Gary Musings

What I Don’t Know Could Fill The Universe.

I recognize that I tend to be somewhat of a snoot when it comes to the English language. I’m not an expert in it, by any means, and frankly, short of probably being able to call something a noun or a verb or a preposition or an article, I do not have a handle on the grammarian’s patois. Restrictive, nonrestrictive, antecedent, dependent, independent,subordinate, appositive, absolute, and so on. I think I generally know how to use English, but I couldn’t tell you (with any confidence) what the names of its parts are. I don’t even qualify for Potter Stewart’s “I know it when I see it.” Maybe I’m more of a “Smoke’em if you got’em” kinda guy. (Though I don’t smoke, whether or not I got’em.) I know that old-fashioned watches kept time by spring-action moving various gears, but I couldn’t tell you the name of any of the parts.

Oxfords or Loafers, Anyone?

But I do recognize that I definitely have some biases on a few of those earth-shaking controversies. I like, for example, to set off by a comma the penultimate item in a series. Who doesn’t love a good Oxford comma, right? “John, Mary and I went to the park.” “John, Mary, and I went to the park.” Those two sentences could mean exactly the same thing, or they could mean two different things. In the first sentence, either two or three people went to the park. Either I told John that Mary and I went to the park, or all three of us went to the park. In the second sentence, most of the time it would mean that all three of us went to the park. (A possible exception: If I’m speaking to John AND Mary, then only I went to the park. But who comes up to two people and say, “John comma Mary comma I went to the park”? More likely, “Hey kids, I went to the park.”)

The REAL Battle of the Century?

Anyway, I know there are raging defenses from both sides on it. I remember a popular trend in the 1950s or 1960s toward dropping that last comma. I resisted. (Fortunately, my English teachers were rather meh about it all, so I wasn’t dinged for going up the flow instead of with it.) Over the years, I have found more instances of ambiguity in sentences without the Oxford comma than in those with it.

I Like To Think I’m Simply, Well, Anchored.

Maybe that’s just a shortcoming of my own thought processes. I admit I tend to cringe when I hear “She graduated high school in 2015.” (A long way from the original usage, “She was graduated from high school in [an 18th or 19th century date].) I confess, though, that I never adopted the “was,” and tend to say “She graduated from high school.” There’s no more justification for me to cringe at the evolution dropping the “from” than there was for my grandparents (or great-grandparents) to cringe at the dropping of the “was.” (I believe the original idea was that the institution bestowed the graduation by conferring a degree, so it did the graduating, and the person was graduated from the school by the institution.)

Why Do They Call The End The Start?

Then again, disclosure here: For a long time, I never really thought about the meaning of “Commencement” at graduation. For years (I won’t say whether it was years after graduating from high school or from law school), I blithely associated “Commencement ceremonies” as meaning the end of the road. I’m not sure what made me realize that nope, it’s the beginning of a new life (or some such positive bromide).

And Now Back To Our Regular Programming.

Which brings me to That Which goes awry. I’ve mentioned elsewhere on this site that I do a lot of copying and pasting from opinions, and that I reorganize and even substitute some of the words. I intend to convey the same principle, but because I am not presenting the entire opinion, sometimes I have to tinker to give some context, or maybe I’ll slap a couple of sentences together because they share a significance but in the opinion they were several paragraphs apart. One of the things I’ve been doing more and more is changing what I perceive to be the use of the word “which” where I think the word “that” is more formally the correct term.

Anyone Darwinian?

I do keep in mind that our language evolves. Thank goodness for that. I remember reciting a passage from Chaucer’s Canterbury Tales as an English assignment. I did not have the luxury of listening to a digital recording of a native 14th century English speaker, so I’m guessing my accent was a tad off, but my goodness, I had to trust my English teacher that it was written in English, because you couldn’t prove it by me. I suppose it’s like speaking any foreign language when you don’t know how, but I’m sure I sprayed a few students in the front row as I spat out the words the best I could. So amen to change, right?

Me, A Culpa? Never!

Keeping in mind my opening confession of snootiness, I do believe that the that/which enigma has not yet been formally accepted by most grammarians to consider that the two words are easily interchangeable and mean the same thing (or signal the same thing to the reader, perhaps).

Ding Dong, The Witch Is … Oh, Wait! Wrong Song!

Generally speaking, “which” will introduce a clause that the sentence could do without and still have meaning. “The manual, which comes in paper and electronic format, tells me how to assemble the chair.” I could write that as “The manual tells me how to assemble the chair,” and that’s a perfectly fine sentence. The “which” clause adds interesting and related information, but it is not the answer to “What should I read to learn how to assemble the chair?”

That That Is, Is; That That Is Not, Is Not That Is. (Or IS That?)

On the other hand, “that” introduces something that is vital to the sentence. “The book that says “This is how to assemble the chair” is the droid you’re looking for.” If I take out the “that” clause, it says, “The book is the droid you are looking for.” If my question is “What should I read to learn how to assemble the chair?” I’m not going to learn much without the “that” clause.

You’ve Got To Punc-Tu-U-Ate The Positive (Oh Wait, Another Wrong Song!)

And normally, a “which” clause is going to be set off by punctuation. (Not to be confused with Santa Claus, who sets off with a team of reindeer.) If it is in the middle of the sentence, a pair of commas will usually do the trick. “The book, which has a yellow cover, is on the table.” Or a period could work, depending on location. “Look on the table for the book, which has a yellow cover.”

Accept Except?

There are, of course, many times when “which” is appropriate in slightly other contexts. “I don’t know which book to pick up.” “That which is the most reliable is often the most overlooked.” Neither of those sentences would sound good substituting “that” for “which.” There are probably a few other exceptions, too.

Everywhere I Go Egos.

I think it is my ego that instigated the writing of this article. When I see “which” where I think “that” ought to do, I change the language used by the courts in many opinions–in fact, some of the language appears in quotations from cases cited by the opinion as seminal authority–because I don’t want to sound like I don’t know when to use “which” and when to use “that.” Fully recognizing that usage is more of a guideline than an actual law, of course. And I don’t mean to cast disrespect on the courts that have chosen to use “which” where I think “that” is the more correct word. As the declarers of the law, what they say IS the law, right? So who am I to nitpick on a point on which (see, there’s a place where which works and that doesn’t) it’s probably just a matter of time before I’m wrong, or I’m right AND they’re right.

Why Stop With The Teeth?

I do have authority supporting my view, of course. (Never go armed without authority. Especially when sometimes it’s easy to find authority supporting either side of opposing and incompatible views.) From oldest to most recent of the weapons in my writing arsenal:

Guide to Modern English
Corbin, Perrin
Pub by Scott, Foresman and Company
1960

A Dictionary of Modern English Usage
H.H. Fowler, Second edition
Pub by Oxford at the Clarendon Press
1965

Line by Line
Clair Kehrwald Cook
Pub by Houghton Mifflin Company
1985

Woe Is I
Patricia T. O’Conner
Pub by Riverhead Books, New York
1996

Garner’s Modern American Usage
Bryan A. Garner, Third Edition
Pub by Oxford University Press
2009

The Internet
2026

And with that, I’m back to my which hunt!

What You’ll Find in These Summaries

As I’ve said more elaborately elsewhere on this site, the unpublished opinions cannot be cited, but they have to base their decisions on cases that HAVE been published. So for each tidbit I have extracted from the opinion, I have listed the citable authority relied on by the Court of Appeal. Because the opinion cannot be cited as authority, my focus is not so much on the reasoning behind the result. (For example, I likely will not recite all the facts that show why the officers did not have probable cause for a warrantless search.)

Instead, I will pull out principles that might be useful in ANY search and seizure appeal, or even in any criminal appeal no matter the issue. What is the standard of review? When does the appellate court defer to the reasoning of the superior court? When does the appellate court conduct independent review? De novo review? Is this Watson error or Chapman error (important in deciding whether an acknowledged error results in relief or is found to not have made a difference, so no harm, no foul)?

Not Your Typical Summaries

Some summaries will lay out the context in which the issue arises. Maybe include some background on laws regarding the recall of the sentence in light of changes in the definitions of murder. Or how enhancements or selection of sentencing scheme may have to be reexamined in light of changes in the elements required for conduct to be criminal (such as whether a strike conviction for a gang offense is still a valid strike in light of changes in the gang offense statute). And so on.

So these summaries are likely different from what you might be used to reading in legal newspapers that summarize published opinions, or the summaries you might run across in publications by various defense-oriented organizations. I’m less interested in pointing out the reason the court ruled the way it did, and more interested in what “universal” rules it applied in reaching its result. (The same principles are cited in the unpublished decisions that do NOT result in relief, but I can’t read and summarize them all!)

Why Universal Rules, Not Case-Specific Facts?

Why that focus? Because every appellate brief has to inform the appellate court of the applicable rules! And since it is expected, it is important to know the options so you can intelligently argue in favor of the option that most favors your client or, if there is only one option, how YOUR client is entitled to win even given that principle. For example, if you know that there was no objection in the trial court to preserve what would otherwise be a good issue (thus subjecting it to not being even considered by the court, as it was forfeited for lack of timely objection), then you can frame your argument to demonstrate how an objection would have been futile, or how the issue is a straight question of law that the court can consider despite the lack of objection, or why, in your client’s case, the court should exercise its discretion and treat the issue anyway (which it has the right to do). And you may find authority in the PUBLISHED cases cited in the unpublished cases,

If you can characterize an error as a violation of a federal constitutional right, then it is likely that the Chapman standard applies (reversal unless the error is harmless beyond a reasonable doubt). If it is argued as a state error, then prejudice will be assessed under Watson–no reversal unless, but for the error, there is a reasonable probability that there would have been an outcome more favorable to the defense. So whatever your error is, you want to persuade the court–based on the law, of course, not just on desire–that the Chapman standard applies, not Watson. Or if you can’t, then you need to actively demonstrate just how a better result for your client would likely have been the outcome had the error not been committed. Courts of Appeal are seldom swayed by bald statements “and my client was prejudiced by the error.” Maybe the citations following the summaries on prejudice will give you the info you need to make your best case for a suitable finding of prejudice.

Using Citations as a Research Springboard

While you cannot cite the unpublished opinion itself, you can review the citations I have listed below the discussion of the lack of objection or prejudice (or whatever). While not universally true, it is not unusual for the published opinion the court relied on to have a factual situation somewhat like the case it is deciding. Maybe that citation will be a springboard for you to find one or more cases very close to your own. The closer your research relies on cases similar to your own, the harder it is for the opposition to argue that the cited case is so distinguishable as to be not helpful.

How to Read These Summaries

My plan is to have a brief statement of context (a summary of the summary) at the beginning of each post, but I hope you consider it to be simply the context in which the principles were announced, and that you click to the full summary to see those “rules” that the courts generally follow to guide their analyses. Don’t look at a summary that mentions burglary and ignore it because your case is a drug offense. The summary itself may have little to do with the law of burglary, and instead it will contain “binding” maxims that you’ll need to be aware of (and address) in your briefing, whether your case is a burglary or a drug sale or a homicide or ….

Want the Full Opinion?

Remember also that, if you are an attorney, I will, on your request, send you the full unpublished decision to the email address you have showing on the state bar website. (Unless, of course, there is an overwhelming demand for this service, in which case I’d probably have to rescind the offer.)

Happy Hunting!

Gary

Category Archives: Gary Musings

That Which Goes Awry 6/11/2026