Adopt-a-Bobble-Bryan program 2015

On January 12, 2015, 20 Bobble Bryans will be looking for good homes. (Yes, for the first time ever, we’re selling the already-legendary Bryan Garner bobblehead for $500 each.) All profits will go to the Campaign for Equal Access to Justice for the Dallas Volunteer Attorney Program. Submit your request by e-mail to kcheng@lawprose.org beginning at midnight Central Time on January 12 (that is, 12:00 a.m. Central Time on January 13). The first 20 people based on the time of the e-mail will be eligible to purchase a Bobble Bryan.
Questions? E-mail Karolyne Cheng at kcheng@lawprose.org.

Posted in Uncategorized | Leave a comment

LawProse Lesson #192: Client confidences.

Ethical communications for lawyers: Client confidences.

     Trustworthy. That’s how every client should describe you.

Keep all client confidences—and make it a habit to keep all confidences in everyday life. The law doesn’t make an exception for spouses or friends, so don’t talk to them about your client’s confidential matters. No matter what.

Your clients entrust their affairs to you, and it is often difficult or undesirable for them to supervise you. Because you deal with matters most confidential and vital to your clients, they expect you to keep their confidences.

Consider a case from Washington. A lawyer represented an elderly woman who felt controlled by her son and wanted to control her own property. The lawyer drew up a new estate plan but involved the son. Questioning whether the lawyer represented her or her son, the client eventually hired another attorney. Both the son and the lawyer then filed an unsuccessful petition to declare his ex-client incompetent. Although the lawyer claimed that he had not disclosed any confidential information, the court found that he had (1) disclosed personal information that he could have gotten from his client only while acting as her lawyer, and (2) done so to the son knowingly and intentionally and in direct contravention of the client’s express objective to be free of her son’s control. In the end, the lawyer’s improper disclosures cost his ex-client $13,500 and, worse, her relationship with her son. The court ordered him to make financial restitution and suspended him for 18 months. In re Eugster, 209 P.3d 435 (Wash. 2009).

Although almost everything a client tells you in a professional capacity is to be considered confidential, the lines are fuzzier in everyday life. One problem with everyday confidences is knowing what is and is not to be considered confidential. If you’re told it’s a secret, of course, that’s easy. Otherwise, use your reason and common sense, depending on the nature of the subject and the relationships of the people involved, to decide whether you should relate something you’ve been told. In general, though, you should always be hesitant to divulge information that might prove embarrassing or harmful to the person who shared it with you—especially if that person had reason to believe that he or she was entrusting you with it. When in doubt, mum’s the word.

Posted in Uncategorized | Tagged | Leave a comment

LawProse Lesson #191: Nonrepresentation letters.

Ethical communications for lawyers: Nonrepresentation letters.

Although the attorney–client relationship is ordinarily a consensual one, the consent is not symmetrical: if a client reasonably relies on the existence of a relationship when the lawyer does not intend one, a court may find the lawyer responsible for representation (or, more likely, the lack of representation). Because there are no magical words or steps two parties take to establish the attorney–client relationship, lawyers should exercise special care when turning down a potential client.

A nonrepresentation letter helps to dispel any potential uncertainty about whether a lawyer has undertaken to represent a prospective client. A letter with a straightforward disclaimer should satisfy your burden of removing ambiguities about the formation of the attorney–client relationship and any potential liability on your part.

Posted in Uncategorized | Tagged | Leave a comment

Garner’s Usage Tip of the Day: lay; lie (3).

lay; lie (3).
Part C: “laid” for Past-Tense “lay.” The “lay”-for-”lie” error also occurs with the past-tense forms — e.g.: “He laid [read 'lay'] down flat on the ground and looked around for an object or landmark he might have missed from a higher angle.” “Pumpkin Place,” Amarillo Daily News, 4 Mar. 1996, at C1.

Part D: “laid” for “lain.” Not surprisingly, the same mistake occurs with the past participles as well — e.g.: “The players — performers — will take on a problem that has laid [read 'lain'] dormant since Peter Ueberroth caved in to the umps.” Peter Gammons, “KC May Start Enjoying Some Royalties,” Boston Globe, 25 Nov. 1990, at 58.

Part E: “lain” for the Past-Participial “laid.” This is a ghastly example of hypercorrection, that is, choosing the more far-fetched (and, as it happens, wrong) term in a contorted attempt to be correct — e.g.: “But to me it seemed like the kind of thoughtless destructiveness that has lain [read 'laid'] waste to much of the city.” Ed Zotti, “Supporters Fervent About Rogers Park’s Future,” Chicago Enterprise, May 1994, at 30.

For information about the Language-Change Index click here.

——————–
Quotation of the Day: “The term ‘Fable’ is not very easy to define rigorously. In the most typical form some moral precept is set forth by means of a conception purely fantastic, and usually somewhat trivial into the bargain; there is something playful about it, that will not support a very exacting criticism, and the lesson must be apprehended by the fancy at half a hint.” Robert Louis Stevenson, Learning to Write 107 (1888; repr. 1920).
====================

Posted in Uncategorized | Tagged | Leave a comment

Garner’s Usage Tip of the Day: lay; lie (2).

lay; lie (2).
Today: “lay” for “lie.”

This is one of the most widely known of all usage errors — e.g.:

o “If you’ve got an extra $79,800 laying [read 'lying'] around you could become the proud owner of two vacant buildings on the southeast corner of the Canyon square.” Bill Rogers, “Buildings Priced at $79,800,” Canyon News (Tex.), 30 Oct. 1994, at 1.

o “This Christmas give a gift that’s been laying [read 'lying'] around for twelve years.” Advertisement for Glenlivet Scotch Whisky, Atlantic Monthly, Dec. 1994, at 13.

Similarly, although a sickness can “lay you low,” if you’re in that position you’re “lying low.” But American journalists get it wrong as often as they get it right — e.g.: “Another reason I laid low [read 'lay low'] was to be in a position to help a friend back out of what he now must know to be a dead end.” William Safire, “Buchanan’s Campaign,” N.Y. Times, 16 Dec. 1991, at A15.

Another common mistake is “laying in wait” for “lying in wait” — e.g.: “Dunlap has been accused of laying [read 'lying'] in wait until closing time at the Chuck E Cheese restaurant, then systematically shooting the five employees still on duty.” Ginny McKibben, “Ex-Friend Links Dunlap to Burger King Robbery,” Denver Post, 1 Apr. 1995, at B4.

Next: Other Problems with “lay” and “lie.”

For information about the Language-Change Index click here.

——————–
Quotation of the Day: “One may say that there are two kinds of editing; editing for correctness and consistency, and editing for sense and effect. The two kinds of editing require two separate abilities, which are sometimes, but by no means always, found in one editor.” George Stevens, “Author’s Nursemaid” (1942), in A Reader for Writers 188, 190 (William Targ ed., 1951).
====================

Posted in Uncategorized | Tagged | Leave a comment

Garner’s Usage Tip of the Day: lay; lie (1).

lay; lie (1).
Today: The Distinction.

Very simply, “lie” (= to recline, be situated) is intransitive — it can’t take a direct object {he lies on his bed}. But “lay” (= to put down, arrange) is always transitive — it needs a direct object {please lay the book on my desk}. The verbs are inflected “lay-laid-laid-laying” and “lie-lay-lain-lying.”

Because “lie” is intransitive, it has only an active voice {lie down for a while}. And because “lay” is transitive, it may be either active {he laid the blanket over her} or passive {the blanket was laid over her}.

To use “lay” without a direct object, in the sense of “lie,” is nonstandard {I want to lay down} {he was laying in the sun}. But this error is very common in speech — from the illiterate to the highly educated. In fact, some commentators believe that people make this mistake more often than any other in the English language. Others claim that it’s no longer a mistake — or even that it never was. But make no mistake: using these verbs correctly is a mark of refinement.

The most unusual of these inflected forms, of course, is “lain,” but most writers have little difficulty getting it right — e.g.: “Katrina Kuratli said she and her husband, Dan, had just lain down in their bedroom when the bomb went off around 10:45 p.m.” Mack Reed, “Pipe Bomb Rips Car, Jolts Simi Neighborhood,” L.A. Times, 30 Apr. 1994, at B9.

Next: “lay” for “lie.”

For information abut the Language-Change Index click here.

——————–
Quotation of the Day: “If we think out logically and bravely what is for the good of society, our view of language will lead us to the conclusion that it is our duty to work in the direction which natural evolution has already taken, i.e. towards the diffusion of the common language at the cost of local dialects.” Otto Jespersen, Mankind, Nation, and Individual from a Linguistic Point of View 72 (1946).
====================

Posted in Uncategorized | Tagged | Leave a comment

Garner’s Usage Tip of the Day: lawyer; attorney; counsel; counselor.

lawyer; attorney; counsel; counselor.
The two most common among these, “lawyer” and “attorney,” are not generally distinguished even by members of the legal profession — except perhaps that “lawyer” is often viewed as having negative connotations. Thus one frequently hears about “lawyer-bashing,” but only the tone-deaf write “attorney-bashing” — e.g.: “Attorney-bashing [read 'Lawyer-bashing'] always will be a popular pastime.” Christopher Smith, “Injury Lawyer May Be Utah’s Best — Bar None,” Salt Lake Trib., 7 Feb. 1994, at A1.

Technically, “lawyer” is the more general term, referring to one who practices law. “Attorney” literally means “one who is designated to transact business for another.” An attorney — archaically apart from the phrases “power of attorney” and, less commonly, “attorney-in-fact” — may or may not be a lawyer. Thus Samuel Johnson’s statement that “attorney” “was anciently used for those who did any business for another; now only in law.” A Dictionary of the English Language (1755).

From the fact that an attorney is really an agent, Bernstein deduces that “a lawyer is an attorney only when he has a client. It may be that the desire of lawyers to appear to be making a go of their profession has accounted for their leaning toward the designation attorney.” Theodore M. Bernstein, The Careful Writer 60 (1965). Yet this distinction between lawyer and attorney is rarely, if ever, observed in practice.

In American English, “counsel” and “counselor” are both, in one sense, general terms meaning “one who gives (legal) advice,” the latter being the more formal term. “Counsel” may refer to but one lawyer {opposing counsel says} or, as a plural, to more than one lawyer {opposing counsel say}.

For information about the Language-Change Index click here.

——————–
Quotation of the Day: “I am not an academic linguist or an etymologist. Linguistics and what I do stand in something like the relation between anthropology and cooking ethnic food, or between the history of art and art restoration.” Barbara Wallraff, Word Court 2 (2000).
====================

Posted in Uncategorized | Tagged | Leave a comment

Happy 25th Anniversary to LawProse!

At LawProse, we’re celebrating our 25th Anniversary!

Next year will mark the 25th anniversary of LawProse—the 1990 brainchild of Bryan A. Garner. To commemorate this important milestone, look for special events every month. We’ll start off in January with our Adopt-a-Bobble-Bryan program.

On January 12th, 20 Bobble Bryans will be looking for good homes. (Yes, for the first time ever, we’re selling the already-legendary Bryan Garner bobblehead.) All profits will go to a legal-services charity. Submit your request by e-mail to kcheng@lawprose.org beginning at midnight Central Time on January 12 (12:00 a.m. Central Time on January 13, to be clear). The first 20 people based on the time of the e-mail will be eligible to purchase a Bobble Bryan. More details to come in next week’s LawProse Lesson!

Let’s start 2015 off with a smile.

Posted in Uncategorized | Leave a comment

Garner’s Usage Tip of the Day: lawsuit.

lawsuit.
Journalists often misuse “lawsuit” (one word) for “complaint” (= the paper that is filed to start a lawsuit) — e.g.:

o “In its 18-page lawsuit [read 'complaint'], Viacom-owned CBS alleged: ‘”Celebrity” was consciously designed to mimic “Survivor” and unfairly trade on its success.’” Meg James, “CBS Sues to Block New ABC Program,” L.A. Times, 7 Nov. 2002, Bus. section, pt. 3, at 3.

o “The allegations in his 144-page lawsuit [read 'complaint'] read like a Robin Cook novel.” Lynne Tuohy, “Pfizer Trials Called Cruel, Immoral,” Hartford Courant, 6 Dec. 2002, at A1.

The “lawsuit” is the whole process; the document (however many pages long) is only an instrumental part of it.

For information about the Language-Change Index click here.

——————–
Quotation of the Day: “Most languages of uncivilized groups are, by our most severe standards, extremely complex, delicate, and ingenious pieces of machinery for the transfer of ideas. They fall behind our western language of civilization not in their sound patterns or grammatical structures, which usually are fully adequate for all language needs, but only in their vocabularies, which reflect the objects and activities known to their speakers.” Mario Pei, Language for Everybody 207 (1956).
====================

Posted in Uncategorized | Tagged | Leave a comment

Garner’s Usage Tip of the Day: lavish, vb.

lavish, vb.
As a transitive verb, “lavish” takes a direct object, but it is traditionally a thing, not a person. That is, you lavish gifts on a person, not a person with gifts. But writers have begun to engage in object-shuffling with this verb — e.g.: “Mayor Willie Brown welcomed Philippine President Joseph Estrada with open arms Tuesday, lavishing him with compliments [read 'lavishing compliments on him'] and encouraging him to maintain ties with the Bay Area.” Pia Sarkar, “Philippine 1st Couple to Get Royal Welcome,” S.F. Examiner, 26 July 2000, at A4.

Despite that desirable edit, this nontraditional usage does seem to give the language more versatility when the thing being lavished takes many words to express — e.g.: “She had lavished him with the adoration and protectiveness of a childless woman who has borrowed a precious gift, especially a gift from God.” Sharon Rab, “The Red Dress,” Dayton Daily News, 6 Aug. 2000, at C3. That sentence is particularly challenging to try to rewrite by using the traditional idiom.

One solution would be to make it the idiomatic “lavished on him the adoration . . . .” Another would be to replace “lavished” with another verb, such as “showered”: “she had showered him with the adoration and protectiveness of a childless woman who . . . .” A third would be to allow this extension in the use of “lavish.” Linguistic conservatives will prefer the first two solutions; liberals will be perfectly happy with the third.

For information about the Language-Change Index click here.

——————–
Quotation of the Day: “The primary aim, in clearness especially, as well as in other requisites of good style, is that of economizing the reader’s attention.” J. Scott Clark, A Practical Rhetoric 47 (1886).
====================

Posted in Uncategorized | Tagged | Leave a comment