Wednesday, February 8, 2012

Chief Justice wore pencils down to short stubs

Legal writing brief, to the point, purposeful

Waco – Somewhere, in a desk drawer on the fourth floor of the McLennan County Courthouse, there is a small collection of pencil stubs.

They are very short, very stubby, and very worn, and they are the keepsakes of Chief Justice Tom Gray of the 10th District Court of Appeals. Amid the ostentatious and gaudy woodwork, contrasting door-matched marble veneer and stained glass recessed ceilings, they are an object lesson of hard times and the practical wisdom of circumspection.

There is a story in how and from whom Judge Tom Gray obtained these pencil stubs, and it goes this way.

After several years on the Court as an Associate Justice starting in 1998, Mr. Justice Gray finally got a chance to sit down and visit with the by then venerable Chief Justice, Frank MacDonald of Hillsboro.

“Judge MacDonald had been watching me, reading my opinions. He took his time before he spoke to me about my writing,” said Judge Gray at a meet and greet affair hosted by the Waco Tea Party and Radio KBCT 94.5 FM held at Gratziano's Italian Restaurant.

“He said, 'You know, you don't have to write too much in an opinion.'”

In fact, said Judge Gray, the old time judge – a man who worked as a visiting judge up until the day before he died at an age when most men have long since gone to the nursing home – Judge MacDonald had a firm opinion about writing too much in a legal opinion.

“The more you write, the more they can use against you as a point on appeal. The more briefly you write, the less they have to appeal to superior courts.

“Just go as far as you have to go, and then if they bring it back to you, you can address it then.”

The lesson was as brief and to the point as his own opinions, offered shyly and only after several years of association as a fellow justice while they “visited” one afternoon in that fourth-floor office.

And, so, remembered Justice Gray during a brief and respectful interview in the crowded meeting room downtown, he began an intensive study of legal writing, from the perspective of purposeful brevity.

In his previous writings, he was always careful to construct at least two fall back positions on each element of his rulings. For instance, in the matter of whether an appellant had or had not preserved the position taken, he would first write an opinion that the point was - or was not - preserved; secondly, he would carefully establish that it was or was not in error – and so forth.

Judge MacDonald taught him that this – linear - approach was not only unnecessary, but it could become costly of a man's time and pencil lead.

The judge was a product of his times, the Great Depression. He always wrote with a lead pencil, carefully sharpening the instruments to the point where they were barely within the grasp of the hand before he consigned them to the desk drawer to be saved for – something or the other.

When Justice Gray took over as an appointee to the Chief's seat in 2003, those short stubs were still there waiting for – something or the other. Or someone.

“Judge MacDonald would write on only, let's say, three out of ten of an appellant's points on appeal. Then he would finish by saying, 'We have carefully considered appellant's seven other points on appeal, and find them without merit.'”

There you have it. If a man doesn't waste any time or pencil lead on something, it's hard for his interlocutors to make an issue of the matter.

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