Law and Conversation

August 17, 2013

Charles Dickens, Claire Tomalin, and backing it up

I’ve just finished Claire Tomalin’s biography of Charles Dickens, which came out a couple of years ago and had been sitting on my nightstand in a TBR stack. I was really looking forward to seeing what Tomalin had to say about Dickens, especially since I’d recently finished “Little Dorrit” and had also read Tomalin’s masterpiece of biographical sleuthing and deduction, “The Invisible Woman,” her biography of Nelly Ternan, Dickens’s much younger mistress.

Tomalin delivered some fascinating insights into the great author in highly readable form. Still, there were a few references that bothered me.

First, in chapter 16, she writes that after the death of their nine-month-old daughter Dora in 1851 “Another Highgate funeral had to be planned and carried out, and [Dickens’s wife] Catherine brought to London and comforted.”

For me, Tomalin’s phrasing leaves much to be desired. As a friend observed, it conveys that Catherine was – horrors – NEEDY, as great a sin 160 years ago as it is today, at least when we’re talking about those in the circle of a Very Important Person with an ego to match his (or her) ability. No matter that Catherine’s CHILD HAD JUST DIED.

Based on sympathetic references to Catherine elsewhere in her book, I don’t really think Tomalin meant to suggest anything unkind about her. However, I would have liked some additional information and commentary here about Dickens’s and Catherine’s relationship and the impact of their child’s death on both of them individually and on their relationship, which had deteriorated badly by that time. Dora was Dickens’s child, too; did he not also grieve, even though, as Tomalin notes elsewhere in her book, he said on more than one occasion that he regretted having more than three children? Even a statement that there is no information, or that Dickens made no reference to Dora’s death in his surviving contemporaneous correspondence with his close friends, if that was the case, would be insightful.

Second, in chapter 25, Tomalin refers to Dickens’s daughter Katey’s marriage to Charles Collins, 12 years her senior and an invalid, as “not much of a marriage.” Again, though I realize a biographer has to make some hard choices about how much information to include about members of her subject’s circle, I would have liked a few more details to support her conclusory description. Plenty of happy couples, after all, have similar differences in age, and it’s hard to imagine greater devotion and commitment than that of one whose spouse is so disabled as no longer to be capable of being a partner. Tomalin asserts earlier that Katey decided to marry Collins (the brother of the writer Wilkie Collins, Dickens’s friend) “without love” and “to get away from home” (chapter 21). A supporting quotation or two would have benefited these conclusions; the endnotes do not make the bases for Tomalin’s assertions clear.

I don’t remember reading biographies this critically before I became a lawyer. Though lawyers get a bad rap for writing obscurely, the characteristics of good legal writing are the same as good general writing and include clarity and, for nonfiction, documentation. If you write a brief – a document in which you make your best argument for your client – you need to support every assertion with authority. So when I read a work of nonfiction, for every single assertion I want to know on what primary sources the author relied and what in them warrants the author’s conclusions.

As has already been reported, Tomalin was taken in by an academic fraud: she recounts as fact a meeting that supposedly took place between Dickens and Dostoevsky in London in 1862. The purported meeting never happened, though the academic hoax was accepted for years. (I believe the error has been corrected in later editions of Tomalin’s biography). The lessons? First, as journalism students have long been taught, even under deadline pressure and even with a seemingly unimpeachable source, “check it out.” Second, even tremendous writers and scholars like Tomalin can make mistakes, which should actually be heartening for all of us.

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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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