Let’s Consider “Deem” Dead

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Be honest: have you ever deemed anything? Me either.

The quickest way to improve your legal writing is to eliminate legalese, jargon, and bloat. I wrote about the need to eliminate shall from your writing, and created a bit of a kerfuffle by doing so—some lawyers seem to have an almost romantic attachment to it.

I also urged you to stop using such to mean this, that, these, those, or the.

Now, let’s deal with deem. Let’s deal with it by putting it out of our misery.

Multiple meanings=confusion

Black’s Law Dictionary (9th ed.), defines deem this way:

vb. 1. To treat (something) as if (1) it were really something else, or (2) it has qualities that it does not have. [e.g.,] although the document was not in fact signed until April 21, it explicitly states that it must be deemed to have been signed on April 14.

2. To consider, think, or judge. [e.g.,] she deemed it necessary.

So the primary function of deem is to create a legal fiction. X is X but we agree to pretend that X is in fact Y. While there may be an occasion when you need to do this kind of thing, it’s hardly a common occurrence.

But, as with so much legalese, lawyers can’t stick to that one usage (like using shall only to mean has a duty to). Nope, lawyers love deem because it sounds so beautifully lawyerly, so they use the second definition above, as well as others. I have in fact never seen deem used to create a legal fiction. I’ve seen it used often as legalese for consider, think or judge, but I’ve also seen it used often to mean held by a court to be _______. Which is a very different meaning than consider, think or judge.

The best solution is simple

Whenever we encounter legalese that has multiple meanings, we should eliminate it to avoid confusion. Avoiding confusion is what we get paid for. If you need to create a legal fiction, you can do it without deem. Just make it plain that you are doing that: The parties agree to treat X as if it were Y.

So let’s consider, think, and judge deem dead.

(image: quill pen and ink from Shutterstock)

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  • http://www.towerofivory.net Lukasz Gos

    Ain’t that simple. Style is important, for one. I wouldn’t be afraid to write, “such and such ain’t gonna fly” in a SSD contract (liberty of contract and all, for y’all), but if actually writing in something that pretends to look like real contract language, then I’d be afraid to use “treat”. I’d be scared if I saw the opposing counsel use it. We all fight each other all the time but we follow the same rules. This creates predictability. When I see plain language experiments that aren’t really plain language, the predictability is lost and I suspect the other guy may be playing some other rules of the game than I am. I begin to fret that communication may actually become difficult, and misunderstandings have a way of creeping into judgments and getting upheld. In the case of “treat” in your example, the only misunderstanding I can think about is a court splitting hairs about the practical intents and purposes of “treating” (which prescribes a way of action) versus the conclusive legal presumption of “deeming” (which imposes a presumption that presumably stays in place forever) but some other replacements can be pretty bad. If I actually had a law firm, I’d insist on corporate and realty types consulting with the litigators before they go plain language anywhere. And I’d listen to the litigators more.

    • http://www.towerofivory.net Lukasz Gos

      On second thought, you could just use whatever you like and slap a fair meaning and equitable interpretation clause on it, but then you’d be giving up control and the court’s sense of equitable interpretation might not work out that well in practice.