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Vail Daily column: Plain meaning

If I wrote, “the dog is red,” you’d probably assume I meant the color rather than Fido being a devotee of Karl Marx. If I spoke it, rather than wrote it, you would likely continue to believe that the pooch might tend toward russet rather than having mastered a college curriculum in fine literature. Well, duh. That’s just common sense.

And yet …

In the sometimes alternative universe of legal practice, the usual theorems of physics don’t hold.

Think back to what is nearly a generation ago when then-President Bill Clinton, when undergoing a George Foreman-level grilling in his deposition over the Monica Lewinsky affair tried to parse the word “is.” A fairly short, concise word, I’ll note, but nonetheless, the president famously responded, “It depends what is is.” The existential implications were lost on many.

It is a long and accepted practice of the courts to give words their plain meaning and to place them within the reasonable context into which they were plunked.

Nonetheless, what the president’s remarks were emblematic of was that lawyers like to strangle and torture words in sometimes sadistic ways. To some, it is their raison d’etre. Rather than forming cogent arguments from the substance of their case, their arguments revolve like moons around the Saturn of twisted syntax and conspiratorial DaVinci Code-like implications.

Creative interpretation

Allow me to offer up an example.

Let’s say there is a provision in a contract that says, “Neither of the engaged parties shall hold outside employment during the term of this agreement.” Pretty straightforward stuff it seems. To most, what the provision provides is that whomever it is who is bound by the agreement will not work for someone else during the term presumably provided for elsewhere in the contract.

Some lawyers, though, have minds like Rube Goldberg devices. They can make of the foregoing sentence an impassioned argument that what the provision is really intending is that neither of the parties shall work in the out-of-doors during the term of the agreement. In their lexicon, at least, “outside employment” would be equivalent to employment in a natural rather than a man-made setting. And they will go apoplectic in their zeal to convince the court of the rectitude of their interpretation.

Or try this …

What the provision was intended to reference was that the parties were betrothed to be married (left unsaid, whether to one another or to others) and therefore, the prohibition against outside work (whether meaning employment for others or performed outdoors), applied only so long as the parties were affianced. Now, this kind of lawyer would argue that since one or the other of the parties broke his or her engagement, he or she is no longer engaged and therefore any prohibition against outside work is void.

OK, one last absurdity.

What can be made of an “engaged party?” Is this a party in which one is deeply invested? Say, one is really into a Cinco de Mayo festivity. As such, the simple provision could be made to say that one is prohibited from outside work (whatever that may mean) only if deeply invested in a celebration. Or worse, that one is prohibited from outside employment only if one is betrothed and partying like there’s no tomorrow.

Taking it all together, the creative lawyer could contend that the phrase holds that only engaged persons who are committed partiers cannot work outdoors during the term of the agreement.

That, of course, would be ridiculous.

And yet, I have witnessed such arguments being made with the earnestness of an undertaker.

The court’s position

The courts though — at least generally — will have none of this poppycock. It is a long and accepted practice of the courts to give words their plain meaning and to place them within the reasonable context into which they were plunked. It is further presumed that, like Dr. Seuss’s Horton, the draftsman of a document said when he meant and meant what he said. Say for instance a contract provides that person is exempt from being fired so long as he does not do “a, b or c.” When terms are so explicit, the court will not generally not be persuaded that the parties intended “d” to also apply. If “d” were to apply in addition to “a, b and c,” the contract would have said it. Similarly, the courts will generally hold that if something was left out, it was intentionally left out.

There is, of course, some wiggle room. Sometimes, things are not clear at all or are susceptible to equally logical meanings. Sometimes, the world evolves to include a reasonable inference what could not have been known at the time things were put to paper. It is then that creative minds can and should reasonably blossom.

The short and true lesson here is that words are afforded by the courts their logical, reasonable and plain meaning. If another thing was meant, ya simply shoulda said so.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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