HUMPTY DUMPTY

Humpty Dumpty is best known for falling so hard from his perch on a wall that he could not be put together again.  But Lewis Caroll’s version of Humpty Dumpty is famous in the legal word for an entirely different reason: his claim that when he uses a word, “it means just what [he] choose[s] it to mean—neither more nor less.”

When a modern-day fisherman was caught with undersized groupers and threw the fish overboard, he was charged with two crimes: one was to dispose of evidence – straightforward.  The other was to dispose of “tangible objects” to impede an investigation.  That second charge came from the Sarbanes-Oxley Act, the Enron-era law dealing mostly with corporate records.

“Tangible object” can mean any physical thing, its most common meaning; or it can be read in the context of Sarbanes to mean only those tangible objects containing records, like hard drives.  Or, Humpty-Dumpty-like, it can mean just what one chooses it to mean.

The U.S. Supreme Court decided that in this case, “tangible objects” would be limited to records-related things – but not without dissent.  It was, in fact, a 5-4 opinion.

One does not need to look to the lofty halls of the Supreme Court to worry about words being parsed in that manner.  The tools that the Justices used to guestimate what “tangible object” meant in the grouper case are the same used by courts all over the country to decide whose understanding of a contract is correct at law.  For example, in Florida, “arising from” and “arising from or related to” mean two different things.

All in all, business owners and professionals who write their own contracts wade into shark infested waters.  They are necessarily unaware of how courts have interpreted the words they use.  Better let the professionals do their job.