Flaunting a Red Flag: Legal Writing Tips and Tics

by Ken Bresler

Massachusetts Lawyers Weekly, Oakland County Legal News, October 8, 2018

A new legal term, “red flag law,” is not so new – or rather, an old legal term now has a new definition. By one count, 13 states now have red flag laws, which allow law enforcement officers to seize firearms from people whom a judge has ruled is dangerous – a person whose behavior and statements constitute red flags of warning.

But a century ago, a red flag law meant something else. It was a criminal prohibition against displaying a red flag to express support for communism, anarchy, or sedition, or to express opposition to the government. By one count, 26 states enacted red flag laws in 1919 alone. The U.S. Supreme Court struck down red flag laws as violating the First Amendment in Stromberg v. California, 283 U.S. 359 (1931).

The new definition of “red flag” is not in Black’s Law Dictionary, so I’ve included it in my online dictionary.

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A recent U.S. Supreme Court case is a showcase of legal writing tics to avoid.

Redundancies. In the majority opinion of Currier v. Virginia, a case about double jeopardy, Justice Neil Gorsuch wrote about “prior convictions” three times. Here’s the first time: “[T]he prosecution could introduce evidence of prior convictions to prove the felon-in-possession charge….” That’s redundant; convictions are usually prior. He also wrote about “previous conviction” and “past convictions.” In dissent, Justice Ruth Bader Ginsburg wrote about “prior convictions” (twice), “a prior criminal conviction,” “prior felony convictions,” and “prior burglary and larceny convictions.” Justice Kennedy in his concurrence wrote about a “prior conviction.”

Justice Gorsuch also wrote about “a convicted felon.” Just plain “felon” will do. In his concurrence, Justice Anthony Kennedy wrote about the “end result.” Even though “end result” rolls off our tongues, it shouldn’t roll out of our fingertips on the keyboard. Just plain “result” will do.

Justice Kennedy also wrote, “The reason that single opportunity did not occur in one trial was because both parties consented to sever the possession charge….” Including both “the reason” and “because” is unnecessary. Justice Kennedy should have picked one or the other and written, “The reason that the single opportunity did not occur…was that” or “The single opportunity did not occur…because….”

Unnecessary synonyms. “It might have been a hard choice,” Justice Gorsuch wrote. “But litigants every day face difficult decisions.” Hard choice or difficult decision. Just pick one. It’s not a hard choice. He also used “prior,” “previous,” and “past” to characterize convictions. Pick one and stick with it.

Legalese. Justice Ginsberg wrote about “21 days in advance of trial,” when she could and should have written, “21 days before trial.” That would have been one word instead of three. She also wrote about the defendant’s “anterior involvement in breaking and entering,” when she meant “prior” – I think. Anterior? Really, RBG?

She also wrote about “criminal codes of prolix character,” which is a prolix way of saying “prolix criminal codes.” Be careful when you write about something’s [fill in the blank] character or nature. You can usually delete “character” and “nature” and just use the adjective.

Both Justice Ginsburg and Justice Gorsuch used variants of “afford” – and not in the sense of being able to afford to buy something. Justice Ginsburg wrote about the “greater protections than those traditionally afforded under the Double Jeopardy Clause.” She could have used “granted” or “recognized.” Justice Gorsuch wrote that a “doctrine might counsel against affording conclusive effect to a prior jury verdict….” He could have used “giving.”

Afford me a break.

The case was decided on June 22, 2018, six days before the 2017 term ended. Were the justices and their clerks rushing when they wrote it?

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“Flaunt” means: To parade or display boldly or conspicuously. To wave in the air – like a red flag.

“Flout” means: To scoff at. To show contempt for.

This is correct: “…to flout the law.”

This is incorrect: “…to flaunt the law.”

I’m not sure how one can flaunt the law. Wave the U.S. Constitution in the air and chant the name of one’s favorite amendment or clause?

Here’s a mnemonic so that you never get it wrong: “Outlaws flout laws.” Theodore M. Bernstein didn’t exactly coin that mnemonic, but he certainly suggested it in The Careful Writer.

Here’s the Hawaii Supreme Court using the wrong word in the 1989 case of State v. Lobendahn: “It is obvious that the legislature did not intend to encourage persons to flaunt the law while an appeal is pending.” (If you need the citation, it’s 784 P. 2d 872, 873.)

Here’s the Eleventh Circuit getting it wrong in 1989 in U.S. v. Rivera: “The fact that he might have been a police officer at the time the offense was committed does not give him license to flaunt the clear dictates of the law. (That’s 889 F.2d 1029, 1031.)

The California Court of Appeal got it right in 2017: “That [the] defendant intended to flaunt his disobedience is evident….” (That’s People v. Etuk, No. B269520, 2017 WL 1534555, at *5 (Cal. Ct. App. Apr. 28, 2017).) That is, the defendant intended to flaunt his flouting.