Let’s Consider “Deem” Dead
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.
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)