Friday, June 12, 2009

Gilbert St. Developers v. La Quinta Homes (Cal. Ct. App. - June11, 2009)

There's no place better than the 4/3 to find interesting writing styles. By which I mean, of course, Division Three of the Fourth Appellate District. Or, to the rest of the nation, "The O.C."

Among those on the 4/3 who adds flair to the traditional content of judicial opinions is Justice Sills. I've said before that I tend to like his style, which keeps things interesting, and that's still the case. Not many opinions, for example, mention Nils Bohr. As this one does, when it refers -- entirely appropriately in the context of the underlying dispute, I might add -- to Bohr's famous quip: "Prediction is very difficult, especially about the future." Nice.

Justice Sills also mentions -- again, appropriately, and in context -- that the expression "pig in a poke" derives from a con game in the Middle Ages in which a buyer would purchase what he thought was a suckling pig in a bag ("poke") only to discover after the sale that it was actually a cat or rat. I didn't know that. Cool. Now that I've been edified, I'll also add to what Justice Sills said by telling everyone that this same practice may also be the origin of the phrase "Let the cat out of the bag" as well as, perhaps, the expression "left holding the bag," since upon revealing the conents of the poke, the cat presumably often escaped, leaving the customer with only the bag. More arcane knowledge for a Friday morning.

So I liked reading this opinion, and learned something, as I often do with Justice Sills' work product.

Lest I go overboard with the positive comments, and be accused of overly browning my nose (and I'll let you figure out for yourself the origin of that phrase), let me add to them some very minor gripes about a couple of components of Justice Sills' style. Appropriately enough on a day in which I fiddled -- for the second time in several years -- with the style of this blog. (I didn't like how tall and narrow the posts were in the old format, and was able to improve the thing on other fronts as well; e.g., having links automatically open up in a new window. And, yes, I know the colors are garish; sorry about that. POSTSCRIPT: I'll keep tinkering with the colors until it stops looking like -- in the entirely accurate words of one reader -- "a teenager's MySpace page").

Back to Justice Sills. Two things. First, I'm a fan of parentheses, not brackets, for quotes in a citation. I like the regular use of brackets as indicating author-added material, and don't see why regular old bluebook form and the use of parentheses needs (or is improved) by changing to brackets. Smith v. Jones (1988) 314 U.S. 346 ("Insanity is a defense.") seems better to me than Smith v. Jones (1988) 314 U.S. 346 ["Insanity is a defense."]. Second -- and again a very minor stylistic point, but this time a slightly annoying one -- is Justice Sills' use of section headings. I have no problem with placing them in the center of the page. But let's delete the three-inch margins on both sides. Page 8 of the opinion, for example, begins with this:

2. The Problem of Incorporation

by Reference

a. What is Incorporated

Must Be Known or Easily Available

at the Time of Incorporation

Seems to me it'd be a lot better to read like this:

2. The Problem of Incorporation by Reference
a. What is Incorporated Must Be Known or Easily
Available at the Time of Incorporation

So those are my whines for the morning. Wait, one more. Offerred, again, in an honest spirit of trying to help. Footnote 11, Page 11: Vaden v. Discover Bank is actually at 129 S.Ct. 1262, not 128 S.Ct. 1262.

Nits aside, this is another classic easy -- and fun -- read. Check it out.
POSTSCRIPT - An astute reader tells me that Section 1:6 of the California Style Manual says to use brackets instead of parentheses for parentheticals. Which just goes to show you how much I know about the CSM. So my critique on this point is totally not with Justice Sills -- and I likely should have noticed that lots of others do the same thing; my bad -- but rather with the style manual he's got to comply with. My bad.