Prolix redefined

To be a judge in New Zealand is to wield substantial power. Here we have evidence that judicial power can reverse the meaning of a word.

The judgement in our case against NIWA said at paragraph 9:

Both the original statement of claim and the first amended statement of claim were prolix.

The word “prolix” comes from the Latin “prolixus”, which means “extended” (literally “poured out”) or “courteous, favourable”. It has come to mean “tediously lengthy, bombastic, long-winded, verbose, wordy.”

It’s not used as a compliment. When a judge describes your submission as prolix he’s saying “your explanatory skills are poor, you waffle and you have wasted much of my time.”

When I first read the comment by Mr Justice Venning I gulped, thinking our counsel had made an unfortunate error that perhaps helped to turn the case against us.

But I’ve been sent a comparison of the documents in the two submissions and now I have to wonder why Venning J put the description prolix against the plaintiff’s case rather than the defence’s. Perhaps he just mixed them up accidentally. For otherwise he has given the meaning of prolix a push in a strange direction. Here’s the comparison (in pages):

Number of pages
PlaintiffDefendant
Statement of Claim/Defence1520
Affidavits70134
Submissions (synopsis)44123
Totals129277
  • For the primary statements to the Court NIWA used 33% more paper than we needed.
  • For the affidavits, NIWA’s witnesses used nearly twice as many pages as ours.
  • And for the submissions, NIWA wound up the waffle big time – it was nearly three times more verbose than the Coalition.

The judge called our statement of claim prolix when the facts are that we were succinct – NIWA was the long-winded one.

Overall, more than twice as tedious (2.2 times).

22 Thoughts on “Prolix redefined

  1. Rob Taylor on September 19, 2012 at 6:27 am said:

    Sorry to rain on your parade, RT, but “prolix” does not refer to the length of a submission.

    The epithet is legalese for what we, in the reality-based community, call the noise-to-signal ratio, the inverse of which is widely known as “quality”.

    What the good Justice was saying, in effect, is that the NZCSET statements of claim were a dreary load of old bollocks…

    • Richard C (NZ) on September 19, 2012 at 7:50 am said:

      Prolix from the legal dictionary:-

      prolix adjective bombastic, boresome, boring, copious, diffuse, discursive, drearisome, full of verbiage, lengthy, long, long-spun, longus, maundering, monotonous, padded, pleonastic, prolonged, prosy, protracted, redundant, repetitive, spread out, spun out, tedious, tiresome, unconcise, uneconomical, verbose, wandering, wearisome, wordy

      Perhaps an exaggeration by the Judge, especially given NIWA responded moreso.

      If he’d been paying attention maybe he wouldn’t have overlooked the professional statistical peer-review.

    • Andrew W on September 19, 2012 at 8:01 am said:

      You don’t get it?
      The implication is that while longer, the NIWA submissions contained far more real information, they were more succinct for the amount of information they included.

    • And your evidence for this is what, exactly?

    • Maybe we can do some textual analysis of the relevant documents, rather than relying on word count alone.

    • Richard C (NZ) on September 19, 2012 at 8:45 am said:

      “The implication is that while longer, the NIWA submissions contained far more real information, they were more succinct for the amount of information they included”

      But would that have been the case if the Judge had exercised neither fear nor favour AND had taken into consideration the professional peer-review?

      That is, the NZCSET case contained “real information” that was central to the case but the Judge overlooked it. Whether he did that intentionally or by inattention only he knows.

  2. Andrew W on September 19, 2012 at 7:21 am said:

    You probably should stop digging on this one RT.

  3. Richard C (NZ) on September 19, 2012 at 7:41 am said:

    “I have to wonder why Venning J put the description prolix against the plaintiff’s case rather than the defence’s”

    As I’ve pointed out a few times, J Venning exhibited both fear (caution) and favour (to NIWA) in this case – contrary to his Judicial Oath.

  4. Alexander K on September 19, 2012 at 8:13 am said:

    Offending the Establishment WILL be punished!

  5. Using long words is the prerogative of the establishment.

    Take him down…

  6. Rob Taylor on September 19, 2012 at 2:42 pm said:

    testing….

  7. val majkus on September 19, 2012 at 5:14 pm said:

    as a matter of curiousity I checked the Australian High Court published cases since 1911 for the word ‘prolix’ and only found it used once in respect to pleadings and 10 times for other things including interrogatories, argument, in a taxation case ‘the law is so prolix’, directions and orders, Counsel

    checking the NZ High Court published cases (available since 1963) there are 54 cases in which the word ‘prolix’ has been used
    the most interesting of which amongst those I read
    http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2007/1023.html?query=prolix
    where the Court in examining the ‘strike out’ jurisdiction referred to (inter alia) ‘unnecessarily prolix pleading (referring to an 1884 Chancery case) which has been cited by the NZ High Court a few times in recent years

    in other NZ High Court cases which I skimmed use of the word ‘prolix’ when used in respect to pleadings – from my reading pleadings became prolix when they incorporated ‘unnecessary and extraneous’ material – indeed the word prolix is usually used with that phrase in close proximity or another phrase ‘unnecessarily prolix’ is used.

    In the Trust’s case the Court uses the word in respect to the initial and first amended Statement of Claim. I get the sense the Court is saying those documents lacked focus. But the Court does not make that criticism in respect to the second amended Statement of Claim.

    It’s been an interesting exercise for me to compare the published cases of the Australian High Court since 1911 and the NZ High Court since 1963 and I’m still wondering why that word seems to be more used in NZ than Australian High Courts

    • Andrew W on September 19, 2012 at 6:50 pm said:

      Maybe the word ‘prolix’ is used to avoid words like: bombastic, boresome, boring, copious, diffuse, discursive, drearisome, full of verbiage, lengthy, long, long-spun, longus, maundering, monotonous, padded, pleonastic, prolonged, prosy, protracted, redundant, repetitive, spread out, spun out, tedious, tiresome, unconcise, uneconomical, verbose, wandering, wearisome, wordy, whose use might be seen as prolix.

    • Richard C (NZ) on September 19, 2012 at 7:06 pm said:

      Maybe it was used as an excuse for inattention to detail.

  8. val majkus on September 19, 2012 at 7:05 pm said:

    I found also one of my favourite judges (Mason) describe another of my favourite judges (Isaacs) as ‘writing prolix judgments’
    When I was a student in the seventies I used to love Isaacs’ judgments
    So maybe it’s in the eye of the beholder

    And Andrew W is there such a word as ‘unconcise’ and ‘boresome’ and … oh never mind

    Have a read of a judgment of Isaacs J to see how fulfilling in all ways a judgment can be

    • Andrew W on September 19, 2012 at 7:31 pm said:

      And Andrew W is there such a word as ‘unconcise’ and ‘boresome’ and … oh never mind

      Heh, I just pinched that list from Richard C’s comment from a legal dictionary up thread, I don’t have to read it do I?

    • Richard C (NZ) on September 19, 2012 at 7:39 pm said:

      Val re your favourite judges. Is there a statistic anywhere that you know of readily, showing the appeals against higher ranking judges decisions versus appeals against lower ranking judges decisions?

      Seems to me that a successful appeal is less likely against a higher ranked judges decision (better judgments) and more likely against a lower ranked judges decision (lessor quality decisions).

      I could have a look myself but you might have a head start.

      J Venning’s decisions appeal history would be required reading for NZCSET Counsel anyway.

  9. val majkus on September 19, 2012 at 7:52 pm said:

    No Richard

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