When law verges on literature
When law verges on literature
What can legal writers learn from Justice Wiley’s opinion in Yee v. Panrox Int’l?
A LinkedIn post by Yisrael Gelb, a fellow Los Angeles litigator and legal-writing aficionado, brought an unusual new judicial opinion to my attention yesterday. The Yee v. Panrox Int’l1 opinion — by Justice John Shepard Wiley Jr. of the California Court of Appeals — is written in the pithy, easy-to-read, and occasionally playful style characteristic of Justice Elena Kagan and other prominent judges.
As with Justice Kagan’s opinions, Justice Wiley’s Yee v. Panrox opinion shows how the plain-language style advocated by writing experts has become increasingly common at the highest levels of the legal profession. Convoluted, puffed-up sentences laden with legalese are increasingly seen as marks of inferior lawyering rather than sophistication, at least in the estimation of attorneys who study prose style.
Yee v. Panrox is drawing attention because it indulges its author’s taste for fine prose; the opinion seems intended to be read and admired for its style, not just its legal acumen. This post accepts the implied invitation to evaluate it as a work of prose. I’ll highlight some of the opinion’s strengths and offer a few criticisms.
Evaluating the prose of Yee v. Panrox
First, a few of the many strengths. The opinion is enjoyable to read, and its prose is worth discussing in a positive light; these are unusual in our profession. It uses plain language, eschewing the legalese, ritual phrases, and introductory windups that plague most briefs and opinions. Its sentences are concise and generally short but varied in length and structure. (To see examples of its varied sentence structure, look at the sentences that use colons, semicolons, and em dashes.) The opinion also has a sense of forward movement, reflecting the many unobtrusive cohesive ties — usually “echo links” and pointing phrases rather than transition terms — linking its sentences and paragraphs.
Three instructive nits and then a broader cautionary note:
Suppressed “that.” A maddeningly tricky point at the intersection of grammar and style is whether to use “that” to introduce a particular subordinate clause. The choice is often discretionary, as in: “I thought [that] you said [that] you had brought the wine.”2 Justice Wiley’s Yee v. Panrox opinion sometimes omits thats I would have retained, as in this sentence: “Hon and Yee said their debt to Panrox was resolved in 1999.”
Bryan Garner recommends considering whether omitting that could create an ambiguity or miscue (i.e., a momentary misreading of a sentence).3 In the sentence quoted above, which contained the structure “Hon and Yee said X,” a miscue is possible because said could be followed by a direct-object complement that quickly completes the thought, as in “Hon and Yee said their vows.” Using that would make the sentence’s structure more obvious, alerting the reader that the direct object of said will be not just the one or two words after said, but the entire subordinate clause that follows said that.4
More broadly, legal writers should err on the side of clarity and readability, even at the expense of concision. These values usually further each other, but not always. Although omitting that makes a sentence slightly more concise, the omission doesn’t save the reader time or mental energy if the reader must now take an extra moment to parse the sentence’s syntax (i.e., see how the sentence can be broken into parts and how those parts are related).
Unusual phrasings. The opinion occasionally sent me to my dictionaries and usage manuals to confirm that uncommon phrasings were acceptable: (1) “This precedent is afield: it addressed taxation classification.” (2) “Lacking specific cited precedent, we therefore recur to basics: we defer to the trial court’s weighing of the facts, and we independently review its legal analyses.” Both phrases are acceptable, and I welcome prose that introduces me to new words and constructions. That said, afield usually occurs in idioms such as far afield and further afield or in the phrase afield from; recur usually means “to happen again.” Unexpected constructions create interesting variety but can trip up readers, so it’s best to avoid them if you wish to prioritize clarity and ease of reading.
A stretch of questionable paragraphing. Paragraphs should generally be shorter rather than longer, but very short paragraphs — those with only one or two sentences — are best used sparingly to create variety and emphasis. More importantly, paragraphs should group sentences logically, and paragraph breaks should usually reflect a “turn in the thought.”5 This sequence of short paragraphs struck me as arbitrary and not stylistically consistent with the rest of the opinion:
The standard of review is in controversy. Panrox urges independent review, while Yee argues for deferential review.
No cited case squarely settles this issue.
As authority for independent review, Panrox cites only Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888. This precedent is afield: it addressed taxation classification. (Id. at p. 884.)
Hon’s brief skips the standard of review.
Yee’s brief argues for deferential review. It says the trial court proceeding was a partition action, which is equitable in character, which dictates deferential review. To this, Panrox replies the analysis of its Los Angeles lien was not an equitable balancing but rather a determination based on “legal principles and their underlying values.” Panrox’s reply has merit.
Lacking specific cited precedent, we therefore recur to basics: we defer to the trial court’s weighing of the facts, and we independently review its legal analyses.
On the dangers of literary lawyering
Because of the immense personal stakes the parties and their attorneys often have in litigation, and because judges ought not to be central characters in litigants’ dramas, a judicial opinion is not the best medium for any writing that could be characterized as literary, experimental, showing off, or self-indulgent. The Yee v. Panrox opinion mostly avoids these vices, but there are moments when it wanders into their neighborhood — most notably in this passage: “Grain by grain, time buries the past. As the poet said, the lone and level sands stretch far away.”
The opinion’s author, Justice Wiley, has an excellent ear for prose; most attorneys don’t. Nor would most judges appreciate an attorney’s use of a sentence beginning “As the poet said, ….” Attorneys should therefore study and emulate the Yee v. Panrox opinion’s clarity and concision rather than its poetic turns of phrase. Any poetic turns of phrase in a legal brief must seem effortless and almost invisible, seemingly chosen not for their artfulness but because they are the best and most natural expression of an idea.
Ryan McCarl is a founding partner of Rushing McCarl LLP, author of Elegant Legal Writing (U. Cal. Press 2024), and adjunct professor at Loyola Law School. For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is now available on Amazon.
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See Noel Burton-Roberts, Analysing Sentences: An Introduction to English Syntax 169 (5th ed. 2022). Burton-Roberts describes this use of that as follows: “That is a marker of clausal subordination. It serves only to introduce subordinate clauses. It has no lexical content; it’s a function word. When it functions in this way (not as a determiner), that is called a ‘complementiser.’” Id. (emphasis omitted).
See Bryan A. Garner, Garner’s Modern American Usage (Kindle edition): “As a relative pronoun or conjunction, that can be suppressed in any number of constructions …. But in formal writing that is often ill-advisedly omitted. In particular, the conjunction that should usually be retained to introduce clauses following verbs such as acknowledge, ask, believe, claim, doubt, and said, because without the conjunction what follows might be taken to be a noun complement. Dropping that after the verb can create a miscue, even if only momentarily….”
Another interesting example from the opinion: “To this, Panrox replies the analysis of its Los Angeles lien was not an equitable balancing but rather a determination based on 'legal principles and their underlying values” (italics added). I would have included that after replies even though a miscue is unlikely, though I can’t immediately say why. It may be because I have studied Romance languages, in which derivatives of the Latin quod (Sp./Fr./Pt. que, It. che) are routinely used to introduce subordinate clauses.
Jacques Barzun, Simple and Direct: A Rhetoric for Writers 202 (2001).