Cumberland Times-News

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October 24, 2013

Appeals court judge shows creativity in opinions

Style said unique in court system

ANNAPOLIS — “Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain.”

That’s not how many judges begin their official written opinions, but for Maryland Court of Appeals Judge Robert McDonald, a little flair goes a long way.

McDonald, a Harvard Law School graduate and a former chief counsel for the Maryland Attorney General’s Office, was appointed to the state’s highest court nearly two years ago. Since then, he has written several opinions that include literary references, creative rhetoric or even a touch of humor.  

“I think one thing that all the judges try to do when they write opinions is to, hopefully, make them accessible and understandable to even people who are not lawyers,” he said.

The banana peel example introduced the court’s March opinion in a case where a woman was seeking damages claiming she was exposed to lead paint as a child.

McDonald’s literary citations in other cases have included references to Shakespeare and the Bible.

While McDonald said he doesn’t view his written opinions as particularly unique, the judge’s lingual liberties are fairly uncommon for a court opinion.

M. Todd Henderson, a law professor at the University of Chicago, studied the relationship between law and literature and published his findings in The Green Bag law journal in 2008.

 In a survey of more than 2 million federal appellate opinions, Henderson found that only about 0.03 percent contained references to works of fiction, and these were dwarfed by the number of citations to history, economics and other social science texts. Henderson feels confident his 2008 discoveries still hold true, he said.

“The findings in the paper suggest that the typical opinion...tended to be a fairly dry recitation,” he said. “I would be shocked if it has changed.”

In Maryland, it is rare for judges to employ literary citations, especially in the trial courts, said Annapolis Attorney Linda Schuett. “Even in the appellate courts, it’s really peculiar to some judges,” she said. “It doesn’t necessarily add to the legal analysis.”

Other Maryland judges who have incorporated literary or cultural works into court opinions include Court of Appeals Judge Glenn Harrell, former adjunct professor of legal writing at University of Baltimore Law School.

McDonald’s background is in economics, but his wife and several friends were English majors and one of his clerks has an advanced English degree, he said. Despite their influence, McDonald said he does not seek out literary references, but simply tries to make his writing as clear as possible. As the former chief counsel for opinions and advice, McDonald wrote Maryland Attorney General opinions for 14 years. He said he was inspired by his predecessor, Jack Schwartz, who served as a Maryland assistant attorney general for more than 20 years.   

“He was such a graceful, clear writer,” McDonald said. “What he was like was a good center fielder on a baseball team: When the ball leaves the bat he knows exactly where its going ...and the ball just falls into his glove. Looks easy, but it was because he knew where to go. And so I always aspired to make [my opinions] as clear and seem as obvious.”   

In a September opinion, McDonald enlisted Shakespeare to help analyze the definition of the word “confines” in a Maryland handgun possession law.

“In Romeo and Juliet, the ill-fated Mercutio spoke of laying one’s sword upon a table when entering the ‘confines of a tavern.’ Maryland law regulating a modern weapon of choice also makes reference to the ‘confines’ of an establishment,” he wrote.

Dr. Richard Gillin, professor of English Literature at Washington College, was pleased to hear of a Maryland judge making references to renowned texts. “Poetry, and literature in general, stands as a hallmark of the highest ideals and we need to be reminded of those ideals from time to time,” Gillin said.

Gillin said that the liberal arts offer a foundation for examining a variety of topics, and provide a wide breadth of knowledge that gives insight into social issues. He said he would like to see literature incorporated into legal decisions more often.

“The best writer or best novelist captures something about the human condition that is valid or true,” Gillin said. “It’s a way of connecting with truth.”

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