Monthly Archives: January 2015

More about defining parentheticals …

Let’s talk some more about using defining parentheticals. *Yay!* Last week’s column suggested that defining parentheticals are often unnecessary because the reader doesn’t need help figuring out that, for example, “Allstate” means “Allstate Insurance Company.” But sometimes a defining parenthetical can be both helpful to the reader and a subtly persuasive device.

In multiparty cases it is often hard to remember who did what. If Smith hired Jones, and Jones arranged for Smith to purchase property from Williams and Cook, then Williams and Cook decided to sell the property to Johnson…well, do you suppose the court might have a hard time keeping straight the respective roles of Smith, Jones, Williams, Cook and Johnson?

Next time, instead of referring to the parties by name, or by case status (plaintiff, defendant, third-party defendant), use a defining parenthetical to identify the party by its role in the events giving rise to the case. Consider these paragraphs and decide which one is easier to follow:

  • Plaintiff Suzy Smith (hereinafter “Smith”) hired defendant Bill Jones (hereinafter “Jones”) to assist Smith in purchasing some property owned by defendants William Williams and Harry Cook (hereinafter “Williams and Cook”). Smith, through Jones, reached an agreement with Williams and Cook to purchase the property. But before that transaction closed, Jones assisted Williams and Cook to sell the property to John Johnson (hereinafter “Johnson”). In this action, Smith seeks damages from Jones, Williams and Cook, and Johnson.
  • Suzy Smith (“Buyer”) hired real estate agent Bill Jones (“Agent”) to assist in the purchase of real property from William Williams and Harry Cook (“Sellers”). Buyer, through Agent, reached an agreement with Seller to purchase the property. But before that transaction closed, Agent assisted Sellers to sell the property to John Johnson (“Actual Purchaser”). In this action, Buyer seeks damages from Agent, Sellers, and Actual Purchaser.

In this example, we’ve used defining parentheticals to eliminate names altogether and identify the parties by the roles they played in the transaction.

The term or phrase you choose to identify the party should always be fair and neutral. For example, it would be inappropriate to do something like this: “This action involves claims by Plaintiff Mary Smith (“Malingerer”).” But it is perfectly fair to choose a neutral term that has more or less favorable connotations. For example, we once had a case involving a tavern shooting, and the gunman was the third-party defendant. We defined him as “the Shooter.” Although that was a neutral term, it couldn’t help but remind the court who the real wrongdoer was in the case.

That is all for now …

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Please, leave out defining parentheticals if the shortened form is obvious!

How many times have you seen something like this:

Defendant State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) moves for summary judgment against all claims alleged by plaintiff Joe Victim (hereinafter “plaintiff”).

Is it really necessary to tell the reader that future references to “State Farm” mean “State Farm Mutual Automobile Insurance Company” and future references to “plaintiff” mean plaintiff? Probably not. A reader of average intelligence understands that without the obligatory defining parentheticals. Consequently, these defining parentheticals serve no purpose other than to clog the sentence and interfere with the writer’s message. No rule of grammar or good sense mandates using such defining parentheticals, so omit them where the shortened form is obvious.

But sometimes the shortened form is not obvious. In those instances, the defining parenthetical is a useful to the reader. Here are a couple examples of defining parentheticals that are helpful:

  • This case arises from plaintiff’s claims against Monopoly, Inc. and its board of directors (collectively “Monopoly”).
  • This is a products liability action against Fred Meyer, Inc. (the “seller”) and Zippo (the “manufacturer”).

Finally, leave out the “hereinafter.” The reader understands the purpose of a defining parenthetical. Remember, our goal is to get to the point rather than to obstruct it, and putting garbage in the reader’s path interferes with achieving that goal.

That is all for now …

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The blahs of winter (or is it Winter?) …

It is only January 14, and the Scribe is already sick of winter. Or is it Winter? And he longs for the vernal equinox. Or is it the Vernal Equinox?

Here’s the rule: the four seasons are not capitalized (“fall is my favorite time of year”). Similarly, references to the solstice and equinox are lowercased (“the Druids celebrated the summer solstice”; “in Oregon, arrival of the vernal equinox does not mean winter is over”).

That is all for now …

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Assumptions and presumptions … what’s your functions?

This week we talk about assumptions and presumptions.  In everyday usage, there isn’t much difference between the two, with both words referring to something that we think is true (without proof).  But although assumptions (or presumptions) may be a good starting place as we consider new concepts and ideas—they really need to be revised from time to time as we gather facts (e.g., an assumption that the Oregon Ducks are no match for the defending national champs simply doesn’t match the known facts after the Rose Bowl).  As Isaac Asimov once said, “Your assumptions are your windows on the world.  Scrub them off every once in a while, or the light won’t come in.”

Anyway, as interesting as assumptions and presumptions are in everyday use, this tip concerns assumptions and presumptions in legal usage.  And in legal usage, the two words are very different.

In legal usage, an assumption is an unverified belief that something is correct.  Because lawyers avoid building cases on unverified beliefs that may turn out to be untrue (or at least try to), assumptions are useless to a lawyer.  On the other hand, presumptions are very useful when proving a case.  Generally, as used in the law, a presumption carries evidentiary weight by raising an inference that must be rebutted by the opposing party.

In Oregon, the Evidence Code states that “a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.”  The Code then lists useful presumptions such as “A person intends the ordinary consequences of a voluntary act,” “A person takes ordinary care of the person’s own concerns,” “Evidence willfully suppressed would be adverse to the party suppressing it,” and “The law has been obeyed.”  So as you can see, a legal presumption—unlike an everyday presumption—is a powerful legal tool!

That is all for now …

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