Nino and Me

by Bryan A. Garner

  “I don’t think I said that.”

  “I’m quite sure you did.”

  “Well, let’s look it up right now,” he said. We did, and I was wrong.16 He hadn’t used the phrase in our jurisprudence. I had misrecalled the wording in the case.

  “So your memory is failing you, eh?” he said with a smile.

  “I suppose so,” I replied, suppressing a grin. “But my point still stands. You can have a hapax legomenon for a subset of the language, I assure you.”

  “Let’s get back to forum,” he said. “It was the word forum that got us off on this tangent!”

  “Oh, yes,” I said. “The word forum has been completely naturalized. We don’t italicize it unless referring to it as a word. And the plural has been fully anglicized: forums.”

  “Are you sure? Is it in your usage book?”

  “Yes.”

  “Let’s see. Buh-buh-buh-buh-buh. Page 365: ‘The preferred plural is forums, not fora.’ Is it in Fowler?”

  “I seem to recall that both the original 1926 Fowler and the 1965 Gowers revision are silent on the question.”

  “Let’s just check. I have the 1965 edition right here. Buh-buh-buh-buh. Here it is. Nope. It’s not there. How do you know all this stuff?!”

  “I’m a lexicographer. I live and breathe this stuff.”

  “Hey, listen, we need to get back to our book!”

  He was right. “The point is,” I said, “that we want our book to be useful to people in arbitrations and even city-council meetings as well as police courts, family-law courts, and even the U.S. Supreme Court—every forum. So I think we should use the word tribunal in point number one.”

  “ ‘Make sure that the tribunal has jurisdiction.’ I like that. We’ll start with that. Then we can go to the points you already have.”

  “Let’s look at them closely and see whether you agree with the general principles—the first 20 points or so.”

  We ended up working through those first 20. He rearranged the points in my draft and reworded them as I took careful notes. He also had a few other observations throughout the table of contents. But the close scrutiny on the 100 or so points after the “General Argumentation” section would have to wait. Time was getting short for this particular meeting.

  “What do we do next?” he asked.

  “Let’s discuss something I might have brought up earlier,” I answered. “Whenever I write a book, I must learn the literature through and through. I believe it’s important to try to know the existing literature in the field as well as any human being has ever known it. That means we must do lots of reading as we collect points and elaborate them.”

  “Okay, tell me what you want me to read.”

  “I’d like you to start with Quintilian’s book on rhetoric and Cicero’s book called Orators and Oratory.” He was taking notes with a pencil.

  “What else? I’ll look at whatever you say.”

  “Piero Calamandrei’s book A Eulogy of Judges. Have you heard of it?”

  He smiled. “No. You like the Italians, don’t you?” He then picked up the telephone: “Angela, have the library get me three books—Quintilian’s book on rhetoric, Cicero’s book on orators and oratory, and Calamandrei’s book on a eulogy of judges. Thank you.” Down the receiver went. “I’ll turn to those this weekend, Bryan. Anything else?”

  “One last thing. It’s a practical problem about collaborating—and I have a proposed solution to it.”

  “What’s the problem?”

  “I’ve been thinking that if I do the first draft and you just edit what I write, then you’re just reacting to my material. We won’t have the full benefit of your creativity. If you do the first draft of a section, I might be too deferential to whatever you write. Do you see the problem?”

  “I want to make one thing clear with this book. You are not my law clerk. You’re my equal—for purposes of this book, anyway. Let’s have no signed sections in the book. What’s your proposed solution to the problem?”

  “I propose that we each write every section once we approve the outline. Let’s write the same sections simultaneously, as if we were independent authors, and then I’ll meld your work with mine. We’ll have the benefit of your creativity as well as whatever modicum of creativity I bring to it. I’ll bet it’ll work perfectly.”

  “Could we try this on some sections of the book we’ve agreed to today?” he asked.

  “Great idea. Why don’t you send me two sections each week beginning this Friday. So we’ll each draft sections 1 and 2 this week, 3 and 4 next week, and 5 and 6 the week following. Then I’ll be in charge of blending the two drafts of each section together. If it works, we could do the whole book that way.”

  “We have our weekly conference on the cases on Fridays. What time on Friday?”

  “How about 4:30 Eastern Time?”

  “That’s good. So 1 and 2 are due to you at 4:30 this Friday.”

  “Yes, sir. And I’ll finish my first draft of those sections by the same deadline.”

  Angela came in. “Justice, your reservations at Tosca are in 30 minutes. The marshals are in the car in the garage.”

  “Yes.” To me: “Let’s call it a day and go have dinner. But you don’t want to go to Tosca again.”

  “Sure I do. It’s great. I’d never been there before last night. If it’s your favorite, let’s go there.”

  Guy Fawkes Day Dinner

  When we arrived at Tosca, we were ushered to the back, where Justice Scalia’s favorite table was. He ordered a Campari and soda and suggested I do the same. “You’ll like it, I think.” And I did. The waitstaff and Paolo, the manager, were especially solicitous.

  “We’re off to an excellent start. Thank you, Justice Scalia. I think it’s going to be a good book.”

  “I agree. I’m most happy about it. Now tell me about your family.”

  “I have two daughters. You met Caroline, who’s at Yale, and Alexandra just turned 15. She’s at the Hockaday School in Dallas.”

  “That’s a private school?”

  “Yes. It’s perhaps the finest girls’ school west of the Mississippi—one of the best in the country.”

  “Ah. Very good. And tell me about your wife.”

  “I’m going through a divorce right now.”

  “Oh my. How long have you been married?”

  “Twenty-three years. It’s a very difficult time for me.”

  “What’s your religious tradition?”

  “I was raised an Episcopalian, but I’m not a churchgoer.” I shrugged. “I never thought I’d be someone who’d get a divorce.”

  We discussed my predicament at some length, and he was sympathetic and understanding. “That’s too bad. Sometimes there’s just no other option,” he said. “Look, we’re friends now, and you let me know if you’re ever in need of help. Maybe just someone to listen.”

  “Thank you.”

  Meanwhile, the gourmet fare at Tosca, together with the wine, was superb—even better than the night before—perhaps because I was in better company. The waiter brought us tiramisu and grappa on the house, and we were both thoroughly satisfied. He insisted on having the marshals drop me off at my hotel before taking him home. It was a chilly, wintry night.

  “Thank you, Justice Scalia. That’s very kind. By the way, I’ll be back in town next Sunday,” I said. “I’ll be interviewing Justice Ginsburg the following day.”

  “You’re flying in again Sunday?”

  “Yes.”

  “Well, let’s have dinner again then!” he said. “You can show me the revised outline.”

  “Excellent.”

  “I’ll get it on the calendar this time! But let’s try Bistro Bis next week. Sunday at 7. You’ll like Bistro Bis.”

  I made a note of it, as well as a note to call Angela so that she could remind him.

  As the marshals’ car approached the Mayflower Hotel, on Connecticut Avenue, Justice Scalia said, “Okay, Bryan, goodnight. You’ll have my fir
st writings on Friday.”

  “Thank you! Goodnight. Best Guy Fawkes Day ever.”

  Technical Difficulties

  The next day, I called Angela to ensure that Bistro Bis was on his calendar for Sunday at 7:00 p.m. Good thing, too: she hadn’t yet heard anything about it.

  That Friday, at precisely 3:30 Central Time, I was in my office in Dallas. On my computer screen popped a message that I’d received an e-mail message from “Scales” at the Supreme Court. “Attached is my first crack at the initial sections.” That was it. No sign-off. A Word document was attached.

  Even in 2006, I was considered a dinosaur for clinging to WordPerfect and MS-DOS instead of switching over to Microsoft Word on Windows. WordPerfect was a great word-processing program. The pages looked more beautiful, and I had mastered all sorts of macros that made composition easier for me. Here’s what shocked most people: I used WordPerfect 5.1, which had been essentially discontinued in the 1990s. That software allowed me to type and execute all sorts of commands without ever leaving the keyboard. No mouse clicks. Everything was by keystrokes. I was convinced (and still am) that my letters and manuscripts had a more pleasing look than anything produced with Word.

  In any event, it was no trouble opening Justice Scalia’s document in WordPerfect. But as I would soon learn, his opening my documents in Word was a different matter—and a major annoyance to him.

  I had more immediate problems, though. His attachment perplexed me. Although I could tell that the first two paragraphs went with section one, the rest of the materials seemed jumbled. It wasn’t clear what sections he was writing on. It looked as if he’d written on the first six sections—two or three paragraphs for each—but nothing was designated, and no point headings were given. It looked like a mishmash. The writing was good, of course, but the presentation baffled me.

  By e-mail, I acknowledged receipt and said some complimentary things. But I couldn’t quite bring myself to acknowledge how confused I was by the intended placement of his contributions. I tried to figure out how to integrate his paragraphs with mine, but trying to do that only intensified my frustration. I just couldn’t tell where he wanted his paragraphs to go.

  I decided we’d talk about these points over dinner Sunday at Bistro Bis. I took a cab from the Mayflower at 6:45 and arrived at the restaurant five minutes before our 7 o’clock reservation. He still wasn’t there by 7:30, when I asked to go ahead and be seated. Once again, he didn’t show up at all. I felt disappointed but somehow not entirely surprised. I worked on my questions for the Ginsburg interview instead.

  The next day, I arranged to meet with Chief Justice John Roberts’s assistant to schedule his interview the following March, recorded a half-hour interview with Justice Ginsburg, and then met with Justice Scalia late that afternoon. He was profusely apologetic for standing me up a second Sunday in a row, saying that he’d unwittingly double-booked the night before. We had a productive meeting: we improved the outline a little more, and we both liked the new organization. I had proposed adding a new major section on legal reasoning, and he approved of that as well.

  That evening, it occurred to me how we might simplify the preparation of the manuscript. Perhaps I could ask him to handwrite his paragraphs. He could use one of my favorite techniques: I would print a manuscript-development copy of the book—call it a workbook—in which each point heading would appear in boldface type at the top of a separate page, with the rest of the page left blank. That way, he could handwrite his paragraphs there, or he could simply print the manuscript, hole-punch it, and put it behind the section to which it belonged. Then it would be clear to me what went where.

  This assumed, of course, that he was as comfortable with handwriting as I am. Having seen him jotting things with a pencil when we were in chambers together, I knew that his penmanship was quite legible. Anything would be better than these disembodied paragraphs with no discernible place where they belonged.

  On December 29, I had one of my assistants prepare such a three-ring binder. I handwrote a letter to accompany the binder, explaining how he could use it by jotting down paragraphs as they occurred to him. Here I acknowledged pretty candidly that his first batch of materials was proving a challenge to sort out, and I assured him that I thought this “manuscript-production binder” might make the writing easier for him. Here’s what my letter said:

  29 Dec. 2006

  Dear Justice Scalia,

  The 14 pages of manuscript you sent last week are superb. Thank you. I’m thinking that it might be easier, though, for you to hand-write your paragraphs on the sheets in these notebook pages, and to add sheets when necessary. I’d be happy for you simply to send me your longhand manuscript. That will make it easier for me to tie your passages to the particular section of the book (that’s taking some judgment with the parts I’ve already received).

  We’re off to an excellent start.

  Our lunch on January 10 must be postponed: I’m to testify in St. Louis as an expert witness midday that day—and I recall that you’re leaving town just after lunch.

  At some point I certainly hope to meet Mrs. Scalia. My best wishes to the entire Scalia clan for the new year.

  Sincerely,

  Bryan

  With this letter stuck into the front of the binder, my assistant and I sent off the package by FedEx the following Monday, for Tuesday-morning delivery. Meanwhile, I worked on sorting out the embryonic manuscript as best I could.

  That Friday, more material arrived in much the same condition as the last batch: unnumbered, undesignated paragraphs to be plugged in somewhere in sections toward the beginning of the book. As promised, I had been writing in those sections. I tried to integrate his drafts, which I edited moderately. The writing was excellent, and the melding of his materials with mine was going smoothly.

  I attached the first five or so sections to an e-mail and sent it before New Year’s Day so he could savor the material over the holiday. I imagined him reading it over during the occasional lulls that must occur in the Scalia household even with so many children and grandchildren around. If I heard nothing back for a while, that would be understandable: I’d wait and see whether I’d heard from him by the end of the first week in January.

  It was a good 18 pages’ worth of manuscript. I had massaged it, amplified it, rearranged it a couple of times, and run it by my in-house editors. They subjected it to the normal level of LawProse editing—which is quite a lot. Once we had it polished, I asked Tiger and Jeff, my colleagues, to try to identify what Justice Scalia had written and what I had.

  They told me it was too easy. They marked the manuscript with an S or a G indicating who they thought had written each paragraph—and they both got it wildly wrong. Although they’d both been working with me for nearly seven years, they attributed most of his work to me, and most of my work to him. That was encouraging. What was more important, though, was that they were unusually enthusiastic about this manuscript. Normally, Tiger and Jeff are subdued in reacting to a manuscript that I think sizzles. But this time was different: both more or less gushed about it.

  What remained was to get a reaction from my coauthor. Having heard nothing in a week, I sent a brief message on January 6: “Dear Justice Scalia, I trust you received the manuscript I sent you shortly before New Year’s Day. How do you like it?”

  This had been my first attempt at combining our work into one cohesive text, and I was excited about the results. But as more time passed with no response, that excitement turned into anxiety.

  The Breakup

  In the middle of the afternoon on January 17, I decided to call his office. I’ll never forget where I was: in the Driskill Hotel in Austin as an unusual blizzard was beginning to hit. Travel would be impossible. I lay on my belly on the hotel bed—my usual posture for writing—and called his office. Angela answered. “Justice Scalia’s chambers.”

  “Hello, Angela! It’s Bryan Garner. Is Justice Scalia in?”

  “Yes, he is.” She sounded
a little hesitant. “Please hold a moment.”

  After 45 seconds or so (it felt like an eternity), he came on the line: “Hello, Bryan.” He sounded a little somber. “How’s the weather down there?”

  “I’m in Austin, in the midst of a blizzard. How’s the weather up there?”

  “It’s sunny and fine. Beautiful for this time of year.”

  “Have you had a chance to look at the manuscript I sent?”

  “Yes, Bryan, I have. I’m not going to be able to do this book. I’m sorry.”

  “You didn’t like it? Everyone I’ve showed it to is raving about it—my staff, I mean.”

  “I don’t think so. It’s not for me.”

  “Oh, no. Well, how can I fix it?”

  “You can’t. You’re not using my stuff. Frankly, I think you just wanted my name on your book, and I don’t want to be used that way. Lookit, this is your book, not mine. I’ve enjoyed getting to know you a little, but a collaboration just isn’t in the cards. I’ll tell you what. Next time you’re in Washington, come by and we’ll have lunch in chambers. But I’m not doing the book.”

  I fumbled for words: “May I at least have another chance?”

  “I don’t know what good it would do. I’ve made up my mind.”

  “Did I edit your material too heavily? Is that the problem?”

  “You’re not even using my material. I don’t even recognize it. This is your book.”

  “Please give me one more shot. I’ll send it to you shortly.”

  “Send it along, if you like. You know my thoughts.”

  “Thank you.”

  “Goodbye, Bryan.” Click.

  Needless to say, I was stunned. What had I done? Was it that he just wasn’t used to having his work edited by someone else? I know sometimes people are shocked by having others edit their work, but here he was at least seeing a clean manuscript, not all my hand-marked edits (which might indeed have shocked him). Obviously, I’d gone too far.

  Immediately, I went down to the Driskill business center and began composing a letter to him: