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By Arthur Gilbert | Aug. 5, 2019

Law Practice

Aug. 5, 2019


August — the month that many of my readers are on vacation. So why write an August column? Other columnists take off a month or two during the summer. I should do the same. I want to go where my readers go, but I don’t know where they go.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on


August -- the month that many of my readers are on vacation. So why write an August column? Other columnists take off a month or two during the summer. I should do the same. I want to go where my readers go, but I don't know where they go. And I don't even know most of my readers, other than a handful who tell me they always read my column. And how can I trust anyone who makes such an admission? One way is to look such persons straight in the eye. If they, and there are many, avoid my direct focus, I know they are lying through their teeth. Cliché.

If I do take off a month or two in the summer, I would like my editor to write in the space my column usually appears, "Presiding Justice Arthur Gilbert is away." This cryptic announcement will leave my readers wondering where I went, except for my wife who is apt to know. Of course, that assumes she reads my column. I know she does now and then when she remarks, "I can't believe you wrote that"... "I prefer not moving from this neighborhood."

When broadcasters filling in for the regular host on the television news say, for example, "Judy Woodruff is away," I wonder, where did she go? Is she on vacation? How long will she be away? Is she coming back?

Because I surmise that most of my readers, who I hope exceed single digit numbers, are away this month, I can let my hair down and write about the many things that puzzle me, hence the title "Why?" I would be reluctant to express to a wider readership my puzzlement over so many mundane subjects.

For example, in the preceding paragraph, why would I use such a trite cliché "let my hair down"? I could have written... no, I would never write "bare my soul" or "let it all hang out." I simply could have omitted "let my hair down." And why not do what I suggested in the preceding sentence and not even write this paragraph? To save space? To demonstrate editing? Wonder how the missing August readers would respond to those questions when they return in September?

Why did the new leader of Britain's House of Commons Jacob Rees-Mogg issue a memo that included certain admonitions? These admonitions were: "two spaces should follow a period, and phrases such as 'very,' 'got,' 'ongoing,' and 'I am pleased to learn' are banned." I learned this from the New York Times Sunday edition, July 28th, 2019. I support this part of his memo, even though Mr. Rees-Mogg is a conservative and an ardent Brexit enthusiast. Oh well, nobody's perfect.

Why do some appellate justices write in their opinions, "At the outset we preliminarily note" when they are noting what they are writing at the outset of the opinion? Hope those who do are away in August.

Why, throughout my judicial career, when any of my cases were appealed to a higher court, did I wait with controlled apprehension for the case to be decided? Why, when I received the opinion, did I immediately go to the end of the opinion to find out whether I was affirmed or reversed? Why did I stop doing this? Because on one occasion my elation at reading "I would affirm" turned into despair -- I was reading the dissent.

Why, on the instructions with the prescription medication I received, was there this warning: "Do not flush down the toilet or pour down a drain unused or expired drugs unless told to do so"? A bit odd, don't you think? My nephew was helping me clean up around the house the other day. I came across an old bottle of moldy drugs. Pasted on the bottle was a warning concerning the correct usage with a drawing of a skull and crossbones. I said to my nephew, "Wonder what I should do with this bottle of moldy prescription drugs?" He said, "Flush them down the toilet." Well, I was told to do so.

Why do lawyers on cross-examination often ask a witness "Is it fair to say"? This grammatically questionable and illogical interrogatory was used to excess during the recent Mueller charade, I mean, congressional hearings. "Is it fair?" Really? I once wrote a book review about Oliver Wendell Holmes. Holmes and his clerk had come to a conclusion about how to decide a case. The clerk then asked Holmes a question the clerk wished he had not asked: "Yes, we have a decision, but is it fair?" Holmes threw Black's Law Dictionary across the table at him. "Don't talk to me about fairness," Holmes thundered. Strike "thundered..." too hackneyed; also strike "hackneyed." Too... hackneyed. How about "Holmes barked"? No... dog imagery out of date. "Shouted"? Yes, simply, "shouted." That's what he did; "Holmes shouted."

A quick, fascinating ("fascinating," another word I despise) digression. Strike "fascinating"; it doesn't mean diddly. Keep "diddly." Also keep the semicolon. Some pain-in-the-ass grammarians say the semicolon is on the way out. Not here.

But back to my initial digression. I am sure you all know that today Bryan Garner is the editor in chief of Black's Law Dictionary. His book on Modern English Usage makes us all better writers and thinkers. And what does Bryan Garner have to do with this column or the-286 columns I have written? Not all that much other than make them more readable I hope. "Readable?" But it was Professor Garner who encouraged me to have my columns published. They are now in two volumes. That's why he wrote the "forward" in each volume.

I have dozens more "whys" to write about, but that's enough for now. Why did I write this column? (A question that has been asked about most of my columns.) It is August, and like many of my readers... I would like to be... away. 


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