#6―The nausea of facticity
Of Monte Carlos, Morrison, and MacGuffins
Into this house we’re born, into this world we’re thrown, like a dog without a bone, an actor out on loan, riders on the storm.
The last song The Doors recorded.
The unnecessary details and truisms that stud most judicial opinions create a soothing facade of facticity.
Richard Posner, at his facetious best
MacGuffin―a plot device in fiction, particularly in films, that serves to trigger the plot and motivate the characters, but is ultimately insignificant, unimportant, or irrelevant in itself. The term was popularized by director Alfred Hitchcock.
1975 Monte Carlo automobile.
I have a recurring back problem that, once it gets bad enough, requires a shot to achieve an armistice between bone, tissue, and a nerve that wants to radiate various electrical shocks and buzzes through my right leg. To make sure they get the needle in the right place, the doctors like to stab the nerve a few times, like the way carpenters measure twice before cutting, only a 2x4 doesn’t bite the table in response. Or maybe they do it because I told them I’m a lawyer.
Doctors.
I recently had one of these shots. Until it kicked in there was no comfortable position for my physical or mental existence. So like most people, I decided that I should re-read Nausea by Jean-Paul Sartre. It fit right in there.
The first thing I noticed―based upon my reading in the 30-year interim since a college philosophy class―was that the overwhelming of the protagonist by ordinary stuff seemed eerily similar to what Huxley describes in The Doors of Perception (namesake of The Doors). Huxley, though, was recounting what he experienced on mescaline, the hallucinogen in peyote, and he had transcendent delight. The Internet confirmed that Sartre also took mescaline, but he left that out of Nausea, and for him the “facticity” of the world was a crushing, queasing existential bummer.
Why? Well, one available interpretation of the world is that there is a bunch of unchangeable, absurd, random, depressing merde that you’ve been “thrown” into, and the reality of that ought to disabuse you of any extravagant notions of free will. When and where you were born, your physical traits, strengths, weaknesses. The good or bad luck you had nothing to do with. The people you’ve encountered. And let’s be honest, your every thought. Including the one you made yourself think just now. Yeah, that one. Why’d you choose the cheeseburger? Oh, you didn’t. Well, I just made you think of a cheeseburger, but what made me choose a cheeseburger?
If you really think about it, there’s like fifty-million-fillion-fine-fact-foils need-need-needling you.
And a million-fillion-filthy-finger-fat-fate-hands dead-dread-threading the machine.
They so-sew-sew-you.
Stitch-st-st-st-st-itch-you.
Up-up-p-p-p-p-you.
Down-d-down-d-d-d-down-you.
Again-gain.
Again-gain.
Again-gain. Again-gain.
Again-gain.
Againgainupdowndowndownaroundroundroundagaingaingainstitchstitchstitchsidestitchsidestitchsidesidestitchstitchnoyounowherenohidenohidehidehidehemhemhemmingyoustitchstitchstitchingyouininin.
If you’re on mescaline and you’re Aldous Huxley, you can be mesmerized by the hems of your pants. Or if you’re Jim Morrison, you pen “out here we is stoned immaculate.” Indeed, James. The only nausea is from metabolizing the drug and maybe the unshakeable shimmering and swirling of your visual field, which is otherwise awesome. You’re not troubled by “facticity.”
But the very different experience in the book Nausea reminded me of the tiresome, very maculate facticity in briefing. When the poor attentive reader asks: Why did you tell me all this non-shimming stuff? And what’s with the pointless precision? Actually, what is the point of any of it? Where is this going? Is it even moving? How do I get off?
Life can be like that. Read Sartre. Briefs should not be.
In The Winning Brief, Garner laments “over-particularization.” Too much detail. Lawyers tend to lard up briefs―both the facts and legal discussions―with all kinds of facts and details that do not matter and can seriously misdirect a reader. Familiar offenders are:
1. Precise dates.
2. Names of people and places.
3. Full titles of filings, courts, personnel.
4. Details of cited cases that are utterly irrelevant to any holding.
None of it is conversational, which is to say, if you were telling someone about the case, you’d leave it out. The tip is simple enough: stop including those unnecessary details. Figure out what matters and only provide that, perhaps with exceptions for something that adds color or is interesting.
Let me give you an example. Carpenter v. United States is an important Fourth Amendment opinion. Here is the opening paragraph of the background facts:
In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T–Mobile stores in Detroit. One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.
Lots of lawyers would have given us the precise date of the arrest, the full names of everyone arrested, most likely the exact dates and locations of those nine other robberies, maybe even the cell phone numbers, and not out of the realm of possibility the names of the FBI agents, such as Burt Macklin. For good measure, they would have written “Detroit, Michigan” and “Federal Bureau of Investigation (‘FBI’).”
You doubt me? Here is Justice Blackmun’s opinion for the Court in Smith v. Maryland, where the factual background begins:
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. Tr. 66–68. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. Id., at 71–72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.
That, ladies and gentlemen, is a justice who did his own Bluebooking and apparently thrilled to the task. Do any of those facts matter to the eventual Fourth Amendment opinion about the “pen register” police used to learn the phone numbers that Smith was calling? No. And the next four paragraphs are similar. For example, he tells us that a six-man line-up was held on March 19 and that the indictment was in the Criminal Court of Baltimore and Smith waived a jury trial and blah, blah, blah.
Let’s pause for a moment on the “1975 Monte Carlo automobile.” It’s mentioned three times in that opening paragraph. Pure MacGuffin. Indeed, nearly all of it is utterly irrelevant. The case turns on no reasonable expectation of privacy in the phone numbers you dial because the phone company knows them. The car, the line-up, the robbery, Maryland, his-middle-frigging-name(!)—none of it matters.
It all misdirects the reader like a wrong number. But is it interesting? Well, my grandmother once owned a green Monte Carlo that might have been a 1975. I appreciated remembering that. Otherwise, no.
If I’m in a dark mood, the random, absurd, near-total, wrong-number determinism in life can get me down. When I brighten, I can take solace in not knowing what will turn out. And maybe seemingly bad things aren’t bad at all. Who knows? No one. No one really knows. We’ll see, as the Zen story goes. So take heart.
But legal briefing absolutely shouldn’t be filled with “1975 Monte Carlo automobiles” that I puzzle over. It should be a well-constructed little conversational village with direction and good sense.
Why do we do it? Richard Posner was all over this nearly 30 years ago (available here). Recounting those unnecessary details is a handed-down “high,” “pure,” “formalist” style in legal writing, and the meaningless detail supposedly assures the reader that the writer has command of everything with something like omniscience, or at the very least expertise. He even cites a study where more bureaucratic writing got higher ratings from readers related to “expertise.” (But not for ease, transparency, trustworthiness, or pleasure.)
Posner facetiously called “facticity” soothing. At best, it’s tedious. At worst, it misdirects and furthers a façade that no serious lawyer believes.
And at the highest ranks (but not the profession as a whole) Posner has prevailed, as Carpenter reflects. The Federal Judicial Center created a manual for opinion writing. Regarding dates and details:
Excessive factual detail can be distracting. Dates, for example, tend to confuse readers and should not be included unless they are material to the decision or helpful to its understanding.
In general it recommends
the opinion should present sufficient facts to define for other readers the precedent it creates and to delineate its boundaries.[1]
You can access the whole manual here. Friends—take heart, indeed—the Federal Judicial Center is working to prevent judicial opinions that are a Sartrean nightmare of facticity!
Obviously, brief writers do not have the luxury of opinion writers in determining how much detail is “sufficient.” But lawyers typically provide way too much useless detail and other crap. Way too much, all over the place, not just in the facts. Descriptions of cases give us names, places, and the stuff involved that bogs down what’s important. But mostly it’s in the facts and procedural history. Just all kinds of pointless, useless maculating.
Fortunately, if any of this strikes a nerve, there’s a cure. Take mescaline and the “1975 Monte Carlo automobile” becomes mesmerizing and hilarious. Or just stop creating a factphoon trashnado of facticity that litter-ally bombards what should be a happy little village with wrong numbers and MacGuffins (which, yes, make me think of puffins) leaving your readers confused, frustrated, queasy, or pissed.
If the doors of perception were cleansed . . .
Riders on the storm . . . cue it up . . .
For whatever it’s worth, I choose to believe that Antoine Roquentin lives . . .
And Mr. Mojo Risin . . . anagram . . . why not? . . .
Late Jim with a beard looks a lot like Wesley Schultz of The Lumineers . . .
Once high-fived that guy . . .
At the Gorge . . .
They were playing a long opening of “Brightside” . . .
He was running around . . .
Should have said “I love you, man” . . .
Or “You look like Jim Morrison” . . .
Didn’t . . .
Regret . . .
1975 Monte Carlo automobile . . . . . . . . . . . . .
[1] For good fun, the manual says of Bluebooking: “Mastering the arcana of citation forms, however, is not a productive use of judges’ or law clerks’ time. The purpose of citations is to assist researchers in identifying and finding the sources; a form of citation that will serve that end is sufficient. Whatever form of citation is used, it should be used consistently to avoid confusion and the appearance of lack of craftsmanship and care.” Posner was on the editing committee.