Law and Conversation

January 31, 2011

Shakespeare, SpongeBob, and the law

Any article with “Shakespeare and SpongeBob” in the headline will get my attention.  And, indeed, I enjoyed this article from the New York Times on Staten Island Civil Court Judge Philip S. Straniere, who, with a little help from his literary friends, achieves his goal of writing decisions that the litigants can understand.  (The article’s original eyecatching headline has been changed to a less colorful one that omits the literary and cartoon references.)

Judge Straniere numbers not only the Bard and residents of Bikini Bottom among his friends, but also L. Frank Baum, Mario Puzo, Dr. Seuss, Oscar Hammerstein, Meredith Wilson, MAD magazine, and many others, all of which he’s cited in opinions he’s written. 

Lawyers are often criticized as a profession for being poor writers.  I don’t think that’s entirely fair—there are many lawyers who are very fine writers, and many fine writers who trained in the law—but it is true that many statutes, administrative regulations, court opinions, and legal articles, all of which are, admittedly, written by lawyers, rival Ambien as cures for insomnia.  I haven’t read any of Judge Straniere’s opinions, but I’ll bet they’re delightful.

Reading about the judge’s citation of nonlegal sources in order to bolster the understandability of his opinions to his audience–the litigants–made me think about another side of legal writing:  the briefs that lawyers submit to their audience, that is, judges.

Nonlawyers may not generally know that there are two types of opinions issued by many intermediate reviewing courts: precedential and nonprecedential.  They’re also referred to as “published” and “unpublished,” though that’s no longer generally true.  In Illinois, at least, all opinions, state and federal, are published in some fashion, if only on the Internet.  The two types are also referred to as “opinions,” which are published and precedential, and “orders,” which are “unpublished” and not precedential.  The number of states that continue to make this distinction is diminishing, Ottawa (IL) appellate lawyer Michael T. Reagan, who’s studied and testified on the issue, tells me.  The federal courts also continue to distinguish them.

In those jurisdictions that continue to make the distinction, it’s important because precedential opinions are legal authority and may be cited in briefs filed with the court.  Opinions that the authoring courts or judges designate as nonprecedential are often subject to court rules that actually prohibit their citation, except under certain narrowly defined circumstances.  In Illinois, the court rule applicable to those opinions is Supreme Court Rule 23.  In the federal courts, the applicable rule is Federal Rule of Appellate Procedure 32.1.  Federal district courts may adopt their own rules to some degree on whether and to what extent to allow the citation of nonprecedential opinions issued before January 1, 2007.

I’ve written a number of articles for the Illinois Bar Journal on court rules regarding nonprecedential opinions.  The most recent addressed the Illinois Supreme Court’s amendment of SCR 23, which was effective on the first of this year

Whenever I talk to lawyers who practice before courts of review, they wonder why it should be OK, and certainly not prohibited by any court rule, to cite the words of Shakespeare, SpongeBob, the Talmud, or the person they sat next to on the bus that morning, but not OK and, in fact, prohibited by court rule, to cite the words of the very court before which they’re appearing if those words happened to appear in an opinion designated nonprecedential. 

Though the question is rhetorical, it’s a good one.  The answers I’ve heard from proponents of maintaining the distinction include that nonprecedential opinions add nothing to the law (which others say isn’t so), that they’re not as well written or of as high quality as precedential opinions (an assertion that surprises me), and that citing them is never, or hardly ever, persuasive–which may be so, but then again, Shakespeare and SpongeBob probably won’t tip the scales, either.

Lawyers and judges, what do you think?  Can anyone provide other reasons for continuing to make the distinction between precedential and nonprecedential opinions?  Do the courts of other countries make this distinction?

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January 12, 2011

Poetry: Three to read

Filed under: Books and writing,poetry — Helen Gunnarsson @ 12:01 am
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Earlier this week I busted some hackneyed excuses for not reading and urged everyone to read a poem a day.  Turns out I’m not the only one with that idea!

Joanna Paterson over at Confident Writing posts “You Don’t Need a Book to Start Enjoying Poetry.”  She says she, probably like most of us who occasionally read poetry, rarely reads an entire book of poetry but opts instead to dip in now and then–a great activity for the busy person.  And she advocates looking for poetry in unexpected places and keeping an open mind about it. 

British writer Jane Gardam is on a campaign to get her neighbors to display poetry in their home and shop windows as well as inside businesses and the church yard, The Guardian writes.  I’ve seen Gardam’s highly praised books in the library and at the bookstore, and am putting them on my list.

Here are three wonderful poems.  And you can read each one in a minute or two.

1)  “Ozymandias,” by Percy Bysshe Shelley.  Read it and marvel how complex and moving a story Shelley tells in so few words.

2)  “Introduction to Poetry,” by Billy Collins.  Collins wants to put the fun and enjoyment back into poetry.  Good on him!

3)  “Late Poem To My Father,” by Sharon Olds.  A tribute to an imperfect but loving father.

Readers, what poems have moved you?

January 10, 2011

Read This: Poetry

Filed under: Books and writing,poetry,Read This! — Helen Gunnarsson @ 12:01 am
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No time to read?

Sure, you’re busy.  You work, you’re understaffed, you have a partner, you have a spouse, you have kids, you have other family members who need your time, you’re tired, you have chores, you travel, you’re on call, you do volunteer work, you’re active in professional organizations, you’re campaigning for a promotion, you’re a Very Important Person.  So, you sigh, much as you’d love to, you have No Time To Read.

Excuses, all of them. 

I know:  I’ve made many of them myself.

Here’s what all of us can do in the course of any day:  read a poem.  One poem.

Most of us probably don’t think of poems when we think of what we’d like to read or draw up our reading or book group lists.  Andrew Petcher’s comment on my post about the Elgin Marbles, quoting “Childe Harold’s Pilgrimage,” Lord Byron’s eloquent poem from 1812, on Lord Elgin’s plundering the Parthenon, got me thinking about how great it would be if we all read more poetry.  And nobody is too busy to find two minutes in a day to read a short poem.

Here are a few reasons to read poetry:

–Like reading anything else not required by your employment, it challenges and refreshes your mind and outlook.

–Most poems are short.  You can read many in just a minute or two.  You can also spend more time savoring the language and thinking about how the poet put words together, structured the poem, and what the poem means to or evokes in you.  (Of course, some poems are epics, and require the time of a hefty novel to read and enjoy.)

–In a good poem, every word counts.  There’s nothing superfluous.  A short poem might tell a very complex story and evoke strong feelings in the reader.  Reading a terse, carefully crafted piece, whether an essay, fiction, or poetry, is a delight.  It will also influence the reader to become a better writer.

–Poetry is beautiful. 

You can start by reading Byron’s poem, which Project Gutenberg has made freely available online.  For more poetic comments from Byron  on the Elgin Marbles, see his “The Curse of Minerva” (also free).  For background on Byron and the Elgin Marbles, see Ann Wuyts’ 2009 post on the Heritage Key blog.  (To my delight, I see that Ann has recommended several graphic travel novels on her bio page on the Heritage Key site.)

Another good way to get some poetry into your life is to sign up for Garrison Keillor’s “The Writer’s Almanac” via e-mail, RSS, or podcast.  It’s free, and Keillor starts every edition with a poem.

Do check out Andrew Petcher’s “Have Bag, Will Travel“; he’s just posted about his trip to Segovia, Spain.  Some of his commenters have their own very interesting and beautifully illustrated blogs, including James ‘s Plus Ultra.

Readers, any poems you’d recommend?

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