POLITICS, CURRENT ISSUES & HISTORY

Opinion: CLINTON'S WORD GAMES
The President's Masterful Flummery Has Americans Feeling Flummoxed. Once Upon a Time, There Was a Cure.
THE BRIDGE NEWS FORUM, October 23, 1998.
by James V. DeLong

WASHINGTON -- The old Common Law judges knew about people like Bill Clinton.

Suppose a plaintiff said in his legal complaint: "On June 3, the defendant punched me and caused me $1,000 in damage."

The defendant (call him Bill) would respond by saying, "I deny it."

Then at trial the evidence would show that the event took place at 11:59 p.m. on June 2 rather than on June 3, it was a shove rather than a punch, and the damage was actually $999.

Bill would triumphantly say, "See! The complaint was wrong! And under the rules it is too late to amend it. And the statute of limitations has run. So I win."

EVENTUALLY, the judges figured out how to deal with the Bills of the world. They applied a concept called the negative pregnant (and where the name originated this author knoweth not). It shifted the burden to the defendant to make his denials absolutely complete.

If Bill said, "I deny that I punched the plaintiff on June 3," this was treated as an admission that he actually shoved the plaintiff, or that he punched him on some date other than June 3.

This checkmated the Bills of the world, but legal pleadings took on a surreal quality, such as: "Defendant denies that he punched or otherwise injured plaintiff on June 3 or at any other time or in any way caused him damage or any harm whatsoever in the amount of $1,000 or any other amount."

FAILURE TO INSERT one of these extra flourishes lost the case. In California, lawyers are still cautioned about the trap of the negative pregnant.

As late as 1940, a state Supreme Court case addressed the difference between "is" and "was." The court ruled that a defendant's denial of a statement that "plaintiff is and at all times mentioned was the owner of property" should be read as admitting that the plaintiff either is the owner now or was the owner before. (This is a special case of the negative pregnant called "the conjunctive denial.")

IN TIME, the reason for this rule -- the prevalence of Bills -- was forgotten and its wasteful verbosity became a target. Post-World War II reforms in procedure were pioneered by the federal courts and followed by most states.

Among their purposes was to get rid of this verbal game in favor of a common sense view.

Under the new approach, a defendant just denies. If the evidence shows the date was wrong, or it was a shove rather than a punch, then the complaint is amended to conform to the proof. And the defendant who wastes a court's time with nonsense will get a chewing out, and maybe pay some sanctions.

IF SOME ELEMENT is material to the case, the defendant is given the burden of identifying it and denying it specifically. There are, after all, situations in which the date matters or where a shove rather than a punch makes a difference. It is up to the defendant to highlight the specific point he is contesting: "Defendant denies that the event took place on June 3." In return, the defendant is spared such traps as the conjunctive denial.

PRESIDENT CLINTON reminds us that the common law judges were not so dumb.

Like the brilliant manipulator that he is, Bill Clinton regards this ancient legal conundrum as an opportunity, not a problem. He takes the view that if any part of a statement is erroneous, then he will deny.

But of course he rejects the response to such shiftiness evolved by the old common law, which was to outlaw it by treating such devious denials as admissions.

AND HE CERTAINLY pays no attention to the new-fangled idea that a party must specify which part of a statement he disputes. When he appeared on television and denied a 12-year affair with Gennifer Flowers, it was the length, not the affair, he meant to deny.

When he testified that he did not "grab" someone's breast, he may well have meant that he only caressed it.

As is his want, he is looking at the old legal standards and the new, and plucking from each the part of it most favorable to himself.

It will take time for our legal and political systems to re-learn how to respond to such flummery, which is why people are feeling flummoxed.

IT IS INTERESTING to see reporters reacting like the old-time common law judges, assuming that any denial by Clinton or his staff is actually an admission, at least until every individual element is pinned down.

The only rap on Paula Jones' lawyers and Ken Starr's prosecutors is that they thought they were living in the 20th century, not the 18th.

The interaction of the concept of the negative pregnant with the formal requirements of the law of perjury is a complex issue, but it should have little to do with impeachment.

THE HOUSE should add a new impeachable offense to Starr's list. It could be called malicious mockery, as in mockery of the law, and of the people, and of the concept of truth and of the foundations of democracy.

If Clinton is so devoted to legal word games, then give him all the time he wants to play them, somewhere other than Washington.