Legal Myth Breakers

LEGAL MYTH BREAKERS By: Brad Fraser

Leitner Williams Dooley Napolitan PLLC

Stefanie M. Bowen

Leitner Williams Dooley Napolitan PLLC

THE SONG REMAINS THE SAME

While there are millions and millions of songs, popular music has the tendency to repeat. This includes song titles. In the English language, words with the same spelling or pronunciation but different meanings are called homonyms. We decided to call songs with entirely different music and lyrics that share the same title “songonyms” (copyright pending).

You probably know several of these. Shout. Jump. Lady. Fire. One. Photograph.1 The most successful instance of a songonym may be “Best of My Love” by both the Eagles and The Emotions. Both rose to #1 on the charts within a few years of each other in the 1970s.2 Depending upon your age, musical taste, or interests, when you hear the name of a songonym, your first thought will naturally relate to your preferred decade or genre of music. For example, “The Power of Love” will prompt a foottapping recall of Huey Lewis and the News or a slower, softer musical styling of Celine Dion, depending upon your own tastes.

In the legal world, there are homonyms that have entirely different legal meanings. Oftentimes, these differing meanings depend upon the area of law in which you practice. And, like a songonym, your area of practice may determine where your mind wanders.

Take “malice” for instance. In the criminal context, you may think of “malice aforethought.” Malice aforethought is the requisite mental state necessary to prove common law murder.3 Malice, of course, might be evidenced by an intent to kill, an intent to inflict grievous bodily harm, or reckless indifference.4 And don’t forget the intent to commit a felony leading to culpability for felony-murder.5

However, for a civil lawyer, “malice” has one application in regard to exemplary damages. Tennessee’s punitive damage standard for years has required clear and convincing evidence that the defendant acted maliciously, intentionally, fraudulently, or recklessly.6 The Tennessee Civil Justice Act has codified this into statute at Tenn. Code Ann. § 29-39104. Malice, in civil practice, is not limited to an intent to kill or inflict grievous bodily injury. Indeed, a person acts maliciously when motivated by ill will, hatred, or personal spite.7 Another Tennessee case stated that, “‘malice’ is defined as “an act [that is] hurtful to another, intentional, and without legal justification.””8

Standing is another term that has a different meaning, depending on the context. Constitutional law nerds of all types will quickly identify the term, but the definition may differ depending upon your practice. Civil attorneys will recognize “Article III standing” as a party’s right to make a legal claim or seek judicial enforcement of a duty or right.9 Plaintiffs must initially show injury in fact, causation, and redressability to have Article III standing.

If your tastes and practice leans more toward constitutional criminal procedure, then “standing” takes on a whole new meaning when it comes to government searches. In Rakas v. Illinois, the Supreme Court clarified that a defendant has standing to object to a government search only if the action violated his or her personal privacy rights, not the rights of others.10 Standing, in the Fourth Amendment context, is not a preliminary inquiry like that of Article III standing, but a substantive question. Recognizing the confusion that might flow from using the same legal term of art to describe two entirely distinct functions, then-Associate Justice Rehnquist, in announcing the opinion of the Court, was careful to distinguish the two clearly.11

Most of us remember the parol evidence rule from law school. Essentially, the parol evidence rule provides that “contracting parties cannot use extraneous evidence to alter, vary, or qualify the plain meaning of an unambiguous written contract.”12 The parol evidence rule is a substantive rule meant to protect the integrity of written contracts.13 The parol evidence rule assumes that parties deliberately chose the language of the agreement to avoid the uncertainties of oral or, parol, evidence including the possibility of false testimony as to oral conversations.14

However, just add an “e” to the word, and the criminal bar references “parole.” Spelled slightly differently, sounds exactly the same. The stated purpose of parole is to protect society by supervising and investigating the conduct of offenders who have been released from confinement while also helping establish the offender in a community to prevent situations in which they might commit a new offense.15 Parole allows a defendant to continue serving his or her sentence outside the walls of the prison but does not reduce a defendant’s sentence.16 Indeed, while the parol evidence rule forbids anything “outside”, parole embraces “outside,” albeit in an entirely different context.

Some may wonder: how can two songs have the same title and not constitute a copyright violation? The legal standard is that the subsequent work has been copied and is substantially similar. The referenced songs share nothing similar, other than the title. Likewise, the legal terms referenced herein share nothing similar, particularly when used in their unique contexts relating to their particular area of the law.

Wishing everyone a happy and healthy 2023! May your troubles last only as long as your New Year’s resolutions.

1 “Shout”, The Isley Brothers, Tears for Fears; “Jump (For My Love)”, The Pointer Sisters, “Jump”, Van Halen, Kriss Kross; “Lady”, Styx, Little River Band, Lionel Richie/Kenny Rogers; “Fire”, The Ohio Players, Bruce Springsteen/The Pointer Sisters; “One”, Three Dog Night, Metallica, U2; “Photograph”, Ringo Starr, Def Leppard, and yes…even Nickelback. 2 According to BillBoArd.Com, the Eagles 1975 “Best of My Love” was the band’s first ever Billboard Hot 100 single (https://www.billboard.com/artist/eagles/), while The Emotions’ “The Best of My Love” spent five weeks at number 1 in 1977 (https:// www.billboard.com/artist/the-emotions/). 3 Malice aforethought, BlACk’s lAw diCTioNArY (11th ed. 2019). 4 Id. 5 Id. 6 Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). 7 Id. 8 Hutton v. Watters, 179 S.W. 134, 135 (1915). 9 Standing, BlACk’s lAw diCTioNArY (11th ed. 2019). 10 Rakas v. Illinois, 439 U.S. 128 (1978). 11 Id. at 133. 12 Hillard v. Franklin, 41 S.W.3d 106, 112 (Tenn. Ct. App. 2000). 13 Individual Health Care Specialists, Inc. v. BlueCross BlueShield of Tennessee, Inc., S.W. 3d 671, 696 (Tenn. 2019) citing GRW Enters., Inc. v. Davis, 797 S.W.2d 606, 610 (Tenn. Ct. App. 1990). 14 Farmers & Merchs. Bank v. Petty, 664 S.W.2d 77, 82 (Tenn. Ct. App. 1983). 15 Department of Justice’s U.S. Parole Commission, Frequently Asked Questions: What is Parole?, JUsTiCe.gov, available at https://www.tiny-url.site/Y0CRXv, (last accessed December 8, 2022). 16 Davis v. State, 313 S.W. 3d 751, 758 (Tenn. 2010).