The Law Language & Humpty Dumpty
By Robert Don Gifford

I get stupid, I shoot an arrow like Cupid, I use a word that don't mean nothin', like looptid

The Digital Underground (“The Humpty Dance,” circa 1990)

The story is told of the man who has lost his watch one dark evening. He restricts his search to that under the light of a lamppost. Passers-by inquire: “Why do you search here if you do not know whether you lost the watch here or somewhere else?” The man answers, “Well, I search here because here I have the light.”

The art of lawyering reveres language as a tool of the trade and relishes the possibility of its power. Like the man looking for his watch in the places that suit him best, lawyers are renowned as the masters of “spin,” and the architects of the “cut and paste” of phrases to fit conclusions desired. However, with this reputation comes the price of our credibility and candor.

The profession of lawyers has historically suffered under the barrage of lawyer jokes, prime time television, novels and Hollywood (the audience cheered when the dinosaur crushed the lawyer in “Jurassic Park”). It has also sustained more damage in response to what has been referred to as “legal hairsplitting” with “contortionist language” in our search for the Holy Grail of loopholes. See, e.g., William Glaberson, “Legal Gamesmanship May Take Toll,” New York Times, Sept. 24, 1998, at A4 (the Clinton/Lewinsky scandal and its definitions).

Such common use of the “spin” on facts and interpretation of the law has led to the kind of judicial parlance that is a hypothesis straight from English literature as when Humpty Dumpty once declared: “When I use a word, it means just what I choose it to mean - neither more, nor less.” See Louis Carroll, “Alice’s Adventures in Wonderland & Through The Looking Glass” (1871). This ability to wordsmith has led to public outrage (e.g. “twinkie defenses”), as well as the invocation of “Humpty Dumpty” in more than a few court decisions since Justice Frankfurter first introduced this analogy in a 1948 dissent.

Before dipping that quill to invoke this wisdom of that infamous egg, it should be noted that “the body of anti-Humpty Dumpty jurisprudence” is now well established and is generally disfavored from the United States Supreme Court to even the state courts of South Carolina. See, e.g., Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978) and Brooklyn Bridge Inc. v. South Carolina Ins. Co., 309 S.C. 141, 420 S.E.2d 511, 512 n. 1 (Ct.App.1992) respectively in reference to Humpty Dumpty.

Even those more docile situations such as contractual agreements have raised the literary allusion - “[P]arties, like Humpty Dumpty, may use words as they please. If they wish the symbols ‘one Caterpillar D9G tractor’ to mean '500 railroad cars full of watermelons,’ that’s fine — provided parties share this weird meaning.” TKO Equipment Co. v. C & G Coal Co., 863 F.2d 541, 545 (7th Cir.1988).

Despite the Pavlovian legal training that has taught us how to “think like a lawyer,” our professional reputation of candor and credibility goes hand-in-hand. Look no further than the sage advice of Sherlock Holmes in “A Scandal in Bohemia” (1891) for guidance. “It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories instead of theories to suit facts.”

Mr. Gifford is an assistant U.S. attorney for the District of Nevada.