By David Abel | Globe Staff | 12/10/2006
AN AIDE ONCE complained to Supreme Court Justice Oliver Wendell Holmes that "one man in a thousand" understood his opinions. "I write for that man," Holmes is said to have replied. By comparison, Judge Bruce M. Selya, according to a former clerk, writes for "one in a million."
In more than 1,000 decisions over nearly 25 years on the federal bench, the past 20 in Boston as one of six judges on the US Court of Appeals for the First Circuit, Selya has beguiled -- and at times baffled -- colleagues and litigants with obscure and occasionally less than judicious verbiage.
Over the summer, for example, he opened a decision in a libel suit against the Boston Phoenix by writing: "The oenologist's creed teaches that we should drink no wine before its time. Much the same principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record."
The judge's mix of arcana and acidity -- what he might call a "salmagundi" of "hyperbolic rodomontade" -- has been compared with that of Holofernes, the pompous schoolmaster in Shakespeare's "Love's Labor's Lost" who spoke in Latinisms. And over the years it has raised questions about the proper balance of clarity and style in judicial opinion writing.
Despite the rigorous logic of his decisions, which are among the most cited of federal judges, some scholars and fellow jurists have used his opinions as examples of what to avoid in legal writing. "Sometimes Judge Selya crosses the line," says US District Judge Nancy Gertner, who has had her share of opinions overturned by Selya. "We're not gods on high. We need to be as clear as possible."
Selya acknowledges the criticism. "I do take some kidding," he says.
In recent years, he insists, he has avoided using puns, particularly of litigants' names. (In a 1987 opinion involving a company called Brad Foote Gear Works, Selya couldn't resist noting that Foote "does not toe the mark," his "stance sidesteps the established principle," and concluding that "the shoe, fitting, must be worn.")
This month, the 72-year-old Reagan-appointed Rhode Islander, whose failing eyesight now forces him to use a special magnifying machine to read, will assume senior status, meaning he'll give up his seat on the court and hear cases at his leisure. Yet he shows no signs of abandoning his approach to language.
"There are no such things as obscure words; there are just words that are temporarily abandoned. It's part of my responsibility to resuscitate them," Selya says. "I may be incurably lexiphanic -- but lexiphanicism for its own sake is not my style."
A graduate of Harvard Law School who spent 22 years in private practice, Selya says he often fell asleep to all the profession's "gray prose," and vowed to spice up his opinions when he became a judge. "One of the challenges I set for myself was to see if sound jurisprudence could be written in such a way that would be relatively interesting reading," he says at his chambers in Providence. "Instead of being written in all grays, you could write it in pastels, maybe even a little vermillion or puce."
Scholars of legal writing, however, accuse Selya of going too far, to the point that his opinions are too often impenetrable, or worse, self-absorbed -- preoccupied with peculiar words that serve Selya's sense of style but obscure his meaning. One clerk, for instance, remembered a decision that left lawyers asking, "Who won?"
"As a word lover, you have to appreciate a fellow word lover," says Bryan A. Garner, editor in chief of Black's Law Dictionary. "On the other hand, it can be disappointing to see a writer using a fancy word for an everyday idea."
Many of Selya's favorite words do have simpler synonyms, including perscrutation (scrutiny), inconcinnate (unsuitable), gallimaufry (an assortment), perficient (efficient), exiguous (meager), neoteric (recent), and sockdolager (a decisive reply).
Garner and others argue that judges should make the law more accessible by avoiding jargon, long, clause-ridden sentences, and 50-cent words.
"The job of the appellate judge is to communicate the decision as clearly and efficiently as possible," says Joseph Kimble, editor in chief of The Scribes Journal of Legal Writing. "Just as lawyers shouldn't waste a judge's time, judges shouldn't waste a lawyer's time."
Transparency doesn't mean opinions must lack finesse, says Kimble, pointing to Supreme Court Justices Louis Brandeis, Benjamin Cardozo, and Robert Jackson as examples of those who maintained a plainspoken elegance. He and others also cite Justice Antonin Scalia as an example of an opinion-writer who turns a clever phrase without leaving litigants bereft of his meaning.
In "The Lawyers Guide to Writing Well," New York Law School professor Jethro Lieberman argues most legal writing ranges from foggy to flabby. It only gets worse when lawyers and jurists overreach. "There's a place for literary flair, if it's good," Lieberman says. "Writing that comes across as too cute, cavalier, or demeaning is a disservice."
As challenging as it may be to grasp, Selya's writing is rarely dull. William Domnarski, the author of "In the Opinion of the Court," a history of federal court judicial opinions, says he's so drawn to the judge's writing that he reads his new opinions nearly every week.
"Selya does have a tendency to show off, but he takes you on a tour of the law with an impish style," Domnarski says. "He has his own voice, and he uses it to draw attention to what he believes. He should be applauded for that."
Selya's closest readers, however, are those who have no choice. In an arena where language is everything, misunderstanding can pose a serious problem.
When Selya's opinions return to Judge Reginald Lindsay on the federal district court of Massachusetts, he goes through the words very carefully.
"First, I have to understand it myself," Lindsay says. "You can't read his opinions on the subway...a pocket dictionary doesn't work."
Then he worries about improperly translating them to a jury. "I wonder whether I'm changing the meaning of his words. I worry if I choose a different word, am I changing the law?"
Fellow First Circuit judges say that while they may not always understand Selya's language, they have learned from him. Occasionally, Judge Juan Torruella even poaches from his opinions.
"Copying can be the biggest compliment you can pay someone," Torruella says. "One of his favorite words, 'struthious' [ostrichlike], I like very much. If people have to look it up, that's OK. It makes them think about his decisions."
For lawyers, meanwhile, arguing before Selya can be a harrowing experience.
John Tarantino, a criminal defense attorney in Providence, once received an opinion from the judge describing one of his arguments as having the "ubiquity and variety of graffiti in a subway."
"He pretty much killed me in the first graph," Tarantino says, noting the unpleasantness of showing such a decision to clients.
Dina Chaitowitz, a US attorney in Boston, says she used to fret about arguing before Selya. "I often feared that, given my own limited vocabulary, I might misunderstand and then incorrectly respond during oral argument to an exotically-worded question."
But for Selya, the more exotic, the better. In a book of memoirs his clerks gave him for his 15th year on the federal bench, Sara Lord recalls how the judge often flipped through his thick, dusty 1934 Funk & Wagnalls New Standard Dictionary to find the right word.
"It wasn't enough that the word be obscure," she writes, "it also had to be ancient and exotic in origin. Anglo-Saxon words were good, but I remember the judge being particularly excited when he was able to use an ancient Persian word that probably no living person had seen or heard in the last thousand years."
Sidebar: In Selya's words:
Martha's Vineyard Scuba Headquarters, Inc. v. The Unidentified, Wrecked, & Abandoned Steam Vessel, 1987"When Erasmus mused that "[a] common shipwreck is a source of consolation to all", Adagia, IV.iii.9 (1508), he quite likely did not foresee inconcinnate free-for-alls among self-styled salvors. To the exact contrary of what the Dutch scholar had blithesomely predicted, the petitioner-appellant in this case, Martha's Vineyard Scuba Headquarters, Inc. (Mavis), took not a particle of comfort when an order was entered in a federal district court awarding title to various artifacts retrieved from a sunken ship to a rival, Marshallton, Inc. (Marshallton). Mavis appeals. We affirm."
William Williams v. Ashland Engineering Co., 1995
“We are reminded today that malapropisms, despite their semantic shortcomings, often describe the human condition with unerring accuracy. There are, for example, certain situations that actually do evoke the sensation of "deja vu all over again." We explain below why this appeal falls into that category.”
Waddie Jusino v. Carmen Sonia Zayas, 1989
“We today confront a procedural motley, consisting of a miswritten docket, a timeous motion thought late, a further motion (of uncertain provenance), a wrongly-captioned appeal, a long-delayed reconsideration and reversal of position by the district court (eventuating at a time when its jurisdiction, arguably, was in abeyance), a second appeal, and a compendium of interwoven details (including the remnants of a waived motion for directed verdict). Underneath the case lie, however, more comforting threads -- principles of equity and common sense. Their presence allows us to shape the dizzying patchwork of these appeals into a set of serviceable vestments.”
Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59, v. Superline Transportation Company, 1992
“It is said that coming events often cast their shadows before, cf., e.g., Cicero, De Divinatione, I, 118 ("It was ordained at the beginning of the world that certain signs should prefigure certain events."), and so it is in this appeal. A battle which started to go sour for the appellant two years ago ends today in full retreat …. A court need not, however, give credence to the movant's bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or hyperbolic rodomontade …. In the absence of any cognizable representation that its underlying suit possessed merit … we add, as an eschatocol of sorts, that not only the representation, but also the actuality, falls short.”
Vincent Ferrar v. USA, 2006
“It is axiomatic that the government must turn square corners when it undertakes a criminal prosecution. This axiom applies regardless of whether the target of the prosecution is alleged to have engaged in the daintiest of white-collar crimes or the most heinous of underworld activities. It follows that courts must be scrupulous in holding the government to this high standard as to sympathetic and unsympathetic defendants alike. The case before us plays out against the backdrop of these aphorisms.”
Carroll Shelby v. Superformance International, Inc., 2006
“The appellants, Carroll Shelby, Shelby American, Inc., and Carroll Shelby Licensing, Inc. (collectively, Shelby), cloak this appeal in the raiment of trade-dress law. That masquerade ignores the central question of mootness (an issue that Shelby attempted to obscure in its appellate filings). For the reasons that follow, we conclude that Shelby's appeal must be dismissed and that vacation of the decision below is unwarranted.”
Salim Aoude v. Mobil Oil Corporation, 1988
“Plaintiff-appellant Salim Aoude, defendant-in-counterclaim, polemizes mightily against a preliminary injunction … In the end, Aoude huffs and puffs, but he fails to blow down the edifice which the district court competently constructed from the facts of record and the applicable law. Cf. The Three Little Pigs 16-18 … To the extent that appellant urges other grounds for reversal of the interlocutory injunction, they are either adequately covered by the district court's opinion, or so jejune as not to merit discussion, or both. In particular, the claim that the court below misused its discretion in declining to issue a restraining order in Aoude's favor trenches upon the frivolous. What appellant labors to portray as a robust haboob is not even a gentle zephyr. The house, we think, is sturdy enough to withstand the prevailing winds.”
Ronald E. Wagenmann v. Russell J. Adams, 1987
“It was early in the seventeenth century when George Herbert wrote: "Marry your son when you will; your daughter when you can." The sagacity of that advice, suspect in any era, was called into grave doubt some three hundred fifty years later in Worcester, Massachusetts … Because the underlying circumstances border on the chimerical, we set out an exegetic account … We believe that the jury's view of Wagenmann as "a man more sinn'd against than sinning," to borrow a phrase which the bard of Avon used to describe another daughter-doubting paterfamilias, is fully supportable on this record.”
Norma Arriaga-Zayas v. International Ladies' Garment Workers' Union--Puerto Rico Council, 1987
“In plaintiffs' judgment, Splendorform International, Inc. (Splendorform), a lingerie manufacturer, made a slip when it laid off some ninety sewing machine operators incident to a reorganization in 1984. …The relevant factual and procedural background has been set out authoritatively by the district court, and we need not restitch that fabric in any great detail … In this case, the plaintiffs' own filings place them snugly within the tightest of corsets … They claimed then to have lifted the petticoat of "pretensions" and to have glimpsed the perfidy which underlay it. Having spied the wrongdoing, the aggrieved workers were bound to act upon this knowledge in a timely fashion, that is, to sue within the six month limitations period or forever hold their peace. By neglecting to file a complaint for well over a year thereafter, they are undone.”