Words have meaning. They are the tool of lawyers everywhere, and the law often turns on the use of them. The expressions may be in statute or contract. They may be written or spoken. Their meaning may be patent, or subject to interpretation. There are times that even the punctuation between them will bring meaning or doubt. See I Never Knew Oxford had a Comma (March 2017).
Long ago, judges began to establish rules of construction. These are paragonal constructs through which the courts strive to bring predictability to the law, and structure to their work. The use of words is given structure. The Florida First District provided a broad overview of these in City of Bartow v. Flores, 301 So. 3d 1091, 1096–97 (Fla. 1st DCA 2020):
"When the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning.’ ” Fla. Dep't of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 960 (Fla. 2005)."
"In construing a statute, we presume that the Legislature knows the meaning of the words it uses and that it intends to employ those meanings in the statute. Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993)."
"The Legislature's use of differing language in the same statute is a sign the Legislature intended varied meanings. Carlson v. State, 227 So. 3d 1261, 1267 (Fla. 1st DCA 2017) (“The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.”)."
These are examples, there are other citations provided in that interpretation, including a secondary source written by a former United States Supreme Court Justice. These are illustrations of the manner in which maxims have evolved and of the importance that words have.
It may be important that the "varied meanings" expression is focused upon use in the "same statute." Nonetheless, the use of words is subject to far broader interpretation. When writing, one faces the challenges of words. They can be powerful, useful, persuasive, and distracting, confusing, and vexing. Words convey import. We learn that at a young age. Perhaps the reader remembers Alice in Wonderland and the intriguing exchange between a novice and all too frustrating Leporidae?
The furry mammal's interchange with Alice, including interjections from others, went:
“Then you should say what you mean," the March Hare went on."I do," Alice hastily replied; "at least-at least I mean what I say-that's the same thing, you know.""Not the same thing a bit!" said the Hatter. "Why, you might just as well say that 'I see what I eat' is the same thing as 'I eat what I see'!""You might just as well say," added the March Hare, "that 'I like what I get' is the same thing as 'I get what I like'!""You might just as well say," added the Dormouse, which seemed to be talking in its sleep, "that 'I breathe when I sleep' is the same thing as 'I sleep when I breathe'!""It is the same thing with you." said the Hatter
Is it, in fact the same thing? Is meaning what you say of value? Is saying what you mean of value? But in the end, more importantly, do the two phrases in fact mean the same as Alice assures, or are they so different as compelled by the Hatter, Hare, and Dormouse? As an aside, should any of us be garnering grammatical advice from such a cast?
Are words synonyms or are they merely similar? What do we mean when we employ them? And in the end, what is the purpose of words but to inform? Perhaps if you are Lewis Carroll or Charles Dodgson, you will have a gift for words. Or, perhaps you are willing to work hard to craft and draft, substituting elbow grease for talent. But you may also be a simple reader as am I. You may crave the simplicity of one merely telling it like it is.
My reader, by now, is likely used to these exceedingly long introductions. There is a patience that allows one to reach this stage of a post without utter frustration. But here, in the end, I strive to get to the point. In recent months, there has been what some see as a trend in word use in Florida appellate decisions. There has been a seeming avoidance recently of the word "reversed."
In fairness, no judge has ever been enamored with the word "reversed." It is universally disliked. More than once, I have heard it described with energetic and even vulgar disdain. There is more of a split in sentiment among lawyers, as their perceptions somehow seem to depend on whether the word is used in their favor or their defeat. That is all-to-often true in the broadest view of individual proclivity and perception. A "roll tide," no matter how intended might engender a high-five or a face slap.
The questions began for me in early October 2023. I received an email when the appellate court published E. Coast Waffles, Inc. v. Haselden, __ So. 3d __; 48 Fla. L. Weekly D1954 (Fla. 1st DCA 2023). It summarized the outcome in all caps: "SET ASIDE."
As a broader "aside," not to quibble, but some perceive all caps as meaningful.
What, I was asked frankly, does "set aside mean?" Was the decision "reversed?" Was the judge below intended to conduct further proceedings ("remanded?"). Upon further reflection, perhaps clarity dawns? The trial judge there found benefits due, and ordered the employer carrier to provide them. The appellate court nullified that order ("set aside"). Thus, the injured worker there failed to prove the case, and is entitled to nothing. Seemingly, perhaps, there is no point or purpose in further action by the trial judge. Fait accompli?
The topic came up again. On October 25, 2023, the appellate court rendered Siena v. Orange County, __ So. 3d __; __ Fla. L. Weekly D__; No. 1D2022-0958 (Fla. 1st DCA 2023). This case involved a JCC denying a benefit based upon an interpretation of a question of law. The appellate court disagreed with the denial and the outcome was a resounding "ORDER VACATED." Thus, the JCC order is of no import. Should the JCC rehear the case and decide if benefits are due? Are benefits due as a result of the court's conclusion?
Vacated: "to make legally void: ANNUL," according to Merriam-Webster. Perhaps "vacated" and "set aside" could be synonyms?
I was motivated to pursue further. I began pulling previous opinions of the court. In August, there was N. Collier Fire Control v. Harlem, __ So. 3d __; 48 Fla. L. Weekly D1573 (Fla. 1st DCA 2023). There, the question was of law through which the JCC had awarded compensability. Perhaps ironically in the context of this post, it was about interpretation of words. The appellate court concluded there with "Vacated." (no ALL CAPS). Notably, this interpretation of words included reference to some of the same touchstones mentioned in City of Bartow (above).
In August, the decision in Normandy Ins. Co. v. Bouayad, __ So. 3d __; 48 Fla. L. Weekly D1637 (Fla. 1st DCA 2023) was more simply "Vacate." Is there a distinction between past and present tense? Or, is this a typographical oversight?
In May, the decision in Churchill v. DBI Servs., LLC, 361 So. 3d 896, 905 (Fla. 1st DCA 2023) was a more familiar and perhaps commanding "REVERSED and REMANDED." There, the JCC denied compensability. Perhaps in that there is more necessity for further proceedings? But more so than in Siena? (above). Is the "reversed" more compelling? Is the "remanded" more instructive?
I have written before about the intriguing performance of Demi Moore in A Few Good Men (Columbia Pictures 1992). One of the great courtroom scenes of all time is not the "Perry Mason Moment" (copyright 2019) with Colonel Jessup ("you can't handle the truth"). The highlight for me is instead the criticism of Leitenant Weinberg (Kevin Pollak) "Oh! You strenuously object. Then I’ll take some time and reconsider.” Uh, no. I think the "overruled" likely gets the job done there. Does the "vacated," the "set aside," or the "reversed?" Or, is there a point in the "remanded?"
If the trial judge's order is no longer efficacious, then what? Something must follow. Is the trial judge able to proceed without the "remanded?" Seemingly so. Even in light of the "vacated" and "set aside" that are not accompanied by the "remanded?" I spoke with one scholar who suggested the recent absence of "remanded" is a recognition that perhaps the judicial branch is not able or willing to tell the executive branch what to do. That is, a separation of powers recognition might be inferred?
I am doubtful of that one for several reasons. The most pertinent, however, is the recent (May) employment of "remanded." But in fairness, there have been lots of "remanded" over the years and not a whisper of separation of powers. Not saying it couldn't be, but expressing sincere doubt.
Is there distinction between "vacated" and "set aside?" At least some believe there is not ("There is no substantive difference between "setting aside" and "vacating" any judgment"). But that is just what some lawyers think. Thesaurus.com does not list "set aside" as a synonym when "vacate" is searched, nor vice-versa. Thus, perhaps they have the same import, but are not synonyms? Perhaps they are synonyms, but only in the legal context?
The folks at Cornell Law School, a noted repository of legal definition and knowledge, seem to see at least similarity. In defining "set aside," the authors or editors there add "see also annul or vacate" In defining "vacate," the Cornell team says the meaning is "To set aside or annul." Perhaps the more narrowly focused legal definition supports these are synonyms despite the thesaurus?
Is there a difference between those two words and "reversed?" Believe it or not, there allegedly is (or at least was) a Style Manual that is used by the United States Supreme Court. I have never seen it, so "alleged." But, I read about it on the Internet and everyone knows you cannot put it on the Internet if it's not true. This style manual reportedly says:
"This Court should reverse if it deems the judgment below to be absolutely wrong, but vacate if the judgment is less than absolutely wrong. Questions in difficult cases should be directed to the Chief Deputy Clerk.”
Question one: the judge of the Supreme Court (presumably who wrote the style manual for that court and who make its decisions) should consult the clerk? I digress.
Question two: that is the test? "Less than absolutely wrong?" I wish these people had represented me in my childhood debates with mother. She did not believe in something "less than absolutely wrong," did anyone's mother see grey area?
Question three: does this seemingly recent foray away from "reversed" suggest that the appellate court has concluded that the feelings of the trial judge (or non-prevailing party) must be assuaged? Does someone feel better being "sort of reversed?" Can everyone in the case get a trophy? I knew a girl in high school who told people she was "sort of pregnant." Well, we all know how that "sort of" worked out. She "sort of" had a baby.
Back to the good folks at Cornell, they say that "reversed" means the trial judge is wrong. They say reversal means:
"The result of reversal is that the lower court which tried the case is instructed to vacate the original judgment and retry the case."
So "reversed" maybe reaches the same result, but in addition to the spanking the trial judge in that instance must also "get the switch." Old folks perhaps will get that; the next generation has somehow struggled with it on the vast expanse of knowledge that is Reddit. Perhaps this reads too much into the "reversed," as it is never about the judge, reversed is always about the decision, error, and justice. I am always concerned with "I got reversed"; no, it was never about you.
I arrive (as I so often do) at the conclusion of Mr. Spicolli, a great legal scholar and notorious gentleman (Fast Times at Ridgemont High, Universal Pictures 1982): "I don't know." Mr. Hand loved the answer, and I am a bit enamored myself frankly. It almost always works (though it never did with Mom).
Perhaps for clarity, it would be simpler for the courts to stick to a word that has no chance of confusion or misinterpretation? How about "affirmed?" Friesen v. Highway Patrol/Division of Risk Management, 364 So.3d 1051 (Fla. 1st DCA 2023). I'm just sayin.
.jpg)
Rebecca Solnit is purported to have said “you can use the power of words to bury meaning or to excavate it.” Perhaps there is merit in that. But, in the meantime, some suggestions*:
- Anything other than "affirmed" means that the trial judge was wrong (quibble with degree or extent if you "sort of" wish).
- Anything but "affirmed" should cause the trial judge to take another look and ask introspectively "what could/should I do next?"
- Any party to a case that desires further trial judge action following the issuance of a mandate should be prepared to seek it (file a motion?) if it does not come spontaneously.
- Any party can advocate further trial judge action, or argue against it. Then the trial judge can make a decision.
- If the parties don't like that decision, they can seek review by the court.
Or, perhaps there are better or other ways to interpret or proceed. That, you see, is up to you. But always remember that Mr. Spicoli's answer has merit.
* This is a blog post expressing questions and ideas. It is not legal advice and is of no precedential authority whatever. This blog should not be cited in any legal proceeding except in the event of utter desperation. See Citing Authority (August 2023).
