October 12, 2007

Flexible lawyerspeak: manifestly

Recently I noticed a phrase used in Senator Larry Craig's failed attempt to have his guilty plea reversed by the court. The CNN report points out that Billy Martin, Craig's lawyer, argued that it was "manifestly unjust" to deny Sentator Craig's request to quash his guilty plea.

Now most of us think we know what "manifestly" means in its adjectival and adverbial forms. It's probably along the lines of the definition in  Webster's New Collegiate Dictionary:

Manifest adj.  1. readily perceived by the senses and esp. by the sight  2. easily understood or recognized by the mind: obvious  syn see evident--manifestly adv

The judge countered that there was "no manifest injustice" here, adding that Craig was a career politician with a college education and was of at least above-average intelligence. He ruled that the plea would not be withdrawn since it was accurate, voluntary and uninfluenced by the police interview. In other words, to him and most who read it, Craig's plea could be said to be manifestly clear. It appears that attorney Martin meant that a judgment against Craig would be manifestly unjust based on his manifestly clear admission of guilt. Or something like that.

I bring up "manifest" here because some 45 years ago David Mellinkoff, in his historic The Language of the Law, listed over a hundred words and expressions used by lawyers because they are so usefully "flexible." Other critics call the items on Mellikoff's list "equivoval expressions" or "weasel words." His list includes "manifest" on page 22.

We probably can't expect lawyers to use words the way the rest of us do, but when terms like "manifestly" pop up, I sometimes search for enlightenment about them by going to Brian Garner's Dictionary of Modern Legal Usage. Here's what he has to say about "manifest."

Manifest, adj., often functions in suspect ways in legal writing: "Someone has observed that whenever a lawyer says something or other was the manifest intention of a man, 'manifest' means that the man never really had such an intention." Jerome Frank, Law and the Modern Mind 30 (1930); repr. 1963. This word is one of those vague terms by which lawyers create an appearance of continuity, uniformity, and definiteness [that does] not in fact exist. Id.

If we are to follow Garner's definition, we might ask if both Martin and the judge in this case were just toying with one of those suspicious and "flexible lawyer words" that create the appearance of something that does not in fact exist. If Garner is right here, both Craig's lawyer and the judge meant exactly the opposite of what we are led to believe they were trying to mean. This would seem to tell us that Craig's lawyer was actually admitting that the plea was fair and just while the judge was saying that it wasn't.

This is giving me a headache. I think I'll go lie down a bit.

Posted by Roger Shuy at October 12, 2007 01:02 PM