by Justice William W. Bedsworth

In California, there are legendary judges and there are appellate court judges, but there are no legendary appellate court judges. Or at least precious few.

Our appellate court types tend not to fit the personality profile of legends. Our ranks tend to fill with Eisenhowers and Bradleys rather than Pattons and MacArthurs. The Napoleons of the legal world either stay in the trial courts or pop up in the supreme court; the Wellingtons gravitate to the appellate level.

There are a few exceptions. Bob Puglia from the Third District might qualify as a legend. And Tom Crosby from the Fourth District. And there are a couple of others I won’t mention for fear of setting the excitement bar too high too early in the column. Suffice it to say the exceptions are rare.

The paradigm shifter in this analysis was Bob Gardner, an appellate court justice of legendary—almost mythic—proportion.(1) Gardner was so unusual the Santa Clara Law Journal—a publication produced at a school Gardner not only never attended, but never even visited, as far as I know—wrote TWO articles about him.(2)

Thirty years ago, Gardner lamented the decline of the language in a famous footnote(3) in People v. Benton (1972) 77 Cal.App.3d 322, 324, fn. 1. In Benton, two women were sitting at their kitchen table in an apartment in Anaheim when a pistol-wielding robber burst in and demanded their money. He did so in terms that would merely have offended an ordinary appellate court justice(4) but which moved Gardner to inspired reflection. He wrote:

“It is a sad commentary on contemporary culture to compare ‘Don’t say a word, don’t say a mother-fucking word’ with ‘Stand and deliver,’ the famous salutation of Dick Turpin and other early English highwaymen. It is true that both salutations lead to robbery. However, there is a certain rich style to ‘Stand and deliver.’ On the other hand, ‘Don’t say a word, don’t say a mother-fucking word’ conveys only dismal vulgarity.”

Gardner was 61 when he wrote that—young for a curmudgeon, but then legends tend to be precocious. I’m 62 now, and I have no lawn to yell at kids to get off of, so I thought I’d take up Gardner’s cudgel and lament the decline of the language.

Seems like a good windmill for a man my age to tilt at. How old was Quixote?

But, as will come as no surprise to regular readers of this column,(5) my take is a little different. I see the language going in two opposite directions and I’m horrified by both of them.(6)

First, vulgarization. Gardner was absolutely right about the sad state of criminal communication. And the criminal argot has not improved in the thirty years since Benton. The gang-bangers whose words I quote in my opinions today are every bit as capable of clear and forceful expression as was James Benton. But their range is still limited: It runs the gamut from homely to ugly—a pretty short gamut.

What’s more, lowbrow communication has spread to commercial enterprise. I picked up my morning paper the other day to find a large ad for the Big Ass Fan Company.

Honest. “If you have a spacious room with a high ceiling in your home, no doubt you struggle with keeping the space comfortable. . . . What you need is a serious air moving machine [,] something that circulates an ocean of air that can be felt from floor to ceiling and wall to wall. Isis® from Big Ass Fans is that bigger, better solution.”

And, sadly, there is a market for that. Me, among others. If I had not spent my entire life in the public sector and actually had a Big Ass Room in which to put a Big Ass Fan, I would buy an Isis®. They’re seriously cool.

But just because I like it does not make it a good idea.(7) I’d like to eat a half-dozen doughnuts a day, but that doesn’t keep me from identifying that as the HOV lane to dietary catastrophe. And the fact Big Ass Fans has a certain appeal to denominators as low as I, does not mean it reflects a healthy direction for the language.

On the other hand, neither do we want to go too far in the other direction. I’m at least equally concerned by gentrification of the language as I am by vulgarization. It turns out the language fascists are as bad as the word anarchists on their worst day.

Exhibit A is the case of Rauf v. Tulin, which was decided in May by the D.C. Court of Appeals and immediately sent to me by Frank Nebeker, who reads my stuff in the Legal Times in Washington D.C., and has inexplicably been allowed to remain a federal court judge nonetheless.

In Rauf v. Tulin (May 13, 2010, No. 08-CV-1116) 2010 D.C. App. LEXIS 265), a car driven by police detective Barbara Rauf rear-ended a car driven by citizen Steven Tulin. In the personal injury lawsuit that followed “as night the day,” Detective Rauf admitted she had been upset after the accident but was reluctant to admit she was angry. Instead, according to the opinion, “Detective Rauf acknowledged that she was upset and cursing and using all kinds of profanity, because her ‘level of pissivity’ was fairly high.”

Say what?

Her “level of pissivity”? 

If you had trouble with nano-arcana, supra, footnote 3, your mind is gonna boggle to a dead stop at “pissivity.”

And you are not alone. The spell-check program on my laptop changes it automatically to “passivity.” The computer knows it’s not a word, but Detective Rauf didn’t.

What Detective Rauf was trying—with ingenuity and, to my mind, a high level of dilettante-ivity—to communicate was that she was “pissed off.” “Pissivity” was her attempt at back-construction of an acceptable noun form for the adjectival “pissed off.”

I’m sorry, folks, but when we have created an atmosphere in which police detectives resort to non-words like “pissivity” to try to express themselves, we need to rein in the word correctness team, turn the wagon around, and double back to the ranch. We have gone way, way too far down the gentility trail when that happens.

Don’t get me wrong. I’m no fan of vulgarity, and I would not have counseled the detective to use it. But if the only way you can describe how you felt is by saying you were really pissed off, then say it. Don’t make words up.

When someone asks you to “tell us in your own words what happened,” they don’t mean you should use YOUR OWN WORDS! They mean, “Use OUR words—English words, real words, words we’re all familiar with—in your own combinations, to tell us what happened.”

What in . . . heck . . . does it mean to say, “My level of pissivity was pretty high”? That’s not communication, that’s the Red Queen’s Tea Party. 

If the jury has the collective brains of a flock of sparrows, and comes back with a question about what that means, some poor judge is gonna have to give an instruction on it. What’s she gonna say, “It means maybe I shoulda stayed in the DA’s Office”?

Bob Gardner was a friend of mine. And I’m quite confident he would have owned a Big Ass Fan before he would have approved the use of terms like “pissivity.”

I’m writing here out of fear—no, terror—that some tyro lawyers or crypto-Bowdlers(8) are going to seize on “pissivity,” this novel abominanity,(9) and try to use it in a brief. It has, after all, shown up now in a published opinion.

Don’t do it. When I hear someone say they were pissed off, I hardly give it a second thought. If I hear someone say their level of pissivity is rising, I instinctively dislike and distrust them. The road they’re traveling suddenly and dramatically tilts uphill. Words can do that to you if you aren’t careful.Bedsworth’s Corollary to Gardner’s Anti-Vulgarity Lamentation: There is a middle ground between being vulgar and being a prig. Anchor your shoes in that middle ground and don’t venture out of it until you’re old enough to wear purple. Or to get all worked up over people’s language choices.

Beds Notes
1. Legends are like your brief: they’re based in fact. Myths are like your opponent’s brief: they’re just made up stuff.
2. A Gallery of Gardner (1979) 19 Santa Clara L.Rev. 925; Gardner, The Second Gallery (1984) 24 Santa Clara L.Rev. 901.
3. Famous amongst appellate types. To the rest of the world, it’s nano-arcana. (Don’t bother with the dictionary; I made that word up. It’s mythic).
4. A term I’ve left in the text only to give me the opportunity to point out that “ordinary appellate court justice” is rather clearly an oxymoron.
5. Generally referred to as recidivists.
6. Emerson: “A foolish consistency is the hobgoblin of small minds.” Note the adjective “foolish.”
7. You may have heard that commented upon before.
8. Look up “bowdlerize” if you want to see how people who try to “clean up” the language are remembered.
9. I refuse to call it a word. I don’t know what to call it. So I have invented my own word for it. Since it’s an inane abomination, I’ve chosen to call it an abominanity. This is the third or fourth word I’ve invented in this column. I trust you’re beginning to see what a bad idea it is.

William W. Bedsworth is An Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.