If the advocate were looking to characterize the same rule as restrictive, the advocate might write:

The rules of the exchange exclude former officers from serving on the audit committee of the board of directors, even after a cooling-off period, unless the board determines that such person will exercise independent judgment and will materially assist the committee’s function.


In the first version, the words “permit” and “as long as” denote permissiveness. In the second version, the words “exclude” and “unless” denote restriction.

Either characterization of the rule — as permissive (half full) or restrictive (half empty) — is correct. They are just “spun” differently.

Another element of spin in the foregoing examples is the placement of the “cooling-off period.” The permissive version acknowledges the cooling-off period and quickly leaves it behind, minimizing its restrictive impact.

In contrast, the restrictive version gives the cooling-off period a central position and a major role, suggesting that the test for audit committee membership is so tough that “even after” the cleansing effect of a cooling-off period, former officers will not easily be approved.

A SECOND EXAMPLE

Suppose you wish to discover the opinion of a nontestifying expert whom the adversary retained in anticipation of litigation. You would argue as follows:

The Rules of Court allow the discovery of the opinion of a nontestifying expert whom the party retained in anticipation of litigation upon a showing of “exceptional circumstances.”

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