"Upon information and belief"
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Yesterday, I learned a new bit of legal jargon: "upon information and belief". A three-judge panel of the U.S. Court of Appeals for the Third Circuit "roundly rejected the Trump campaign's appeal in its effort to challenge the election results in Pennsylvania". The opinion was written by my former colleague Stephanos Bibas, and includes this passage:
Though it alleges many conclusions, the Second Amended Complaint is light on facts. Take the nearly identical paragraphs introducing Counts One, Two, Four, and Six: “Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination . . . by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements.” Second Am. Compl. ¶¶ 167, 193, 222, 252. That is conclusory. So is the claim that, “[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Yet the Campaign offers no specific facts to back up these claims.
The phrase "information and belief" has it own Wikipedia article, which explains lawyers' motivation for deploying such expressions:
The phrase is often used in legal pleadings, declarations under penalty of perjury, and affidavits under oath. It is often used in a phrase similar to: "The plaintiff is informed and believes, and upon such information and belief alleges". This "protects the maker of the statement from claims of outright falsehood or perjury".
If scholarly and scientific publications were subject to penalties for perjury, I suspect that this phrase would be more common outside of legal contexts.
Update — for anyone interested in a corpus search, case.law finds 37,329 cases including the phrase "information and belief".
David W said,
November 28, 2020 @ 8:30 am
"Plus, discarding those votes could disrupt every other election on the ballot."
Is "Plus, …." common in legalese? My junior-high teachers would have slapped this down hard.
Don Monroe said,
November 28, 2020 @ 9:48 am
According to the Wikipedia quote, "information," in this phrase, is the noun describing being informed of something (as "belief" is believing something). Although this may seem natural etymologically, I don't think I've ever seen that take on "information" in the many times I've seen the word. More evidence that lawyers speak their own language, I guess, if we can believe the Wikipedia entry.
J.W. Brewer said,
November 28, 2020 @ 10:40 am
I'm not gonna read the entire pleading to get the context, but in the section quoted the oddity is that the writer is using the "information and belief hedge for a big-picture conclusion rather than a more specific factual allegation, which seems more like the problem the court is focused on. If the conclusory statement had been bolstered by more specific allegations like "on information and belief, the election board in Suchandsuch County counted several hundred and possibly over a thousand absentee ballots that had not been mailed until after Election Day," that might not have been as much of a problem — at least for purposes of avoiding dismissal. For purposes of getting some sort of emergency injunction it would still be a problem, because the question then shifts from "would the specific factual allegations in your pleading, if ultimately substantiated with evidence at trial, entitle you to win at trial" to "do you have enough evidence currently in hand to entitle you to some sort of immediate relief right now," which is a different issue.
J.W. Brewer said,
November 28, 2020 @ 10:46 am
To David W.'s question, I wouldn't say that that use of "plus" is particularly legalese. What I would say is that while I haven't read enough stuff by Judge Bibas to have a sense of his style, a fair number (still a minority) of judges are concerned about the tendency of judicial opinions to slide by default into a stuffy/boring/turgid sort of register and thus self-consciously try to throw in little bits of more colloquial or informal style to try to mitigate that problem. This may well be an example of that.
Robot Therapist said,
November 28, 2020 @ 11:08 am
It reminds me of The News Quiz's use of "allegedly".
M. Delson said,
November 28, 2020 @ 12:23 pm
It was the word "conclusory" in the opinion that caught my eye. ("Yet its allegations are vague and conclusory.") There is an interesting older Language Log article on just this word; see
"Conclusive = good; Conclusory = bad", 4/15/2007.
Philip Taylor said,
November 28, 2020 @ 2:10 pm
An interesting back link, but in the second sentence of the quotation :
would 'ouster' be what we would render in British English as 'ousting' ?
David Marjanović said,
November 28, 2020 @ 5:15 pm
That's the first time I see the ¶ sign in action; over here, "paragraph" is symbolized as § – it's even on the German keyboard layout as Shift+3.
Yes.
Neil said,
November 28, 2020 @ 6:36 pm
@ Philip Taylor
I’m American, and I would have expected ‘ouster’ to be a person. Like you, ousting is the only possibility for me.
David Morris said,
November 28, 2020 @ 6:53 pm
In other words, hearsay.
KevinM said,
November 28, 2020 @ 7:36 pm
An allegation on (usually not "upon") information and belief is not properly just a means of avoiding the consequences of alleging stuff you just made up; it has a perfectly legitimate purpose. For example, you might be suing a partnership and you might have reason to believe that all of its partners are citizens of other states (a fact of jurisdictional significance; don't worry about it). But only they know that for sure, and they're not going to answer your questions so that you can sue them. So–after diligent inquiry has gotten you as far as you can get–you are permitted to allege what you have reason to believe, but do not yet know, to be the case. In the course of the litigation they will be required to furnish the relevant information, and you'll find out if you were right.
AntC said,
November 28, 2020 @ 8:07 pm
Talking of 'conclusory', it was the opening phrase that caught my eye:
Though it alleges many conclusions, …
Is a conclusion the sort of thing you can allege? I would have thought more like: Though it draws many conclusions, they are drawn from allegations, not from demonstrated evidence.
You could reject a conclusion on grounds it doesn't follow from the premisses — that is, a failure in inference. Or you could reject it on grounds the premisses are false/unproven — then the inference is null and void.
ktschwarz said,
November 28, 2020 @ 9:05 pm
Thanks for the link on "conclusory", it's a great post. And for much more, check out this law review article (which references that Language Log post!) I'm not up for reading the whole 125 pages, but here's part of the abstract:
Gregory Kusnick said,
November 28, 2020 @ 9:22 pm
AntC: I think the point is not that the conclusions are drawn from allegations; it's that we don't know what they're drawn from. They're "alleged" in the sense that they're being presented without substantiating evidence.
John Swindle said,
November 28, 2020 @ 9:56 pm
The underlying idea of distinguishing conclusions from evidence should be familiar from courtroom drama: "Objection! Calls for a conclusion."
"Ouster" sounds normal to me (American).
Paragraph sign: Over here § is "section." The plural is §§ .
Andrew Usher said,
November 28, 2020 @ 10:23 pm
'Ouster' for the action is the original (it's an Anglo-French infinitive). Though there may be pressure to treat 'oust' as an ordinary verb, many of those French infinitives-as-nouns survive anyway alongside, so seeing both 'ouster' and 'ousting' possible is not surprising.
I think I understand what 'conclusory' means – it's just, as the last comment says, 'calls for a conclusion' – but I'd struggle to provide any precise definition. There's hardly any reason to want to use it outside a legal context, even if it would be understood. I don't understand, though, the objection to 'conclusory' statements in a complaint – surely a main purpose of a complaint is to state what you believe the other side did wrong, which is a conclusion.
k_over_hbarc at yahoo.com
Viseguy said,
November 28, 2020 @ 10:29 pm
"Ouster" also sounds normal to me (b.1950 NYC). But the OED suggests it started as an Anglo-French legal term (meaning wrongful eviction and the like) but acquired a more general sense in AmE, though not so much in BrE.
Agree that "upon information and belief" does not imply anything underhand, and does not necessarily have anything to do with avoiding charges of perjury. In substance, it means, "I don't know this myself but believe in good faith that I can prove…". The good-faith element is what's notably lacking in Trump's election allegations.
Kaleberg said,
November 28, 2020 @ 11:46 pm
I've also seen "knowledge and belief". "Information" may have been used in an archaic sense of stuff one has been informed of.
Legal language has to be conservative. So much of legal wrangling isn't about speech, documents or the law, it's about what the words being used mean. If you use an old legal formula, you can expect the court to know what you are trying to get across. If you come up with some wonderful new language, you have the added job of lining it up prior cases and stuff from the law books.
P.S. If you want a fascinating subset of us, look at the language used in describing plots of land in a deed registry. The language and the mechanism of designating locations and boundaries is highly stylized, surprisingly awkward and frequently archaic. Title insurance companies insure the words in that description, not locations and boundaries. You sort of wonder if Kurt Godel spent some time as a land surveyor.
Twill said,
November 29, 2020 @ 12:17 am
@Kaleberg
Perhaps the forms ought be synthesized into some good old-fashioned legal doubets for added clarity. "Upon information and knowledge, and credence and belief, we allege and plead that…".
There's a reason many kooks get the impression that laws are magical formulae.
John Swindle said,
November 29, 2020 @ 12:39 am
My example may have been too tangential. I didn't mean to suggest that "conclusory" means "calling for a conclusion." It seems to mean something more like "in the nature of a conclusion." I'm not a lawyer, but I suspect that, while litigants are expected to suggest conclusions, they're not supposed to substitute conclusions for facts or reason.
Bloix said,
November 29, 2020 @ 1:11 am
The attachment of the qualifying phrase "on information and belief" to an allegation of a complaint is used for a technical reason.
If the lawyer signing a complaint is aware of the existence of admissible evidence supporting all the factual allegations made in the complaint, she can make make those allegations without any qualification. See Rule 11(b), Federal Rules of Civil Procedure.
If she has NO admissible evidence to support a specific factual allegation, but she reasonably believes that discovery or further investigation will uncover such evidence, she may assert that allegation but must attach to it a qualifying statement that she has reason to believe that investigation and discovery will reveal such evidence.
(If she has no evidence and no reason to believe that there is such evidence, she's not permitted to make the allegation.)
For obvious reasons, lawyers don't want to admit that they have no admissible evidence to support an allegation of fact, so the practice has developed of attaching the phrase "on information and belief" to a specific allegation. This signals that the lawyer has no admissible evidence for that allegation, but does have non-admissible information (for example, second- or third-hand statements which the lawyer finds reliable) that strongly suggest that there is admissible evidence in the possession of the adversary that will, once uncovered, support the allegation. The phrase means that the fact is alleged based on 'information," i.e. NOT on evidence. So the judge understands that the lawyer is telling him that the allegation meets the Rule 11 requirement only under the second prong, not the first.
Judge Bibas's opinion seems to this commercial litigator to be confusing the obligation to plead specific facts (this arises from two Supreme Court cases that he cites, Twombly and Iqbal) with the obligation to have evidentiary support for such facts (this arises from Rule 11). A "conclusory" allegation is generally not specific enough for the Twombly/Iqbal standard. "On information and belief" relates to the evidence supporting an allegation. You can plead specific facts based on "information and belief," and there's nothing wrong with doing so.
Judge Bibas's concern seems to be with the lack of sufficient specificity, not with the evidence behind the allegations. He takes the use of the phrase "on information and belief" attached to conclusory allegations to suggest that the lawyers did not have either evidence or information sufficient to permit them to make more specific allegations. To me, it seems that this conclusion might be so, but it is not compelled. But as it's not necessary for the result, no harm is done.
Joseph A Post said,
November 29, 2020 @ 6:09 am
I believe that "on information and belief" is something of a hendiadys, meaning "on belief based [at least to some extent] on information."
Graeme Orr said,
November 29, 2020 @ 9:01 am
Yes, it's a long accepted practice in 'interlocutory' – hurried, preliminary hearings. It allows the lawyer, who is subject to ethical duties to the court (more relevant than criminal perjury), to describe the basis for the foreshadowed claim.
In more anglo common law countries like Australia, the term of art is 'I am informed by [source] and verily believe…'
That may sound archaic, but at least it nominates the source.
Philip Taylor said,
November 29, 2020 @ 11:24 am
What would happen, Graeme, if an antipodean barrister were to say 'I am informed by [source] and truly believe…' — would he be censured by the judge ?
Anthony said,
November 29, 2020 @ 1:39 pm
I think of outster as being on the model of merger: a merger gets the merging done, and an ouster gets the ousting done.
As for the paragraph sign, my father was (for a minuscule fraction of his life) a magazine editor, and so the first typewriter I ever saw had that paragraph sign (like a backwards P) on the keyboard.
ohwilleke said,
November 29, 2020 @ 6:56 pm
Standard first year law school stuff. I probably use the phrase several dozen times a month.
ohwilleke said,
November 29, 2020 @ 7:16 pm
It also, unsurprisingly, comes with a reference to Iqbal. *Ashcroft v. Iqbal*, 556 U.S. 662 (2009) and its sister case *Bell Atlantic Corp. v. Twombly*, 550 U.S. 544, 570 (2007), replaced the legal standard for documents that initiate civil lawsuits called "Complaints" in federal court with the standard set in *Conley v. Gibson*, 355 U.S. 41 (1957), in a controversial and relatively dramatic change of the law (all interpreting the same Federal Rule of Civil Procedure 8 that the U.S. Supreme Court itself promulgated without a rule change through the usual rule making process). Under *Conley* a Complaint could not be dismissed if the facts alleged were possible, allowing a plaintiff in a lawsuit to reach the stage at which the plaintiff could use a compulsory legal process to compel the other side to reveal facts that would be unavailable otherwise (in Twombly a suspected smoking gun agreement to violate anti-trust laws that wasn't in hand, in Iqbal, internal deliberations of the U.S. Attorney-General about policy making related to the detention of Muslims without probable cause following the 9-11 attacks), but allowing a plaintiff to make an allegation "on information and belief". Under the new *Twombly/Iqbal* standard, in contrast, all "on information and belief" allegations are discarded as are all "conclusory allegations" that state a legal conclusion without providing a specific factual basis for it, and the lawsuit must be dismissed unless the remaining allegations state a "plausible" basis for a court to grant relief if the allegations are assumed to be true. This has had considerable impact in civil rights cases, discrimination cases and cases involving misconduct in the boardroom of big businesses. It has been criticized for systemically shutting out plaintiffs in cases where the defendants control the relevant evidence and for inserting a subjective decision making element that varies with judicial partisan leaning by inserting the "plausible" standard which is a function of a judge's idea of what is or is not likely rather than just what is possible under the old standard. Some but not all state courts have followed the U.S. Supreme Court lead, so it is particularly prone to causing lawyers to slip up in states where state practice keeps the *Conley* rule and federal practice follows the *Twombly/Iqbal* rule. PA has a different standard than *Conley* or *Twombly/Iqbal* which splits the difference by disallowing information and belief pleading under *Conley* (also called notice pleading) but allowing for pre-complaint discovery to address the information asymmetry problem and did not use a subjective plausibility standard. https://www.uscourts.gov/sites/default/files/iaals_fact-based_pleading_-_a_solution_hidden_in_plain_sight.pdf
ohwilleke said,
November 29, 2020 @ 7:31 pm
The ¶ sign for paragraph and ¶¶ for paragraphs plural is increasingly common (and is option-7 on a Mac and alt-7 on a WinTel machine). Here it is used in an old school context to refer to paragraphs of a complaint in a lawsuit. But many court systems have recently adopted the practice of number paragraphs in judicial opinions. Historically, references to court opinions (such as the citation in my previous comment) followed the form: Volume of a third-party court reporting series of books, abbreviation for court reporting series of books, page number of the first page of the case in that volume, page number of the quoted material in that volume. So, 550 U.S. 544, 570 means volume 550 of the United States Reporter (a private third-party publication subject to copyright) in the case that starts at page 544 on page 570. But, the leading reporter of court cases (often the only one reporting opinions of a particular court), West Publishing, claimed a copyright in their page numbers (the body text was in the public domain) in order to prevent other companies from creating digitized version of public domain court opinions that anyone could use the standard system of citation with. To fight back, courts adopted a public domain citation system in many jurisdictions consisting of the year, an abbreviation for the court issuing the opinion, a sequential number referring to the nth decision decided by that court in the year, and a paragraph number for the location within the decision of the quoted material. So, for example, 2020 Co App 47, ¶ 30 would refer to paragraph 30 in the 47th decision decided by the Colorado Court of Appeals in the year 2020. So ¶ is now used in any decision referring to recent cases with the new system, rather than just to contracts and complaints with paragraph numbers in them.
GaryO said,
November 30, 2020 @ 11:54 pm
Lots to digest here. The word "ouster" for me is an event, not the person who ousts. So an ouster may have occurred, be occurring or may occur.