Avoid quirky quarks

UNDER SUBMISSION

Two anniversaries that no one cares about. This past Labor Day marked the 43rd anniversary of my being sworn in to the Los Angeles Municipal Court by Justice Stanley Mosk. Ho hum! The second anniversary occurred in July. It marked my 30th year writing columns for the Daily Journal. The paper celebrated the momentous day by republishing the first column I wrote in July of 1988 on the same page as my July 2018 column. Yawn!

These non-events passed without a bang, or even a whimper. I celebrated the earth-shattering occasion by skipping my August column. No one noticed.

My friend and colleague Justice Bedsworth, whose columns I greatly admire, once told me that the benefit of writing columns for decades is that you can repeat some now and then with impunity. I confess that I have done that on occasion, sometimes accidentally. But I figured that while April is the cruelest month, August is the dullest month, so I took a pass.

Speaking of dull, this column I devote to judicial opinions, the incomprehensible, heavy laden ones. But first an event that takes me to today's topic. As a member on the Commission on Judicial Appointments, I recently asked an extremely well-qualified candidate for the position of Presiding Justice at her confirmation hearing to what extent, if any, her interest in the arts and music informed or influenced how she decided cases and wrote opinions.

Her response was that judges are not supposed to be creative in the way artists are. That's a good point. Judges decide cases relying on statutes, precedent and standards of review. Unlike the poet who writes to understand, judges should write to be understood. Yet, I believe, in addition to her considerable intelligence, her rich and varied background contributed to her extremely well-qualified rating.

For many years I taught a course at the judges' college in which I required the new judges to read Shakespeare's "Measure for Measure." Despite the groans, most of the judges thanked me for the experience. I recommend it because its themes are highly relevant to our present day concepts of justice. Literature and the arts give us insights into the human condition and provide judges, lawyers and everyone with a background that helps us to better evaluate facts and behavior.

When I attended the judges' college so many years ago, a lecture by a psychologist on perception made a lasting impression on me. On a projector he showed photos of what appeared to be ordinary rooms in a house. But when we saw photos of the same rooms with people either in the rooms or next to them, we realized that some rooms were constructed with sharp angles or were so small that the people inside had to crouch. That one lecture taught us judges not to jump to conclusions, to question first impressions, and to be open to the possibility that in evaluating a witness's demeanor or testimony, we may be drawing unwarranted assumptions.

If nothing else, studying literature and the arts contributes to literacy and our ability to express ourselves. Not sure that is happening today. Yes, it's important for judges and justices to have Strunk and White on hand. But there is something more fundamental that all judges should follow, a simple principle that bears repeating: "Write to be understood."

That is the task for the judge after she or he first writes to understand. What is the fundamental premise to keep in mind? We are writing an opinion, yes, of course, but what is an appellate opinion or a statement of decision? It is simply a written explanation for a decision. And that decision should be written so that a reasonably intelligent person, lawyer or judge can understand it. That means understand its rationale.

Why, I wonder, do some judges think that string citations improve the opinion? Quite the contrary, they detract. If one case or statute supports a premise, that is sufficient. Why clutter it with more citations? To appear scholarly? Footnotes for the most part have become a repository in need of a suppository. On occasion, a footnote may be useful to quote a long statute that needs to be cited in full. More often it is a dumping ground to place a point or principle the writer cannot figure out how to incorporate into the opinion. Maybe that means it is not necessary. Opinions are not law review articles. Seldom is it necessary to explore the many possible avenues to which a variety of legal theories could take a litigant. Often it is best to pursue speculation in a law review article. The judge's role is to decide the case. That is what the litigant and the lawyer want. Let the professors write about what you have written, whether it be praise or criticism. Wonder why it is mostly criticism.

And one other caution to judges and lawyers. Whether it occurs in a dissent, majority, concurring opinion or a brief, castigating the proponent of another point of view, an unfortunate and deplorable staple of our discourse today, is unacceptable. Disparagement is not a substitute for criticism. I have read recent dissents that attack the integrity of the majority. Outrageous! Eschew adjectives. Convince with nouns and verbs.

Getting back to literature and judging, I recently re-read Judge John Woolsey's famous decision United States v. One Book called "Ulysses", 5 F.Supp. 182 (S.D.N.Y. 1933). Notice I did not say I re read "Ulysses." In ruling that Joyce's "Ulysses" was not obscene, Woolsey faced a herculean task. (Professor Ronald Dworkin aficionados take note.) It was hard enough for English professors to divine its many layers of meaning, but for Judge Woolsey, it was like climbing a literary Mount Everest.

Judge Woolsey practiced maritime law before being appointed to the bench. He was not a lit major in college, but somehow he figured out the book was not obscene. In his opinion he confessed that he had to read the book several times. And Woolsey did what all judges strive to do -- write a brilliant opinion that clearly decided the case. He succeeded. Literary critics hailed the decision as a distinguished work of criticism. Judge Woolsey was simply doing his job.

His opinion was written in the style of the times, and some of the phrases he used are a delight to read. Nowhere in the book did he find the "leer of the sensualist." "Whilst in many places the effect of 'Ulysses' on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac." Judge Woolsey has a point. An emetic effect tends to dampen romance, unless you drank too much alcohol or are some kind of creep.

I also commend for your reading pleasure the appellate opinion affirming Judge Woolsey's decision at 72 F.2d 705 (1934). On the three-judge panel were Circuit Judges Augustus N. Hand, who wrote the opinion, his cousin, the renowned Learned Hand, and Martin Manton. The majority affirmed Judge Woolsey, hand in hand. (Sorry.) Manton dissented. Hey, this was 1934.

I wondered what it would be like if one of the Hand judges were feeling more celebratory than the other over the decision. My research attorney Peter Cooney suggested we would have finally heard the sound of one hand clapping. Oh dear!

And speaking of Joyce, did you know that the subatomic particle, the quark, derives its name from Joyce's impenetrable novel "Finnegan's Wake"? I learned this from famous astrophysicist Neil deGrasse Tyson in his book, "Astrophysics for People in a Hurry" (W.W. Norton 2017). Physicist Murray Gell-Mann, who in 1964 theorized about the existence of quarks, is probably one of the few people in the world who read "Finnegan's Wake," and maybe understands it. For the past 50 years, I have been working on the first page. Professor Tyson quotes from somewhere in the book where "quark" raises its enigmatic head. "Three quarks for Muster Mark!"

And this takes me to my peroration on writing judicial opinions and legal briefs. Avoid quirky quarks.