For many years my favorite book was the Highly Selective Dictionary for the Extraordinarily Literate.

Derive what you will from that admission, but you have no idea the joy it brought me to use Abecedarian as a proper little insult. Or to oh-so-ironically chastise one’s pedantry or sophistry with heightened language.

I was the coolest teenager.

Yes, the world of inaccessible language and grammar was as profound and glorious an escape from society for me as was Nemo’s Nautilus or Neo’s Nebuchadnezzar.

Yet even I struggle to stay interested when encountering phrases like this:

The debate centers on the adverbial modifier (“using a random or sequential number generator”) that follows those two alternatives. Does it modify both disjunctive verbs (store or produce) or only the second (produce)? Because producing equates with generating but storing does not, the fairest reading of the statute’s words, in light of their accepted ordinary and technical meanings, is that using a random or sequential number generator modifies produce, not store.

Sigh.

So, here’s what’s going on.

I wrote a quick take on the Plaintiff’s bar’s big Supreme Court brief on Friday that didn’t directly address the brief’s central grammarian arguments. Mostly because it is boring and inaccessible for the average reader, but also because–in my opinion–the argument simply wasn’t new. It was just a re-hash of what we’ve all seen a bunch of times already.

But I got a bunch of slack for it from the plaintiff’s lawyers who were really really proud of the argument and demand that I give it its due.

Ok.

So… here’s what’s going on.

The TCPA applies to dialers that call randomly or sequentially. That’s quite literally what the statute says. See, look:

(1) The term “automatic telephone dialing system” means equipment which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.

Now, if you’re a plaintiff’s lawyer hoping to cash in on the TCPA’s enormous (and enormously unfair) statutory damages of $500.00 – $1,500.00 per call you want this definition to note include the words “random or sequential number generator” because… no one uses dialers that call randomly anymore except the real bad guys. And suing real bad guys is boring because: i) they usually are overseas scammers; or ii) they are otherwise really difficult to track down.

No, the folks you want to sue are the legitimate American businesses that have real green American dollars in accessible (and leviable) American bank accounts. But as already mentioned, legitimate American companies like these don’t use the technology covered by the TCPA.

What to do?

Here’s an idea: bring in the legal world’s most famous Grammarian to help write a Supreme Court brief for you. 

Bryan Garner is a man who needs no introductions in many circles–mostly in circles of giant legal nerds– but to those who have never heard of the guy he is a remarkably talented word using guy. (Is there a word for that?) In seriousness, he helps people understand and apply the English language in its proper legal sense. And I respect that. Check out his wikipedia page to learn more: https://en.wikipedia.org/wiki/Bryan_A._Garner

So Garner–who is also an attorney of some renowned– was brought in to assist the Plaintiff’s bar in writing their brief encouraging the Supreme Court to read the TCPA’s ATDS definition to not include those meddlesome “random and sequential” words. Since Garner was the Chief Editor of Black’s Law Dictionary–basically the Bible for Judges that want to know what a word means in the legal sense– this is actually a remarkable feat. Its like bringing in Hershey to tell you whether something really tastes like chocolate or not. Even the nine (8?) justices on the Supreme Court will be readily familiar with his work and prepared to respect his take, even if they too have taste buds.

So let’s–at long last–get to Garner’s argument. To understand it you have to understand a concept called “synesis.” The phrase is defined in the brief as: ” “[c]onstruction in accordance with the sense rather than the syntax.”

In other words, applying “synesis” you ignore the rules of grammar and apply common sense to a statute.

If that last paragraph worries you a little, it should. The basic backbone of Plaintiff’s/Garner’s argument is that the regular rules that a grammarian would regularly apply, shouldn’t apply to the TCPA because… come on, we all hate robocalls, am I right?

After teeing up the concept that “syntax doesn’t always matter” the brief then points out (over and over) that the word “store” means to retain something and the word “produce” means to generate something. Since you can’t, the argument goes, “store” something using a random or sequential number generator, the phrase must only apply to the word “produce.”

That’s synesis.

And that’s about 78% of the argument.

There’s another concept raised in the brief as well: economy of parallelisms.

No this isn’t that dreaded Geometry/Econ cross-over class your college roommate took that time. It just means that Congress tries not to repeat itself over and over again and uses nifty things like commas to apply adverbs to many nouns and not just one.

Ok.

While EoPs seems to cut against the Plaintiff’s position given the placement of the comma in 227(a)(1)(A)– which is now the most fretted over in human history (surpassing even the one that left grandma eaten)– Garner and the Plaintiff’s lawyers raise it in an interesting context.

They’re view is that what Congress was actually trying to do in enacting the TCPA was copy California. (Always a bad idea folks.) Back in 1978 California enacted a statute that governed: “any automatic equipment which incorporates a storage capability of telephone numbers to be called or a random or sequential number generator capable of producing numbers to be called...” Garner and the Plaintiff’s lawyers speculate-without really citing anything in support– that Congress was trying to say the same thing in drafting 227(a).

So why didn’t Congress just say the same thing? EoP.

In Plaintiff’s view, rather than waste 1 and 3/4 inches on a single line of the U.S. Code–whose text, lied line by line, would circumnavigate the globe (probably)– Congress elected to confuse generations by omitting key words from the statute to maintain its word efficiency street cred.

As the brief puts it:

The main difference between the TCPA’s phrasing and that of the earlier references is that Congress economized by using “numbers to be called” only once to describe what an ATDS must store or produce instead of unnecessarily using the phrase twice. Such “economy of parallelism” is a common feature of legislative drafting.

Except that’s not the main difference. The main difference is that the California statute specifies what the TCPA does not– that any storage of numbers qualifies to trigger statutory coverage. The TCPA, on the other hand, specifies the opposite– that only the storage of random or sequential numbers triggers the statute.

Syntax.

But the brief persists that syntax is overrated, and there’s this easy-to-decipher chart that explains why:

See right there. If you make a chart, you can move words around to different places. And that’s what Congress really meant to do.

Here’s why:

Although the adverbial (using …) could theoretically modify both disjunctive complementary infinitives in (A) rather than only the second one, the sense of the words—that is, the relationship between the adverbial phrase and the infinitive to produce—shows that the phrase modifies only produce, not store.

Again, the “sense” of the words is what matters. Synesis.

If it seems like I’m repeating myself now, I am. The brief mostly just goes on like this for pages: The TCPA must mean what the “sense” of the words say that it means. Syntax doesn’t matter. The “sense” of the words can be derived solely and exclusively from the fact that the word “store” is inconsistent with “generating” numbers. Syntax doesn’t matter. Commas aren’t real. The sense of the words is what matters. You can’t store random numbers, etc.

That’s it. That’s the argument.

I wish there was a further take away here but there isn’t. That’s why I didn’t really cover this aspect of the brief the first time. It remains to be seen what the Supremes will make of all this.

Up next are the reply briefs. We’ll analyze when they’re available. More to come.