March 2017 - Shakespeare’s Best Advice
by Justice William W. Bedsworth
“Writing . . . is a horrible, exhausting struggle, like a bout of some painful illness. One would never undertake such a thing if one were not driven by some demon whom one can neither resist nor understand.” That’s George Orwell.
“I’ve never written easily: most of the time I detest the process.” That’s Leonard Cohen.
“People write for the same reason they climb mountains. And neither writers nor mountain climbers can explain it.” That’s me.
I’ve written—or edited—professionally since I was nineteen.1 My entire career—once I figured out I was miscast as a trial lawyer—has been based on writing. And I have never once—ever—sat down to write without a feeling of overweening dread.
You know that feeling. It’s time to write the summary judgment motion or the 1538.5 or the Respondent’s Brief and you spend three days in a blue funk, unable to figure out why you feel so bad until you remember, “Oh yeah, Saturday I have to write that thing.”
And you have to write it Saturday because you’ve put it off until the last possible minute. People are impressed that you have taken care of so many other long overdue tasks; they don’t recognize it as a frenzied and desperate effort to do anything rather than sit down to write.
“Jack, I understand you built a new garage this weekend even though it was snowing and you were passing a kidney stone. That’s pretty impressive.”
“Yeah, well it was that or write the motions in limine.”
No one really likes to write. It’s too personal. It’s like opening an artery and hoping people approve of the color of your blood and don’t think you made too much of a mess displaying it.
But some of us need to write. It’s a virus—some weird intellectual Huntington’s Chorea thing that lurks in the darker recesses of your being until you’re having too much fun to consider suicide and then bursts forth, overwhelms your defenses, and turns you into a bot.
That happened to me in high school, and once it happens, you write because you have to. You need to. Resistance is futile; you’d have a better chance against the Borg.
So here I am, in the thirty-sixth year of writing this column, my twentieth year of writing appellate opinions, and I still approach the keyboard wondering how many arteries I will have to open and whether we couldn’t use a new garage.
But most of you write not because of some sinister chromosomal deficiency but because your job requires it. Most of you are going to bang out that brief—painful as it is—and then spend an hour or two brainstorming all the different things you might do to make sure you never have to go through that again. Settle more cases, hire an associate, leave the practice and start building garages . . . whatever it takes.
For most of you, that writing task was a hurdle that had to be negotiated, and now you can go back to the parts of the steeplechase that you enjoy. And you can do so, secure in the knowledge that I must be every bit as mentally deficient as you assumed or I could have found a job that didn’t require me to write on a daily basis.
But it’s you I want to address. Not the people like me, who have a creative urge and no other talent;2 we’re pretty much unsaveable. The rest of you . . . well, there’s probably still hope for you.
This has been a long-winded preamble3 to what I want to say today. What I want to say is only tangentially related to the pain and suffering caused by writing, but it’s writing that brought it to mind. Specifically, bad writing.
More specifically, the exchange between a couple of lawyers in Ohio that was precipitated by bad writing.
Timothy Chappars and Nicholas Subashi have been on opposite sides of the counsel table for many years. Chappars is a personal injury lawyer and Subashi handles insurance defense.
Subashi filed an answer to one of Chappar’s complaints that included a Motion to Strike. The motion to strike said:
Answering Defendant alleges that the Plaintiffs’ Complaint,
by containing run-on sentences, multiple allegations in the same
paragraph, conclusions, verbose exaggerations, and “stream of
consciousness” rhetoric, violates rule 8 of the Ohio Rules of Civil
Procedure and should, therefore, be stricken in its entirety.
Whoaaa! Talk about a shot across the bow! Run-on sentences and “excess verbosity” are bases for dismissal of counts in Ohio!? Sounds like a jurisdiction I oughta be practicing in. Me and Jane Austen.
But wait ‘til you see the response to this motion. I can’t reproduce the whole thing here. My editors won’t approve my check if I just re-type other people’s work.4 The following excerpt should capture its flavor:
So defense counsel Nick Subashi files an affirmative defense criticizing my pleading for having verbose exaggerations and using run-on sentences and “stream of consciousness” rhetoric and what I’d like to know is who does he think he is simply because he represents a major insurance company and can do anything he wants well I’ll tell you I don’t feel the same way and I think my pleading was perfectly fine after all all I’m doing is representing my clients who have a gigantic 8-figure claim no exaggeration and also particularly since I have extensively researched the defense in this case . . . [25 lines and two citations omitted, but no periods or commas] . . . he probably thinks he is really cool because he practically lives in the gym and he’s into rock-climbing and mountaineering like he’s the next Reinhold Messner making the first unaided ascent of Everest without supplemental oxygen and gets to go on these adventure trips out west when I’m stuck in the office responding to a defendant’s third set of discovery requests and attending multi-hour depositions of witnesses . . . [more omitted here, but no commas or periods] . . . but in any event I hope the judge does not allow Defendant to prevail on this affirmative defense which is as worthless as his other defenses and they should just pay the dough because I just would never resort to stream of consciousness or use run-on sentences or otherwise be verbose but I suppose that’s why we have judges who have to make tough decisions and I feel sorry for the Judge anyway because he is a Browns’ fan and suffers like everyone else who has the misfortune to follow that inept team for decades and decades and things never improve but speaking of losers did you see that Ohio State offense, and no matter how bad things get it can’t be that bad but they were probably overrated anyway and after all spring training is around the corner but the main thing is that I hope the court understands that I would never be verbose or use run-on sentences or put stream of consciousness into a pleading particularly since I have practiced over 38 years and my consciousness is getting pretty impaired and no one pays attention to what I say anyway . . . [ellipsis in original; still no period]
Signed, Timothy S. Chappars5
To which I say, “Kudos!” Tim Chappars and Nick Subashi are hereby inducted into my own personal litigation Hall of Fame.
Subashi says after years of doing battle, he has the highest respect for Chappars. He calls Chappars’ response funny and witty and says, “We lawyers tend to take ourselves way too seriously, so this was a welcome departure from that trend.”
It certainly was.
I’m not suggesting you file an answer—or anything more important than a grocery list—that looks like Chappars’. What I’m suggesting is that you strive to practice in such a way that after doing battle with someone for decades, you remain friends, capable of laughing at yourselves. I’m asking you to practice law as a human being rather than a bot.
“And do as adversaries do in law; strive mightily, but eat and drink as friends.” That’s William Shakespeare. And it’s a helluva lot more important than whether you can construct a model sentence.
If you succeed at that, your arteries will remain intact, your garage will grow old and rickety, and your fear of writing will pale into insignificance.
- (1) As a second-year law student, working for Continuing Education of the Bar, I suggested edits to Kathryn Werdegar’s work. How’s that for hubris?
- (2) Yeah, I hear you. “Objection, Your Honor. The word ‘other’ assumes facts not in evidence.”
- (3) You’ve come to expect that, right?
- (4) Don’t you wish?
- (5) If you want to see the whole thing (it’s worth it just to see the appendix—yes, I said appendix—Chappars attached to his masterpiece), call one of these guys in Xenia or Dayton, or go to Abovethelaw.com, which is a lot funnier than I am anyway.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.