Wednesday, December 05, 2012

An international Incident

It sure is funny the way things turn out.  Strike that opening sentence.  Instead, how about “A chance encounter on a warm day in August led to an unexpected Thanksgiving dinner, which in turn led to what might have been an international incident."?  Now I have your attention. 

Openings are important.  It drives me nuts to see a judicial opinion or any written piece that begins:  "At the outset..."  Excuse me, we know it's the outset because… it is… the outset!  Geez.  And what about "Preliminarily we note…"?  Not necessary to tell us what is about to be noted just before it is noted.  (For purists, the words "it is" in the preceding sentence are implied.) 

Now that I got that off my chest, let's get back to our national holiday and how my seemingly unconnected post-Thanksgiving dinner relates to our discussion about grammar in my last three columns.  It is apparent I have become touchy about the subject. 

It all began with the e-mail I received from Justice Manella several months ago.  If you recall, she playfully chided me for a past column in which I used a “that” instead of a “who.”  I exposed my vulnerable underbelly and disclosed the contents of the e-mail to you, my devoted readers.  And then I eventually held a contest.  I gave my book Under Submission to the first five readers who discovered a grammatical error that I intentionally placed in the column.  This in turn led to a moral issue.  What about the unintentional grammatical errors that could or, to be more accurate, would undoubtedly turn up in the column?  So many of you poured… I mean pored over my vulnerable prose in a relentless search for the most picayune errors you could find.  And you found them.  And I had to be forthright and acknowledge them, whether defensible or not.
Those past columns had garnered dozens of e-mails.  But now a quiet has set in.  The fear of embarrassment inhibited many people from writing me.  How do you think I feel?  I hope that the rules I periodically visit in my dog-eared copy of Strunk and White I have applied more often than misapplied.  I have written 207 columns for the Daily Journal, but I still fret over the possible grammatical blunders and lapses in clarity that brazenly mock my negligent eye.  The implacable deadline is no excuse.  I sympathize with lawyers struggling to get that brief or motion in by the due date.  But sympathy alone does not prompt a continuance.

I give thanks for your past e-mails and thoughtful comments about how we express ourselves.  That reminds me, I was going to tell you about Thanksgiving.  Flash back to a hot, muggy day in August.  I am on Santa Monica Boulevard in West Los Angeles shortly before noon.  I am about to enter a music store.  As I pass three young Chinese women standing on the corner, one of them says, "Pardon me, Sir.  Can you tell us where there is a mall?"  How I hate to be called "Sir."  It is almost as bad as yelling "Judge" in a crowded place, including a theater.  "Do you mean a shopping mall?" I ask.

We have a short discussion.  I learn that they arrived from China the previous day and they are exchange students who will begin studies at UCLA, my undergraduate alma mater.  I drive them to the Westside Pavilion, a mall that should satisfy most of their shopping needs.  We exchange phone numbers in case they need assistance in this foreign country from a responsible adult.  (That last adjective may be open to question.)

I drop them off and they thank me profusely.  When I arrive home, I discover one of them left a camera in my car.  I return the camera to them the next day and take them on a tour of Los Angeles, including Chinatown.  We have a photo taken of us in front of Disney Hall.  The three students are in their 20's; they are intelligent, enthusiastic, charming and funny.  Their English is impeccable.  I caution them about getting into cars with strangers and they break into laughter.  We have lunch at a delicatessen and they have their first dish of cheese blintzes.  I take them home.  We hug and say goodbye.

Fast forward to a few days before Thanksgiving.  You may have had a similar experience to the one I am about to describe.  Friends, strangers, and even the checker in the market wished me a Happy Thanksgiving.  I do not recall such enthusiasm and joy for this holiday in the past.  Are all these people Democrats?  Perhaps they are the same people who are loath to say "Merry Christmas" for fear of offending those who might be Jewish, Muslim or an atheist.  "Happy Thanksgiving," on the other hand, is a safe bet.  You can mention the name of the holiday instead of voicing the bland "Happy Holidays."

Thanksgiving Day arrives, and we have an early afternoon "dinner" at our home to accommodate my 100-year-old mother-in-law.  In early evening, just when we have consumed the last piece of pumpkin pie, and I am slipping under the table, the phone rings.  "Happy Thanksgiving" says one of the Chinese students at the other end of the line.  She explains that because everyone has been greeting her with "Happy Thanksgiving," she wanted to pass on the greeting to me. 

What else could I do but invite the three students and four other exchange students who they met at UCLA for a Thanksgiving dinner at our home on Saturday evening?  What would they know from leftovers?

We had a wonderful evening and laughed a great deal.  I gave a talk about the Pilgrims and the Mayflower.  The Wampanoag Indian Tribe gave the Pilgrims food and taught them how to survive.  Too bad we did not learn how to reciprocate.  We also discussed Robert Frost's poem "The Road Not Taken."  Not only did a few of the students know the poem, but their analysis was thoughtful and perceptive.  We also discussed American expressions and what they meant, like "Catch-22."

But, as usual, I was faced with a moral dilemma.  I gave my book Under Submission to a few of the students.  They thought it would help them with their English.  So did I.  But the next day it occurred to me that if any person read at random just one of my columns, he or she would likely discover a grammatical error here or there.  Imagine how many there must be in my 463-page book.  It could be replete with questionable syntax, misspellings, a variety of solecisms, and, yes, even typos.  Under Submission could undermine these unsuspecting students' mastery of the English language.

Overcome with guilt, I called one of the students and expressed my concern that the book could lead her astray.  She laughed much in the same manner as when I cautioned against accepting rides from strangers.  I think she said she had sent the book to Beijing for translation and distribution throughout the land.  I feared that over a billion people would be corrupted by my grammar and syntax. 

The horror of this prospect vanished the next day when my wife and I had dinner at a Chinese restaurant.  At the conclusion of our meal, I broke open my fortune cookie, squinted, and read from the small slip of paper.  My fears vanished in an instant.

Confessions of St. Gilbert

In Edgar Allan Poe's chilling story, The Imp of the Perverse, the deranged protagonist commits the perfect murder.  That no one knows about his perfect crime drives him crazy.  Wait a second.  He already is crazy.  Let's just say it drives him crazier.  He craves that everyone know that he has committed the perfect murder.  But that would mean revealing his identity as the murderer.  Sounds crazy, doesn't it?  The compulsion to reveal the secret of his identity wells up in him beyond his ability to control it.  While he is walking down the street, the dam bursts, and with "distinct enunciation," he confesses in detail how he committed the perfect undetectable murder. 

         I have a lot in common with this guy.  No, I'm not a killer.  Notice I did not say "deranged killer."  If I had, some smart ass reader would have remarked about the "negative pregnant."  The protestation "not a deranged killer" implies a run-of-the-mill killer.  If deranged, I am not a killer.  I do not kill errant spiders or other small creatures that scuttle across the floors of our home.  I catch them in a glass under which I carefully slide a thin piece of sturdy paper.  I carry them outside where I free them in the garden to roam, forage, kill or die.  This I believe is why my wife buys into the deranged appellation.   

No, I am not a killer, but like Poe's murderer, I am a compulsive confessor.  I should have been Catholic.  In my last few columns, I publicly confessed to the commission of grammatical errors.  (If I had written "I publicly confessed to my readership," the phrase "to my readership" would have elicited howls of exclamatory protests:  "redundant," "superfluous.") 

         In view of my confessions, it is not surprising I am a tad prickly.  I was heartened that so many of you took an interest in our written language—even if it was at my expense.  To promote literacy, I deliberately placed a grammatical error in last month's column.  I promised to send an inscribed copy of my book Under Submission (2008, The Rutter Group) to the first five readers who found the error.

         The response was overwhelming.  I now have 320 new pen pals.  I had to take a few vacation days to respond to all the e-mails I received.  Court of Appeal Judicial Assistant Carolyn Kornoff urged consistency:  "e-mails" or "emails."  I used both.  Dashes get short shrift.  I thought they deserved some recognition.

         Only seven people caught the intentional error, and because they responded so quickly, they all received a book.  The intentional error is one thing, but what about the plethora of unintentional errors that so many of you detected?  I was touched by the gentle tone in which you noted the errors.  But at the time you did not know whether they were intentional or not.  Thanks anyway.

         Before I announce the intentional error and the winners, let us review some of the more provocative comments about the unintentional mistakes in my previous column.  I wrote about "Vice President Dan Quayle" and his misspelling potatoe, I mean potato.  A savvy reader up on his politics pointed out that Joe Biden is the Vice President.  Good point.  My Judicial Assistant Bonnie Edwards notes that titles outlast the office.  My Research Attorney Lauren Nelson suggests "former" could have preceded "Vice President."

         Attorney Matthew Zawol nailed me with a logical conundrum.  He acknowledged that I could "intentionally insert a grammatical error into a sentence," but that "it is impossible for me to intentionally place a mistake into a sentence."  I was on solid ground when I deliberately placed "a grammatical gaffe" in the column, and "gaffe" is a synonym for "error" or "mistake."  But in the penultimate paragraph, I wrote of my "intentionally placed mistake."  Matthew, how about giving me a break on this one. 
         Justice Peter Siggins wondered "where" was I "when" (not "where") I was reversed by the Supreme Court.  I was hiding under the bed, humming Rodgers and Hart's "Where or When."

         Many of you poured salt in the wounds for my "pouring" rather than "poring" over columns.  I made the same error years ago and vowed to correct it.  So much for my vows (wedding vows still count).  I had not yet poured my morning coffee when I was rapidly proofreading.  Attorney Richard Marks appropriately entitled his e-mail "Poring, Pouring, Boring."  He wrote, "[T]o pour is a verb that means to transfer liquid or some other stuff from a container.  It must come from a Latin verb, purare, 'to purify.'  In ritual practice, objects are purified by pouring water over them. The English word is 'pure.'…  [In a] football game, … one pours a beer and pores over statistics and other boring information."  Justice Nora Manella gave me a grammatical pass on this error.  She characterized it as a spelling error.  I was always a lousy speller.  (See McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100.)
         Attorney Jim Marks disapproved "Can he partially be correct?"  He opted for "Can he be partially correct?"  Appellate Specialist Benjamin Shatz preferred my version, arguing that the other version is "archaic and stilted."  And speaking of fine appellate lawyers, Ed Horowitz wrote, "None is [not "are"] shy about pointing them out to me."  Fowler defends me on this one.  "It is a mistake to suppose that the pronoun is singular only and must at all costs be followed by singular verbs etc.; the OED explicitly states that plural construction is commoner."  (Fowler, A Dictionary of Modern English Usage (2d ed. 1988) p. 394.)

            Attorney Eric Munson landed a direct hit with his comment that my deliberate gaffe must have been in these words I wrote:  "I cannot help but compare this ritual …."  Munson goes on to say, "In the late 70's I read a William Safire article about that phrase -- it is OK to say 'I cannot but compare' or 'I cannot help comparing,' but it is grammatically incorrect to use cannot, help, and but, all together, in that manner."  Oh how I wish that gaffe would have been deliberate. 

         And some pointed out a sentence fragment here and there.  You bet.  I call it style.

         And some asked about The Daily Journal's editorial review.  Suffice it to include here a portion of the indemnity agreement I signed relieving staff and editors "from any and all responsibility, accountability, liability, wrongdoing, out of or growing out of either directly, indirectly, or by implication, any and all errors, including, but not limited to, grammatical, typo, spelling, … etc., in columns authored by Arthur Gilbert and submitted at the very last moment, precluding careful if any significant editorial review."

         And now at last the deliberate error.  It occurred in this sentence:  "The arbitrary decision of the judge, that's me, is final .…"   Yes, Fowler allows for the colloquial "It is me."  But as Justice Manella pointed out, a person is a "who" not a "that."  "Who is I?"  I'm sorry, but "Who is I" or "Who is me" does not pass my ear test.  Thanks, Jim Davis, for recommending Patricia O'Conner's book on grammar, Woe Is I.

         But certainty about the law or language can elicit a refutation.  I said (wrote) that no one says "It is I."  My friend Sacramento Superior Court Judge Jim Mize reminded me that in Camelot Robert Goulet sang:

C'est moi! C'est moi, I'm forced to admit.
'Tis I, I humbly reply.
That mortal who
These marvels can do,
C'est moi, c'est moi, 'tis I.

         The winners are Jim Davis, Esq.; Michael J. Faber, Esq.; James P. Fox, Esq.; David M. Luboff, Esq.; Bruce Monroe, Esq.; Hon. Charles G. Rogers; and Ms. Melissa Scribner.

         To all winners:  Please note an additional contest rule:  Without exception, you are prohibited from communicating to me any and all errors, including, but not limited to, grammatical, spelling and punctuation, you may divine in your copy of my book.  Violation will result in forfeiture of the book.

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?

A Time to Improvise

         “We blew them away in Chicago.”  So said Maestro Gary Greene, Esq., as he led his recently formed Big Band of Barristers to win First Place as the best lawyers’ band in the country.  Who knows … maybe in the world.  Just the day before that, I "blew it" in my August column.  But first let's talk about the band.

         The 18-piece swing band performed at the Chicago Art Institute in a competition sponsored by the American Bar Association at its annual convention in Chicago last month.  The band had to be good to win an election in Chicago.  I suppose playing “Chicago” didn’t hurt.  In two sets lasting 45 minutes each, the band caressed, enticed, pleased, tickled, mesmerized, and seduced the audience, who danced, cheered, rocked, and, most importantly, voted.

         The big band sound was brought to an appreciative audience through the hip arrangements of Jerry A. Ranger.  The tunes included “Easy Street,” "Stompin' at the Savoy," "Body and Soul,” "Jump Town," "Ballin' the Jack" ‑ sounds reminiscent of Count Basie, Benny Goodman, Artie Shaw, and Duke Ellington.

         That I am the piano player in this august assemblage of talented lawyers gives me license to take a one-eighteenth pride in the band’s accomplishment.  It was significant considering Gary Greene brought us together a mere six months ago.  And, yes, we recorded a CD, which is in the "mixing" stage of preparation for release.

         The band truly swings.  Its impressive array of legal talent is also a collection of talented musicians, many of whom had professional careers in music.  The drummer Jerry Levine, a partner at Holland & Knight, and the bass player, Robert Hirschman, a business lawyer and litigator, were on the road with top recording artists and bands before they went to law school.  We all knew one another when we were attending law school, and since then we have played together.  That's what kids do when they are having fun. 

         The band includes such lawyers as Joseph Di Giulio, alto sax; David Schorr, baritone sax; John Snell, trumpet; Gary Urwin, trumpet; Mark Eisenberg, trumpet; Alexander Plitt, trombone; Marc Sallus, trombone; Barry Goldberg, trombone; and William Hochberg, guitar.

         This all brought home to me that some of the most successful attorneys are those who have developed skills and insight into other disciplines.  Recently Gary Greene and I joined legal scholar Howard Miller and the redoubtable trial lawyer Tom Girardi on his radio show "Champions of Justice" for a stimulating discussion about this phenomenon.  A strong liberal arts education, with insight into literature, philosophy, and the arts, makes for an informed lawyer who accomplishes more for the client, more for the profession, and more for the community.  Jerry, the drummer, mentioned to me that the attention to detail and focus required of him as a musician has been invaluable in his legal practice.  And successful litigators and musicians know there is a time to think, a time to let one’s natural talent lead the way, and a time to improvise.

         What?  Now you want to know how I blew it in my last column?  I was hoping you would forget.  My column does generate e‑mails and personal letters, some even signed, and, on occasion, some with positive comments.  The ones that receive a big response are often not those that deal with monumental issues ‑ recent threats to the independence of the judiciary or the decline in professional ethics.  Cats, on the other hand, elicit a big response.  Some of the toughest litigators are the biggest suckers for their cats.  Some even admit they get on the floor with their spoiled felines, scratch them behind their ears, and speak to them in the voice of a countertenor.  So do I. 

But what prompt the most e-mails are errata.  How my faithful readers love to catch errors.  In one column, I wrote, “It is me.”  A lawyer wrote me that he was shocked that I could have made such a blunder.  True, "I" is the subject and "me" is grammatically incorrect.  I acknowledged his point, but then pointed out that no one says, “It is I.”  Fowler’s Modern English Usage points out that common usage allows for “me,” and that “I” sounds stilted.

         Unfortunately, I do not have an easy out from the error in my last column, which generated a mini-avalanche of comments.  I had written that I was in my "seventh" decade.  Of course this was wrong.  I am in my eighth decade, just like the 23-year-old is in her third decade.  That I would rather be in my seventh decade is no excuse.  I thank my readers for their attention to detail.  At least no one complained about the philosophical point of the column.  

         And this takes me back to music.  This time I draw upon the avant-garde composer John Cage.  His composition "4.33" consists of a pianist entering the concert hall and sitting down at the Steinway Grand.  He sits there for four minutes and 33 seconds not playing.  The point of the piece is to make the audience aware of the ambient noise around them, the nervous coughs and titters from the audience.  I thought about writing an opinion like that ‑ four and one-third blank pages.  Law professors would have a field day with it.  And no telling what the Supreme Court would do.

         Better yet, I should have written my last column in Cage’s style ‑ no words, just a blank column.  Then, I would not have made my error.  Cage however made a good point about error, which I recently read in The New York Times.  He said error is simply “a failure to adjust immediately from a preconception to an actuality.”  With that comforting thought in mind, I think I will listen to the Miles Davis album "Kind of Blue."