Wednesday, December 05, 2012

Not to Confuse Terror with Error

Contained within today's column is a solecism.  Can you find it?  Moral question:  Did I deliberately place a grammatical gaffe to see if you (the discerning reader) can catch it, or have I created a protective ruse?  But first an exegesis on the value of mistakes.  

         Our mistakes are salutary.  We learn from them.  I am sure that today Vice President Dan Quayle knows how to spell "potato."  In a similar vein, I have argued there is no such thing as a dumb question.  How else do we learn and improve ourselves, stock our storehouse of wisdom?  It is quite possible my point of view stems from the plethora of mistakes I make and from the many "peculiar" questions I ask on occasion….  O.K., substitute "often" for "on occasion."

         One of my law professors told the class that appellate opinions are about lawyers' and trial judges' mistakes.  Because of my mistakes in law school (one of them may have been going there), I am struck by the irony that for the past 30 years I have been writing appellate opinions.  My law professor's characterization of appellate opinions is not entirely correct.  Question:  Can he be partially correct?  Is that like being a little bit correct?  (This is not the solecism I referred to in the opening paragraph.)  The holdings of many appellate opinions have nothing to do with lawyers' or judges' mistakes.  A holding may be based on policy or an interpretation of statute or case law.  Often that is when the losing side or a law professor ascribes error to the appellate court.  And I can imagine their satisfaction when the Supreme Court agrees with them.

         I admit that on more than one occasion where I have been reversed by the Supreme Court, I calmly agreed with the decision.  And on every occasion where I have been affirmed by the Supreme Court, I enthusiastically agreed with the decision.  One may not like being reminded of his or her mistakes, but enlightenment is of greater worth than the recognition of "being right."  If only I believed this all the time.

         But what about mistakes that are the product of inadvertence or haste?  Those are the ones that can drive you nuts.  And no amount of explaining or excuses gets you off the hook.  And often if you point out the mistakes that others make, they may never speak to you again.  Many years ago I called a colleague in another district and teased him about his use of mixed metaphors in an otherwise well-written opinion.  Twenty years later we renewed our friendship.  A justice, now retired, told me he never pointed out grammatical errors to his colleagues at the risk of offending them.  Better they should be offended and author a better opinion, one in which their colleagues will happily concur.

         What I have said so far applies to briefs, motions, writ petitions, letters, and even a column.  Some of my loyal readers gleefully pour over my monthly offerings searching for misplaced modifiers, spelling mistakes, factual errors, grammatical slips, and lapses in coherence and clarity.  None are shy about pointing them out to me.  I have waged a reasonable defense when appropriate and have acknowledged error when my back was to the wall.  But it seems the more I own up to my blunders, the more I unwittingly encourage my readers to ferret out more of these wayward pests to drop on my doorstep.  I cannot help but compare this ritual to my cat bringing home a decapitated mouse, which he deposits on the bed.  "Hey guys, look what I caught."  Nevertheless, I publicly disclose these gaffes so that we all profit from them.  

My dear friend, my colleague, my buddy, the ever perspicacious Justice Nora Manella nailed … I mean, wrote me about an indefensible error I made in my last column.  And just imagine, together we have taught legal writing to attorneys.  I wonder if she will consent to teach with me in the future.  If so, I bet she will demand top billing.

         Justice Manella writes in her e-mail, "I was surprised to see your column drawing attention to the 'error' in the use of the objective, rather than nominative, version of the first person singular pronoun ('It is I' v.'It is me')."  Parenthetically I concede this technical error, but defend it.  This phrase is used so commonly that even Fowler begrudgingly acknowledges and tacitly accepts its use.  "Who's there?"  "It is I" sounds so stilted.  I prefer, "No sweat, it's just me."  And Fowler puts me in good company.  He points out that "It's me" has distinguished ancestry.  "Shakespeare wrote All debts are cleared between you and I, and Pepys [wrote] Wagers lost and won between him and I."  (Fowler's Modern English Usage (2d ed. 1983), Oxford University Press, p. 258.)

         But the "It is I" nit is not Justice Manella's main point.  Her e‑mail continues with her puzzlement over my recognition of the "It is I" issue, while "at the same time," I committed "another error in the same column."  She writes, "I refer specifically to the first sentence of paragraph seven."  Here she quotes me:  '"This all brought home to me that some of the most successful attorneys I know are those that have developed skills and insight into other disciplines.'"  She then critiques.  "'[T]hat'?  Say what you will about lawyers, surely your friends are not inanimate soulless automatons, but sentient human beings who deserve to be collectively referred to as 'who.'"

         Of course she is right on.  She continues with a tongue-in-cheek escape clause, "Then I realized--ah hah--he's just baiting us again, hoping that sticklers (sticklettes?) like me will find yet another nit to pick.  OK, I plead nolo to taking the bait.  Very clever of you, though." 

         Of course I did not deliberately place this grammatical error in my column.  The sentence in which it appeared replaced a sentence that was awkward and confusing, but one in which "that" was properly used.  Just minutes before the column went to press, I called in to my hapless editor the replacement sentence with the offending "that."  He is absolved of all responsibility. 

         My new offending sentence, unlike its predecessor, is clear, but grammatically incorrect.  One can say "so what?"  It is an annoying fly speck on an otherwise clear windshield.  I would like to get a pass, but no dice.  The cliché about haste comes to mind.  Judges, lawyers and columnists should keep this in mind when drafting … anything.

         In the opening paragraph, I told you I have deliberately inserted a grammatical error in this column.  The first five readers who notify me of the intentionally placed mistake will receive a copy of my book Under Submission.  E‑mail me at or e‑mail The Daily Journal on or before October 5, 2012.  The arbitrary decision of the judge, that's me, is final and there is no appeal.  Justice Manella is disqualified from participating. 

         Oh heavens.  I just thought of something.  What about the dozens of grammatical errors other than the one I have intentionally placed in this column?  This involves the moral issue also raised in the opening paragraph.  That issue could be of greater importance than a solecism here and there.  What do you think?

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