If you make your living writing wills and trusts, or administering them, or litigating them, you live in a world dominated by words; be they contained in a client’s personal estate planning documents or the public statutes and court opinions governing their application.
And as practitioners we all rely on informal heuristics we’ve picked up along the way for figuring out what those words are supposed to mean when used in a particular context. This pragmatic approach is fine as long as no one’s asking a judge to weigh in. Once the question lands in court, you need to advocate for a particular interpretation, and to do that you’ll want to know something about the “supremacy-of-text principle.” It’s a formalized approach for making sense of legal texts that’s all the rage among Florida’s judiciary, starting at the top with our supreme court and working its way down to every new trial court judge reporting in for his or her first day on the job.
Link to Florida Judicial College on Judicial Interpretation of Statutes and Contracts Florida Judicial College on Judicial Interpretation of Statutes and Contracts
All Florida judges new to the bench are required to complete the Florida Judicial College program during their first year of judicial service following selection to the bench. Taught by the state’s most experienced trial and appellate court judges, the College’s curriculum includes a 203-page presentation entitled Judicial Interpretation of Statutes and Contracts. This is basically a handbook for judges applying the supremacy-of-text principle, and it’s a must read for anyone working in today’s Florida court system.
In What the Textualist Revolution in Florida Jurisprudence Means for Practitioners, appellate attorney Nicholas McNamara does a great job of putting this textualist moment in context as well as suggesting related practice pointers. Another must read. Here’s an excerpt:
Justice Kagan famously remarked in 2015 that “we’re all textualists now.”[1] She was speaking about the federal judiciary, where the late Justice Scalia’s brand of textualism has come to dominate. But here in Florida, not only is textualism dominant, it is arguably[2] mandatory for practitioners since the Florida Supreme Court declared its adherence to “the supremacy-of-text principle” in Advisory Opinion to the Governor re: Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070 (Fla. 2020). According to that principle, “[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.”[3]
This language is quoted from what has become the seminal treatise on textualism: Antonin Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts. It is hardly an exaggeration to say that Reading Law has achieved blackletter status in this state. Indeed, as of February 23 of this year, this work has been cited no less than 171 times by Florida’s appellate courts since its 2012 publication. That being the case, it behooves the Florida practitioner — regardless of his or her opinions on textualism’s merits — to become acquainted with its doctrines and methodologies. This column provides a few practical pointers on advocacy in the current textualist moment.
Against this backdrop McNamara provides the following practice pointers:
- Do Not Argue What the Legislature Intended; Argue What the Text Means
- Learn How To Use Dictionaries Properly
- Acquaint Yourself with Canons of Construction
The best way to put this good advice into practice the next time you find yourself getting ready to argue for a particular interpretation of a word or phrase in a will, trust or statute, is to read the same handbook your judge is reading: Judicial Interpretation of Statutes and Contracts.