July 19, 2012
A post script
A dear friend just started a private blog and I had to log into WordPress to view it, which entailed visiting Write Bailiwick for the first time in years. It makes me consider starting a new blog. Some days I miss writing. I miss the craft and the small joys of finding the right words, especially the right verbs. (I am proud, though, that my new place of work regularly uses the term “bailiwick” in division of labor discussions, which I think originated with me.)
As I look over the old posts, I realize a new blog would be very different. For example, I didn’t own chickens in 2008 and I probably never thought I would own chickens. Chicken stories are probably more amusing than random words and legal musings. The tone of the older posts also lacks authenticity and maturity: qualities that I still lack, but at least am more consciously working towards. My role model would be here.
Of course, there are plenty of reasons not to start a blog. I don’t need something else tugging me towards the internet. I don’t have a name for the blog. (“Aiming for Purgatory”? A bit dour. “One Farmer’s Wife”? Taken.) It would need photographs and I don’t get along well with my camera.
If anyone is reading out here in cyberspace, what do you think?
February 20, 2008
A Sentence Out of Context
I read this sentence last night and thought it worth sharing. If I am reading carefully, I try to be alert for well-tuned sentences, which are fun to collect even though more cumbersome than words.
I have a passion for writing on clean single-lined foolscap; a smear, a tea-mark on a page makes it unusable, and a fantastic notion took me that I must keep my paper locked up in case of an unsavory visitor.
Graham Greene, The End of the Affair. I suspect a few others out there might be reading this one too these days . . . . Foolscap, by the way, refers to paper that is 8 1/2 by 13 1/2 inches. More information on it can be found here.
February 5, 2008
A Tribute to Judge Selya from a Former Clerk
A former clerk to Judge Selya, a senior judge on the First Circuit with a penchant for using neglected words, penned this tribute to his judge (and his judge’s vocabulary) recently in the National Law Journal. In one brief anecdote (my favorite from the article), the clerk recounts how he managed to work “crapulous,” a word he gleaned from a page-a-day calendar, into an opinion. Crapulous means suffering from excess food or drink, making the word a bit trickier to place than one might initially think (since decorum and proper usage would preclude simply referring to the crapulous briefing . . . ). Fortunately, Judge Selya had the opportunity to decide a case involving a bar serving a noticeably crapulous customer.
My previous posts about Judge Selya can be found here and here. A tip of the hat to one of my regular lurkers out there for pointing this article out to me!
January 27, 2008
Orphaned Words
Plato writes the following passage in the Phaedrus:
[Socrates:] You know, Phaedrus, writing shares a strange feature with painting. The offsprings of painting stand there as if they are alive, but if anyone asks them anything, they remain most solemnly silent. The same is true of written words. You’d think they were speaking as if they had some understanding, but if you question anything that has been said because you want to learn more, it continues to signify just that very same thing forever. When it has been once written down, every discourse rolls about everywhere, reaching indiscriminately those with understanding no less than those who have no business with it, and it doesn’t know to whom it should speak and to whom it should not. And when it is faulted and attacked unfairly, it always needs its father’s support; alone, it can neither defend itself nor come to its own support.
(275d-e, Nehamas and Woodruff translation). As this passage articulates, one danger in setting ideas down in writing (or art) is that they stand alone and immutable, unable to dialogue or offer nuances or clarify ambiguities. The work is fixed. Because of this permanence, nominees for the federal bench at all levels now presumably cringe at or avoid publication of any potentially divisive statement.
I find the permanence of writing a frustrating, yet inescapable aspect of the medium. As I and my ideas and abilities mature, I cannot re-write all that I have previously written. I look back on some of my written work, including a few published pieces, and recognize a naivete or immaturity of thought that borders on embarrassing. Even this blog (which I can delete, but which is probably cached by Google or somebody out there in perpetuity . . . ) is a risk. I set down ideas, casually and regularly, submitting them to the amusement and judgment of both known and unknown readers. Perhaps that motivates, at least in part, my use of a pseudonym, although I have decided not to write anything I would not put my own name to here (and most of you readers out there know who I am anyway!). Yet, writing as an activity helps me to formulate my own thoughts. It is a snapshot. And at some point, an author should let go of the work, perhaps not even coming to its defense (for example, I think J.K. Rowling was horribly misguided in “outing” Dumbledore recently) and leave the words as orphans to be find their own way in the world.
Feel free to orphan a few words of your own in the comment box. 🙂
January 16, 2008
On Pilcrows and Interrobangs
Back when I worked on a publication in law school, one of the more tedious tasks (with possibly questionable efficacy) was the “read-aloud.” In this final stage of editing, pairs of editors would read rather dry and lengthy articles, and their footnotes, out loud to each other. The reading included punctuation. (Thus, the first sentence above would be read: “Back when I worked on a publication in law school comma one of the more tedious tasks open paren with possibly questionable efficacy close paren was the open quote read hyphen aloud stop close quote.”) My editing partner had a special talent for distinguishing italicized commas from standard font commas (a task more difficult in some fonts than others, and this was a font with jaunty commas!). The most exciting moments (other than finding those pesky italicized commas) were the rare exclamation mark, which one reads aloud as “bang.”
For the rare soul out there who enjoys having the labels for punctuation, I have two to add to your collection. The interrobang and the pilcrow. The interrobang combines a question mark and an exclamation point and looks like this:
The pilcrow designates a paragraph and looks like this:
Interestingly, monks used the pilcrow in the Middle Ages to designate a new train of thought, thereby conserving paper space. (I extrapolated a bit from this article, which does not mention monks or paper space, but who else would be using the convention regularly and for what other reason?)
Rumor has it that some chambers use read-alouds before opinions are published. (If I were clerking for such a judge, I would definitely try to slip in a bang, or maybe even an interrobang to spice up that task!) If I had to design an editing process now, I am not sure that read-alouds would be part of my system. Of course, its efficacy is only as good as the editors. Our publication did pretty well, all things considered. I did, however, have occasion to cite to it after its publication and, sadly, had to use a “sic” to denote a mistake in the original. I suppose it remains a good opportunity to practice humility!
January 2, 2008
Neglected Words
“I don’t believe there are obscure words–just neglected ones.” Judge Bruce M. Selya.
Senior Judge Selya, a Reagan appointee to the First Circuit, is renown for his use of obscure (neglected) words in opinions. One article about the sesquipedalian septuagenarian notes criticism from some members of the bench and bar that his linguistic fillips render his opinions unclear. The article further discusses a law clerk’s perspective:
But for Selya, the more exotic, the better. In a book of memoirs his clerks gave him for his 15th year on the federal bench, Sara Lord recalls how the judge often flipped through his thick, dusty 1934 Funk & Wagnalls New Standard Dictionary to find the right word.”It wasn’t enough that the word be obscure,” she writes, “it also had to be ancient and exotic in origin. Anglo-Saxon words were good, but I remember the judge being particularly excited when he was able to use an ancient Persian word that probably no living person had seen or heard in the last thousand years.”
I would avoid words that no living person (besides the poor dictionary editors) had seen or heard in the last thousand years. At some point, neglect kills a word and we should just move on and let the poor word go. More reasonably than the law clerk’s hyperbole, the interviews linked above clarify that Selya does have mercy on his readers, and prefers to use precise words that can be decoded from context. (An example is in the post below.) A few lines I found in internet searches do seem excessive or contrived, in more than just word choice:
Plaintiff, as if bent on out-heroding Herod, see generally W. Shakespeare, Hamlet, Act III, sc. ii (1601), harangues stridently that brevis disposition of his complaints contravened both the general purposes of Title III and the specific rationale behind the statute’s consent exception. Turning up the volume, however, cannot mask the paucity of content contained in plaintiff’s argumentation. Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990). See here.
Because Cytyc failed to develop these embryonic arguments, we treat them as stillborn. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”). Cytec Corp. v. DEKA Prods., No. 05-2371 (1st Cir. Mar. 1, 2006).
I do appreciate his efforts (and those of his clerks) to make reading more interesting. The fun with language, however, must be tempered by the dignity of the parties before the court. A prisoner without a good dictionary probably does not appreciate the whimsical wording of an opinion deciding his fate (and, to Selya’s credit, the interview notes that he avoids puns with parties’ names now). Nonetheless, I would enjoy sitting down with Judge Selya for an afternoon, perusing his dictionary, and sharing Article III Bundt Cake* with his chambers.
* The Bundt cake deserves a post of its own some day soon.
December 13, 2007
On the Sixth Amendment and Moose (Meese?)
Here is a quick quote for your end-of-the-week amusement. The Sixth Amendment entitles a defendant “to have the assistance of counsel for his defense.” Courts interpret this constitutional provision to include the right to have defense counsel present for trial and on appeal. Judge Easterbrook has further explained, “A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. Nunez v. United States, No. 06-1014 (7th Cir. July 31, 2007) (citing United States v. Cronic, 466 U.S. 648 (1984)).
The idea of a moose in the courtroom (or absent from the courtroom, in this case) makes me smile. I wonder why Easterbrook thought of moose. Moose do inhabit Alaska, a known Easterbrook haunt.
November 29, 2007
Communication: Written, Oral, and Digital
In C.S. Lewis’s introduction to Mere Christianity, he reccounts that he composed the work as a series of lectures, which he then turned into print form. In doing so, he left the contractions in the text and used italics to convey the emphasis from his voice. In the later addition, he reconsidered the matter, deciding that the written form should be without contractions, and he recast the sentences with italics to create emphasis through structure and word choice, as befits the written medium. (Ironically, I listened to this written edition of his work on a CD recording.)
I agree with C.S. Lewis that the written and spoken language are distinct media for communication, possessing different advantages and warranting different treatment. Often in reading briefs, I would guess that one was the product of dictation based on the casual tone, contractions, and (sometimes) lack of coherent paragraph structure. Personally, I have never managed to draft by talking, but I do know and respect several attorneys who manage to do so without compromising the written form. Similarly, oral arguments that were essentially read from a script lacked the necessary engagement and versatility to persuade judges whose questions did not follow the advocate’s plan.
I would further note that the digital age and speed of communication has brought forth another medium: text messaging and email, which bear with them a peculiar abbreviated and informal style. (If I could have, I would have managed to produce a sentence here with a slew of the latest coined phrases, but, alas, such is not my gift.) In business, I have treated email as written letters, but I harbor an instinct to treat digital communication differently. Among friends, I would be happier to forget the shift key and formal punctuation, and dash off quick notes. Of course, such informalities are best suited for true friends, as such shortcuts often lose a sense of tone, often causing ambiguities and potential offense if the reader does not give the sender the benefit of the doubt. Hence, one friend’s advice to wait before hastily clicking send. I do wonder what C.S. Lewis would think of today’s rushed use of language, the near evaporation of real letters (with stamps!), and (perhaps?) loss of the appreciation of lingustics and word origins.
November 28, 2007
E’ = E – b
E-prime equals English minus the being verbs. I recently read about this subset of the English language, “E-prime”, which some advocate for legal writing. Lawyers did not invent e-prime (see here, describing its origins in semantics and offering a taste of my grad school days–check out the relativism in the ‘improved’ sentences), but lawyers may benefit from the discipline the ‘language’ imposes. The omission of being verbs makes writing more efficient, forces writers to employ less cumbersome verb phrases, eliminates the passive voice and other ambiguities, and generally shortens and focusses communication. That said, complete elimination of being verbs creates a slavery of its own (for example, if arguing for a client’s actual innocence, should not the lawyer simply say, “the defendant is innocent”?). Sometimes we do want to make absolute identity statements, making “is” the most efficient word choice (for example, Superman is Clark Kent, Samuel Clemens is Mark Twain). Nonetheless, E-prime offers a method to disciplining one’s drafting. Although the billing attorney may not afford the luxury of “translating” a brief into e-prime, keeping the rule in mind while drafting might tighten one’s thoughts and make reading easier for the law clerks and judges who spend their days skimming briefs.
The Write Bailiwick 