October 2012 - A Lesson from Walt Kelly and Sun Tzu (CLE from One of the People Grading Your Papers)

by Justice William W. Bedsworth

“We have met the enemy and he is us.” I am old enough to remember Walt Kelly’s Pogo comic strip, in which that line first appeared. Unfortunately, I am old enough that that’s just about all I remember from 1971.(1)
And now I’m living it. I have become the enemy. I have become an old guy. I’ve gone from, “Never trust anybody over thirty,” to “Thirty? I’ve got boots older than you.”
Happens fast. You drive your Mustang into a time warp and come out the other side in a Prius—your second Prius. One minute you’re admiring the chase scenes in Bullitt and The French Connection, and the next you’re extolling the virtues of The Best Exotic Marigold Hotel and Hope Springs.
You find yourself looking at a young woman and thinking, “Beautiful, but not my type.” Then you realize it has nothing to do with type. It has to do with age. The reason she’s not attractive is that God or Mother Nature or the aliens from Zontar 5—whoever you believe is responsible for such things—programmed you not to be attracted to people younger than your boots.
It’s weird. All these little changes creep up on you on little cat feet. You don’t notice them until you find yourself suddenly surrounded by cats.
I can no longer finish an entrée. Honest. I take half of every meal home with me. And I’m not a small guy. I weigh 200 pounds.(2) How can it be that while my belly was expanding, my stomach was shrinking?
Because big as I am, the burgers they’re bringing me should be fighting in a different weight class. They look big enough to have their own gravitational field. I not only can’t eat them, I need help carrying them to the car. The Crow Bar has patties bigger than hub caps.(3)
And the waitresses are killing me. When I ask for a bag or a box for the leftovers, they give me this look that says, “Oh, aren’t you just adorable,” and offer to box it up for me—apparently afraid I might break a hip trying to get the food into the box. I don’t want to be adorable. I’m too young for adorable. I want to be urbane and edgy and vaguely dangerous. I want to be Johnny Depp, not Johnny Weismuller.(4)
Trust me, the second—and third—cruelest words in the aging male’s vocabulary are “cute” and “harmless,” both of which we all eventually become, no matter how long we throw down shots of tequila, hit from the blue tees, and shop for underwear at Abercrombie & Fitch. And when it dawns on you that the waitresses see you as someone more in danger of hurting himself than hurting them, it will cut you to the quick.(5)
I mention all this now because I’m about to start my second year of teaching. This, of course, is the coup de grace to my youth. I mean, any doubt you might be cultivating—watering carefully, feeding assiduously, protecting from harsh light—about your arrival at geezerhood will be blown away by the scirocco of youth that is a law school class.
I’m teaching appellate advocacy to fifteen fresh-faced future fireballs. And when I say “fresh-faced,” it’s not a visual, it’s a chronological. Their faces are still fresh. They’re barely ripe. I’ve been on the bench longer than they’ve been on the planet.
These are people with no memory of the eighties. I mean, they’re killer smart, but they were barely born in the eighties.
They have no memory of Ronald Reagan or the Eagles or Hill Street Blues.(6) Granted, at my present rate, I am no better than even money to remember those things next week, but at least I once had a memory of them.
All my cultural references go right over their heads. No, not even “right over” their heads. So far over their heads they cannot even hear the engines. It’s like I constructed all these clever analogies and word plays and gave them to Francis Gary Powers to skywrite in the U-2.(7)
Which kinda brings me to my point. And if you read this column regularly, you know this is a rare moment: a point.
And it’s a point not so much for the lawyers of my generation(8) as for the vast majority of lawyers younger than I. Just as I have to remember my audience when I teach, just as I have to try to use cultural references and colloquialisms that will have meaning for them, you have to keep in mind who your audience is when you practice.
Because most of the courts in which you appear will be run by people my age. And your juries will be made up largely of retired members of my generation, and they will expect you to look and act like their image of a lawyer.
The decisions on your motions and appeals will be made by a generation of jurists who were taught that spelling and punctuation mattered. Their confidence in you will take a hit if your grammar and syntax are incorrect.
And with good reason. Fella named Kyle Wiens expresses that reason very well.
Wiens is the CEO of two tech industry companies: iFixit and Dozuki. Writing in the Harvard Business Review, he explained why all his employees—employees in businesses that deal exclusively with electronics—are required to pass a grammar test to be hired. “If it takes someone more than 20 years to notice how to properly use ‘it’s,’ then that’s not a learning curve I’m comfortable with.”
There it is, folks. It’s not that the apostrophe is important in and of itself. It’s that it says bad things about your ability to learn, if you haven’t been able to figure it out in all the time you’ve had.
And that’s true of all the rules of the English language. As Wiens puts it, “[F]or better or worse, people judge you if you can’t tell the difference between their, there, and they’re.” It’s not that they think the rule is important; they think your inability to learn it is important.
Wiens is the exception to the rule only in that he’s a 30-something techie CEO rather than a 60-something liberal arts judge. He’s figured out and expressed in common-sense terms what judges of my generation have sensed but had difficulty articulating.   
We don’t think your inability to construct a grammatically correct sentence proves you’re stupid; we just think it increases the chances. You are either a slow learner or sloppy, and neither of those augurs well for the likelihood of your being correct on a legal point. After all, apostrophes are easy; SLAPP motions and incorporeal hereditaments . . . those are tough.
And if you can’t spell, even in this era of spell check . . . well . . . that means you are a person who cannot pass an open-book test even when the answers are provided. How are we then to trust you on an open book test where they are not provided—like a motion in limine?
Harsh? Maybe. Unreasonable? I don’t think so.
I never rule against people because their syntax is bad. But my confidence in them is always diminished.
Many of my colleagues feel the same way. We have turned into the teachers who made us learn all that stuff back in the fifties and sixties. We have met the enemy and he is us.
That means you are arguing before Miss Tamura, or Sister Mary Adele, or Mr. Ellis, or whoever tried to teach us to diagram sentences. And our grading of the content of your paper may be affected by our evaluation of its form.
It’s important you keep that in mind. Sun Tzu said, “Know your enemy.” If you aren’t careful with your writing, you’ll have to know a lot of judges.

(1) I was in Berkeley in 1971; those were difficult days for brain cells.
(2) Which I may have to do something about soon, because gravity and time have taken a toll on my vertebral discs. I’m an inch shorter than I used to be.
(3) Jeez, even my footnotes are dating me. Hub caps, my young friend, used to cover lug nuts on your car’s wheels. Now lug nuts are in, so hub caps have gone the way of the Great Auk.
(4) If you understand that reference, you understand my problem. If not, you can Google it and figure out it’s just more whining about the aging process.
(5) Oh, and the cruelest word in the aging male’s vocabulary: Prostate. Not even close. Chosen by voice vote.
(6) When my fourth grandchild was born, my daughter told me they were naming her Riannon. I said, “Oh, like the Fleetwood Mac song.” She looked at me like she thought I was having a stroke. The song had predated her birth.
(7) Which my students think of only as the name of Bono’s band—which, by the way, has been a band longer than any of my students have been humans. You see what I’m up against here.   
(8) I’ll become eligible for Medicare on the third Wednesday in November.

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 william.bedsworth@jud.ca.gov.