August 11, 2006

Do magpies understand structural ambiguities?

No, this is not another discussion of animal communication research. We're talking about critters that are closer to home, a quintessentially modern subspecies of homo sapiens: lawyers.

In my post "Lawyers in need of linguistic training" (8/7/2006), I suggested that lawyers ought to be better than they apparently are at detecting and correcting pernicious structural ambiguities in the language of contracts -- and that a few linguistics courses might help. There's a serious logical flaw in this argument, and I expected that someone would call me on it. Ambiguous contracts create disputes that require more lawyering, so (according to the standard argument-form of evolutionary psychology) we should expect lawyers to evolve a culture that maximizes ambiguity in their work product rather than one that minimizes it**. However, both the blogospheric discussion and my email correspondents let this one slip through.

But email from Laura Petelle raised another logical problem for my campaign to persuade lawyers to learn some basic skills in linguistic analysis. Laura took me to be arguing that lawyers need help in learning to write clearly, and observed in response that lawyers mostly don't write, they plagiarize borrow adapt existing text:

... the truth is that lawyers are magpies. Drafting original language that says what you want it to say in precise terms AND fits the statute or case law is a pain in the butt. In trying to draft new language for a legal document, you're dealing with "terms of art" (legal jargon with technical meanings), plain language, shifting meanings of words, etc., etc., etc. It's a linguistic nightmare. So what most lawyers do is try to smash together paragraphs they already have and only change some words. Some of these paragraphs you store in your brain -- I could write six will recitals off the top of my head -- and others you store on your hard drive. When you have a document to draft that resembles one you already drafted, you go dig that one up. Lawyers are also quite generous about giving language to one another. When I started in solo practice, many established lawyers of my acquaintance sent me just reams of documents they thought would be useful to me so that I could steal the language. It was a gift beyond price. When I run up against a new and unique situation, I often e-mail other lawyers and say, "Do you have a document with this?" to get their language.

The motivation for this practice is not laziness or incompetence, it's money:

I drafted a will early in my practice wherein the client wanted to leave his gun collection to certain people. None of my existing documents (mine or the gifts from others -- or the reference books) had language for this, so I had to draft it from scratch to comply with the state gun ownership and transfer laws, AND with the state will laws, AND to be clear, precise, and understandable to a layperson. It took me almost three hours. Now, however, when I get wills clients with guns, it takes me 10 minutes to pull up the language from the older document and change appropriate nouns.

Most lawyers do not charge -- or downcharge -- creation of new language. (Or at least, most where I am. I suppose in big-city firms with pressure for 80-hour billing weeks, young lawyers must do so.) My client was charged 30 minutes for my 3-hour research and hair-tearing experience coming up with the fresh language for the gun bequest.

So when someone gives me pre-existing language that complies with the statute, I take it, even if it's archaic and painful and far too technical for the average reader. When I have time, I try to build my library of paragraphs in plain language and rewrite older paragraphs in simple, clear language. But I don't always have time, both because hours in the day are limited, and because sometimes documents are rushed. I recently turned out a prenup that was rife with legalistic language that could easily have been simplified, but they came to me two weeks before the wedding so it was a very high-speed drafting experience. There simply wasn't time.

This is all very sensible, but it's orthogonal to the original issue. You'll recall that the case of the two-million-dollar comma involved the provision:

[The SSA] shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.

The argument was about whether the phrase "unless and until terminated by one year prior notice in writing by either party" should be construed as modifying just the phrase about renewal ("and thereafter for successive five (5) year terms"), or the whole previous sentence and thus the contract as a whole.

I imagine that in the lives of corporate lawyers, renewable contracts like this are common as dirt. So the lawyers who drafted this one must have had plenty of prior examples to choose from. But whether they borrowed boilerplate from earlier contracts, or painstakingly drafted new provisions from scratch, they should have been able to look at the result and say to themselves, "wait a minute, does the notification of termination apply just to the renewal, or to the contract as a whole?" And if they'd paid attention in their linguistics courses, they would have learned that in general, such structures are ambiguous. For a good example of how linguists present such issues to students in elementary courses, see Heidi Harley's discussion here. Heidi argues that the structure in question is ambiguous, using the example

Jane will ask Bill to the dance, and John will ask Sue, unless Phil asks Sue first.

which she (plausibly) argues is structurally amenable to the interpretation where the unless-clause only modifies "John will ask Sue", as well as to the interpretation where it modifies everything that precedes it.

Laura suggested that the English of today's legal documents is a sort of linguistic breccia, composed of mingled bits from many historical layers:

[S]ince I primarily deal in wills, I see a lot of other lawyers' work on prior wills. OH. MY. LORD. Some of them shouldn't be trusted with a pencil, let alone a typewriter. The language abuse is amazing. Some of the paragraphs I see read like they've been around since about 1400 -- and I'm positive some of them have; will laws have changed very little since then, and some of the recitations are exactly the same -- with just a few adjustments for language drift. And I think that drift often goes in the direction of "less comprehensible over time" than "more comprehensible over time" since only bits and pieces get changed, and you end up with this horrific hodge-podge of legal Latin, Norman French, Shakespearian English, colonial English, and modern English. It's no wonder regular people can't read lawyer-speak. I'm a lawyer and I can't read lawyer-speak without giving myself a headache.

According to the story told by "construction grammar" and other examplar-based theories, all languages are sort of like this. But whether new sentences are derived logically from abstract first principles, or reconstructed analogically from a collection of examples, their interpretation will still be subject to structural ambiguity. And you'd think that learning how to think and talk about this would be important to people whose job consists largely of creating and interpreting sentences.

**This is (sort of) a joke. The standard E.P. argument applies to individuals, not to groups, and requires that individuals with some particular behavioral trait should be more successful in engendering offspring. Lawyers whose legal documents require lots of follow-on lawyering are certainly helping to increase the share of the GDP that accrues to their profession, but it's not clear that they thereby create more lawyers who also write ambiguously or vaguely.
Posted by Mark Liberman at August 11, 2006 11:52 AM