Law and Conversation

October 21, 2011

Terror in literature and real life

I’m shedding no tears at the death of Muammar Gaddafi, just as I shed none on learning of the deaths of Osama bin Laden, Saddam Hussein, Nicolae and Elena Ceausescu, or any other brutal dictators.

But I’m not dancing in the streets over it, either.

A friend and fellow Illinois lawyer, Lee Goodman, posted thoughtfully today on Gaddafi’s demise, the ensuing celebrations, and the coincidence of today being Simchat Torah, the significance of which another friend explained to me a couple of nights ago. (Lee is president of MentorCLE, which has a presentation of mine, “Persuasive Writing for Lawyers,” that you can watch and, if you’re a lawyer, get 1 hour of MCLE professionalism credit for; if you pay for the credit, I receive a small royalty.)

A famous line from Shakespeare’s play, “Henry VI,” is “The first thing we do, let’s kill all the lawyers.” Back when I thought lawyer jokes were funny (that was a LONG time ago), I thought that was hilarious. Since then, I’ve not only become a lawyer but learned the context of that line: it’s what an aspiring tyrant proposes to do to make it easier for him to assume absolute power and despotism, and it isn’t a bit funny. As I was pondering Lee’s post and the events of yesterday, I started thinking about what it must be like to be a resident in a country where such unrest is occurring and how lucky I feel not to be there and, instead, in a country where the rule of law remains strong.

Libya and Iraq seem very far away, not only geographically but culturally, and Romania isn’t that much closer. But periods of terror have certainly happened in western cultures as well, and even in the fairly recent past: Romania straddles west and east, Hitler was dictator of Germany within living memory, and there are those in Spain who still mourn Generalissimo Francisco Franco, who, though ruthless, did bring Spain out of the horrible Spanish Civil War and into peace.

Here are some memorable literary treatments of historical terror:

1) Can’t start this list with any book other than Charles Dickens’s “A Tale of Two Cities,” depicting life during the Terror in France in the years after 1789.

2) A number of people retweeted British author Adel Darwish‘s comment earlier today that the fate of Gaddafi’s body reminded him of the scene in “The Iliad” when Priam begs Achilles for the release of Hector’s body as he was dragging it toward the Greeks’ camp. Coincidentally, The Economist has a nice review of four translations of Homer’s epic poem and recommends sticking with Richard Lattimore’s 60-year-old classic work while checking out Alice Oswald’s recent “Memorial” for a reminder of how shocking Homer’s gory descriptions are, even in the third millennium after he composed them. (Hat tip: Arts and Letters Daily.) I picked up our household copy of Robert Fitzgerald’s translation, a thoughtful gift from my sister, and was struck by how opening it practically anywhere at random yielded a graphic, blood-soaked description of killing.

3) Junot Diaz’s Pulitzer Prize-winning  “The Brief Wondrous Life of Oscar Wao” provides a snapshot of life in the Dominican Republic under Rafael Trujillo, as bad a ruler as they come.

Finally, Literary Kicks has an interesting post from last year by Claudia Moscovici on life in Ceausescu’s Romania. And Britain’s The Daily Mail has a piece on the demises of several notable tyrants, concluding with The One That Got Away: Josef Stalin, who, unlike his fellow tyrants, was never deposed and died in his bed of natural causes.

This Friday night I’m wishing for an end to terror in Libya and elsewhere, and a return to peace and the rule of law. Since Germany, Spain, Romania, France, Greece, and many other countries who have had awful periods of terror now enjoy peace and democracy, there must be hope.

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?

August 20, 2010

Lessons for lawyers from Othello

Filed under: Law — Helen Gunnarsson @ 9:32 am
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I love this! Texas lawyer Michael Maslanka provides lessons for lawyers from Shakespeare’s “Othello.”  Maslanka’s points about listening carefully to others’ stories for potential manipulation and rationalization, of course, are instructive for nonlawyers as well and illustrate Shakespeare’s timelessness. 

Maslanka blogs on labor and employment law at “Work Matters.”

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