Tuesday, June 16, 2015

Terrifying Judges

"No one has to read a word I write."  In a column in The New York Times last week, novelist Robin Black suggests that "emerging" women writers tape these words to their computers.  Good advice to all writers. 
         That is not the case for me and my colleagues on the Court of Appeal.  Nor is it for trial judges who must write, among other things, judgments and statements of decision.  The lawyers involved in the cases we write about, and usually their clients, have to read what we write.  So do judges and lawyers searching for precedent.  Readers of this column have the luxury of stopping right now, "skimming" over the prose, or lining their birdcages. 
         But all writers have an obligation to all of their readers‑‑to be understood.  We may fall short of this goal because we often write to understand.  Writing through the problem gets the writer to a way station, a place of private understanding.  This "stop" may be far from the final destination.  The re-write for the reader tests the writer's understanding. 
         In Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665-666, 667, I wrote, "An opinion ought to be written so that a reasonably intelligent reader knows what it means.  The opinion ought to be concise and clear, not vague and obscure.  The holding of a case should state a principle of law with sufficient clarity so that persons can carry on their affairs with reasonable predictability as to the legal consequences of their actions.  If, however, an opinion can reasonably be susceptible to different interpretations, then the writer may have failed to meet his or her obligation….  We writers and readers of opinions should heed the admonition of Voltaire.  'Let all the laws be clear, uniform and precise: to interpret laws is almost always to corrupt them.'  (A Dict. of Legal Quotations (1987) p. 18.)"
         I hope that did not happen in my interpretation of a 177-word sentence in Penal Code section 1203.2a dealing with probation violations of defendants who are sentenced to prison on a later case:  "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel."  (People v. Holt (1991) 226 Cal.App.3d 962, 966.) 
      My response to the Legislature's unpalatable concoction:  "It is an unenviable chore to consider section 1203.2a.  The statute reflects a disregard for careful drafting and contempt for the English language.  Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult.  Nevertheless, we have persevered in our trek through the statute's thicket of tangled clauses.  Our efforts have not gone unrewarded.  The statute has a specific meaning that apparently was not discernible to other courts."  (People v. Holt, supra, 226 Cal.App.3d at p. 965.) 
         But readers also have obligations.  Short and simple may be clear but nevertheless misleading to the careless reader.  Last Sunday morning I met a friend for breakfast at Factors Deli on Pico Blvd. in Beverly Hills.  The side streets adjacent to the deli are mostly residential.  The first four parking places on the side street perpendicular to Pico are metered.  The parking sign reads, "TWO HOUR PARKING.  SUNDAYS EXCEPTED."  Further down the street beyond the parking meters is a parking sign that reads, "TWO HOUR PARKING M-SAT.  PERMITS EXCEPTED.  NO PARKING AT ALL OTHER TIMES." 
         Had I not noticed the meter maid slipping tickets under the wipers of the parked cars without permits, I would have gotten a ticket.  The sign is clear, but the confusion stems from the sign next to the meters which allows parking on Sundays.  I would lose in court if I tried to argue the signs were confusing. 
         I hesitate to improve on the warning etched on my car's side mirror, "Vehicles are closer than they appear."  These few words tell us to be careful changing lanes because the cars we view in the mirror are not as far back as they appear to be.  Hard to put that on a small mirror, and harder to read.   
         But there is a problem with confusing language that compels us to supply what we think the writer intended.  In a recent article discussing the skills of a mediator, a lawyer offered his comments about the mediator, "You can throw a rock and hit a mediator in L.A.  Everyone on the bench wants to be one.  Relatively few know what they're doing, and (this mediator) is one of them."  My bet is he thinks this mediator knows what she's doing.
         But the writer who strives too much for brevity may lead the reader astray.  "She leased the building."  Was she the lessor or the lessee?  Context might provide the answer, but standing alone this statement needs clarification.  "They are terrifying judges."  Are terrorists threatening the judges or are the judges just being themselves.
         Sometimes ambiguity is no one's fault.  A journalist friend of mine interviewed the winner of a beauty contest.  She asked the beauty queen how she felt after winning the contest.  The journalist wrote that the beauty queen replied, “I felt odd.”  The beauty queen wrote an irate letter to the journalist arguing that she had been misquoted.  The journalist referred to her notes and repeated the beauty queen's response.  "Yes, that's what I said and you misquoted me.  I felt awed.”  I side with the journalist on that one.  Am I asking too much to have expected the beauty queen to be clearer with “I felt a sense of awe.”  Or perhaps the journalist might have inquired further about the odd response. 
         I was dining in a neighborhood restaurant and told the waiter I liked my soup “hot.”  The soup arrived and, after just one sip, there was an inferno in my throat.  The soup was moderately warm, but the pepper and hot spices that were added to accommodate what the waiter thought were my ironclad taste buds precipitated a conflagration in my larynx.  My fault. 
         I am not sure how to characterize this final example.  I recently received an award for "Journalism Excellence."  I am not bragging as you will discover.  The award, memorialized in elegant script on a large parchment-like document, recognized me for my "insightful and courageous writing."  Sounds good, right?  It also noted that my dedication to truth and integrity in the judiciary are "paralleled."  Well, at least it won't go to my head. 
         And this takes me back to my recurring theme of uncertainty.  It requires effort to express what we wish to say or write.  And it requires effort to read with care so we do not make unwarranted assumptions.  Even with these cautions, uncertainty is ubiquitous.  
     James Terry, an insightful clerk in our court, asked me how the President spelled his name in 1975.  We are still friends.   

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