Legalese versus Readability

To a writer, the struggle between readability and gobbledygook is as important as the struggle between good and evil. The battle for dominance is particularly important to legal writers. Gobbledygook has long been the evil king – readability the rebel. Legal writers writing court pleadings and contracts for other lawyers and judges are content to uphold the status quo – stick with the legalese and jargon. Keep the unlawyers out. Other legal writers, who write for consumers are translators, translating the arcane and obscure words into everyday language.

I plugged the following paragraphs into Dr. G. Harry McLauglin's SMOG calculator. SMOG is an acronym for: Simple Measure of Gobbledygook. The SMOG calculator was developed in 1969 (imagine!) and back then you had to do the math yourself. It is based on the number of syllables in each word, number of words in each sentence, and number of letters in each word. Dr. McLaughlin states on his SMOG website,

“My readability formula SMOG estimates the years of education needed to understand a piece of writing. SMOG is widely used, particularly for checking health messages”.

The Federal Trade Commission requires that health messages for the public be written at no higher than a fifth grade reading level. I believe there should be a similar requirement for legal messages.

The following paragraphs are an excerpt from the instructions for the Petition for Simplified Dissolution of Marriage, Florida Supreme Court approved form 12.901(a), which was published on 1/2015:

When should this form be used?

This form should be used when a husband and wife are filing for a simplified dissolution of marriage. You and/or your spouse must have lived in Florida for at least 6 months before filing for a dissolution in Florida. You may file a simplified dissolution of marriage in Florida if all of the following are true:

You and your spouse agree that the marriage cannot be saved.

You and your spouse have no minor or dependent child(ren) together, the wife does not have any minor or dependent children born during the marriage, and the wife is not now pregnant.

You and your spouse have worked out how the two of you will divide the things that you both own (your assets) and who will pay what part of the money you both owe (your liabilities), and you are both satisfied with this division.

You are not seeking support (alimony) from your spouse, and vice versa.

You are willing to give up your right to trial and appeal.

You and your spouse are both willing to go into the clerk’s office to sign the petition (not necessarily together).

You and your spouse are both willing to go to the final hearing (at the same time).

If you do not meet the criteria above, you must file a regular petition for dissolution of marriage.

This petition should be typed or printed in black ink. Each of you must sign the petition in the presence of a deputy clerk (in the clerk’s office), although you do not have to go into the clerk’s office at the same time. You will need to provide picture identification (valid driver’s license or official identification card) for the clerk to witness your signatures.

The results were:

Readability Consensus

Based on 8 readability formulas, we have scored your text:

Grade Level: 10

Reading Level: standard / average.

Reader's Age: 14-15 yrs. old (Ninth to Tenth graders)

According to the Florida Literacy Coalition:

"One in Five Florida Adults Lacks Basic Literacy Skills:

More than 2.6 million adults in Florida— or 20 percent of those 16 and older — lack even the most basic reading skills, according to estimates released Thursday by the National Center for Education Statistics (NCES). Florida, with its large immigrant population, has the third lowest adult literacy level of all the states, behind California and New York. The state experienced a 33% increase over ten years in the percentage of people who fall in the lowest literacy skill level, with rates ranging from a low of 7 percent in St. John’s County to 52 percent in Miami-Dade."

I plugged in the first two paragraphs of this blog post into the SMOG calculator and received the following results.

Readability Consensus

Based on 8 readability formulas, we have scored your text:

Grade Level: 8

Reading Level: fairly difficult to read.

Reader's Age: 12-14 yrs. old (Seventh and Eighth graders)

 I think its ironic that I am not making any attempt to write at any grade level. I'm only trying to make the words I write as clear and concise as I can. And the State of Florida, who should be striving to make the language on the pro se form instructions easy to read, are more difficult to read than my writing.

Jurisdiction and the UCCJEA

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a federal law that must be considered in all Florida child custody and child timesharing cases. The UCCJEA Affidavit states where the child has resided for the past five years; who the child resided or resides with; and whether there are any conflicting court orders from any other state or jurisdiction. A UCCJEA Affidavit must be filed along with a Dissolution of Marriage with Children; and any subsequent modification of time-sharing or custody.

There are two requirements under the UCCJEA for making or modifying a custody determination:

(1) the court must have a basis of jurisdiction under the Act, and

(2) the parties must be given notice and opportunity to be heard.

The UCCJEA's jurisdictional provisions vary, based on whether a case involves an initial custody or visitation determination; or modification of an existing order. 

Initial Jurisdiction

The UCCJEA establishes four bases for initial jurisdiction—

• Home State,
• Significant connection,
• More appropriate forum, and
• Vacuum jurisdiction.

Home State jurisdiction.

Under the UCCJEA, a court has home State jurisdiction if the court is located in the child's home State (when the proceedings begin) or if the court is located in the State that was the child's home State within 6 months of the proceedings' commencement and the child's parent (or a person acting as his or her parent) continues to live in the State even after the child has been removed. This extended home State rule allows a left-behind parent to commence a custody proceeding within 6 months of a child's removal from the home State.

Example. A 2-year-old child, born and raised in Florida, is abducted by his father before either parent has filed for custody. The boy and his father move to Georgia. The left-behind mother may file for an initial custody determination in Florida (which has home State jurisdiction) within 6 months of the child's removal. The child's absence from Florida does not deprive the State of jurisdiction. If the father commences a custody proceeding in Georgia while Florida is the child's home State under the UCCJEA, the mother can seek dismissal of the Georgia proceeding based on lack of jurisdiction.

Significant connection jurisdiction.

When a child has no home State or when a home State declines jurisdiction, another State court may exercise jurisdiction if the child has sufficient ties to the State and substantial evidence concerning the child is available in the State. A child need not be physically present in a State for the State to exercise significant connection jurisdiction. More than one State may have jurisdiction on this basis, but only one State may exercise jurisdiction. The statute resolves the conflict in favor of the first-filed proceeding. However, the courts are required to communicate, and the court in the State of the first-filed proceeding may defer to the court in the second State following judicial communication.

Example. A father and his child go to visit the child's paternal grandparents in Colorado. The father is reminded of the beauty of the mountains and decides not to return to Florida, where his marriage had been faltering and his job prospects have dimmed. The family had been living in Florida for 4 years. Within 2 months of his arrival in Colorado, the father files for custody there on significant connection grounds. The Colorado court lacks jurisdiction and may not proceed to the merits of the case unless Florida, the child's home State, declines jurisdiction in favor of Colorado. However, if the mother does not commence a custody proceeding in Florida within 6 months of the child's removal, Colorado becomes the child's home State and the Colorado court may then exercise jurisdiction and decide custody.

Example. A mother and father are high-tech professionals who have moved frequently during the previous several years to work for Internet companies. After 4 months in California, the father leaves the mother and their infant and returns to Florida, where the family had lived for 5 months preceding their move to California. The infant has been in daycare and has pediatricians and relatives in both States. The father's cross-country move prompts the couple to assess the viability of their marriage, and they decide to divorce. However, they cannot agree on custody, and the mother and father simultaneously commence separate custody proceedings in California and Florida. The parents have not lived in any State long enough for their child to have established a home State. Both California and Florida arguably have significant connection jurisdiction, but under the UCCJEA only one of them should exercise it. If a court learns from the required pleadings that a proceeding has been commenced in a sister State, the court is required by the UCCJEA to stay its proceeding and communicate with the other court to decide which proceeding should continue. If they cannot agree, the court with the first-filed case may move forward and the other court should dismiss its proceeding.

More appropriate forum jurisdiction.

Under the UCCJEA, a third basis for initial jurisdiction exists when both the home State and significant connection State(s) decline jurisdiction in favor of another, more appropriate State on grounds of inconvenient forum or unjustifiable conduct.

Example. The parents of a 10-year-old girl are separated but have not filed for custody. Pursuant to her parents' informal agreement, the girl remains with the father in Florida, where she goes to school. She spends the majority of her time with a housekeeper because her father is frequently out of town on business. The child spends one weekend a month in West Virginia with her mother. Because the mother works a night shift involving frequent overtime, many of the girl's weekend visits are spent at the homes of friends in her mother's neighborhood. Both sets of the child's grandparents live in Maryland. The father plans to move to Maryland at the end of the school year so the child can go to her grandparents after school, and he has a contract to purchase a house in Maryland when the school year ends. However, before the move, the father becomes increasingly concerned about the mother's absence during the child's visits. He files for custody in Maryland. Based on these facts, it is conceivable that courts in the District of Columbia (the child's home State) and West Virginia (a significant connection State) might decline jurisdiction in favor of Maryland, the child's soon-to-be home State. A decision to decline jurisdiction is discretionary and fact dependent.

Vacuum jurisdiction.

The UCCJEA provides that if no court has home State, significant connection, or more appropriate forum jurisdiction, an alternate court may fill the vacuum and exercise jurisdiction over an initial custody proceeding. This provision would apply to situations in which children fail to remain in any State long enough to form attachments (such as - homeless children, children of migrant workers or military personnel, or children sent from relative to relative for temporary care).

A UCCJEA Affidavit must be filed in every Florida Dissolution of Marriage with Children; and all subsequent modifications of time-sharing or custody. 

Mediation - What to Expect

What to Expect

You and the other parties in your case will sit down together with the mediator in an informal, conference room setting. The mediator will begin by explaining the mediation process and will answer any questions you may have. Each side is given an opportunity to express their concerns and talk about the case from their point of view. During the negotiation process, the mediator helps the parties clarify what the issues are and consider possible ways to resolve their differences so that an agreement can be reached. There may be a time that the mediator speaks to each party privately. These are called “caucuses” and are confidential discussions between the mediator and the individual party. At the end of the mediation conference:

• The parties may reach an agreement on all of the issues in their case. This is produced in a written document and submitted to the judge for approval. Once the judge approves your agreement, it becomes a binding Order of the Court and your case is officially settled.
• The parties may come to an agreement on some, but not all, of the issues. This partial agreement is also produced in writing for the judge’s approval and the remaining disputes in your case will be decided by the Court.
• The parties may not agree on any of the issues, which is called an “impasse”. Your case will proceed through the normal judicial process and be decided by the Court.

Is mediation confidential?

Yes. Mediation is privileged and confidential, with certain exceptions which are noted in Chapter 44 of the Florida Statutes. One reason why mediation is so successful is that people are able to talk freely about their concerns, understanding that what they say cannot be used against them in court. Your discussions during mediation cannot be divulged to outside parties, including the judge. If you are unable to reach an agreement, the mediator simply reports this to the judge without commenting any further on your case. Judges are not informed of the reasons for an unsuccessful mediation and do not hold this against the parties. 

Note: Written agreements produced during mediation are submitted to the judge for approval and become part of the case file. Like most other court documents, these agreements are “of public record” unless otherwise ordered by the judge. 

Framing the issue(s) for Mediation

One very important step is for the parties to agree on what they disagree about.  That sounds obvious, and easy, but that’s not always the case, and at the rates you may be paying a mediator, you want to start out with both parties and the mediator clearly understanding the dispute question. 

For example, consider the case of the real estate broker who contracted for the exclusive right to sell a homeowner’s residence for six months.  The broker advertised the home for a couple of months, but didn’t find any interested parties.  Thereafter, the broker didn’t do any more advertising, and the homeowner got disgusted and agreed to sell the home to his brother-in-law for a reduced price.  Then the real estate broker told the homeowner that he was owed a commission because the home sold.  What is the issue to be mediated?

There are many possibilities, but one way of phrasing it could be:

(1) Is the broker entitled to a commission because the home sold, even without his help?

….and possibly…

(2) Does the failure of the broker to continue to market the property serve to void the contract so that the homeowner is not obligated to pay the commission? 

It’s easy to see that the mediation could focus on a discussion of many things, but an agreement on the disputed issue will help all parties and the mediator focus efficiently on the fundamental question.

Preparing for the Mediation meeting

As a party in mediation, it is to your advantage to be as prepared as possible for a mediation meeting.  That meeting is your best opportunity to work out an agreement that works to your advantage, and it is the last best chance to control the outcome.  If the mediation fails, you and the other party will both be subject to the judge’s view, and no one – not you, not your attorney, and not the mediator – will know what the judge or even a jury will do with the case. 

One way to prepare is to start out by asking yourself: 

“Where would I like to be on this issue a year from now?”

“What benefit do I achieve if my position prevails?”

“What detriment do I incur if the other side’s position prevails?”

The next step is to assemble your “evidence” about why the case should be decided the way you wish…why you should win.  Remember that the mediator will not know the case, and you’ll have to carefully “tell the story”.  However, the purpose of that is not to convince the mediator – remember that the mediator does not decide the case…the decision is made by the parties.   The reason you have your evidence is so that the other party can see the best argument about why you may win.  After all, if the other party isn’t afraid of losing, why would he or she agree to a settlement that gives him or her less than everything asked for?

In a sense, the opening moves in mediation are for you to show your strength to the other party – why you believe you’ll win.  Then the other party does the same to you – showing you the best reasons why you’ll lose.   Once each side has seen the “best shot” of the other side, the parties will have a better idea of how the case might unfold in a court case, and the more likely a settlement.

In one sense, then, the willingness of the other side to settle is driven by the fear that side has of losing, and the same goes for you – your willingness to settle at mediation is directly related to how likely you think it is that you will lose, or how much you fear what will happen if you do lose.

The other goal is to really, seriously think through how you could compromise.  In my experience of

mediating, there has never been a situation where one side explained his case, and the other side jumped up and said, “You’re right!  I am so wrong!  I give up!”  That won’t happen.  So what you have to be prepared to do is give the other side something better than a complete loss. 

For example, if you own a car, and you take it to an auto engine repair shop to have the engine fixed, you may get your car back with the engine not running any better and you may refuse to pay the bill for $1,000.  The auto engine shop prepares to sue you.  What can you lose?  The $1,000.  What can you gain?  Not having to pay anything because the engine is no better. 

Are you sure you’ll win?  No.  Is the other side sure he’ll win?  No.  You might put forward to him your reasons why you think you’ll win, but after you hear his reasons why you should have to pay, you may recognize that the judge may agree with him, and if there is a 50-50 chance of that happening, it may make sense to take the safe bet and offer to pay the other side, say, $400.00.  The other side may think that he has a good case, but recognizes that if the car is not running better, the judge may agree with you, and he may be willing to settle for $600.00, reasoning that getting $600 is better than getting nothing.  So it’s to your advantage to prepare your case well, but to know what you’d be willing to settle for to close out the case and not risk having to pay the entire $1,000. Keep that in mind what your goal is in preparation – prepare to win, but assess the value of settling.

Conducting the Mediation

Appearance by parties. For court-ordered mediation, the parties must appear when scheduled by the court. 

Court Rule 1.720 (b) Sanctions for Failure to Appear provides that if a party who has notice fails to appear at a mediation conference without good cause, the court, upon motion by the other party, shall impose sanctions, including an award of mediator and attorneys’ fees and other costs, against the party failing to appear. Unless stipulated by the parties or court to the otherwise, parties are physically present when:

• The party is present
• The party’s representative having full authority to settle without further consultation
• The party’s counsel of record

Now that you’ve identified the mediator, a mutually-agreeable time and place will be established.  If it is court ordered, it may not be mutually agreed, but decided by the court.

Mediation procedure and confidentiality.

When the parties are seated, the mediator will explain that the proceedings are confidential, and what’s discussed in the mediation can’t be brought up later.  That means that if the other side makes an offer to settle the case for $400.00, you can’t say to the judge (assuming that mediation fails), “Well judge, he OFFERED $400.00 in mediation.”   Florida Statutes 44.102(3) provides that a party in a court-ordered mediation proceeding can assert a privilege to refuse to disclose, and to prevent any other person present at the session from disclosing, communications occurring in the mediation. The only part of a mediation that is permissible to disclose is the written agreement to mediate.

Rule 1.720 (d) provides that the mediator shall at all times be in control of the mediation, and the procedures to be followed in the mediation.  Attorneys representing clients who are parties can be present, but the mediator is in control.  Counsel for the parties shall be permitted to communicate privately with their clients, and if present in the mediation, will normally speak for the client.  In the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by court.  However, from a practical point of view, most mediators will not move forward if a party’s attorney has left the room, unless prior arrangements have been made with the party and his or her attorney.

The mediator will ask the party bringing the complaint to explain his side of the story.  That doesn’t typically mean that the party should explain every little detail, but rather that the party should give the mediator an overview of the case from the party’s perspective.  The other party should sit quietly and not interrupt – that party will have its turn to correct any errors or misstatements by the first party later. 

The other party will then have the opportunity to tell the other side of the story.  Both parties can provide copies of contracts, repair orders, bills incurred, photos, etc. but the mediator may or may not want to see them – remember that the mediator will not be making the decision, if a decision is made.  

After these opening statements, the mediator may ask questions, or may ask that one party leave the room so the mediator can talk with the other party privately.  This is referred to as a “caucus”.  The mediator may then want to talk to the other party privately, or may not.  Any caucus discussion is confidential too, and can’t be disclosed to the party who was not in the caucus unless the party in caucus agrees. 

Sequestration of Parties. The parties may be kept separate, and never see each other again in the proceeding, or they may be brought back to the table.  Generally speaking, business mediations tend to be unemotional, but in emotionally charged mediations, like a divorce or child custody case, it may work best to keep the parties in different rooms, with the mediator shuttling back and forth between the parties.

Agreement, partial agreement, and Impasse

If the parties don’t reach agreement, then the plaintiff or complainant (the one bringing the case up in the first place) can proceed to take legal action, if he or she chooses to do so.  Rule 1.730(a) provides that if the parties do not reach agreement on any matter in a court-ordered mediation, the mediator will report the lack of agreement (impasse) to the court without comment or recommendation. 

Note that if there are three issues in the mediation, and there is resolution of two of the issues, the parties may agree that the three issues are independent or inter-dependent.  If the three are independent, then the mediation has resolved two of the issues, and only the third issue will be returned to the judge for a court decision. 

However, if the parties cannot agree that the three issues are independent, then there is deemed to be NO agreement, and all three issues are returned to the judge, with annotation that there is no agreement, and the judge will rule on all three issues.

If there is agreement, then it has to be implemented. A mediation can be conducted on a given day, and if not completed, it can be continued to another day mutually convenient to the parties.  However, Court Rule 1.710(1) Completion of Mediation provides that mediation must be completed within 45 days of the first mediation conference unless extended by order of the court or stipulation of the parties.

Implementing the mediated Agreement

If the parties have reached agreement on what will resolve the dispute, the mediator will help them write an agreement.  It’s important to have the mediator’s assistance on this so that the wording is clear and it doesn’t leave important questions unanswered.  For example, if the parties agree that defendant will pay plaintiff $10,000,

• When is it to be paid? 
• Where? 
• Is a check OK or not? 

Does the $10,000 settle “all issues arising out of or in connection with the dispute”, or can a party

bring another action on some unsettled aspect of the dispute? 

The agreement can result in a party returning goods, or paying money to the other party, or can require a party to do something, or stop doing something.  All this needs to be spelled out, along with when the agreed action must be completed, and what the completion consists of.  For example, if the agreement is that the car owner will return the car to the dealership and get money refunded, is the car owner liable for the miles on the car and have his refund reduced by the number of miles driven, or does he get all his money back?

Enforcement of the mediated Agreement

Once the agreement is signed, it is a contract between the parties, and is enforceable so long as the actions agreed to in the mediation agreement are legal and possible to be performed.  If the agreed actions are not taken by the parties by the agreed time, the aggrieved party can bring an action in court to enforce the agreement.  Basically, this means that the issues in the original case are no longer relevant in most instances, and the judge won’t look to see what the agreement was about.  The judge will merely note that there is an agreement to do certain things and that a party has breached the agreement, resulting in a court order for the party to perform, or for the breaching party to pay money damages for not performing.

*This article was in my files, I did not write it. I would be happy to give author credit, but I don't know where this came from. I don't mean to plagiarize, I don't know who wrote this, but I think it is good information well worth sharing.

Access to Civil Justice - Florida Supreme Courts

A conference call was held today (3/11); and two more are scheduled for this week. These are open to the public, and actually fascinating. I will be writing up my notes from today's conference call and including them in the FALDP Newsletter which is published mid-month every month.

A second conference call was held on 3/12 which focused on funding. I was able to listen to a short portion of it. If you were on the call, please comment as I would love to know what I missed.

The next call is tomorrow. Again, I don't know if I will be on the call, please listen if you can.

The Florida Commission on Access to Civil Justice: Access to and Delivery of Legal Services

DATE AND TIME: Friday, March 13, 2015, 3:00 p.m. Eastern time

PLACE: To hear the meeting please dial 1-888-376-5050 and enter the following participant pin: 3422772243#

GENERAL SUBJECT MATTER TO BE CONSIDERED: The agenda focuses on discussing Florida funding in relation to other states as well as other Commission's funding strategies and accomplishments to date.

A copy of the agenda may be obtained by contacting: Francisco-Javier Digon-Greer at 1-800-342-8060 ext. 5793 or email: flaccessjustice@flabar.org.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 2 days before the workshop/meeting by contacting: Francisco-Javier Digon-Greer at 1-800-342-8060 ext. 5793 or email flaccessjustice@flabar.org. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).