BurtLaws's Legal Writing

BurtLaw's Legal Writing
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2006 Burton Randall Hanson

DMCA Digital Millennium Copyright Act Claim Notification Info pursuant to Subsection 512(c)

Punctuating life. "Punctuation absorbs more of my thought than seems healthy for a man who pretends to be well adjusted. The subject is naturally attractive to all with character structures of the sort Freud dubbed anal, and I readily confess to belong to that sect. We anal folk keep neat houses, are always on time, and know all the do's and don't's, including those of punctuation. Good punctuation, we feel, makes for clean thought...." From The Philosophy of Punctuation, an essay excerpted from Opera, Sex, and Other Vital Matters (U. Chi. Press 2002), a collection of essays by Paul Robinson, who describes his "philosophy" of punctuation as "legalistic." Worth reading. (06.08.2002)

Judge Hardy-har-har -- or Dan Rather as judge. Every now and then one comes across a story, like this one from the Daytona Beach News-Journal, about a judge who attempts to use humor in the courtroom or in his orders and opinions. The judge profiled in this story is Judge Samuel Kent, a federal trial judge in Galveston, Texas. According to the story, "When East Coast attorneys asked him to move a case from his court because the Texas Gulf Coast city lacks a commercial airport, he denied the request, reminding them the 50-mile highway from Houston 'is paved and lighted' and 'the trip should be free of rustlers, hooligans and vicious varmints.' In the same order, Kent assured the lawyers his courtroom 'has got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East.'" A judge who wants a little attention can always get it by writing an opinion in the form of rhymed verse, particularly if the case concerns pigs, chickens, dogs or cats. Judge Kent occasionally tries his hand at that sort of opinion. I've read a few of them and have never been amused. I want to say, as my childhood friends and I would say when one of us failed in trying to be funny, "Hardy-har-har." I won't say judges should never try inject humor into court proceedings or into orders and opinions, but my general advice would be that they shouldn't. Fortunately, as a practical matter most appellate judges can't get away with it a) unless it's subtle, because most judges won't sign on to anything that isn't pretty bland (even Holmes was "forced" to remove many of his gems from his drafts in order to get his colleagues to sign on) or b) unless it's in a solo concurring opinion or dissent. Here's a press-release summary or abstract of a note by Marshall Rudolph titled "Judicial Humor: A Laughing Matter?" that was published in Hastings Law Review (Vol. 41, No. 1, November 1989):

Humorous judicial opinions are curious legal creatures. Although they account for only a small percentage of all opinions, their existence is widely known in the legal community. From puns to poems, subtle wit to full-blown dementia, humorous opinions represent virtually every form and degree of comedic endeavor. Yet, it is easy to forget while reading a humorous opinion that real parties with genuine legal interests at stake were involved in the case. Despite the entertainment value of amusing opinions, one must question their propriety. This Note focuses on the controversial aspects of humorous judicial opinions. By examining a cross section of past and present judicial humor, the Note concludes that the number and audacity of humorous opinions has risen dramatically in the last twenty-five years. As a result, the number of opinions subjecting litigants to abusive ridicule also has increased. The Note reveals that there is no existing provision in the Code of Judicial Conduct, or any other body of law, to discourage this sort of litigant abuse. To fill this void, the Note proposes an amendment to the Code of Judicial Conduct that will catch the opinion most likely to abuse the parties to the case or undermine basic opinion utility, while preserving those opinions whose humor does not "hurt" anyone.

Unlike judges, most writers can't ensure that, by merely "filing" it, everything they write for publication will be published at no expense to them but often at considerable expense to others. Most writers get published by doing it themselves at their own expense (as I do in "publishing" this webzine/weblog) or by persuading others (typically book, magazine or newspaper publishers) to do it at the publisher's expense. Judges who want to write funny stuff ought to be willing to either publish it themselves or put it to the test of the marketplace. Example: one appellate judge I know and admire, John E. Simonett, now retired from the bench but not from legal practice, was a master of the short, well-written elegant opinion. A naturally witty man, he kept his wit out of his opinions and instead found (and continues to find) a public outlet for it in speeches and short pieces published in bar magazines, etc. In 1998 I compiled many of his witty (and wise) observations in a piece I called "Quotations of Chairman John on Law, Life, and Other Things That Matter (Such as Fishing and Pulltabs)," which was included in a volume on his judicial career published in 1998 by the Minnesota State Law Library as part (No. 11) of its Minnesota Justice Series. As a general matter that, it seems to me, is the way to go. (11.07.2001)

Looking beyond Carly Simon. Yesterday I suggested that lawyers, judges and other likely suspects -- i.e., anyone who writes -- could learn a thing or two from reading a little piece by Carly Simon on "How Lyrics Work." Infra. Today I suggest we can learn a thing or two about writing from reading British newspapers. Today's assignment is to read an editorial in a British newspaper on the Appeals Court's recent decision reducing the controversial conviction of a Norfolk farmer from murder (life in prison) to manslaughter (five years) on the ground of diminished responsibility. The original conviction was based on the defendant's killing of a teenager who broke into his house at night with an older accomplice. The defendant claimed at trial he shot in blind panic and self defense, but the prosecutor persuaded the jury he'd lain in wait for the burglars and shot them in cold blood. The Court of Appeals rejected defendant's contention that as a matter of law he used reasonable force under the circumstances and therefore justifiably killed in self defense. But it was persuaded by "fresh" psychiatric evidence that he bore diminished responsibility for his conduct. (Report in UK Telegraph). The editorial I referred to is this one, It Was Never Murder, from the UK Spectator. It's really a two-fer. First, it's an example of excellent polemics, the kind that editors of American newspapers can't write, the kind British editors regularly write. Second, it's more than well-written. It's a well-reasoned critique of an appellate decision in a criminal case, something that the editors of most American newspapers are seemingly incapable of writing. Justice Frankfurter said once (while vacationing in England), "There are, as you well know, periodic newspaper crime waves in the United States. Popular feeling is excited to fluctuate between being sentimental and being harsh." Our papers are well-practiced in creating "newspaper crime waves" and in manipulating popular feeling, but we should expect more. (11.06.2001)

Carly Simon on writing judicial opinions. "I am continually asking myself, 'Who is my audience?' If I am writing only to please myself, then why bother to record a song and then try to sell the recording? I think there needs to be a balance between writer and audience. A kind of compromise, a complicity, a nod and a wink. My best songs have an inherent, tacit understanding of this compromise -- like the yellow line down the middle of a country road: you don’t watch it, but you know it’s there. Most of the artistic decisions I make are not on a conscious level. Some lyrics I have written should have stayed lyrics only, or I should get a new shot at writing the melodies. And why not? The best marriages aren’t always the first ones." Carly Simon, How Lyrics Work (Doubletake Magazine). Have you noted that in this time of national post-09.11 stress, we -- people of different tastes in music -- seem to find common ground in certain songs? Like songs that have recognizable melodies and lyrics that fit the melodies (or vice versa)? Songs like "You'll Never Walk Alone," lyrics by Oscar Hammerstein II and melody by Richard Rodgers? (P.S., I prefer it sung quietly, simply, without histrionics.) Some of the old songs, sung in a different time and a different way, have taken on new meaning. Tory Amos, in her appearance on Dave Letterman's show not long after 09.11, took an older song and, by her simple piano accompaniment and moving delivery, gave it new meaning and depth. It's clear from this article that Carly Simon, whom I've liked for a number of years, is a thoughtful lyricist and gifted musician, one who knows that sound and sense are perennial dance partners. Anyone who finds occasion to write things -- judicial opinions, statutes, legal briefs, term papers, songs, love letters, notes to oneself, grocery lists -- may find benefit in reading what she says about writing lyrics and creating music. "Ideally," she says, "I would like to produce multiple versions of the same song, each recorded in a completely different way -- ten cuts of 'Coming Around Again,' say, in different languages, with varying tempos and instrumental settings. By process of elimination, I might come up with the perfect version of 'Coming Around Again.'" An appellate judge writing an opinion might benefit from that. She might find, for example, that the lyrics and melody sound better as a loud, big band piece -- or, contrarily, better as a quiet solo with simple piano accompaniment. That one sounds better than the other might guide her, in some strange way, in deciding whether to speak for the majority or simply for herself. "There are," she writes, "songs of mine I don’t own yet. I will someday. I will rewrite and resing them, and I will make a whole new set of mistakes on the old songs as well as the new ones I write, but each set of new mistakes will be more and more sensitive to the person (heart, soul, singer: the whole package that is me) and will come closer and closer to the truth." Isn't she also describing the process of deciding appeals in the great common-law tradition? Judicial craftsmen keep reworking old songs, old doctrines, old principles. Somedays they get a particular song to sound just right -- at least for awhile. But then later when they revisit the song, they see once again it needs reshaping, perhaps a different orchestration. And on and on it goes. Robert Frost described a poem as "a momentary stay against confusion." So is a good song. So is a good judicial opinion. And the best ones are the ones that we keep going back to -- or is it that the best ones are the ones that keep "coming around again"? (11.05.2001)

Clichés. "[W]e talk about art -- and write about art -- so poorly. If you eliminated all the easy, lazy superlatives -- beautiful, wonderful, powerful, amazing, incredible -- from use in any context relating to art, the silence would be deafening. People would stare at each other and stammer and gesticulate, and feel utterly at a loss to describe what they just experienced. This is all the more a problem when the art form, such as music or dance, has no verbal element. In the face of silence, we always have clichés, comfortable, ready at hand, and so meaningless as to be infinitely adaptable...." Herewith, an essay by Philip Kennicott, Maybe It's Your Platitude, that lists the top 50 clichés about art, including the ever-popular "Art is a universal language," "Art captures the eternal human spirit," "Art brings us closer to our fellow man," "Art makes us better people," and "Art is timeless." Also of interest: movie clichés - cliché finder - sports clichés - political clichés.

"Alot" or "a lot"? Paul Brians maintains a site explaining common errors in English usage. You wouldn't write "alittle" and you shouldn't write "alot." There's a lot of useful information here, for judges, lawyers, secretaries, and others who want to be "correct." [more]

Legal writing, legal secretaries. There was an interesting article in the NYT the other day [click here] on the silly battle that opposing camps of appellate judges are waging about the "right" way to write an opinion deciding an appeal. Purists or traditionalists favor the approach of generally citing prior decisions in the main body of the opinion, not in footnotes. In recent years that approach has been challenged by devotees of a legal-writing guru, Bryan Garner, who writes books (too many, I think) and gives MCLE seminars on how to write legal prose. "MCLE" is the acronym for Mandatory Continuing Legal Education. Most state lawyer-licensing authorities now require lawyers to attend a certain number of hours of CLE courses every three years, typically 45 credit-hours. (MCLE requirements are themselves a source of controversy, and rightly so.) Garner advocates the "cleaner" look and greater readability that he believes result from putting most citations in footnotes. But a much better writer, Scott Turow -- the practicing lawyer who also writes novels in which that most boring of species, the lawyer, finds himself in thrilling and suspenseful situations -- disagrees. I have been amused in recent years by all the judges and lawyers (usually not very good writers) who run around not only trumpeting Mr. Garner's books and seminars but trying to coerce other judges and lawyers (some of whom are good writers) to read the books and attend the seminars. My own view is that it is useful for judges and lawyers to "expose themselves" regularly (but not literally) to a variety of legal writers generally thought to be good at the trade. My favorite after over 30 years of reading (and drafting) opinions is Justice Holmes. But he was, as Justice Frankfurter observed, a literary genius of the first magnitude. It's pretty hard to emulate Holmes. However, by reading his prose, including his amazing letters (often dashed off while listening to boring oral arguments), one can hope that some of the magic wears off on one -- particularly Holmes' amazing powers of condensation (Holmes could say in a few paragraphs what the typical meandering judge says in 15 pages). Anyhow, I think it's wise to give a look at Garner's books but not to accept what he says as gospel. There is no one right approach to legal citations or to much of anything in writing or in life. One bit of advice, however, comes to mind. It's related to Justice Black's statement that he tried to write his opinions so that his uncle, who was reasonably intelligent but not a lawyer (sounds like he was talking about the "reasonable man" of legal lore), could understand them. My advice is: try write the brief or opinion so that one's secretary (by definition a "reasonable person") can understand it if she cares enough to bother to try understand it. I've always been amazed at how many lawyers and judges, simply because they have law degrees and a bit of experience, assume they are smarter than their secretaries and better writers. Truth is, I've known secretaries who were smarter than the lawyers and judges for whom they worked -- and better writers. "They" often have a nonverbal way of letting you know what they think of the dictated prose they are typing. They'll express their mild contempt by a knowing roll of the eyes or a smirk. (God how I miss those rolling eyes and smirks!) And you'll know exactly what they mean. :-) Anyhow, this all brings me to another little news item: a Canadian legal secretary (not a lawyer or a judge) has won the annual "Bulwer-Lytton" competition for deliberately bad writing. [more] The best of the inadvertently-bad writers are those who try too hard to be good writers. Winning the Bulwer-Lytton Award generally takes two things: one must have read lots of fiction, good and bad; one must be able to deliberately (advertently) write an opening sentence that one knows is bad. I've read some of the compilations of Bulwer-Lytton commendees. I prefer the real thing in bad writing, legal or otherwise. The now-defunct (but web-revived) National Lampoon occasionally published some of the (unintentionally) funniest first-lines from the slushpile of a New York literary agent. Here's a link to a site that has reprinted one of those collections. Click here. (07.10.01)

Front page

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.