FACTS

How about another pedantic, I mean informative “how to” column for a change? The previous sentence is an example of ambiguity. If the column is yet “another,” that signifies it happens often or at least with some regularity. If so, why the words “for a change”? On second thought, maybe the sentence is ok. The “for a change” part is a touch of irony.

It is your option, dear reader, to ignore the previous paragraph. But the meaning of the second sentence of that paragraph is what I think a serious writer might ask themselves. Oh dear, in some quarters, the previous sentence I just wrote in this paragraph sets off a grammar alarm that could… caution… do not write …. (“piss off some people” or is it “piss some people off”?) That vulgarity is de rigueur is no reason to write or let alone say it. Admission – I shout, howl obscenities, when I rewrite, and on other occasions. How much better to have written in that second sentence: “But the meaning of the second sentence of that paragraph is what I think serious writers might ask themselves.” This satisfies the grammar nerds and accommodates the reality that there are more than two gender roles.

The foregoing paragraphs may be worth reading after all to illustrate what any writer who cares about writing, what any attorney who writes anything for any court, and… what any judge on any court should do: reread and rewrite. To quote what has been attributed to dozens of writers (let’s use Justice Brandeis): “There is no great writing, only great rewriting.” Would Brandeis have used the word “‘great”? I doubt it. He probably said what is also attributed to Robert Graves: “There is no such thing as good writing, only good rewriting.” Keeping all these admonitions in mind, perhaps the two previous paragraphs should be rewritten. So, go ahead and do it. It’s good practice.

About the title of this column, “FACTS” – Appellate experts and those who flaunt, I mean display, more modest credentials, have offered advice in the Daily Journal and elsewhere on how to write the winning appellate brief. Some of this advice should be taken with a grain of salt. I prefer sea salt. Much of the advice is generally valuable, but because judges are not “fungible,” they… we… may interpret the ways practitioners follow that advice differently. That is because language, the way we describe things and concepts in large part, is based on our experiences. And those experiences differ from person to person. I read once that a professor of linguistics, I think Wittgenstein, held up a box of matches and asked his students what he was holding in his hand. They shouted, “A box of matches.” The professor threw the box of matches in the air at the students. The box opened and the matches scattered everywhere. “That,” the professor is reputed to have yelled at the students, “is a box of matches.”

In briefs and opinions, we are describing the facts we believe are relevant to the issues to be decided. It is redundant to refer to facts as true. It is illogical to refer to facts as false. If they are false, they are not facts. Facts simply are. But in deciding the relevant facts, we are making a judgment from a transcript or in some cases a portion of a video. And we are relying on facts that a trier of fact in a court below has decided are true or not. Our guidelines are established standards of review. At this point I am reminded of what my contracts professor told us in law school: “Those in search of certainty should look for another profession.”

Our life experiences, predilections, and prejudices can lead us unconsciously to skew the facts that lead to a certain result. Judges must keep this in mind and carefully state the facts with scrupulous care. And practitioners, yearning for a result, must be careful to state the facts accurately even when they may not seem to lead to a hoped-for result. Acknowledging this in the legal discussion section of the brief gives the practitioner the opportunity to interpret those facts in the context of case and statutory authority in a more favorable light to the client’s cause. (Sometimes a long sentence works.)

The famous and infamous basketball coach “Bobby” Knight passed away a few days ago. He won 662 games and three national championships. That does not excuse his outrageous conduct. But I recall his responding to a question from a reporter after yet another Knight victory. “Bobby, do you instill in your players the will to win?” Knight responded, “No, I instill in the players the will to practice to win.” To make an opinion or brief shine with clarity, it takes time and effort. How else do you get to Carnegie Hall?