October 2020 Criminal Waste of Space - Treadmill Maintenance and Pronoun Agreement

by Justice William W. Bedsworth

Much to my amazement, I am seventy-three years old. I’m not at all sure how this happened, but it seems to be the case.

I’ve been in a few car collisions in my time, and the experience is much the same. One minute you’re cruising along the highway, laughing with your friends, and the next minute the world is a collection of random diagonals, various body parts are complaining loudly, and strangers keep asking you if you’re alright. 

That was disconcerting when I was twenty and they were checking for broken bones. It’s positively astonishing now, as I realize they’re actually inquiring about my nearness to death, something they consider close enough to merit reassuring me that, “You look GREAT,” followed all too quickly with, “Can I get you anything?”

I’m a septuagenarian. That’s a completely new experience for me. I’ve never been any kind of -arian. Unitarian. Seminarian. Vegetarian. Veterinarian.  None of them was right for me—although being a vet would be cool.

By the time you get to septuagenarianism,1 you’ve seen a lot of change. I was in high school in the sixties. I was watching Elgin Baylor, the Fearsome Foursome, Mickey Mantle; I was listening to the Beach Boys, the Beatles, the Stones (and Hoyt Axton, but that’s another story entirely). Halcyon days. 

But here’s the problem. The sixties were a half-century ago, folks. To the young lawyers appearing before my trial court colleagues2  those days are not youth, they’re history.

I am as far today from my high school graduation as I was then from 1910. And 1910 seemed to me to be ancient history.

You know what happened in 1910? Theodore Roosevelt became the first president to ride in an airplane.   

Heck, it was practically the first airplane. Kitty Hawk was 1903.   

The difference between my senior year and the Wright Brothers’ first flight was sixty-two years. And the young lawyers of today are almost that far from my 1965 graduation.

They’re as far from my high school days as I was from World War I. Elvis to them is what vaudeville was to me.

That’s how long life is, folks. It takes a long time to get to seventy-three. You get to see a lot of cool stuff and have a lot of fun, but you have to accept the fact that things are going to change. A lot. 

If you don’t accept that fact, you’re gonna end up watching re-runs of Matlock and yelling, “You kids get off my lawn!” 

Everything changes in a lifetime. Food changes, music changes, language changes.  

Ideally, values change. If they didn’t, only white males would vote and many of us would be working sixty-hour weeks beside our children. Times—and people—change.

And you have to change with them. Or at least accept the fact—and the essential neutrality—of change.

Here’s the MCLE portion of the column: the practice of law, like life, is a treadmill. And if you don’t keep moving, you’ll find yourself on the floor behind the damned thing, with some twenty-five-year-old hardbody asking you, “Are you okay, Ma’am?”

Movement has never been my friend. I dance badly. I have never been able to keep a hula hoop alive for more than three revolutions. And a long line of my coaches wondered why God wasted base-running skills on a guy who would be no better than even money in a fifty-yard dash against a stove.

My instincts are all inertial. So I have to force myself to keep moving on the treadmill. 

It is not fun. Right now I’m reading about artificial intelligence. I’m told this is the future of the law and I need to understand it to keep from being lacerated by its cutting edge. I don’t know about that, but I know it’s not as much fun as a Robert Parker novel.

And it’s certainly not as much fun as Vanity Fair. I’ve always told my Appellate Advocacy classes to read good writing every chance they got. Vanity Fair is good writing. The subject matter rarely holds my interest, but the writing is almost always first rate.

So when I found an article about Tik Tok in Vanity Fair, I figured I could fire one fifteen-minute bullet and hit two targets: learning about a possible treadmill topic and reading good writing.

Here’s what I learned about Tik Tok: I am even older than I thought. 

The calendar may say seventy-three, but I am several light years behind the Tik Tok

I won’t even try to summarize the article. I’m sure the president wants to ban Tik Tok for the same reason I sat staring at the words on the pages: Because he has no clue what is going on there. The whole thing is absolutely impenetrable to me.

But I did find something I found extremely interesting. Something that may keep me on the treadmill a little longer. It was a picture of one of the Tik Tok celebrities with the following caption: “Caples, a Black, nonbinary skateboarder, produces content that both highlights their talent and pushes back against stereotypes.”

Those people I was talking about earlier, the young lawyers who learned about Laurel Canyon music the same way I learned about Dorothy Parker and the Algonquin Round Table,3 the ones whose bar numbers are now approaching 200,000,4 they flew over that caption like it was Kansas.

I, on the other hand, felt like my pilot had suddenly dropped into a red rock canyon and was desperately trying to avoid its walls.

A nonbinary skateboarder. 

That was the first time I had seen that usage of “nonbinary,” and while it took me aback, it struck me as marvelously economical. My generation would have been (a) shocked that there was such a being,5 (b) devastated by the question of whether to acknowledge it, (c) boggled by the need for a circumlocution that would fit the facts, and (d) exhausted by the whole process.

This generation just says, “This person does not conform to nor accept common understandings of gender. Get over it.”

“And while you’re getting over it, replace what you know about pronouns with what you have to learn about people. A nonbinary person is not going to identify with ‘his’ or ‘her.’ So forget making the pronoun agree in number with the noun and start thinking about accurate description of the person the pronoun relates to.”

That’s a tall order. I learned the rules of English when they were rules, and we were expected to conform to them. Period. 

Those rules have helped me to a lovely career which I have greatly enjoyed. I feel protective toward them.

But I am not ready to get off the treadmill. So I’m going to adjust. 

I don’t feel the need to indicate on my emails, “appropriate pronouns: him, his,” as some of my correspondents do. But I do have to realize that while I may not care about someone’s gender identity, I should be prepared for the fact they probably do. I have to be careful about assigning gender. 

And I have to listen more closely to what people say.

That shouldn’t be a new concept for a judge. When I was a trial judge, I had a sign on my bench that told me to, “Shut up and listen.”6

That’s fine for judges, but it probably won’t work for you. You’re a “mouthpiece” for crying out loud. The job requires verbal communication, whether oral or written. Shutting up is not an option.

So just be careful. Times have changed. We’re not all reading from the same playbook anymore. You now have to understand not just the idea you’re trying to communicate but also the person you’re trying to communicate it to.

So the next time you try to express an idea—in a brief, in an argument, in a phone call—give a little more thought to who it is you’re talking to. Whether you’re a senior partner meeting a summer clerk or a brand new associate talking to a semi-retired of-counsel, remember how much times have changed.

That’s all. It’s not a big accommodation. You can do it. You just have to adjust the speed of the treadmill a touch. It’ll make you a better lawyer and a better person.

Baby steps.



(1) Septuagenarianocity? Septuagenociousness? Everything I’ve tried gets underlined in red by my spell-check program, so I’ll just stick with what I have.

(2) Very few young lawyers appear before me these days. I look back fondly to my days in Juvenile Court, working with attorneys who did not yet have children in college.

(3) Don’t even bother to look it up. The point is that the people had to learn about Bob Dylan and Joanie Mitchell rather than experiencing them firsthand.

(4) Mine is under 60,000.

(5) Hell, my generation is barely over the fact there are skateboarders, much less “nonbinary” ones.

(6) One of the drawbacks of a shared bench (along with space limitation and 1/3 the power) is that I can’t have rude signs.


William W. Bedsworth is an Associate Justice of the California Court of Appeal.
He writes this column to get it out of his system.
A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.