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Bench Strength

Judge Mark Painter takes his incisive legal mind—and crisp prose—to the UN.

By Melissa Davis Haller


JUN09 Legal image


Photograph by Carmen Nauseef

It was an advertisement in The Economist that caught Judge Mark P. Painter’s attention. He was surprised to stumble across it, tucked amid the standard postings for CEOs, entrepreneurs, and accountants. “Very seldom do you see a want ad for a judge,” he remembers thinking that winter day in 2008. “And this sounded very different.” The announcement was for a position on a new United Nations court, and the requirements were simple, if somewhat vague: 15 years judicial experience, fluent English, and a high moral character. Painter, a veteran jurist with a reputation for being intellectual and even-handed, felt qualified. So he applied.

Painter has been a judge for 27 years, first on the Hamilton County Municipal Court and then, beginning in 1995, with the Ohio First District Court of Appeals. Since 1990, he has also taught at the University of Cincinnati College of Law, and he’s written six books, two of them about legal writing. The subject is a passion for him. Painter has made a name for himself outside the courtroom as a respected and ardent voice for clear writing in all areas of the law. Writing was, in fact, why Painter was thumbing through The Economist that day: a colleague had commented on the publication’s cogent coverage of complex topics, and he wanted to see for himself. So it was completely accidental that he came across the ad that prompted him to dust off his résumé and, at 62, apply for a new post. Now he’s looking forward to July, when he’ll go global as the only American among the seven judges serving on the first United Nations Appeals Tribunal.

It might seem like a far-flung venture. Painter has spent much of his working life in the Hamilton County Courthouse; soon he’ll be in a court that serves people around the world. But he has also spent years trying to convince his American colleagues that justice demands clarity. “You’re not communicating if no one understands what you’ve written,” Painter is fond of telling others in his field. So at least one aspect of life at the United Nations should feel very close to home: the need for translation.

THE 45 OR so lawyers are amused, some in the throes of deep belly laughs and others just smiling. They’re dressed casually, sipping coffee and eating muffins on a clear March morning in a comfortable University of Cincinnati dining room. Painter, impeccable in a dark pin-striped suit and gold star cufflinks, is standing in front of them, having a laugh at their expense. “There are only two things wrong with today’s legal writing,” he tells them. “One is form, the other is content.” Long and lean, with an angular and expressive face, Painter smiles easily at the crowd. “One of the reasons I do these seminars is self-defense,” he explains. “I’m a consumer of legal writing, and it’s been very bad for a very, very long time.”

The lawyers, who range from litigators to corporate attorneys, are here to earn a continuing education credit. They’ve come from as far away as Louisville and have paid $285 apiece to spend seven hours listening to Painter and laboring over writing exercises like kids in freshman comp class. But by day’s end, they’ll have a generous portion of Painter’s wisdom. They’ll know which fonts are easiest to read; they’ll have tips on avoiding run-on sentences; and they’ll be on their way to crafting lucid briefs, free of the nonsensical verbiage that has dominated their profession for centuries. On a projector, Painter displays an example from the current Cincinnati Municipal Code: “For the purposes of the traffic code, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.” He asks the lawyers what it means, then answers his own question: “It means what it says—unless it doesn’t.”

This is his mission: to rid his profession of jargon. He unapologetically applies words like “stupid” and “atrocious” to the content of legal documents. “We in Ohio can say, without fear of contradiction, that we have the worst code,” he says. “But hey, if you can’t be the best, you might as well be the worst, right? Be distinctive.”

He’s been talking like this for years, first to the students he taught as an adjunct professor at the University of Cincinnati, eventually expanding his work to include seminars for practicing lawyers. He’s published three books on writing and authored the two-inch thick tome Ohio Driving Under the Influence Law, as well as a biography of William Howard Taft. And there’s plenty of opportunity to see that he practices what he preaches. Nearly 400 of his decisions have been published nationally.

His interest in wordsmithing was piqued more than a decade ago during a session with national legal writer, editor, and writing coach Bryan A. Garner. “It was 1995, a seminar on a hard chair on a Friday, and I was sorry for it to be over,” Painter remembers when I visit with him in his office in March. Painter never liked the archaic awkwardness of legal writing—the overused passive voice; the convoluted legalese; the sentences that trail on and on. But more important, it seemed to him that the legal system—an institution established to ensure justice for all—had a duty to communicate in a way that everyone could understand. Garner’s workshop lit a fire under him to do something about it.

IF PAINTER’S IN town, he’s in his appeals court office every day of the week—including weekends and holidays. “No yard work for him!” his wife, Sue Ann, executive director of the Architectural Foundation of Cincinnati, says with a laugh. No golf for him either, which Painter says is “a terrible waste of time.” His desire to make every moment productive doesn’t leave much time for hobbies outside of reading, but Painter does volunteer work for local nonprofits, including serving as a trustee for the William Howard Taft Birthplace. A compulsive multitasker, his office sports a Walkstation—a treadmill fitted with a large desktop and computer. He logs two to four miles a day while reading briefs and the The Wall Street Journal and working on the computer. He bought the Walkstation with his own money, not taxpayer dollars. “When I leave, it leaves,” he says.

Painter’s practical nature comes from his father—a plasterer—who would grumble if his son dragged his feet about doing chores. “He’d tell me that 98 percent of the world’s work is done by people who don’t feel like it,” Painter recalls. Born at The Christ Hospital, he grew up in Blue Ash and graduated from Sycamore High School. “I hated school,” Painter says. “I thought it was such a waste of time.”

He headed to UC in 1965, and found it far more compelling. In 1968 he ran for president of the student body, “and lost by 139 votes out of 5,000 votes,” he recalls. “The next year I won by 130 and some-odd votes. Nixon invaded Cambodia the day I went out of office.” Painter was always interested in the law, but the social upheaval of his college days—from campus drug busts to the student shootings at Kent State University—solidified that interest.

He attended UC’s College of Law, and for a while as a student he owned Murphy’s Pub, an experience that wasn’t financially lucrative but afforded him “free beer during law school.” More important, he took away lasting lessons about people and the human condition. He learned, he says, that “Most people are honest. Most people try to tell the truth.” And he still believes that. His wife says she’s always struck by the people who approach them on their frequent walks around downtown. “Even though they might have gone to jail, they tell him he was strict but fair and respectful,” she says.

He got his Juris Doctor in 1973 and worked for Smith & Schnacke and a predecessor firm (now part of the Cincinnati office of Thompson Hine) before going into private practice, doing mostly criminal and personal injury litigation. He was appointed to Hamilton County Municipal Court in 1982, elected to the same court in 1983, and to the appeals court a little over a decade later. There, the three judges work collaboratively to decide cases that have been appealed from the trial court. His colleague on the appeals bench, Judge Patrick Dinkelacker, says Painter’s “calm and cordial” demeanor contributes to the collaborative and productive atmosphere. Lawyers agree, too. When the story of his election to the United Nations Appeal Tribunal was posted in The Cincinnati Enquirer online edition, one comment left by ExcuseMeButt reflected the prevailing opinion: “Those of us who have known Judge Painter since he first became a municipal court judge will all agree that it is no surprise that he was the only American judge chosen for this highest world honor. He is a consummate professional and one of the finest gentlemen you will ever meet.”

The Appeals Tribunal, and its counterpart, the Dispute Tribunal, were created in 2007 to help the UN deal in a nonpolitical fashion with internal grievances and disciplinary cases—issues such as corruption, nepotism, and employment discrimination. It’s bound to be a challenging assignment: there are more than 50,000 employees in the UN and related agencies—people from vastly different backgrounds who are posted all over the globe—who will be under Painter’s jurisdiction. Painter is interested in part because he’ll have a hand in shaping the new body. It presents a unique opportunity to travel and meet legal minds from around the world. And—after almost three decades spent considering local cases—a chance to weigh in on universal woes.

FOR SOMEONE ACCUSTOMED to running for reelection, the application process was a novel experience. Six weeks after sending in his résumé for the UN position, Painter was notified that he was one of 45 finalists who would be interviewed in the International Court of Justice at The Hague, Netherlands. Which is how he found himself last year, landing in the city that is the center of international legal arbitration.

At The Hague, there was a test; finalists were given a facts scenario and a copy of UN Staff Rules and Regulations and asked to write an opinion on the case. It was followed by an interview with five members of the UN Internal Justice Council, a panel of UN management employees and legal scholars. The quintet—who came from Australia, Sierra Leone, South Africa, Great Britain, and Sri Lanka—were responsible for advising the UN General Assembly on candidate selection. Two months later, he learned that he had been nominated.

Also in the running for the appeals court was another American—a female judge from Minnesota (no American was nominated for the trial court). Painter says that Susan Rice, the U.S. ambassador to the UN, was intent on getting a U.S. citizen on one of the courts, and it’s his understanding that she made the decision to support him. As it turned out, getting the UN appointment was a bit like running for office. The American delegation asked that he come to New York to “campaign” on his own behalf. He went, at his own expense, met with delegates, and attended a reception for ambassadors in Rice’s quarters—“top of the Waldorf,” Painter says—where Rice made a pitch for him to her UN colleagues. On March 2, Painter watched the action live on his computer from his Cincinnati office, anxious as UN members milled around before the vote that elected him as well as judges from India, Uruguay, Ghana, Argentina, France, and Canada.

Painter seems a bit surprised by the support he got from the U.S. mission to the UN. He’s a Republican; the other nominee was a Democrat, and he assumed those connections would help her. He did have a bipartisan cheering section behind him, though, including letters of support from Democrats Gov. Ted Strickland and Cincinnati Mayor Mark Mallory, and Republican Senator George Voinovich. But Painter hopes the process was held to a higher standard than politics. “I’d like to think it was my résumé,” he says.

PAINTER WILL OFFICIALLY leave his appeals court job in September. “I wouldn’t need to quit here to do the UN job,” he says. “But I’m ready for something new anyway.” He’ll spend the summer cleaning out the office that has been his second home for the last decade. There, the walls include, among other things, a framed copy of a 2007 newspaper article about him. Painter isn’t shy about sharing the accolades and distinctions he’s accumulated over the years; he mentions the Distinguished Alumni Award he received from the UC College of Law last month. “I think it’s good when you’ve worked yourself half to death all this time and somebody notices,” he says.

His mementos will be relocated, along with his treadmill, computer, books, and the other tools of his law practice and writing. This part-time job, he says, will give him more time for his writing—and for guiding others down the path to clearer prose. He’ll continue teaching and will likely expand the number of writing seminars he conducts as well. “I’m not retiring,” he tells me pointedly. As long as there are briefs crawling with garbled law-speak, he’ll have plenty of work to do.

Originally published in the June 2009 issue.

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