, such as when you are applying emphasis (“You can not take the Ferrari for a test drive.”) or when using a “not only” construction, e.g.,

  • Kali can not only research, but she can write, too.

NOTE:  The issue is avoided and the sentence reads more smoothly if “can” and “not only” are switched, e.g.,

  • Not only can Kali research, but she can write too.

That is all for now …

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Filed under Troublesome Words

Good grief, get to the point!

This week we discuss one of The Scribe’s pet peeves—written materials that show the reader that the writer has no qualms about wasting the reader’s time.  Please, get to the point … quickly!

Written materials should immediately get to the point.  This admonition not only applies to materials submitted to judges (who are especially cranky when you waste their time), but also to materials submitted to anyone else.  So although the rest of this tip is focused on written submissions to judges, it applies to any written materials.

Every motion submitted to a judge should begin with a summary that succinctly describes (1) the nature of the case (“This lawsuit concerns John Smith’s alleged exposure to asbestos supplied by TraneCo.”),  (2) the purpose of the submission (“TraneCo moves for summary judgment against Smith’s claims because there is no evidence that Smith worked around any TraneCo product.”), and (3) the reasons why the court should rule in your favor (“During his deposition, Smith testified that he couldn’t associate TraneCo with any product that he worked on during his career.  Therefore, no jury could conclude that Smith worked around any TraneCo product or was exposed to asbestos from that product.”).

Judges don’t read your filings because they are interested in your case and have nothing else to do; they read them because it’s their job.  And judges don’t want to work any harder (or longer) than necessary to figure out what you are asking them to do.  So please, don’t make their job more difficult by hiding—on page 10—the key issue that you want decided; the judge should understand the nature of the case and the issue presented after spending no more than 90 seconds with your brief.

Set out below is an example of how to do it. By the time you finish reading this introduction, you won’t have all the details, but you’ll know exactly the nature of the case, what the court is being asked to do, and why:

This lawsuit arose from the crash of one of defendant-appellant Reliable Helicopters, Inc.’s helicopters in August 2008.  As a result of that crash, nine people were injured.  Even More Reliable Helicopters, Inc.—along with many other companies, including Reliable—has been sued in lawsuits arising from that crash.  In its Fourth Claim for Relief, EMRH sought a declaration that Reliable has a duty to defend EMRH in those lawsuits.

Eighteen years earlier, EMRH and Reliable entered into a Repair/Overhaul Services Agreement that governs the services performed by EMRH on Reliable’s helicopters.  In that Agreement, Reliable agreed to defend future “claims made” against EMRH that exceed certain monetary thresholds ($1 million for any one individual claim or $2 million for all claims arising from any one occurrence) that are allegedly related to EMRH’s provision of services under the Agreement.  It is undisputed that the thresholds have been reached with respect to claims made against EMRH arising from the August 2008 crash, and that the claims are allegedly related to EMRH’s provision of services under the Agreement.

Based on Oregon’s contract-interpretation rules, the Agreement’s plain language, and the undisputed fact that the monetary thresholds have been reached, the district court ruled that Reliable has a duty to defend EMRH in the helicopter-crash lawsuits.  That ruling should be affirmed.

As you can see, this introduction explains, quickly, what the appeal is about (at least from EMRH’s perspective) and why the district court’s ruling should be affirmed.  In other words, it gets to the point . . . quickly.  And in doing so, it shows the reader that her time will not be wasted.

That is all for now …

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Filed under Judge Irritants, Style