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Legal Ease

By Megan Kinneyn | Aug. 2, 2007

News

Law Office Management

Aug. 2, 2007

Legal Ease

Our resident writing guru takes a crack at simplifying a 228-word statute. (He gets it down to 116.) By Howard Posner

By Howard Posner
     
      Too Many Notes
      I read statutes occasionally. It's an occupational hazard?like stress, malpractice suits, nonpaying clients, alcoholism, and divorce. Sometimes the experience is tolerable. Sometimes it's surreal.
      I recently had to deal with California Business and Professions Code section 17500, which says little more than "don't make misleading statements in advertising goods or services, and don't bait and switch" in a 228-word labyrinth of a sentence that suffers from just the sort of problems you'd expect from a monster sentence in a statute or contract. Contracts and statutes are, of course, pretty much the same thing: rules governing behavior, arrived at through negotiation, deliberation, and eventual agreement. The only difference is that contracts are purely private law, written for the sole benefit of the parties, while statutes are written for general application by selfless legislators and lobbyists whose only consideration is the public good. (Oh, stop giggling.)
      Writers of rules, public or private, seem to think anything worth saying needs to be said in a single sentence that deals with the entire topic, clarifies all possible ambiguities, closes all loopholes, and states all exceptions. Call it the "what if?" syndrome: What if we write it in five sentences, and some unscrupulous lawyer takes a sentence out of context and misrepresents the statute's meaning? What if someone doesn't understand that "services" includes "professional services?" We have to explain, include, and never stop for a breath. This sort of drafting is a fool's game. For one thing, a phrase can be taken out of context as easily as a sentence. For another, even if it's possible to write a sentence that accounts for all foreseeable objections and eventualities, the sentence isn't going to be clear, and it will fall on the laughable side of tedious. Try to get through the first sentence of section 17500 without backtracking, falling asleep, or thinking of something else you urgently need to do. Here it is, in all its glory:
      "It is unlawful for any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised."
      It starts going off the rails at "with intent." I had to pause at "directly or indirectly," wondering whether it referred to direct or indirect intent, or to direct or indirect disposition of property. I decided I didn't care which, and moved on.
      I got lost at "anything of any nature whatsoever" and had to do some detective work to figure out what it had to do with anything I'd read thus far. The first clue was that the phrase is some sort of noun; I assumed it was an object, but of what? Had a verb left its fingerprints at the scene? I concluded that "anything of any nature" is what we're "disposing of" or "performing," wondered why that particular catchall needed to be there (or anywhere), and proceeded on my quest to discover what was unlawful. Along the way, I encountered another vague catchall ("or in any other manner or means whatever") but by then my curiosity was occupied with "public outcry or proclamation," which sounds like a holdover from a 17th-century London ordinance.
      "Any such statement" in the second (bait-and-switch) part of the sentence also threw me for a loop, because it obviously refers to the false or misleading statements recently mentioned, and raises the question of whether a statement, to be prohibited, must be misleading in some way other than being part of a bait-and-switch scheme. I'm guessing not.
      Is there a difference between a "plan" and a "scheme," such that we need both words? For that matter, is there a functional difference between "false" and "misleading"? A false statement is either misleading or unimportant, and if we intend to prohibit misleading statements whether they're technically false or not, do we care if a misleading statement is actually false? Just asking.
      I'm not sure about some of the vagaries in the sentence, but the goo and drivel is easily remedied. Just begin with the basic message, without the parade of for-instances, catchalls, and I-really-mean-its inserted between the substantive parts. Here's a rough rewrite:
      (a) It is unlawful for a person or entity intending to dispose of property or perform services to disseminate an untrue or misleading public statement about the property or services if the person making the statement knows, or through exercise of reasonable care should know, that the statement is untrue or misleading.
      (b) It is unlawful for a person or entity intending to dispose of personal property or perform services to disseminate any statement as part of a scheme not to sell the property or services as advertised, or at the advertised price.
      With the basic rule, we can add a subdivision (c) explaining what those interpolations in the original tried to explain, if explanation is really necessary: "Entity" includes any firm, corporation, or association, or its employees; "services" includes professional services; "disseminate" includes using the Internet, or skywriting, or marching-band formations.
      Simple, direct sentences are almost always the way to go. This does not mean sentences always have to be short. Even a sentence with a long list of examples will work if its basic elements (who's doing what) show up early and stay close together. Rules shouldn't be mysteries.
     
      Howard Posner (howardposner@ca.rr.com) practices appellate law in Los Angeles, consults with other lawyers about writing, and writes about nonlegal matters.
     
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Megan Kinneyn

Daily Journal Staff Writer

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