Monday, January 18, 2010

Me and Ledocs: Clarification Requested and Provided


I fear, basman, that is you who are confused, not I. I said that it was absurd to say that Americans can rely upon lawyers to avoid grammatical ambiguity in contracts. I never said that it was absurd to assert that Americans do rely upon lawyers in this way, nor did I even say that the reliance was absurd as compared to an alternative of not having licensed attorneys. There is clearly a broad range in the general education and grammatical competence of licensed attorneys in the US. One reason for this is that the US probably has far too many lawyers per capita.

I am making two points about the pattern of Salt's posts, and they are related. Salt is probably underestimating the sophistication of the grammar implicit in the black vernacular. It was pretty clear from her initial post that she knows nothing about the subject, either theoretically or empirically. Second, she is overestimating the grammatical competence of the American professional class, prominently including lawyers, but also including CEO's.


Did I misread you? Is the question between you and your interlocutor really whether lawyers can be counted on to avoid “grammatical ambiguity” in contracts? If it is I confess to overreading the issue between you.

It’s an odd question, though it may make sense in the context of your entire exchange with Ms or Mr. Salt, which I have not overly parsed. But I continue to think lawyers’ general grammatical competence is comparatively good amongst professionals because competent use of language is uniquely essential to their professional life. So that then gets back to the same point I may have raised too broadly but now oddly narrowed: namely “that Americans can rely upon lawyers to avoid grammatical ambiguity in contracts”. It's an implicit part of the general reliance on lawyers to draw competent contracts. So sure people can and do rely on lawyers in the way you frame the question.

About too many lawyers in your country I do not know: same for the sophistication of the grammar implicit in black vernacular English.

What, I wonder though, would be the evidence for over or under or just estimating the grammatical competence of American professionals? (I guess that evidence could be marshalled by you and the estimable Ms or Ms Salt on the question of lawyers' comparative grammatical competence.)


Lawyers probably write more clearly than engineers, but engineers can rely on exhibits and equations to communicate the gist of what they are writing. They probably write more clearly than doctors, for the reason you give. There isn't much point to arguing about the grammatical competence of American lawyers outside of the precise context in which it arose for me here. I don't think that the standards are as high as one might like, and I don't think that they need to be, for most practical purposes. There probably is a literature that pertains to the question. I can imagine various Supreme Court justices complaining in speeches about the writing standards in the American Bar. In fact, I would be surprised if Scalia, of whom I generally do not approve, has not made such a complaint. And there are probably law review articles pertaining to the question of how often a poorly written contract (poorly written in the narrow sense of containing substantively important grammatical ambiguities) leads to litigation. My guess: it's more common than you think or than Salt thinks.


The “precise context”, I’m guessing and extrapolating without going back over the whole thread, seems to have to do with the denigration of black vernacular English, what using it signifies culturally and socially, particular in comparison with standard English as illustrated in its use by professional and business people. Just a couple of thoughts I was going set out by way of post script even before I read your last post: clear thinking would demand distinguishing between written and spoken English in these comparisons and would demand distinguishing between descriptive accounts and evaluative accounts of language use. I sense neither distinction has been sufficiently drawn.Scalia. among other things, is quite the fuss budget over language use and in these respects is a barometer of nothing much at all except his own idiosyncracies.


I don't know whether you care about this, but if you're coming in late and saying that you don't have time or inclination to read the discussion, it's sort of insulting to then be told by you what clear thinking requires. Did I give you the impression that I thought I had written something with scientific merit about the black vernacular? I thought, to the contrary, that I was deferring to McWhorter, or to someone like him. But thanks for your input. Very enlightening.


So basman, I did a google search on "grammar lawyers." The first page of hits revealed these links:

This is just the tip of the iceberg. Without knowing what your precise judgment is about the level of grammatical competence among American lawyers, I'll wager that I am more right than you are about this, with or without testimony from Scalia.


Ledocs, don’t be insulted and no insult intended. I generally try to stay out of the insult business though, unlike the Pope, I am fallible. It was my impression starting with McWhorter himself, who I like a lot from what I have read of his books, journalistic writing, posting and appearances here, that he was not distinguishing sufficiently between descriptive and evaluative accounts of language use. I then got the impression from my recollection of the entire thread, which I read once a few days ago, that apples weren’t finding apples without considering the difference between written and spoken English.

I have seen the kinds of things you linked to all my professional life and they tell me nothing about the comparative grammatical competence of lawyers. I need to see the iceberg. More I need to see an iceberg that isn’t anecdotal or impressionistic but that has some methodology to it which allows for the drawing of reasonable conclusions. I don’t have a precise judgment about the grammatical competence of American lawyers. It’s a subject that until about 4 days ago I gave not a whit of thought to.

But from my too many years of dealing with Canadian lawyers—whose competence is probably roughly similar to that of American lawyers—I’d think North American lawyers’ grammatical competence is pretty good. I have no impression of lawyers' consistent bad writing be it manifest in poor grammar, bad syntax, poor use of language or other hallmarks of bad writing. I have some basis for judgment because I taught first year university English literature and composition for two years, albeit also too many years ago.So for your bet, let me make you a logically prior bet: that you cannot establish a reasonable basis for determining your bet.

Finally, if your tongue was not in your cheek—I’m not sure—then you are welcome. And if it was in your cheek, then you are welcome.


I think I could construct "a reasonable basis" that would not meet the standards of social science. If you're saying that I probably can't get the raw data to do a regression analysis, and that it would be difficult even to specify the dependent variable, that's probably correct.

What about my idea of trying to do a statistical analysis of numbers of cases reaching litigation due to poorly drafted contracts, where "poorly drafted" means containing grammatical ambiguities? Maybe the American Bar Association has data on this. How much anecdotal evidence would I have to collect to the effect that the grammatical competence of American lawyers is not very high, on average, in order to convince you? Would any amount of anecdotal evidence convince you, or do I need a statistical study using recognized social scientific procedures?

I don't know enough about you to know if you're arguing in good faith about this. I would not assume that the Canadian case is that similar to the American case. A cursory look at perhaps unreliable stats on the Net indicates that there are roughly four times as many lawyers per capita in the US as in Canada. This is a strong indication to me that standards are higher in Canada. The US has a lot of pretty shitty law schools, but you may not be aware of that. Better law school means higher SAT and LSAT scores for people admitted, which in turn probably means better training in grammar and generally more literate students.


Ledocs I can tell you that I’m trying to have a bona fide discussion with you.

I wouldn’t want you to go to a lot of trouble unless you wanted to but in any event just conceptually isn’t there a problem with analyzing the number of cases going to court—or to be fair to your argument, leading to disputes even shy of going to court— based on poorly drafted contracts—let alone boiling “poorly drafted” down to grammatical error? Amongst other problems, you would have to identify them and then measure them against contracts drawn in some agreed upon frame of time in some agreed upon place, and there would have to be refinement of which contracts comprised the universe of contracts the disputed ones would be measured against. I can’t imagine how practically you would do all that.

And on a different point, without launching you into some quixotic enterprise, how would you go about collecting anecdotal evidence? And in that collection would you not run into the same problems that seem to attend your idea of a statistical analysis?

I am impressed by your data indicating there are per capita 4 times as many American lawyers as Canadian lawyers. I might have guessed there were more American lawyers per capita than Canadian ones, but not on an order of 4 to 1. What stats did you look at? I’m not asking that to challenge you but out of interest. That 4 to 1 ratio cuts against my inclination to judge the writing competence of American lawyers on the basis of my impression of the writing competence of Canadian lawyers, but doesn't, I don’t think, do anything else for or against what you are arguing for.

I think the real points that emerge from all this, and I what I’d argue, are the inability credibly to test the assertion that American lawyers have poor command of English grammar or even to formulate that assertion in a way that makes practical sense.


Yes, there is a problem if you're going to be stubborn and obtuse about it, even in theory, otherwise not. I'm saying that maybe someone, the ABA for example, a law professor writing a law review article, a judge who is fed up, has already done the analytical work of saying that a grammatical ambiguity led to a dispute. I'm not going to be making that judgment. We're just talking about ground-rules, whether it is theoretically possible for me to persuade you of something. If you want to control for time constraints in the drafting of offending contracts, yes, that would probably create an insuperable problem.

Anyway, I think you are correct in thinking that I could not persuade you that there are widespread deficiencies in the command of English grammar by American lawyers. I don't think it's theoretically possible for me to persuade you. It strikes me that if all the American lawyers could be subjected to a standardized grammar test, you would not accept the results of that as probative either, because some of them would be nervous, there would be problems with the design of the test, they would not be taking the test under exactly similar conditions, and so on.

So let's drop it.


If I'm going to be "stubborn and obtuse" about it, you say, and this is your thanks when I was being so gentle with you.

Kettles and pots, my man: when I demonstrate the irrefutable absurdity of your position, you get personal.

Let's drop it, you say.

You took the words right out of my mouth. But I pause to note your exit in the face of your inability to confront what I argued against you except, as noted, by insult.

See ya'.


The estimable basman said:


Kettles and pots, my man: when I demonstrate the irrefutable absurdity of your position, you get personal.

I don't think you've demonstrated very much here, except that I am easily frustrated. I asked if you would accept the testimony of third parties with some presumed expert knowledge of American law who had written about, or studied instances in which grammatical ambiguity in contracts had led to legal disputes. You did not reply, even to say, "It would depend, I might."

From this silence I inferred that my task would be Sisyphean. It does not follow from the fact that I am very unlikely to persuade you of the truth of "my position" because I cannot meet a certain burden of proof, yet to be specified, my position being that there is a widespread lack of grammatical competence in the American Bar, that the position is "irrefutably absurd."

But maybe this does follow for you, according to some criterion of falsifiability, so that would be good to know. Is there evidence short of "proof" by regression analysis (which might well also fall far short of proof for you, I don't know) that would lend my opinion plausibility for you, and can we specify in advance what kind of evidence that would be?

Ledocs: (last word)

Hey, basman, you posted on your personal blog, in a misleading way, excerpts of things you and I said in this topic. as of 14:35, Monday, January 18, 2010, Paris time).

First, you make it appear on your blog that things I said to salt were said to you. That’s sort of dishonest. I say “sort of,” because I don’t really care that much, it’s all more or less anonymous and unsourced, you quote me accurately, but still, I wasn’t talking to you when I said what you quote. It does not look good to say to an attorney that the attorney has little or no experience in reading contracts.

Perhaps you therefore think that any reader will gather from what I say that I could not have been talking to you. And this is all not unrelated to my prior complaint that you entered the present discussion late and ignored the “precise context” of my remarks. The “precise context” includes a tacit explanation of why I used the word “absurd” in the words of mine that you cite.

It’s because I was offended by salt’s posts. That is, your out-of-context citation of me makes me appear even more hyperbolic and hot-headed than I actually am. It also occurs to me that there was no reason to attribute the remarks of mine that you cite on your personal blog to "ledocs," because that name is now associated with lots of things that apply to me on the Internet.

You could have given me real anonymity, and chose not to. Second, you don’t make it clear on your blog that my remarks were entirely about American attorneys. I don’t have “a position” about Canadian attorneys, because you are the first one with whom I’ve had any serious contact. A careful reader might understand this, but it could or should be made clearer. You don’t mention the subsequent point I made about the much greater number of attorneys per capita in the US, as compared with Canada.

Since you are, in fact, a Canadian attorney (as I have only now discovered), it might behoove you to look into that matter and see if there might be something to my suspicion that grammatical standards are higher in the Canadian legal profession because that profession is more selective than the American one. I don’t think I would have done anything analogous to what you have just done on my own blog. It strikes me as slightly unethical. You could have asked me for permission to cite me, out of context, in that way.

I will say that you come out of that exchange that never happened looking pretty good on your blog. What you say in reply to me is well written and pretty cogent, a lot better than your anti-Holder rants in your profile on this site, rants which are not very well written. It's not entirely clear there what you're so worked up about. Since I see that you can write well, I respectfully suggest to you that you clean up your user profile on this site. Anyway, I don’t want to make a federal case out of this, as we say in the US. But it does seem a little weird to me, what you’ve done.

If I were going to cite someone in that way, without his permission, on my blog, I would have prefaced the citation with something to clarify the context, like, “In the context of defending the relative sophistication of the grammar implicit in the American black vernacular, as compared with his interlocutor’s invocation of the higher grammatical standards of American attorneys writing contracts in standard English, a poster on a forum I visit said the following.” In fact, if you would add that prefatory sentence, I would appreciate it. I wrote it, and I approve it, cumbersome though it is

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