On edentulism and legal writing

I suffer from edentulism and after yesterday the condition got worse. That naturally lead me to Judge Andy Guilford’s call for the use of modern headings in legal writing. I know Judge Guilford just a bit. He was a very experienced trial lawyer in California before be became a federal district judge. He is a member of the American College of Trial Lawyers, and a former President of the State Bar of California. I bet he is a great trial judge. I know he is a nice guy.Resources-15002-guilford_hon andrew j_20141011115535

Anyway, the Judge can write. He also has good ideas about legal writing. Please read “Judge Andrew J. Guilford, ‘Modern headings to head readers the right way’” from the V conspiracy. I heartily endorse the Judge’s ideas on this subject. Tell me what you think about the Judge’s views (and, while you are at it, feel free to offer any solutions to my condition).

RGK

 

The evisceration of Dahlia Lithwick

Scott Greenfield

Scott Greenfield

If you want to read a great piece of critical legal writing, page through Scott Greenfield’s piece Horse-Trading Constitutional Rights. Scott incisively dissects a poorly reasoned article written by the very bright Dahlia Lithwick for Slate entitled The Courts’ Baffling New Math.

Dahlia Lithwick

Dahlia Lithwick

To be clear, I pimp Scott’s piece primarily because it is an example of excellent legal writing. Moreover, but less importantly, I agree with his point. Finally, Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.

RGK

Nebraska plays Miami tonight, and “Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal”

Photo credit: Ted Kirk/Lincoln Journal Star. Nebraska's Jeff Smith has a two-point conversion pass from Turner Gill batted away in the fourth quarter against Miami in the 1984 Orange Bowl.

Photo credit: Ted Kirk/Lincoln Journal Star. The Huskers’ failed two-point play in the fourth quarter against Miami in the 1984 Orange Bowl.

Some of you are old enough to remember when Tom Osborne went for two, seeking a win against Miami rather than a tie. Had Dr.Tom simply kicked the extra point, his Huskers would have been national champions that year. But Osborne did  not think or play that way. The Huskers went for two points, a defensive back from Miami swatted the short pass away from the Husker receiver, and Miami won. If sports can teach young people, this was one of the greatest teaching moments of the modern era.

Tonight, the Huskers play Miami again here in Lincoln, under the lights and on national television. Our little town in our little state is all a twitter. And, that, of course, brings me to Ray Rice.

I love football. I love high school football.* I love college football. I love the NFL. I don’t care much about Ray Rice or whether he will win his appeal of his indefinite suspension. But, I do care about good legal writing.

Levi S. Zaslow

Levi S. Zaslow

Levi S. Zaslow is a young lawyer in Maryland. He has written a terrific piece explaining why Ray Rice should win his appeal of the indefinite suspension for beating his wife after he was first punished by the Commissioner of the NFL with a two game suspension. See Levi S. Zaslow, The Legal Appeal of the Ray Rice Appeal: Despite a Broken Process, Ray Rice’s Indefinite Suspension Should Be Reversed on Appeal (September 18, 2014). It is very nice piece of legal writing about due process and the strange world where the NFL and the League’s detractors confront the realities of labor and employment law. Go read it, and, go Huskers!

RGK

*As I have mentioned before, one of the best moments of my life was when Dr. R. Keller Kopf, then 18, ran onto the turf at Memorial Stadium while pictured on the big screen at the beginning of the Class A state football championship. As the “small tight end,” Keller made me proud. I knew how hard he had worked to build his body and mind to a point that would allow him to play in such a game. The perseverance he learned in that endeavor served him well later on, and serves him well even now.

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia

R. Keller Kopf, Institute for Land, Water & Society, Charles Sturt University, New South Wales Australia

 

Problematic

Some time ago, I banned my law clerks and the pro se staff lawyers, who I also supervise, from using the word “problematic” when writing opinions. Gabi (who is now our chief pro se staff attorney, a wonderful writer and a very funny young woman) gave me an essay on the subject that gently chided me for the fox paw.  That essay is reprinted below.

By the way, the persons referred to in the essay as Laura and Ryan are law clerks or members of the pro se staff. The person referred to as “Kris” is my judicial assistant. The “Marnie Jensen” named in the fourth footnote (****) was then the chief pro se staff attorney who has now gone on to become a partner in AM 100 firm.  Before she came to work for the court, Marnie was one of the lawyers in the case to which the footnote related.

Even though I personally found it both plainly perturbing and petulantly perverse, here is Gabi’s paen to “problematic”:

Problematic: an Essay

Problematic. Few words have such rich and multivalent uses. Surprisingly, there are still individuals in society who object to its use and take for granted the magnificent beauty it brings to language and, in turn, humanity.

A. Sometimes, “Problematic” is an Adjective

When used as a predicate adjective, “problematic” is the perfect subject complement. Take the following example: Laura’s propensity to walk through the office shoeless is problematic given the physiological qualities of the human foot (i.e., over 200 sweat glands*). Of course, Gabi has also been known to roam shoeless, however, this is far less problematical because her feet are always perfectly manicured.**

“Problematic” is also a very useful adjective when a writer must convey the severity of a situation and simply stating “there is a problem” does not pack enough force. For example, imagine an active shooter entered chambers while Kris was away and it was up to Ryan to alert the judge. Given Ryan’s dispassionate and serene nature, he would slowly pick up the phone, patiently wait for the judge to answer, and then state the following: “Well [long pause], there is an active shooter in the building [even longer pause]. Guess we better take cover.” Is Ryan’s response to the situation simply a “problem” or is it “problematic”? I think we all know the answer.

 B. Sometimes, “Problematic” is a Noun

Please do not assume that “problematic” only functions as an adjective, as it is also a very useful noun. Watch me use “problematic” as a noun in the following sentence: Always the skeptical problematic, Judge Kopf has decided to begin his next opinion with, “if the people want to go to Hell, I will help them. It’s my job.”

Indeed, “problematic” is a brilliant noun. The word’s true beauty is that it can be artfully molded into other nouns that are just as grand, such as “prolegomena” and “problemology,” or if you prefer something a little plainer, “problem.”

 C. Judges Love Problematics!

The Justices of the United States Supreme Court have written “problematic” into at least 193 published opinions. In one year alone, the word was referenced numerous times.*** Indeed, the Court has affirmatively determined that all of the following things are problematic: “‘in for a dime, in for a dollar’ hypothetical[s],” Waddington, 129 S.Ct. at 830; “anti-drunk-driving policies,” Virginia v. Harris, 130 S.Ct. at 11; “deep intrusion[s],” F.C.C. v. Fox, 129 S.Ct. at 1820; “chances for success,” Ricci, 129 S.Ct. at 2701; “beliefs,” Uttecht v. Brown, 551 U.S. 1, 18 (2007); “remed[ies],” Hinck v. U.S., 550 U.S. 501, 506 (2007); “redressability,” Massachusetts v. E.P.A., 549 U.S. 497, 545 (2007); “portions,” Ayotte v. Planned Parenthood of Northern England, 546 U.S. 320, 329 (2006); “answer[s],” Republic of Austria v. Altmann, 541 U.S. 677, 715 (2004); “donations,” McConnell v. Federal Election Com’n, 540 U.S. 93, 266 (2004); and, of course, “nude erotic dancing,” City of Erie v. Pap’s A.M., 529 U.S. 277, 295 (2000).

The highly revered federal judges of Nebraska have also been known to employ “problematic” in their opinions. Notably, in Carson P. ex rel Foreman v. Heineman, Judge Kopf adopted a 200-page Report and Recommendation—which, of course, means he adopted every-last word of that Report and Recommendation—that stated, “[s]tatus offenses are acts that are problematic for the juvenile and family, but not illegal if performed by an adult.” 240 F.R.D. 456, 471 (D. Neb. 2007).****

Two other examples of Judge Kopf’s personal fervor for “problematic” can be found in Ziola v. Central Neb. Rehabilitation Services, 2007 WL 3046350 at *1 (D. Neb. Oct. 17, 2007) and Riddle v. Wachovia Securities, LLC, 2006 WL 13101 at *2 (D. Neb. Jan. 12, 2006). Judges Bataillon, Smith Camp, Urbom, Strom, Thalken, and Gossett share Judge Kopf’s love of the word. See e.g., Petersen v. Astrue, 2009 WL 995570 at *3 (D. Neb. Apr. 14, 2009); U.S. v. Kofoed, 2009 WL 2781967 at *2 (D. Neb. Aug. 26, 2009); Rosen v. Astrue, 2008 WL 731605 at *5 (D. Neb. Mar. 17, 2008); Pennfield Oil Co. v. American Feed Industry Ins. Co. Risk Retention Group, Inc., 2007 WL 1290138 at *9 (D. Neb. Mar. 12, 2007); U.S. v. Sanders, 2007 WL 1490483 at *3 (D. Neb. May 21, 2007); and Kirkpatrick v. King, 2005 WL 2180097 at *8 (D. Neb. Sept. 7, 2005).

D. My Dreams

As you can see, “problematic” is a legitimate and useful word. Personally, I have a dream that one day people from every strata of economic life will be able to say “problematic” without shame; a dream that no teacher will ever say to her student “problematic is problematic, so use a different word,” a dream that no judge will ever say to his law clerk “let’s make it a rule that no one will use that word in this office.” Call me a helpless romantic, but I also dream that one day I will wake up next to the man I love, iron his clothes, prepare his breakfast, pack his lunch, and, as he walks out the door, say to him, “See you later, my love. I hope you have an un-problematic day.”

E. Hastily-Written Conclusion

So, let’s remember baby Jesus in his manger, the blessed saints, Vietnam veterans, and all martyrs who served humanity so that we could be free to convert nouns like “problem” into predicate adjectives like “problematic.” Finally, in matters of love, life, and court-opinion writing, Lyle Lovett said it best when he wrote, “It’s a lot easier to write about things that are problematic. Who wants to hear how happy you are?”

Gabi

*Per foot.

**Do you know what happens when you type “problematical” into WordPerfect?  Absolutely nothing.  The smart people at Corel know that “problematical” is a word, and a good word at that! [RGK edit: Do you know what happens when you type “problematical” into Word? I don’t because only morons use Word which, of course, explains why the AO is pushing that piece of junk.]

***See Waddington v. Sarausad, 129 S.Ct. 823 (2009); Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009); Wyeth v. Levine, 129 S.Ct. 1187 (2009); Harbison v. Bell, 129 S.Ct. 1481 (2009); F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800 (2009); District Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009); Ricci v. DeStefano, 129 S.Ct. 2658 (2009); and Virginia v. Harris, 130 S.Ct. 10 (2009).

****Fact: Marnie Jensen finds Judge Piester’s Report and Recommendation problematic.

RGK

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