A while back, Minnesota Litigator profiled a poet-lawyer, Tim Nolan, who suggested that good legal writing should not be literature. It should not draw attention to itself. It should not have “a voice,” like the writings of, say, Ernest Hemingway or Oscar Wilde most markedly do (but who all professional writers do, if only to lesser degrees). While I love the writing of Justice Benjamin Cardozo (when not too florid) and Judge Richard Posner (for the most part, that is, when his arrogance and monumental ego do not cast a dark and ugly shadow over his otherwise refulgent and blindingly clear prose), both of which reflect the judges’ personalities (or at least, unique “voices”), I generally agree with Nolan’s point of view.
But that does not and cannot keep me from reading legal opinions as if they are stories, even if the writing is often intentionally dry, devoid of personality, and emphatically not written to be interesting or expressive in any literary sense. (Moral is to amoral as literature is to aliterature.)
In fact, the aliterary nature of judicial opinions — one might even say, the inhuman nature of judicial writing — exercises a particularly special kinds of allure. One can play the game of trying to find the hidden humanness in an otherwise uninhabited aliteraturic landscape – where do the feelings of the authors seep out of the text? Along the same lines, one can engage in “what does this mean in plain english” (for example, “Doe strains credibility past the breaking point” roughly translates to “Doe is a lying sack of **** who thinks the rest of us are idiots” and when courts say, “There is some tension among our precedents.” they mean “Our case law is hopelessly screwed up!” (H/T: a ML Reader for that one!)).
Then, because every legal opinion is a human story inhumanly told, they are like armatures in sculpture, that is the skeleton over which the reader can slap on the flesh, fat, and sinew to create the full figures.
Also, judicial opinions are narrow slices of stories, homing in on specific facts and legal issues but they almost always include half-visible outgrowths, factual warts, that give glimpses to other intriguing untold stories.
These thoughts came to mind in reading Real Time Translation v. i.wi, LLC, decided last week by the Minnesota Court of Appeals.
The case concerned a business fall-out in which some company owners left the company, allegedly misappropriated company property and allegedly defamed others in the company. The trial court (Hennepin County District Court Judge Laurie Miller), after “a bench trial at which the district court received lengthy testimonial and a significant amount of documentary evidence concerning the parties’ roles and conduct,” found the defendants to be liars who stole and misused information they had agreed to return to the plaintiffs and, predictably, she hammered the defendants, having found them guilty of wrong-doing.
Except the Court never actually called the a defendant a “liar.” (They never do.) Rather the Court of Appeals noted that “the district court” found Selle’s “secretive behavior” played a part in “its” decision to find Selle “not credible” in some of his testimony.
And the Court never actually said the defendants “stole and misused” Plaintiffs’ information. Rather “the court” found that they “breached the [Settlement] agreement when they retained confidential RTT documents on their computers after such documents were supposed to have been returned or destroyed” and they “made use of some of those documents in their efforts to set up a competing business,” etc.
The legal apparatus tells a tale of intrigue and betrayal with a detached, mechanistic, and impassive voice. We, the readers, get to dress the dry bones in the lives that we know (without actually knowing) were dramatically disrupted by the facts that bore the lawsuit.
And, finally, in the nature of factual warts/glimpses of untold stories, I note that the district court refused to let the plaintiff amend to add a claim against another company “Instant Wireless Interpretation, LLC (IWI).” Why denied? Will this mean that a plainly related company (“i.wi” and “IWI” were apparently used interchangeably through the lawsuit) will be able to get away with what i.wi was punished for? Will there be recriminations between the victorious lawyers and their clients? Also, the settlement agreement provided for the “prevailing party” to be awarded its attorney fees but the Court only granted $280,000 fees for a claimed amount “in excess of $425,000.” Regular Minnesota Litigator readers will be familiar with the often-lamented “Minnesota hair cut“
but, common though it is, one has to wonder what where a party wins a case in its entirety and then only gets 2/3 of its claimed lawyers fees?