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'We are all in this...

By Arthur Gilbert Ben Armistead | Jun. 1, 2020

Law Practice,
Judges and Judiciary

Jun. 1, 2020

'We are all in this...


24 gilbert mug

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


...together?" My wife Barbara and I, appropriately masked, were taking a walk in the neighborhood. Our next-door neighbor Lucille drove by on her way to another neighborhood. She stopped, put the car in neutral, adjusted her mask so we could hear her better, and said, "Time to see some different houses and different trees." I nodded in approval and said (hate to admit it, so embarrassing)... I... said... "We are all in this together." At least, I did not use the word "actually" before the word "said" in the preceding sentence.

With undisguised scorn, Lucille said, "I don't believe what I just heard you say. You of all people. I am sick and tired of hearing that dreadful slogan." Lucille's distain is justified. Whatever we are in, we are not acting as though we are "in this together."

Lucille was also right to call the exasperating phrase a slogan instead of a cliché. Clichés generally express thoughts or ideas that most of us accept as true. Through overuse, most have become trite and unoriginal. Slogans on the other hand may or may not have anything to do with truth. But, as we are learning day to day, what is true is under attack. To repeat what I have written about before in past columns and elsewhere, facts are. The phrase "true facts" is redundant. "False facts" is a meaningless contradiction. Yes, I used the intransitive verb "is" in the preceding sentence because "phrase" is implied. And if I am wrong, I don't care. Where were we? Oh, yes, facts. Of course, adjectives other than "true" or "false" may be applied to facts; "horrendous," "remarkable" are sufficient examples. Refuse to use "incredible." Ok, it is a popular expression to describe what is... remarkable? But why "incredible"? Are so many things "incredible"? With old age, I am getting shorter, if that's possible. When they measure my "height" in the doctor's office, I am known as the "incredible shrinking judge." Why are so many events, people, and things incredible? That means they are not believable, cannot be. Fine, but use it sparingly. And under no circumstances, please do not use the ubiquitous "amazing." That its use is so prevalent amazes me.

A few more comments about facts in the legal profession. The recitation of facts in a motion, an opinion letter, a brief, a statement of decision, or an appellate opinion is often, if not always, the most important part. It is rudimentary that the law flows from the facts. Lawyers interviewing clients must ferret out the relevant facts to determine whether to take the case, and, if so... to then determine whether the client has the retainer. Best to do this in that order than the reverse. Yes, there may be honest differences of opinion about what the facts are, or what are the relevant facts. But once that decision is made, our profession demands that the "relevant" facts be stated with scrupulous care. My colleagues and I are amazed, I mean chagrined, when on those rare occasions a lawyer flagrantly misstates facts that are belied by the record. What were they thinking? Another overused phrase.

Notice that in the penultimate sentence in the preceding paragraph I used "they" to refer to the singular "lawyer" in the sentence preceding that sentence. If you did (probably not -- who would?), it was deliberate to avoid the awkward "he or she." I wrote about this phenomena ad nauseam, I mean, in detail in my last two columns. You may recall (again probably not) that after a futile struggle, I join the ranks of those who find the current use of "they" to refer back to a singular noun perfectly acceptable.

My good friend Professor Marvin Zuckerman pointed out in my last column that "they" had been used in this manner for centuries, citing such writers as Shakespeare, Dickens and Austen. Yet another writer notes that the use of "they" by these writers refers to characters speaking in novels and plays where informal usage is de rigueur. Using it in formal or expository writing may be another story.

But whether in so-called informal or formal writing, gender neutral pronouns work, and provide for more succinct writing. Enough of "he or she," and other awkward phrases occasioned by our language's lack of a common gender third person personal pronoun. Some of that evolution is engendered by the long overdue acknowledgment of women's contribution to our civilization. Now nearly a third of our state's appellate justices are women. Our chief justice and two other women sit on our Supreme Court. Nearly one-third of our 106 Court of Appeal justices are women, and these include presiding justices. And that number may increase if ever I retire. And that's a tough decision. I have been threatened with great bodily injury if I do, and great bodily injury if I don't.

But in evolving toward a more fair and equitable society where there is no discrimination, let us all acknowledge that "we are all in this...." 


Ben Armistead

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