Stuart Showalter Law Blog: Be wary the selection of words

Intention, facts, feelings and all that binds us together is conveyed through language. In the realm of conflict surrounding parental relationships and child custody litigation the appropriate use of language cannot be overstated. Where some see the words 'can' and 'may' as readily interchangeable there are others who find them to be as diametric as 'yes' and 'no'. I have talked to numerous children and adults about their childhood experiences as it related to those words. What I have often found is children, more predominantly males, view the intended abstract representation of 'can't' as a challenge to the limits of the physical world and, more importantly, to their status as an intelligent and capable being rather than permissive. Clearly be told 'you can't go out tonight' activates the mind to conjure the possible methods – wait until the parents are sleeping, the use of bedsheets to rappel from the second level, covertly descending the corridors to a rear exit – to display that what was claimed to be a deficiency in competence would be rebuked.

A parent who states that 'you may not go out tonight' would likely find a less challenging child and a more cohesive family structure. But is the common adulteration of words in our daily lives of such impact as to justify a careful examination and deliberate effort to correct any misapplications? I believe so.

Words of ubiquitous application or ambiguities torment the conveyance of ideas. In the legal realm, be it writing child custody legislation, drafting parenting time agreements or challenging a contempt action, precision is paramount. It can mean the difference between enforcing your rights and acquiescing to the abandonment of those rights.

Language can also be as important as life and death, literally. Imagine the scenario of patiently waiting to drive your vehicle over a busy crossroad. Your passenger suddenly declares, “It's clear from my side” which provides the same information as “From my side it is clear.” There is a clear distinction between the two messages when efficiency or conservation is applied. The information being sought is whether there is a sufficient lull in the flow of traffic to provide an opportunity to safely pass across the busy boulevard.

The passenger's declaration of “From my side it is clear” informs the driver that there is a sufficient lull in traffic from the right side of the vehicle to make passage safe. The onus is then transferred to the driver to determine whether the same condition exist from the left and if he shall then proceed.

The passenger's declaration of “It's clear from my side” can be reduced to an unambiguous mandate to proceed when efficiency or conservation is applied. The passenger's declaration becomes “It's clear!” when the driver's brain processes enough words to produce a complete thought. “From my side” can be discarded as surplus inconsequential words. But as any driver knows, those consequences could be deadly.

What caught my eye yesterday – the induction to this writing – was a bottle of liquid Drano. The label claims that it “Won't hurt pipes”. I immediately recognized this is a non-statement. It provides no beneficial information about the product to the reasoning mind but can give a feeling of comfort to the emotional or intuitive part of the mind. This is the trickery of marketing.

In the 1980's Johnny Cougar sung about the feeling of teenage love in Hurt so Good. Divorces hurt as does being cut with a knife, but in different ways. We comfort our children when they feel the hurt of being teased. The OED generally describes hurt as receiving a blow, being struck, being damaged, being harmed, injurious, causing the sensation of pain, wounds to the feelings. Hurt can include damage of any kind when portions of its dictionary definition are isolated. Words derive their meaning from usage in conformity with the dictionary applications. Thus, in reviewing our cultural use of hurt we can understand that to be hurt is to have the emotions or body harmed in such a manner as to generally feel the sensation of pain.

Pipes however do not have a central nervous system or the neural network that is cognizant of pain and produces the sensation of being hurt. Thus Drano has made no claim as to whether it could damage your pipes. So, alas, it comes down to this – say what you mean and mean what you say. Or “intend” if you don't seek to regress to the numerical middle of the road.

In matters of child custody petitions, agreements or orders precision of language is important. If your relationship with your child is more important than the rote cut-n-paste process that is often facilitated by the legal community then you should carefully consider the language being used.

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