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It’s All in the Way You Phrase It Print E-mail
by John Browning    Wed, Dec 4, 2013, 10:02 AM

Let’s face it: how you choose to express yourself matters.  The words you choose, the tone you take—it’s all critical to how your message is received.  This is especially true in the law and in the disputes that find their way into the legal system.  Take quarrels between feuding neighbors, for example.  Depending on how one neighbor chooses to express himself, a garden-variety argument could escalate into the Hatfields and the McCoys in no time.  52 year-old Brian Malta of Kiantone, New York apparently has both an ongoing beef with his neighbors in the rural western New York village and an appreciation for military history.  He’s been charged with repeatedly firing his historic Civil War cannon at his neighbors, and has been charged with harassment and menacing.  Malta, who’s out on bail, fired the cannon only with a powder charge and wadding (no cannonball), but that didn’t stop the police from confiscating it.  And Alan Markovitz, a Detroit-area strip club entrepreneur, had perhaps the ultimate expression of disdain for his ex-wife after their divorce.  He bought the house next door to her and erected a 12 foot-high, $7,000 bronze sculpture of a hand with its middle digit raised in the direction of his ex-wife’s house.  Markovitz even had a spotlight installed so that night and day, the sculpture can be clearly seen from his former spouse’s window.  It’s as if he was hoping for a Mastercard commercial: “Buying the house next door to your ex – $300,000; having a giant sculpture installed – $7,000; flipping the bird at your ex-wife for eternity – priceless.”


At the same time, we have to be careful about the words we use.  Energy drink giant Monster recently learned that lesson the hard way.  It all started when the drink company hired D.J. Z-Trip (a/k/a Zach Sciacca) to perform at its annual “Ruckus in the Rockies” snowboarding competition.  Following the event, Monster put together a highlight video, sound tracking it with a “megamix” that D.J. Z-Trip had assembled of Beastie Boys songs.  A Monster representative named Phillips then emailed the finished product to Z-Trip, asking the D.J. “Please have a look at the video from this past weekend and let me know if you approve.”  According to legal documents that were later filed, the D.J. responded “Dope!”


Monster went ahead and released the video—complete with Beasties songs—to YouTube, prompting a copyright infringement lawsuit brought by the Beastie Boys in August 2012.  Monster’s “defense” was to blame Z-Trip, saying that the D.J. had authorized the use and that he had breached a contract and committed fraud by posing as someone who could issue a copyright license on behalf of the Beastie Boys—all by virtue of using the word “Dope.”  Not surprisingly, a federal judge had no problem tossing out the claims against D.J. Z-Trip, saying no reasonable person could understand the “sparse communications” to constitute a granting of such rights.  The court even administered a benchslap, saying: “It would take a heroic effort of explication to derive such a conclusion from their words and informal email exchanges.  And to read Phillips’s or Z-Trip’s words to convey a contract to cede Monster such rights would flout common sense.” 


OUCH!  But my favorite recent reminder that words matter comes from a recent response to the prosecution’s motion in State of Tennessee v. Donald Powell, a criminal case pending in Williamson County, Tennessee.  When prosecutors filed a pre-trial motion seeking not to be referred to as “the government” (evidently, they were worried about anti-government feelings and wanted to be addressed as “the People” or “the State”), defense attorney Drew Justice filed a hilarious response (that has since gone viral) making sarcastic fun of the government’s silly position.


After pointing out that granting the prosecution’s motion would not only be inaccurate but would also violate the First Amendment, Drew Justice got down to snarky business.  He stated that if the government was allowed to choose what it would be called, then the defendant was entitled to similar treatment, proposing that Mr. Powell be addressed by only his full name, or simply “the Citizen Accused.”  Also, said Justice, “the designation ‘That Innocent Man’ would also be acceptable.”  And, since being referred to as a defense attorney or lawyer could be “prejudicial,” Mr. Justice suggested that he be referred to as the “Defender of the Innocent . . . Alternatively, counsel would also accept the designation ‘Guardian of the Realm.’”  Moreover, he argued, since the state was represented by the attorney general, it seemed only fitting that “the Citizen Accused” have “an appropriate military title for his own representative” and so he humbly suggested that “the name ‘Captain Justice’ will be appropriate.”  In addition, because the “whole idea of being defensive comes across to most people as suspicious” and “to prevent the jury from being misled,” Mr. Justice proposed renaming it “the Resistance.”  That would make him “Captain Justice, Guardian of the Realm and Leader of the Resistance.”


I like that.  But even if you or I never get to be called “Captain Justice, Guardian of the Realm and Leader of the Resistance,” remember that how you express yourself really does matter.

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