Legal Redundancies

 (Because this is an excerpt from a larger article,
“Future Predictions About Legal Writing: Redundancies and Musings,”
footnotes start at 25)

by Kenneth Bresler
Scribes Journal of Legal Writing 2014–2015

The U.S. Supreme Court used my favorite legal redundancy in 2012: “The Government further refers to lower court decisions in cases involving 18 U.S.C. § 922(g), which prohibits the possession of fi rearms by convicted felons.”²⁵ Felons are convicted; that’s what made them felons.

My second-favorite redundancy (although it is not confined to legal writing) appeared in this excerpt from the same Supreme Court case: “Rather, they address dangers that arise postenactment: sex offenders with a history of child molestation working in close proximity to children, and mentally unstable persons purchasing guns.”²⁶ Proximity connotes “close.” Thus, close proximity means “close closeness” or “near nearness.” So the Supreme Court used my two favorite redundancies in one case. In close proximity.

Here’s a redundancy from a different court: “3M states that ‘sintering’ means heating the preform to a temperature just below the matrix melting point, causing the powder particles to bond together without melting.”²⁷ When chemicals bond, they come together. Bond together is redundant. You will see the phrase outside the chemical context. But remember: it’s a bonding experience, not a bonding-together experience.

Here’s a related redundancy: “The magistrate ultimately noted that the claims seem to merge together and that there was no substance to either aspect of the motion to vacate in any case.”²⁸ And this: “It does not prohibit individuals from dining together or associating together to conduct a strike, nor in any other way ‘directly and substantially’ interfere with family living arrangements or workers’ ability to combine together to assert their lawful rights.”²⁹ Use merge, not merge together; associating, not associating together; combine, not combine together.

A process opposite from bonding, merging, and combining – namely, separating – has also led to a redundancy: “Congress also repealed the exclusion for interns and residents-in-training working at federal hospitals[,] . . . which further demonstrates the intent of Congress to categorize separately, medical school students, medical interns, and residents-in-training.”³⁰ Categorize means to “separate.” The word categorize alone is sufficient.

“[T]he Compulsory Process Clause cannot be invoked without the prior planning and affirmative conduct of the defendant.”³¹ Prior planning? Prior is the only kind of planning that exists.

“Fluor had assured the Company that maintenance costs could be curtailed by reducing the work force, decreasing fringe benefits and overtime payments, and by preplanning and scheduling the services to be performed.”³² Preplanning? The word is a cousin to prior planning, and both are illegitimate cousins.

Here’s the Supreme Court continuing to use redundancies related to time: “The agents gave no advance warning, one later testified, because they wanted to retain the element of surprise.”³³ Advance warning is the only kind of warning there is. Just plain warning will do.

In yet another time-related redundancy, the Supreme Court has talked about “predicting future behavior.”³⁴ A lower court wrote that “these concerns do not go to felon disenfranchisement, which was neither a new innovation nor a predictable future innovation.”³⁵ A predictable future innovation is probably redundant in this context, and a new innovation is definitely redundant.

Wait! This latter case is about felons. Do you suppose that the First Circuit wrote about convicted felons? Yup, it did: “Unlike many other states, Massachusetts does not disqualify convicted felons from voting once they are released from prison.”³⁶ Now back to redundancies involving time. In Franklin v. Lynaugh, where the epigraph to this article appeared, the Supreme Court discussed a prediction in the context of the future, which is redundant – and in the same sentence invoked past history.³⁷ History is always past. True, William Faulkner wrote, “The past is never dead. It is not even past.”³⁸ But when it comes to writing the word history, it is always past.

“An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison.”³⁹ Experience, like history, is past; that’s what makes it experience.

Avoid these redundancies (all from Supreme Court cases):

• prior arrangement, which appeared in Kuhlmann v. Wilson;⁴⁰
• advance arrangements, which appeared in Town of Castle Rock, Colo. v. Gonzales;⁴¹ and
• advance notice, which appeared in Clapper v. Amnesty International USA.⁴²

Here’s the Rhode Island Supreme Court: “It was an early evening in May when an armed gunman in a hooded sweatshirt approached her in front of 95 Congress Avenue in Providence.”⁴³ And the U.S. Supreme Court: “[T]he Election Code clearly vests discretion whether to recount in the boards, and sets strict deadlines subject to the Secretary’s rejection of late tallies and monetary fines for tardiness.”⁴⁴ Armed gunman and monetary fines are redundant. Add that second redundancy, monetary fines, to the criticisms of Bush v. Gore.

Spot the redundancies in these quotations from other Supreme Court cases:

“Prisons have backlogs of up to 700 prisoners waiting to see a doctor. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days.”⁴⁵

“[T]he subtle nuances among different standards are likely to be difficult to differentiate, as evidenced by the lack of any clear distinction between a ‘rational understanding’ and a ‘reasoned choice’ in this case.”⁴⁶

“Judge Hartz dissented, contending that Congress intended to set a maximum limit on the Government’s liability for contract support costs.”⁴⁷

The redundancies are scheduled appointment, subtle nuances, and maximum limit. Appointments are scheduled; in general, just write appointment. Pick subtlety or nuance. Pick maximum or limit.

Am I picking on the Supreme Court? No. My point is that this endeavor we’re engaged in, legal writing, is hard. Some redundancies just roll off the tongue, roll out of the pen, and seem to type themselves – such as the phrase closely scrutinized: “As Enron’s one-time CEO, Skilling was at the center of the storm. Even if these extraordinary circumstances did not constitutionally compel a change of venue, they required the District Court to conduct a thorough voir dire in which prospective jurors’ attitudes about the case were closely scrutinized.”⁴⁸

Consider this excerpt: “If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an Indian under the [Indian Child Welfare Act].”49 Quite possibly rolls off the tongue; is that what the Court meant instead of the redundant might possibly.

Quite possibly.

“But in this case, as in the hypothetical case just posed, investigating the facts involved contacting people who might potentially become parties.”⁵⁰ The phrase might potentially is redundant. The wording here should be people who might become parties or people who are potential parties.

Some redundancies don’t roll off the tongue, yet judges write them anyway. For example: “Judicial interpretation has added additional grounds, such that awards may be vacated under limited circumstances where the arbitrators manifestly disregarded the law.”⁵¹ Another example of the same redundancy: “Dr. Wolinsky in effect added additional language to the policy.”⁵²

Look at this heading from an order issued by a U.S. district court in Louisiana: “Fundamental Guiding Principles.”⁵³ It’s a double redundancy. Principles are fundamental; they’re guiding too.

As long as we’re discussing principles, they are also basic; don’t write about a basic principle.

One way to avoid redundancies is to ask yourself: What’s implied in a word? For example, what’s an aquifer? Underground water. What’s implied? Aquifer implies two key words: water and underground. But what did the Supreme Court write in Texas v. New Mexico? “The non-flood ‘base’ flow of the Pecos below Alamogordo Dam is supplied to a large part by groundwater aquifers . . . . [T]here is some suggestion that at times heavy groundwater pumping in the area around Roswell may actually reverse the direction of flow of the underground aquifer  . . . .”⁵⁴ The phrase groundwater aquifers is redundant. So is underground aquifer.

(I omitted from the excerpt above a sentence teaching another lesson unrelated to redundancies: “The operation of these aquifiers is little understood.”⁵⁵ The lesson is to spell-check. There’s no such word as aquifier.)

Let’s say that you have a bad writing day. I hope you don’t, but let’s say that you do. Your supervisor or peer reviewer has marked up your writing in red pen, or someone has told you that you are incapable of writing an intelligible English sentence, as someone once told me. Take solace in this: On your worst writing day, you probably won’t write what one trial judge wrote when explaining a departure from the state sentencing guidelines. That judge, as quoted by the Michigan Court of Appeals, noted that the defendant had left “three children with the dead corpse of their mother.”⁵⁶

²⁵ Vartelas v. Holder, 132 S. Ct. 1479, 1489 (2012).
²⁶ Id. at 1489 n.7.
²⁷ Kinik Co. v. Int’l Trade Comm’n, 362 F.3d 1359, 1366 (Fed. Cir. 2004).
²⁸ Dyer v. United States, No. 95-6308, 1996 WL 437924, at *1 (6th Cir. Aug. 2, 1996).
²⁹ Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, 485 U.S. 360, 360 (1988).
³⁰ United States v. Detroit Med. Ctr., No. 05-71722, 2006 WL 3497312, at *12 n.3 (E.D. Mich. Dec. 1, 2006).
³¹ Taylor v. Illinois, 484 U.S. 400, 415 (1988).
³² Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 206 (1964).
³³ Brogan v. United States, 522 U.S. 398, 409 (1998).
³⁴ Navarette v. California, 134 S. Ct. 1683, 1688 (2014).
³⁵ Simmons v. Galvin, 575 F.3d 24, 40 (1st Cir. 2009).
³⁶ Id. at 28.
³⁷ 487 U.S. at 190.
³⁸ William Faulkner, “Requiem for a Nun,” in Novels 1942–1954, at 471, 535 (1994) (act 1, sc. 3).³⁹
Ayers v. Belmontes, 549 U.S. 7, 12 (2006).
⁴⁰ 477 U.S. 436, 459 (1986).
⁴¹ 545 U.S. 748, 753 (2005).
⁴² 133 S. Ct. 1138, 1154 (2013).
⁴³ State v. Pona, 66 A.3d 454, 458 (R.I. 2013).
⁴⁴ Bush v. Gore, 531 U.S. 98, 118 (2000).
⁴⁵ Brown, 131 S. Ct. at 1933.
⁴⁶ Godinez v. Moran, 509 U.S. 389, 407 (1993).
⁴⁷ Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181, 2188 (2012).
⁴⁸ Skilling v. United States, 561 U.S. 358, 427 (2010).
⁴⁹ Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565 (2013).
⁵⁰ Maracich v. Spears, 133 S. Ct. 2191, 2221 (2013).
⁵¹ Greenberg v. Bear, Stearns & Co., 220 F.3d 22, 27 (2d Cir. 2000) (citation omitted).
⁵² Zervos v. Verizon N.Y., Inc., 277 F.3d 635, 647 (2d Cir. 2002) (citation omitted).
⁵³ United States v. Bowen, 969 F. Supp. 2d 546, 568 (E.D. La. 2013).
⁵⁴ 462 U.S. 554, 557 n.2 (1983).
⁵⁵ Id.
⁵⁶ People v. Smith, No. 277903, 2008 WL 2389515, at *8 (Mich. Ct. App. June 12, 2008).