Lawsuit, Shmawsuit/Yiddisch

Judge Alex Kozinski and Eugene Volokh on the use of Yiddish in court decisions:

Searching through the LEXIS legal opinions database reveals that “chutzpah” (sometimes also spelled “chutzpa,” “hutzpah,” or “hutzpa”) has appeared in 231 reported court decisions. Curiously, all but eleven of them have been filed since 1980. There are two possible explanations for this. One is that during the last 21 years there has been a dramatic increase in the actual amount of chutzpah in the United States–or at least in the U.S. legal system. This explanation seems possible, but unlikely.

The more likely explanation is that Yiddish is quickly supplanting Latin as the spice in American legal argot. As recently as 1970, a federal court not only felt the need to define “bagels”; it misdefined them, calling them “hard rolls shaped like doughnuts.” All right-thinking people know good bagels are rather soft. (Day-old bagels are rather hard, but right-thinking people do not eat day-olds, even when they are only 10 cents each.) We’ve come a long way since then.

Mind you, there’s no comparison with US language outside lawsuits.

This is a 1993 article, Lawsuit, Shmawsuit, available online.

(Via Ruth Morris, who writes on Interpreting in legal contexts and Interpreting in the Israel legal system – and has published on the same topic in England and Wales)

LexMonitor

LexMonitor is a sort of US blawg portal, like JuraBlogs on steroids. As reported by Kevin O’Keefe in Real Lawyers Have Blogs, it has just ‘soft launched’ (seems to mean launched in a beta version).

LexMonitor is a free daily review of law blogs and journals highlighting prominent legal discussion as well as the lawyers and other professionals participating in this conversation.

Pulling from nearly 2,000 sources and 5,000 authors, LexMonitor will hopefully shine a light on the ongoing conversation among thought leaders in the law for the benefit of the legal profession and the public at large.

Like putting in the sidewalks on a college campus after watching where the students leave paths, we’ll refine the site and add features based on how it’s used and the feedback we receive from you.

Clicking around, I found a translation company blog on Translation for Lawyershere.

Words banned in court/Verbotene Wörter im Gerichtssaal

An article of 16 June 2008 by Tresa Baldas in the National Law Journal, Courts Putting Hot-Button Words on Ice, reports that words such as rape and victim are being banned by judges because they prejudice defendants.

A steadily increasing number of courts across the United States are prohibiting witnesses and victims from uttering certain words in front of a jury, banning everything from the words “rape” to “victim” to “crime scene.”

Prosecutors and victims’ rights advocates nationwide claim the courts are going too far in trying to cleanse witness testimony, all to protect a defendant’s right to a fair trial. Concerns and fears over language restrictions have been percolating ever since judges in Nebraska and Missouri last year banned the word “rape” during rape trials.

The article contains many examples.

This relates largely to the Nebraska case reported in July 2007. From Slate:

Nebraska law offers judges broad discretion to ban evidence or language that present the danger of “unfair prejudice, confusion of the issues or misleading the jury.” And it’s not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi’s lawyer, Clarence Mock, explains, the word rape is just as loaded. “It’s a legal conclusion for a witness to say, ‘I was raped’ or ‘sexually assaulted.’ … That’s for a jury to decide.” His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.

I think the judge may have gone too far in this particular case.

In the NLJ article, note in particular the last section on the appeal against the Nebraska decision:

Wendy J. Murphy of the New England School of Law, who is representing a Nebraska rape victim opposing the judge’s barring of the word “rape,” said the major battle facing prosecutors and victims now is fighting judges’ censorship orders.

To date, she said, there has been no federal court ruling on the matter. …

Murphy tried when she appealed the Nebraska judge’s decision to bar a rape victim from using the word rape. She lost the case, and is now appealing to the U.S. Supreme Court. Bowen v. Honorable Jeffre Cheuvront, No. 4:07CV3221 (D. Neb.).

At Language Log, Roger Shuy discusses the matter and adds that witnesses don’t often get to use their own words in any case:

“Using your own words” isn’t all that common in trials I’ve experienced. Among other things, you can’t introduce your own topics, you have to answer the opposing lawyer’s questions according to the form in which they are asked (usually yes/no questions, or worse, tag-questions), and you have to be ready to be interrupted at any time. Testifying requires a witness to learn a new set of communication skills, many of which can seem counterintuitive. Doing this can be daunting for anyone not trained in the special culture of the courtroom.

British blood refused/Britische Blutspende abgelehnt

John Flood, temporarily at Miami Law School, tries to give blood:

I hand in the forms and a moment later the medic looks glum. Was it because I’d admitted to taking an aspirin that morning? No.

“I have to reject you,” he said. “You’ve been in the UK.”

“So? I come from there.”

“It’s because of ‘mad cow disease’. We can’t risk you.”

LATER NOTE: the Wikipedia entry on Creutzfeldt-Jacob disease has more details of the dangers, and information on bans on blood donors in other countries – Australia, Singapore, Canada, Denmark, Switzerland. In the UK, blood donors may not include those who have had a blood transfusion since 1980:

In 2004 a new report published in the Lancet medical journal showed that vCJD can be transmitted by blood transfusions.[19] The finding alarmed healthcare officials because a large epidemic of the disease might arise in the near future. There is no test to determine if a blood donor is infected and in the latent phase of vCJD. In reaction to this report, the British government banned anyone who had received a blood transfusion since January 1980 from donating blood.

Unauthorized use of titles/Ermittlungen gegen Gebrauch eines US-Doktortitels

There’s been some excitement in the press about criminal investigation proceedings against some highly qualified Americans at the Max Planck Institute in Jena and elsewhere. They had the temerity to describe themselves as Dr. and Professor Dr. But in Germany, you can use Dr. as part of your name only if the doctorate is German.

What academic titles one can bear is governed by Land law. When I started teaching at a Bavarian Fachakademie in 1982, I was not allowed to call myself Frau Dr. Marks, although this did not stop my employer doing so. I was not even allowed to write Ph.D. after my name – I would have had to pay a sum of 83 DM, I think it was, to be allowed to do so. I may have broken this rule, because I certainly didn’t pay the money. I don’t know what the penalties were, but it was a matter of administrative law as far as I was concerned.

In recent years, the situation has been relaxed for EU citizens. I suppose Germany was forced to grant reciprocity. I was still told I might call myself Frau Dr. (London) Marks. Doesn’t exactly roll off the tongue, does it?

The Kultusministerium used to write to a British fellow-examiner, who was employed at the FIM Fachakademie in Munich, as Herr Dr. X. One day I found out while chatting to him on the phone that his Ph.D. was from Oxford! This was before the EU relaxation. Shortly afterwards I was able to leverage the forbidden title out of the Kultusministerium after I wrote them a letter (they had curtly told my school principal a few years before that a Kultusministerium cannot call a foreigner Dr.).

Anyway, the hoo-hah now relates to Americans and to section 132a of the German Criminal Code, which imposes a sentence of up to one year’s imprisonment or a fine on those who use German or foreign titles without authorization. § 132a German § 132a English.

The main purpose of this section is apparently to protect the general public against those falsely claiming expertise. Using the title on one’s business card is evidence, but I presume that if the person does not normally act in a manner likely to damage the public, the charges will be dropped.

See article in the Washington Post, Non-European PhDs In Germany Find Use Of ‘Doktor’ Verboten.

Ian Thomas Baldwin, a Cornell-educated researcher at the Max Planck Institute for Chemical Ecology in Jena, has stopped calling himself “Dr.” ever since he was summoned for interrogation by police two months ago on suspicion of “title abuse.”
“Coming from the States, I had assumed that when you get a letter from the criminal police, you’ve either murdered someone or embezzled something or done something serious,” said Baldwin, a molecular ecologist. “It is absurd. It’s totally absurd.”

Der Spiegel has the story in German.

In der Tat hatte sich der Amerikaner auf Visitenkarten, Briefpapier und der Internet-Präsenz seines Instituts als “Prof. Dr. Ian Baldwin” bezeichnet. Das hatte sich Baldwin so angewöhnt, weil ihn seine deutschen Kollegen exakt so angeschrieben hatten. An “Professor Dr. Ian T. Baldwin” etwa war der Brief adressiert, mit dem die Max-Planck-Gesellschaft ihren Neuzugang 1996 herzlich begrüßt hatte, einen von gleich drei Amerikanern, die sie für Jena gewinnen konnte. Auch Einladungen zu Vorträgen an Universitäten ergingen immer an den “Prof. Dr.”.

Der Spiegel says that the problem has probably been caused by a frustrated foreigner who is not allowed to call himself Dr. in Germany and who is taking his revenge by reporting Max Planck Institute scientists who do this to the police, who are then happy to pursue the complaints.

LATER NOTE: there are at present 77 comments on the Washington Post article. There are some wonderfully ignorant and ranting remarks: the term ‘reichsanwalt’ contributed by someone in Munich with a law degree, the suggestion that Germany only became a nation in the 1930s, the view that fascism has reigned in Europe since the Roman Empire and the EU was the first step towards ‘the end’, and ‘The Germans have been causing trouble as far back as the Goths’. Also some good sense on § 132 from Robert Gellately. Great irritation at Germany being the only country in the world to require a licence to play golf. And ‘not all bad, puts Condi Rice down a couple of pegs. Univ. of Denver prob wont even make the 200 school list when they relax the law.’

Via German American Law Journal blog, which points out that the press will have a wonderful anti-German field day with this.

Interviews with Supreme Court Justices/Video-Interviews mit US Supreme-Court-Richtern

At LawProse, Inc.

In 2006-2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews. Because the files are large, the videos may take a few moments to start playing.

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse.

(Via The Illinois Trial Practice Weblog)

Above all/Über alles

The Air Force Academy has taken the motto Above All.

“‘Above All’ is about what we do and how we do it,” Colonel Caldwell said. “The job of the Air Force is to defend America and we do that by dominating air, space and cyberspace. The new campaign and slogan captures our roots, but also illustrates where we’re going as a service as the Air Force prepares to contend with future threats.”

I certainly wasn’t aware the U.S. Air Force dominated cyberspace, but I suppose I shouldn’t be surprised.

I must say I prefer Per ardua ad astra, but I don’t understand the excitement about a supposed borrowing from Deutschland über Alles. I just can’t see that. The actual use of the word cyberspace looks more foolish to me. See comments to tongodeon’s Live Journal entry, and also the comments at Boing Boing.

Painful back surgery / Tippfehler im Antrag

We all know that back surgery can be painful, but this got rather worse when it reached the typist’s hands:

Plaintiff moves the court for a continuance of the trial for the reason that counsel for the plaintiff is recovering from dick surgery and because of continuing pain is unable to properly represent the plaintiff in a trial. Counsel is unable to sit for long periods of time.

Scroll down for doctor’s note referring to disk herniation.

(Via Legal Juice)

Birth certificate by laptop / Geburtsurkunde schon im Krankenhaus

I came across Birthtype birth certificate software because a colleague was wondering what ‘screen consent’ and ‘program consent’ on a Florida birth certificate meant. This may apply:

If you have a PC/Tablet you take it with you to the Mother’s bedside by signing on to your Wi-Fi you pull up the birth certificate you want and collect signatures. The parents, witnesses, and or notary can sign the data screen or the PDF form on the (PC/Tablet) computer. The signatures then become attached to the data. Since your TABLET IS A COMPUTER you can send the data with the signatures from the Mother’s bedside. If you are not using a signature pad, or PC/Tablet for signing you still can print out the forms and have them signed as you do now.

It sounds like ambulance chasers are being followed by birth certificate chasers. But then, the American hospital birth certificate, with prints of the baby’s feet, has been around for some time.

(The solution to the colleague’s query turned out to be something completely different: consent to the baby being screened by the Healthy Start Postnatal Risk Screening Instrument)