Still Fresh Legal Cliches

By: Rudy Kass

Image via Flickr by Louis Bavent

Some years ago I began, and abandoned, writing a “Cyclopedia of Legal Clichés.”  It was a catchy title, except that the word “cliché” is a word or phrase that through overuse has become banal –a bromide.  What I was after was familiar, yet fresh.  Call it the “still fresh cliché.”  

1. For example, here is O.W. Holmes, Jr.  at page 3 of “The Common Law”:  “[e]ven a dog distinguishes between being stumbled over and being kicked.”  

Holmes, before he got to the subject of negligence, was exploring early forms of liability.  The thing that caused injury was liable, not the owner or master of the thing.  By way of example, Holmes cites (at page 7 of“The Common Law”) a passage from Exodus:  “If an ox gore a man or a woman, that they die: then the ox shall surely be stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.”  The Greeks adopted that view:  “[A] dog that had bitten a man was to be delivered up bound to a log four cubits long.” “The Common Law” at p. 7.  

Harley, the recidivist dog (7 bites),  got a better deal.  His master was found negligent for harboring and inadequately restraining a vicious animal.    The master’s insurer had to pay for the injuries Harley had inflicted.    Callahan v. Quincy Ins. Co., 50 Mass. App. Ct. 260 (2000).   

So what is the utility of Holmes stumble-kick aphorism?  In one case the actor means to harm; in the other the harm is the product of a mistake, which includes a failure to adhere to community standards of what a reasonable person (which includes inanimate persons like corporations) would do.   Ah, that reasonable woman or man of the law – defined by what?  That’s for juries and judges.

In settlement discussions the utility of the stumble/kick metaphor is that it helps to defang anger and self-righteousness. 

2.  In law school, I sat in a class taught by Austin Wakeman Scott, the author of the then leading treatise on the law of trusts.   Scott said to us, in a memorable moment, “Sometimes it is wise to rise above principle.”  At first blush that sounds cynical.  On further thought, it is wisdom.  In the context of mediation, parties sometimes state their position is a matter of principle.  Prescinding from whether this is conviction or posture, it is fair to observe that there may even be a conflict of principles.  Professor Scott’s remark did not denigrate standing on principle.  He was teaching that obdurate adherence to principle might cause the contending parties to suffer the fate of the disputants in Dickens’ “Bleak House.”  The legal costs of their controversy consumed the property they were fighting about. 

3. Consider the familiar canon of statutory construction that a statute shall be construed in accordance with its plain language.  This is an example of a good cliché;  still very much alive.   But hold on a   minute: the “plain language” of a statute, must be reasonable and supported by the purpose and history of the statute.  Sterilite Corp. v. Continental  Cas. Co., 397 Mass. 837, 839 (1986).  Or, oops, we will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable.   Attorney General v. School Committee of Essex, 387 Mass. 326, 336 (1982).  My observation that there is no canon of statutory construction that booms the loudest is the subject of a classic article by Karl N. Llewellyn,  “Remarks on the Theory of Appellate Decision and the Rules or Canons of How Statutes are to be Construed, 3 Vand. L. Rev. 395, 399 (1950).  Llewellyn is a brilliant critic of “dueling canons.”

We are told that, “The judge who discharges the functions of his office (how about “the office” – oh well, written In 1937) is . . .the directing and controlling mind of the trial . . . a judge need take no vow of silence.” Those chestnuts are by Lummus, J.   See also City of Boston v. United Gypsum Co., 37 Mass. App. Ct. 253, 256-25 (1994). Deserving of place in counterpoint is Lord Bacon: “An overspeaking judge is no well tuned cymbal.”  Bacon’s Essays “Of Judicature.”

4.  It is a hardy “good cliché” of administrative law that reviewing courts owe deference to the experience, competence, specialized knowledge and discretionary authority of an administrative agency.  Van Munching Co. v. Alcoholic Bevs. Control Commn., 41 Mass.  App. Ct. 308, 309-310 (1996).  Then again, while reviewing courts “make a deep bow” to the administrative agency, that deference is not one of supine abdication. Police Commr. of Boston v. Cecil, 431 Mass. 410, 413 (2000).

5.  Among the chestnuts of the law of contract is that an agreement to agree is no agreement at all. Rosenfeld v. United States Trust Co., 290 Mass. 210, 217 (1935). Yes, but there is the reciprocal principle that a contract should be interpreted to give it life and enforceable effect. Lafayette Place Assoc., 427 Mass. 509, 517 (1998).

We do know that the meaning of a document, if placed in doubt,  is construed against the party that wrote it.  Affiliated FM Ins. Co. v. Constitution Reins Corp. , 416 Mass. 839,845 (1994) , Beatty v. NP Corp. 31 Mass. App. Ct. 609, 612 1991).

A familiar principle of contract law is that damages may not be inferred from entirely speculative evidence or guess.  Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct., 62 Mass. App. Ct. (2004)

6.  Disbelief of testimony does not support a finding that the contrary is true.  Commonwealth v. Michaud, 389 Mass. 491, 498 (1983).  Kunkel v. Alger, 10 Mass. App. Ct. 76,86 (1980).

7.   The decision whether to grant a continuence is within the sound of discretion of the trial judge.  Commonwealth v. Miles. 420 Mass. 67, 85 (1995).     

8.  Circumstantial evidence is competent evidence to establish guilt beyond a reasonable doubt.   Henry David Thoreau stated the proposition playfully: “Some circumstantial evidence is very strong evidence, as when you find a trout in the milk.” Commonwealth v. Walter, 10 Mass. App. Ct. 

9.   “Beyond a reasonable doubt,” that’s the standard on which a finding of guilt in criminal cases must rest.   It is a phrase familiar well beyond the boundaries of the legal profession.   Chief Justice Lemuel Shaw posed and answered, in Commonwealth v. Webster , 59 Mass. 295, 320 295,320 (1850), the question: “What is reasonable doubt?” “It is,” Shaw C.J. went on,  “a term often used, probably pretty well understood, but not easily defined.  It is not mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.  It is that state of the evidence.  It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge . . . For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty,  a certainty that convinces and directs the understanding, and satisfied the reason and judgment, of those who are bound to act conscientiously upon it.”

That formulation was the instruction of choice to juries in Massachusetts and elsewhere for some 150 years and deviation from the sacred text risked tripping the reversal wire.   Toward the end of the 20th century, however, the United States Supreme Court threw cold water on the use of the phrase “moral certainty.” Victor v. Nebraska, 511 U.S. 1, 13-14 (1994).   Current language usage, the court thought, might make the phrase “moral certainty” might suggest to jurors something less than the very high degree of probability that “beyond a reasonable doubt” connotes.

Perhaps a plain language instruction for 21st century juries ought to be, “You’ve got to be damn sure.” 

This may be enough for one session of reflections on familiar phrases of the law.  To be continued.