Tuesday, December 3, 2019

Begging the Question

English Majors have awesome powers. We can punctuate a sentence without emoji. We know the different between the “plot” and the “theme” of a story. We could correct your grammar, but we usually resist the temptation.

English Majors also know language changes. Thanks to an amazing high school English teacher forty years ago, I can still recite the opening lines of Chaucer’s Canterbury Tales in incomprehensible Middle English (“Whan that Aprille with his shoures soote / The droghte of March hath perced to the roote”). Despite some initial misgivings, I accept that “contact” and “access” can now be used as verbs, even though traditionally both were nouns. I'm an enthusiastic language nerd, not a judgmental curmudgeon.

As a writer, sometimes I’m frustrated by words whose meanings are in flux. Isn’t language supposed to be about communicating a particular idea to other people?

Over the years I’ve adopted several strategies for dealing with linguistic uncertainty. The most important is to identify your audience. For example, ordinarily I believe folks should split infinitives whenever it feels good. The English infinitive form of a verb consists of a phrase that begins with the word “to”: “to write,” “to complain,” etc. Splitting an infinitive means putting an adverb between the word “to” and the main verb: “to elegantly write,” “to constantly complain,” etc. We’ve been splitting infinitives for as long as we’ve been speaking English. However, a couple of hundred years ago a pedantic cleric denounced the practice, resulting in several generations of hyperanxious students. As “Grammar Girl” observes

The only logical reason to avoid splitting infinitives is that there are still a lot of people who mistakenly think it is wrong. If you write from a position of power, split your infinitives as much as you want. Be guided by the sound and flow of your sentence. On the other hand, if you have to please others or avoid complaints, it’s safer to avoid splitting infinitives. There's no reason to deliberately split infinitives when you know it's going to upset people.

I’d like to think of myself as a powerful writer. But when I know my audience includes crotchety old men – a demographic that is overrepresented in the judiciary, for example – I edit myself. In this case the language itself never changed. Just snobby attitudes. 

Of course, there are other times when I’m the snob. A large percentage of Trump voters, bless their hearts, use the fake word “irregardless.” Nevertheless, I’m confident even they will understand my intended meaning if I type “regardless” or “irrespective” instead.

Anyone operating in English must live with a degree of ambiguity. Generally that’s a good thing. Language is endlessly flexible. If necessary, we can always use verbal and nonverbal cues to nudge readers and listeners toward our intended meaning – even with contronyms, i.e., words that, depending on context, can have two contradictory or even opposite definitions.

For example, when the word “decimate” was coined it meant eliminating one in ten of something – originally one in ten soldiers in a Roman legion. Nowadays most people use "decimate" to refer to destroying or removing a large proportion of something. As a writer, you can use the context to signal whether you meant to eliminate 10 percent or 90 percent.

Usually it’s not worth the bother. The easiest strategy for dealing with words or phrases that require a lot of extra explanation is to avoid them completely, at least until you’re confident you have an audience who will catch your intended meaning. No one can focus on your message if they’re busy arguing about whether you referred to Yanny or Laurel, or wondering if the dress was blue rather than white. Fortunately English has more words to choose from than any other language in the history of the universe.

On the other hand, the gold standard for elegantly handling ambiguous words or phrases is to craft a sentence that makes sense under either common definition. I was thinking of this challenge last month when I received an odd letter from Solicitor General Noah Purcell, the State of Washington’s top courtroom lawyer. His letter begged the question – what was Noah thinking?

In all my decades of pompous writing, until now I’d never typed the words “beg the question.” The reason for my reticence:  you think the phrase means to raise a specific question for the reader or listener to consider. Go ahead, admit it. There’s nothing wrong with you. You’re just not an English Major.  

What “begging the question” really means is to argue in favor of your proposed conclusion by assuming the conclusion itself is true. The English phrase originally came from an awkward translation of the technical term used by Latin rhetoric scholars for this logical fallacy:  petitio principiiBegging the question is the quintessential example of circular reasoning.

In the Washington Court of Appeals’ opinion last month, here’s how the Court summarized the factual background of my pending lawsuit:

In November 2015, Leishman’s physician diagnosed him with post-traumatic stress disorder (PTSD) and serious codependency. Leishman informed the Attorney General’s Office of his new diagnosis and ultimately submitted a formal request for reasonable accommodation of his disability in February 2016. In March 2016, Leishman, an openly gay man, also filed a complaint with the Attorney General’s Office, alleging that his supervisor, Kerena Higgins, made homophobic comments towards him. Leishman felt that his PTSD was triggered by Higgins’s comments and her micromanagement of his work. During a meeting with Higgins to discuss Leishman’s disability accommodation and Higgins’s comments, Leishman became aggressive, raised his voice, and pounded his fists. [As the Complaint states, this occurred when she accused me of faking my disability. The doctor who evaluated me opined that my response was typical.]

Higgins complained to the Attorney General’s Office about Leishman’s inappropriate conduct and the Attorney General’s Office placed Leishman on home assignment. The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins, and Higgins’s allegation that Leishman was inappropriate during their meeting

Ogden Murphy Wallace drafted a report concluding that “Leishman has not established support for his complaint of discrimination against him based on sexual orientation as prohibited by Attorney General’s Office polices.” The Ogden Murphy Wallace Report also concluded that “Mr. Leishman’s conduct during the March 1 meeting [with Higgins] violated expected standards of conduct for his position as reflected in his job description.” 

I wish I could get my own summary of “My Story So Far” down to a lean 212 words. I’m jealous of Judge Mann’s pithiness. 

Brevity shouldn’t be so hard. As I recently wrote in “The Western Comma,” it turns out my fundamental argument actually is very simple, and quite English Major-y. There should be a period where the comma appears in the Court’s sentence I highlighted above:  
The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins.

That’s what the Attorney General’s Office and Ogden Murphy Wallace said publicly when they identified Ogden Murphy Wallace’s assignment as part of the State’s rigorous and transparent contract procurement process. That’s what the lawyers from the Attorney General’s Office and their attorney-investigator told me. That’s what my Complaint alleges. And that’s the only way the rest of the story makes sense. My lawyer would never have allowed me to be interrogated alone for over an hour if she or I had known my employers were secretly looking for a way to justify firing me, rather than asking their investigator to conduct a thorough and independent investigation into a specific complaint regarding discrimination based on sexual orientation.  

It’s true that senior lawyers from the Attorney General’s Office made the mistake of asking their investigator to look into a separate supervisor complaint about my workplace conduct, without amending the contract documents. But that’s not what they told the public, my lawyer, and me. And that’s not what the State’s vendor contract authorized. 

So what’s the State and Ogden Murphy Wallace’s response to the damning evidence? Its hard to tell – so far all they've ever done is stall and lie. I guess they’d say that when a gay employee identifies evidence of implicit and explicit homophobia in the workplace and his employer hires an outside attorney-investigator to look into his discrimination complaint, there’s nothing wrong with these experienced employment lawyers secretly focusing on a second unrelated personnel investigation topic instead. 

Actually, there’s a lot wrong if a private investigator’s sleazy business plan consists of telling government employees and other members of the public that he’s “independently” investigating Subject X, when the investigator and his agency customers are actually working together to smear their target with dirt about Subject Y instead. This deceptive practice is particularly troubling when it prevents a disabled employee from enjoying the benefit of the employment lawyer he hired to represent him in connection with Subject Y.

That’s why I filed a Complaint in court suing Ogden Murphy WallaceSeattle’s sleaziest bottom-feeding law firm®,” and its partner Patrick Pearce. That’s why I fought and won on appeal when Defendants had my Complaint dismissed on an erroneous technicality. That’s why I submitted bar complaints about the lawyers’ unethical conduct. And that’s why I will keep speaking truth to power about dishonest attorneys and abusive bureaucrats – until someone in authority finally begins to listen.

Dos Bros – Washington Solicitor General Noah Purcell 
and his boss Attorney General Bob Ferguson

Back to the letter I received last month from smarmy Solicitor General / erstwhile Attorney General candidate Noah Purcell. Actually I was merely cc-ed. Noah addressed his letter to the judge who wrote the Court of Appeals published opinion in my lawsuit. On behalf of the State of Washington, the Solicitor General asked the Court to revise its decision and tone down its description of my supervisor Assistant Attorney General Kerena Higgins’ central role in my termination, in order “to avoid needless harm to a public servant.” Seriously – you can read Noah’s obsequious taxpayer-funded letter for yourself.

After a couple of weeks of Trump impeachment hearings, Noah’s letter makes me proud to be the whistleblower type of public servant, rather than the political hack type who prefers to malign us and cover up official wrongdoing.

As the Court of Appeals observed – and as the Solicitor General necessarily acknowledged in his letter – for purposes of the Court’s opinion “the factual allegations in the complaint are accepted as true.” Opinion at 5 (citing Northwest Animal Rights Network v. State, 158 Wn. App. 237, 241, 242 P.3d 891 (2010)); see also Purcell letter at 3. This includes the Complaint’s amply supported allegation that the investigator chose to ignore extensive evidence of homophobic conduct – because the State’s employment lawyers wanted to instead use the Ogden Murphy Report as a pretext to fire me based on secret complaints by Ms. Higgins and others about my workplace conduct.

Nevertheless, Noah’s letter asked the Court of Appeals to whitewash its opinion and “remove its description of factual allegations made by the plaintiff against an Assistant Attorney General that are untrue.” What evidence did Noah rely on in arguing that Ms. Higgins and her colleagues are the victims of “untrue” accusations of homophobia? “The report prepared by Ogden Murphy Wallace.” 

Anyone familiar with basic principles of logic would know better than to rely on the disgraced Ogden Murphy Wallace Report itself as your only evidence that Assistant Attorney General Kerena Higgins couldn’t possibly have said or done anything improper. Solicitor General Noah Purcell’s letter to the Court of Appeals begs the question – what was Noah thinking?


Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce

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