I have been asked to post something about legal writing. I don’t know a damn thing about legal writing, as this blog constantly proves. But, hey, ask and you shall receive.
The dispute between Justice Scalia, Professor Garner and Judge Posner about the 2012 Scalia and Garner book Reading Law: The Interpretation of Legal Texts became legendary for nerds like me who have no life. I took a nasty poke at all three of them in my “Top Ten” post on legal writing. (Point 9.) The spat between these three captivated the blogs and swords were drawn on both sides. That controversy died down until very recently.
In response, Professor Garner did something highly unusual. He hired someone to objectively review the controversy. The report is now out.
Runs batted in: Scalia and Garner 8 and Posner 1 (with 3 partials leaning Posner).
The author, a highly regarded appellate lawyer (Steven Hirsch), was paid a token fee of $500. He was given free rein to write whatever he believed. There is no reason to think he was biased. Indeed, he said that “I am actually a great admirer of Posner. He is a national treasure. I believe in his brand of legal realism[,]” though Posner should have been “a little more careful” in his criticisms.
Maybe I am credulous, but this effort by Garner strikes me as particularly praiseworthy. It represents a concrete commitment to introspection, humility and intellectual honesty. Scalia and Posner could use a dose of those values (although I deeply admire each of them).
Anyway, good for Bryan Garner.
By now, you know my posts (here and here) about lawyers who are females and courtroom attire stirred up a controversy of stunning proportions. Indeed, the device in this platform that counts such things tells me those stories generated more “hits” than any other related posts except for the ones about how my sentencing instincts suck as evidenced by Shon Hopwood’s remarkable redemption. (See here and here.)
Some of you may know also that I hold an affection for top ten lists. (See, e.g., here.) I revert to that shtick once again.
Here are the top ten things that I learned from writing the courtroom attire posts:
1. I shouldn’t believe my own press. (See here (“Courts”) and here “Miscellany” at p. 126).) I am not nearly as good at blogging (writing essays) as I thought I was. That is, the only thing bigger than my ass is my ego.
2. A highly regarded legal blogger and true trial lawyer accurately put my grievous error this way:
“Judge Kopf was terribly wrong to have framed his point the way he did. Not because he violated the sensibilities of Millennials and Gen-Xers, who have been weaned on Orwellian notions of language to the point that they can’t even begin to grasp that there are good people who use words that they were taught are evil, but because he didn’t realize that his audience consisted of people for whom these words meant something very different.”
SCOTT H. GREENFIELD, A Poor Choice of Dirty Old Words, Simple Justice (March 29, 2014).
3. I should never, never, never have included my kids and the law clerks in this type of post. As one gentle soul who loves me unconditionally remarked with resigned sadness, “you see your work and the people who are close to you as being the same thing. We don’t see it nor want it that way.”
4. The “true story” I used in the post was untrue, although it was essentially accurate. It was an amalgam intended to take separate but similar experiences of mine in the courtroom and to blend them together precisely so I didn’t identify anyone. But because of my evasion and ineptitude, I set off a snipe hunt. I am so terribly sorry for that.
5. I can’t stop berating myself for giving aid and comfort to those who say federal trial judges shouldn’t blog. This is a powerful medium that can do much good in promoting an honest understanding of the federal trial court (a place that is not an abstraction), but I just handed the other side a sharp-edged weapon to maintain a status quo of sanitized mythology.
6. I despise faux apologies. So, for the uber outraged, hear this: I believe what I wrote. I extend no apology of any kind to those readers who wanted to be offended by my writing. And, eschewing mere truculent defiance, the vitriol will not deter me from judging and blogging in the future. By the way, and I suppose this is quaint, I view blogging as an opportunity to write a collection of short essays around a common theme. From the reader’s perspective, that means one might profitably look at the many blogs posts that come before the one in question. That is called the search for context.
7. I always knew edgy humor was both dangerous and hard to pull off as a writer, but it is much harder and more dangerous than I had ever imagined. That is an observation, not an excuse.
8. Because I was too defensive, I wrote Erin Grace, a real journalist, with a kind heart, that I don’t care how she remembers me. That was also untrue.
9. I harmed my District of Nebraska colleagues. In particular, I put my Chief Judge, Laurie Smith Camp, a person whom I revere, in a horrible position. That makes me sick at heart.
I adore Bette Midler. She is so talented. Intellectually, she is very bright. And, she is funny in a wonderfully theatrical way. Truly, she is the Divine Miss M.
Now, forgive the cognitive dissonance as I transition to George Orwell. At the end, I’ll get back to the Divine Miss M.
In my legal writing post, a commentator (Matt) and I discussed George Orwell’s 1946 essay “Politics and the English Language.” Orwell’s essay dealt with abuses of the language in a political (and by extension legal) context.
He concluded his essay this way:
I have not here been considering the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought. Stuart Chase and others have come near to claiming that all abstract words are meaningless, and have used this as a pretext for advocating a kind of political quietism. Since you don’t know what Fascism is, how can you struggle against Fascism? One need not swallow such absurdities as this, but one ought to recognize that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political [legal] language — and with variations this is true of all political parties, from Conservatives to Anarchists — is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind. One cannot change this all in a moment, but one can at least change one’s own habits, and from time to time one can even, if one jeers loudly enough, send some worn-out and useless phrase — some jackboot, Achilles’ heel, hotbed, melting pot, acid test, veritable inferno, or other lump of verbal refuse — into the dustbin, where it belongs.
I began thinking hard about Orwell’s essay after Matt reminded me of it. How frequently do I violate Orwell’s admonitions in my daily judge-job? As it turns out, I rely upon “verbal refuse” just about every day. Let me give you a prime example.
When I sentence someone in a criminal case, I must resolve objections to the probation officer’s detailed investigative report. Then, I must grant or deny any motions. After that, I must calculate the applicable Guideline levels. Finally, the law requires that I make an oral statement giving the reasons for my sentence. It is at this point that I want the reader to recall what Orwell wrote.
To comply with the requirement that I state my reasons for a sentence, I have a “song and dance” that I invariably follow. It goes like this:
To reflect the seriousness of the offense, to promote respect for the law, to provide for just punishment and to afford deterrence, and further recognizing that the Guidelines are advisory, and considering all the statutory goals of sentencing, I impose the following sentence: [state sentence].
As part of my “song and dance,” I then make inquiry of the lawyers. “Do counsel have any questions about my judgment and sentence?” If so, I answer the questions. Then, and here is the trap, “Do counsel want any further elaboration of my statement of reasons?” If counsel do not request any further elaboration, the reasons for my decision are bullet proof on appeal for plain error purposes. If counsel do request some further elaboration, I give it to them in spades. Either way they’re screwed.
As I think about it, I am probably doing what Orwell railed against. But, never fear, I have all sorts of reasons (rationalizations) why I will continue to do what I do.
So, back to the Divine Miss M. I have my own Divine Miss M. She is my oldest daughter Marne. She is very bright, funny and wonderfully theatrical. For example, my Divine Miss M. has flamboyantly taken me to task for forgetting that Orwell’s 110th birthday was last Tuesday, June 25, 2013. She punctuated her point by emphasizing that the Dutch put little party hats on the CCTV cameras in Utrecht as an homage to Orwell. She chastised me for failing to rise to the occasion.
My Divine Miss M. has a point. So, since I am a serial abuser of the language in a manner that Orwell would have deplored, the least that I can do is say, “Happy belated 110th Birthday, George. You’re a better man than I.”