Apologies to Tolstoy

The amazing Theodora Goss writes that:

With apologies to Tolstoy, all A papers are A papers in their own way. They don’t just lack mistakes. They have something extraordinary about them, a level of engagement with the texts, a felicitous style. They grab and keep your attention, and it’s interesting to think about what does that. Usually, I think, it’s the student’s voice. The student already has an individual voice. The student is already thinking, and writing, in his or her own way. There’s an enormous pleasure in seeing something like that.

Shorter Ms. Goss: When it's done well, we cannot know the dancer from the dance.

I find that the same thing is true of a compelling legal brief; I spend almost as much time reading and editing briefs as I imagine Ms. Goss spends on student papers. And there's little that sends a thrill down my spine quicker than a well-written brief -- although it's painful if it's a brief directed against my position. Good legal writing is something that people like to pretend is an oxymoron. But good legal writing is, IMHO, some of the best writing that there is. It informs, persuades, and carries the reader along in an elegant and almost seamless manner from the initial question to what appears, by the end, to be the only possible conclusion.

How do you know good writing when you see it?

Picture found here.

Poetry And The Law

So, I am a huge reader of, lover of, and student of poetry and I have, in my wicked youth and childhood, even composed a few poems that I believe do not suck.

But I spend most of my days doing and absorbing not poems but legal writing which, I swear to you, when done well (which is not all that often (Clauses, people. Learn where to put them)), is a thing of beauty and transcendence. There are even a few legal opinions (the things the judge(s) write that say how they decided a case and why they think they are right) that are written in poetry and, if I can ever afford to retire, I'd love to collect them in a slim volume. I've only ever quoted poetry in a brief once, and the quote, a tribute to my father, was from John Milton's Areopagitica: And though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously [to] misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to second best in a free and open encounter? (My dad misremembered this in a more poetic, and, thus, better version: "Whoever knew Truth put to second best when scattered to the Four Winds?" I grew up on that. I think Milton never anticipated Fox "News").

Here's a lovely (and short!) article by a federal judge about the relationship between poetry and legal writing. I'll add only this: legal writing is all about, IMHO, expressing exactly what you mean, in such a way that nothing distracts your reader and in such a way that there is zero, absolutely zero, ambiguity about what you mean. Poetry is about expressing exactly what you mean, in such a way that you grab your reader's insides and there is zero, absolutely zero, ambiguity about what you mean, although your words may, and in a good poem quite often do, have layers of meaning. I'm good at one, good at appreciating the other. I've had a v rich life as a result.


(I'm going to be blogging a bit over the next few weeks about people who are talking about poetry. If you don't read poetry, you should likely skip over those posts. My own experience is that you need to read a lot -- no, really, a lot -- of poetry before you try to read, what is obviously "the experience once removed" of people writing about people reading poetry. I've tried to come at poetry from both directions, and I think that actually reading poetry, figuring out what you like, what you don't, what would work for you in a Dark Moon ritual, on the treadmill, in your darkest hour, when your heart overflows, should come a long time before reading about reading about poetry. YMMV.)


Picture found here

Goodling To Take The Fifth -- If Her Lawyer Didn't Fuck That Up For Her

From my days tracking down some of the Enron, et al. bad guys, I can tell you that there are two ways that you can let someone plead the Fifth Amendment. As is often the case, there is the easy way and then there is the hard way. (Jeff Skilling took the stupid way, which is to act all arrogant and not plead the Fifth, even though your lawyers told you to plead it. Jeff Skilling, it gives me intense personal pleasure to note, is in jail tonight and will be for many nights to come. I think of this every evening as I lay my head on my Egyptian cotton sheets. "I may have had a rough day," I say to myself, "but Jeff Skilling spent the day in jail." Then, I sleep the sleep of the justified.)

The easy way goes something like this. You notice the deposition of a bad guy. Bad guy's lawyer sends you a letter and says, "Hi! How's your golf game? Congrats on your son's wedding; he'll make a shitload at that firm and his wife's lovely. My client will plead the Fifth Amendment so fast that it will make your head spin. Do we all really need to waste our time? See you at the ABA conference next month; regards to your charming spouse." You write his lawyer back and say, "Hi! Wow, how about those Nats! You got great seats; your firm must have bought up a shitload of tickets. Let me know if you're ever not going to go. I saw your classmate Carl the other day; he said you used to cheat on your lawschool exams. Kidding! I think we can do this depo by phone and it will take 15 minutes. My secretary will email you the call-in number. I mean it about those seats. See you and your charming spouse at the ABA, or, if I'm too busy to go to that, at the country club dinner." You have a call-in depo. You ask the bad guy his name; he answers. You ask his business address; he says that he no longer has one but he's consulting from home. You ask if he raped California; he takes the Fifth. You ask if all his answers to similar questions will be the same. He says "Yes." You ask the court reporter if she got all that. She says, "You bet; but I get paid for at least four hours." You say, "Thanks. Bye."

The hard way goes like this. You notice the deposition of the bad guy and his lawyer sends you a chatty letter and you write back and say, "Shut up and show up." Bad guy and his lawyer show up and start taking the Fifth when you ask where he went to school. And then, for hours, you keep on asking the bad guy questions and he keeps on taking the Fifth. Punctuate this with long fights with his lawyer over whether or not he's entitled to take the Fifth on this question. Followed by, later, bad guy saying, "On advice of counsel, I invoke my rights under the Fifth Amendment not to answer on the grounds that my answer may tend to incriminate me." Over and over again. You can even take a break for lunch and come back for round two. I think that the last time that I saw this done professionally, Bobby Kennedy was AG and Jimmy Hoffa was calling him "Bobby Boy," but I'm getting old.

Looks as if Miss Monica may be heading for the hard way. Her lawyer may have been absent from law school the day that they were studying not being rude to the people who are asking you the questions.