The meaning of words is surprisingly elusive.
Inexperienced lawyers assume at their immeasurable peril that they can skim statutes and contracts just as they might peruse a magazine article. Don’t make that mistake. Study the relevant provisions of a statute or contract at a fraction of your normal reading speed.
When reviewing a tricky statute, your reading speed can easily plunge to one-hundredth of your normal rate.Why so slow? Because every word, every comma, every ambiguity, every hint of vagueness provides a potential opportunity — a “loophole.” For instance, imagine that a statute requires a person to receive a minimum five-year criminal sentence if he or she embezzles “from his corporation.” Simple enough, until you assess critically whether each word could help your client:
from — What if your client obtained the loan by falsifying a letter of approval from her company’s board of directors to obtain a loan from the company’s bank. She might be guilty of some other crime, but did she embezzle from her company?
his — Your client doesn’t own the business, so you could argue that the corporation is not hers. Would owning some stock in the company negate this argument? Would a single share suffice? Or can you argue that “his corporation” means that the defendant needs to control the company — and that the statute seeks to ban not all embezzlement but merely misconduct by the company’s owners?
corporation — Your client’s business is a limited liability partnership, not a corporation. Would a court dismiss the indictment based on this fact? Moreover, the crime of embezzlement usually means money was taken from one’s employer. Can you construe that the words “from his corporation" deliberately narrow the traditional crime of embezzlement?
(And in case you’re wondering, legislative codes almost always define “he” or “his” to include women too, unless the context dictates otherwise.)
You need to train yourself to spot and take advantage of these sorts of subtleties.
Spotting textual arguments requires patience, practice, and creativity. Then, discarding weak arguments requires judgment and discipline. And then you’ll eventually need to convince a court that your interpretation of a statute or other textual passage is correct.This chapter focuses on this final skill: convincing judges to follow your interpretation of a piece of binding text such as a statute. But a major, secondary goal is to get you to think like a lawyer by training you to spot statutory arguments. After all, if you don’t notice a loophole, your client can’t slip through it.
The following pages do not offer a comprehensive guide to statutory or contractual interpretation. But they show how a word or two — or even the absence of a word — can dictate the outcome of a case. For instance, we see below one case that hung on whether one can “file” a complaint orally. We see another case in which a group that tortured a U.S. citizen escaped liability because of a single word. And we see a case in which an oil company sought to escape billions of dollars of liability because a single word did not appear in a contract. Page 115 also introduces ten common textual canons of statutory interpretation.